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1799.

HORSMAN

EDEN.

ant Eden to Hunt, (who was a banker,) for money borrowed; that Hunt indorsed it over to Horsman as a security for money advanced in the course of trade; that in 1793 Hunt and Eden settled accounts and the balance was paid, but the note in question was not asked for or delivered up; that the note had passed backwards and forwards several times between Hunt and Horfman, during all which time the former was indebted to the latter in more than 400l.; and that Hunt upon one occasion (the date of which did not appear, but which was before the last time the note was deposited) told Horsman that it must not be negotiated, as he should want it when he settled accounts with Eden. For the Defendant it was contended, that as the note had been taken out of Horfman's poffeffion, and again placed in his hands so long after it bore date, and with an intimation not to negotiate it, it was taken under fuch circumftances of suspicion as ought to have induced him to make some inquiry concerning it; and it was compared to a bill of exchange negotiated after it has become due, in which case the holder muft stand upon the title of the person from whom he receives it. On the part of the Plaintiff it was insisted, that there was no analogy between a bill payable on a day certain and this note, which being made payable on demand, with lawful intereft, was intended as a permanent security; that the intimation given by Hunt to Horfman not to negotiate the note, as he might want it when he fettled accounts with Eden, fo far from being a circumstance to raise fufpicion, amounted to saying that an open account existed between Hunt and Eden, and that the note had not been paid; that Eden ought, under these circumstances, to suffer for his own neglect in not getting the note back when he settled accounts with Hunt. The jury found a verdict for the Defendant.

Le Blanc Serjt. now moved for a rule niß for a new trial, on the part of the Plaintiff, and contended, on the grounds above ftated, that the verdict was contrary to law and evidence.

EYRE Ch. J. It is clear that this note was not regularly negotiated from Hunt to Horsman, fo as give the latter an absolute property in it, but only so as to give him a security to the amount of the balance due from the former. Suppose this to have been the case of a bond: it would have been in the nature of a pledge, and good for nothing after the debt had been satisfied. The question then is, whether there be any difference between a bond, and a note circumstanced like the present, which has been placed

1799.

HORSMAN

EDEN.

in the hands of a creditor as a mere security for his debt, except that the latter may be put in fuit in the name of the holder, but the former must be sued in the name of the principal ? When the note was put into the hands of Horsman, he was told that he must not consider it as his own, for that Hunt might want it when he settled accounts with the Defendant. I agree with my Brother Le Blanc, that this circumstance did not import that the note had been paid at that time, but it is decisive to thew that it was not negotiated to Horsman, but only deposited with him as a pledge; the consequence of which is, that it must remain in his hands subject to the same equity as if it were in the hands of the original payee. However, as I understand that the verdict did not pass to the entire fatisfaction of the learned Judge who tried the cause, there can be no objection to our granting a rule to shew cause.

BULLER J. There are many fituations in which one man is bound to stand in the place of another; and this seems to me to be one of the clearest cases that ever came before the Court. Here is direct evidence that Hunt told Horsman that he muft not negotiate the note, as he should want it when he settled accounts with the Defendant. Did not that amount to saying, “ The Defendant has a charge and lien on the note: you muft not confider it as cash, but muft stand in my situation.” It is impoffible to understand the words in any other way.

Rooke J. Though the verdict was not altogether agreeable to my directions to the Jury, I cannot say that I was diffatisfied with it. The case was not considered, at the trial, in the light in which it has been viewed by my Lord and my Brother Buller ; but I entirely concur in their opinion.

Le Blanc finding the opinion of the Court against him, declined taking a rule to thew cause.

April 22d. 3 East, 298.

HOLCROFT v. HEEL. 6 Eas, 456. If the grantee of a market under ACTION on the case; For that whereas the Plaintiff

, on the ift letters patent

day of March 1798 and before, was and from thence hifrom the crown, therto hath been and still is lawfully poffeffed of a certain close, Autrer another to erect a market in his neighbourhood and use it for the space of ewenty-three years without interruption, he is by such uler barred of his action on the case for disturbance of his market. The crown is not.

Quære. Whether if no specific toll be granted in the letters patent, the grantee be entitled to any toll, and whether in such case he can support any action for an injury to his market?

called

1799.

HOLCROFT

EEL,

called Market Clofe in Northcott, otherwise Southall, in the county of Middlesex, and of a market holden, and to be holden there, in or upon every Wednesday, for the buying and selling of horses and all other kinds of cattle, together with toll, stallage and other commodities, to such like market appertaining; whereby great gains, profit and advantages, during all the time aforesaid, until the committing of the grievance hereafter next mentioned, accrued to and were received by the faid Plaintiff, to wit, at, &c., yet the Defendant well knowing the premises, but contriving and fraudulently intending craftily and fubtilly to deceive and defraud the said Plaintiff, and to deprive the faid Plaintiff of the profits emoluments and advantages which he might and ought to have had and enjoyed from his faid market, whilst the said Plaintiff was fo poffeffed of his said market, to wit, on Wednesday the 7th day of March 1798, and on divers other Wednesdays between that day and the day of- fuing out the original writ of the said Plaintiff, being days on which the faid market of the said Plaintiff ought to be held and was held, at &c. wrongfully and injuriously and without any legal warrant or authority whatsoever, at Hayes, in the said county of Middlefex, near to Northcott, otherwise Southall aforesaid, and within three miles of the said place where the said market of the said Plaintiff was so held and ought to be held as aforesaid, levied and erected and caused to be levied and erected a certain other market for the buying and selling of cattle, and then and there wrongfully and injuriously, and without any legal warrant or authority whatsoever, held and kept the said last-mentioned market, whereby divers great quantities of cattle were then and there brought to, and bought and fold at, the said market fo levied, erected, held and kept as last aforesaid; which otherwise on those days to the aforesaid market of the said Plaintiff would have been brought to be there fold, and divers butchers and other persons were induced to resort to the faid market fo levied erected held and kept at Hayes, as last aforelaid, and there to buy cattle who would otherwise have resorted to the said market of the said Plaintiff at Northcott, otherwise Southall aforesaid, and there bought cattle, to the great damage of the said Plaintiff, and to the great nuifance and detriment of the faid market of the said Plaintiff, by reason whereof the said Plaintiff was greatly annoyed and disturbed in the exercise and enjoyment of his faid market, and loft, and was deprived of divers great sums of money, amounting in the whole to a large fum of money, to wit, the fum of 100l. which VOL. I

otherwise

DD

1799.

HOLCROFT

HEEL.

otherwise would have accrued to him, and he would have had and received from the toll, stallage and other commodities to his market appertaining and belonging; to wit, at, &c.

There were nine other counts stating the market at Southall, and the injury thereto in different ways.

Plea. Not Guilty.

At the trial before Eyre Ch. J. at the Westminster fittings, after laft Hilary term, it was proved, that the Plaintiff was leffee of this market at Southall, the title to which was founded on letters patent of the 10 W.3., which, after reciting an inquisition by writ of ad quod damnum, proceeded thus: Dedimus et conceffimus ac per presentes pro nobis hæredibus et succesoribus nostris, damus et concedimus præfato F. M. et hæredibus fuis, liberam et licitam poteftatem licentiam et authoritatem quod ipse et hæredes fui habeant teneant &c. unum mercatum in vel fuper quemlibet diem Mercurii in perpetuum, ac etiam duas ferias fire nundinas annuatim, &c. unà cum curia pedis pulverizati ac omnibus libertatibus liberis confuetudinibus poteftatibus cuftumagiis theoloniis fallagiis piccagiis et aliis commoditatibus ad hujufmodi mercatum ferias five nundinas et curiam pedis pulverizati pertinentibus feu Spectantibus ; that the Defendant was lefsee of certain penns erected in the year 1775 at Hayes, within two miles of Southall, in consequence of a quarrel between the salesmen and the proprietor of Southall market; and that cattle had been fold in those

penns on every Wednesday fince that time. Two objections were taken to the Plaintiff's recovery; ift, That as no fpecific toll was mentioned in the letters patent, the Plaintiff was cntitled to no toll, and therefore had fustained no injury; 2dly, that after an undisturbed pofleffion of this market at Hayes, by the Defendant for twenty-three years, the present action could not be maintained. The Lord Chief Juftice nonsuited the Plaintiff, giving him leave to move to set that nonfuit aside, and if the Court fhould think he ought to have recovered, then a verdict to be entered for him with is. damages.

Accordingly, Le Blanc Serjt. early in this term moved for a rule nis for that purpose, and urged, ift, that it was not necefsary in a grant of toll to specify the particular sums to be paid, Palm. 86. (a); that by the words of the letters patent such toll

having

(a) This was the opinion of three Juf. Palm.79. faid that it was agreed by Popbans tices (see also the Register, p. 103.); but in Heedie's cafe (see Heddy v. W beelboufe, Muriague Ch, J. held the contrary, and in Cro, Eliz. 558. and 591.) that ibe King

ought ought to determine the quantum of toll. (a) Contra Com. Dig. tit. Market (1) ; Moore 474. S. C. In Ofbufton v. James only the Toll is forfeited. and others, 2 Lutw. 1377. where the same (6) Vid. Wells v. Watling, 2 Bl. 1-33, words were used in the grant as in the (s) In Campbell v. Wulfun, 3 Faf, 298. present case, the fame objection was taken, Le Blanc J. said that the ground on which but judgment was given on another point. this case went off, was that on a new trial A grant of such toll to be taken at two the Judge would direct the jury to prefume bridges, as is used to be taken, ibi et alibi a grant after 20 years undifturbed poffellivan. infra regnum Anglia was held uncertain and void in Lightfooi.v. Lenet, Cro. Jac. 424.

1799.

HOLCROFT

HEEL,

having been granted as was usually taken at markets of this kind, the Plaintiff was entitled to take reasonable toll, and that if he exacted unreasonable toll he did it at the peril of forfeiting his market (a). 2dly, Supposing the Plaintiff not entitled to toll, yet that as he had an undoubted right to the market at Southall, the levying another market within two miles interfered with that right, and was an injury for which an action might be maintained, as in the case of a commoner who may maintain an action for injury to his common, though he have no cattle to put in (6). 3dly, That the only ground on which the Defendant's pofseflion of the market for more than twenty years could defeat the Plaintiff's right of action, was the presumption which it afforded of a grant; but that all such prefumption had been rebutted in this case by the proof which was given at the trial of the commence. ment of the Defendant's market.

The Court inclined against the Plaintiff's application, but granted a rule to thew cause.

On this day the case was to have been argued by Le Blanc and Shepherd Serjts. for the Plaintiff'; and Cockell, Runnington, and Sellon, Serjts. for the Defendant.

But EYRE Ch. J. intimating a decided opinion, that the undisturbed possession of the market by the Defendant for twentythree years was a clear bar to the Plaintiff's right of action, the counsel for the Plaintiff declined arguing the case. Per Curiam,

Rule discharged. (c)

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