ant Eden to Hunt, (who was a banker,) for money borrowed; that Hunt indorfed it over to Horfman as a fecurity for money advanced in the course of trade; that in 1793 Hunt and Eden fettled accounts and the balance was paid, but the note in queftion was not asked for or delivered up; that the note had passed backwards and forwards feveral 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 occafion (the date of which did not appear, but which was before the last time the note was depofited) told Horfman that it must not be negotiated, as he should want it when he fettled 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 fufpicion as ought to have induced him to make fome inquiry concerning it; and it was compared to a bill of exchange negotiated after it has become due, in which cafe the holder muft ftand upon the title of the perfon from whom he receives it. On the part of the Plaintiff it was infifted, 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 fecurity; 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 circumftance to raife fufpicion, amounted to faying that an open account existed between Hunt and Eden, and that the note had not been paid; that Eden ought, under thefe circumftances, to fuffer for his own neglect in not getting the note back when he fettled accounts with Hunt. The jury found a verdict for the Defendant. Le Blanc Serjt. now moved for a rule nifi 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 Horfman, fo as give the latter an absolute property in it, but only fo as to give him a fecurity to the amount of the balance due from the former. Suppofe this to have been the cafe of a bond: it would have been in the nature of a pledge, and good for nothing after the debt had been fatisfied. The queftion then is, whether there be any difference between a bond, and a note circumftanced like the present, which has been placed 1799. HORSMAN V. EDEN. in 1799. HORSMAN บ. EDIN. April 22d. 3 Eaft, 298. 6 Eaft, 456. If the grantee of a market under in the hands of a creditor as a mere fecurity for his debt, except that the latter may be put in fuit in the name of the holder, but the former must be fued in the name of the principal? When the note was put into the hands of Horfman, he was told that he muft not confider it as his own, for that Hunt might want it when he fettled accounts with the Defendant. I agree with my Brother Le Blanc, that this circumftance did not import that the note had been paid at that time, but it is decifive to fhew that it was not negotiated to Horfman, but only depofited with him as a pledge; the confequence of which is, that it must remain in his hands fubject to the fame 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 caufe, there can be no objection to our granting a rule to fhew cause. BULLER J. There are many fituations in which one man is bound to ftand in the place of another; and this feems to me to be one of the cleareft cafes that ever came before the Court. Here is direct evidence that Hunt told Horfman that he muft not negotiate the note, as he fhould want it when he fettled accounts with the Defendant. Did not that amount to faying, "The Defendant has a charge and lien on the note: you must not confider it as cash, but muft ftand in my fituation." 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 fay that I was diffatisfied with it. The cafe was not confidered, 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 fhew cause. A HOLCROFT v. HEEL. CTION on the cafe; For that whereas the Plaintiff, on the ift 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, letters patent 1uffer another to erect a market in his neighbourhood and use it for the space of twenty-three years without interruption, he is by such ufer barred of his action on the cafe 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 called Market Clofe in Northcott, otherwife Southall, in the county of Middlefex, and of a market holden, and to be holden there, in or upon every Wednesday, for the buying and felling of horfes and all other kinds of cattle, together with toll, ftallage and other commodities, to fuch like market appertaining; whereby great gains, profit and advantages, during all the time aforefaid, 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 faid 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, whilft the faid Plaintiff was fo poffeffed of his faid 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 faid Plaintiff ought to be held and was held, at &c. wrongfully and injuriously and without any legal warrant or authority whatfoever, at Hayes, in the faid county of Middlefex, near to Northcott, otherwife Southall aforefaid, and within three miles of the faid place where the faid market of the faid Plaintiff was fo held and ought to be held as aforefaid, levied and erected and caufed to be levied and erected a certain other market for the buying and felling of cattle, and then and there wrongfully and injuriously, and without any legal warrant or authority whatsoever, held and kept the faid laft-mentioned market, whereby divers great quantities of cattle were then and there brought to, and bought and fold at, the faid market fo levied, erected, held and kept as laft aforefaid; which otherwife on those days to the aforefaid market of the faid Plaintiff would have been brought to be there fold, and divers butchers and other perfons were induced to refort to the faid market fo levied erected held and kept at Hayes, as laft aforefaid, and there to buy cattle who would otherwife have reforted to the faid market of the faid Plaintiff at Northcott, otherwife Southall aforefaid, and there bought cattle, to the great damage of the faid Plaintiff, and to the great nuifance and detriment of the faid market of the faid Plaintiff, by reafon whereof the faid Plaintiff was greatly annoyed and difturbed in the exercife and enjoyment of his faid market, and loft, and was deprived of divers great fums of money, amounting in the whole to a large fum of money, to wit, the fum of 100l. which otherwise 1799. HOLCROFT ย HEEL. 1799. HOLCROFT ย. HEEL. otherwife would have accrued to him, and he would have had and received from the toll, ftallage and other commodities to his market appertaining and belonging; to wit, at, &c. There were nine other counts ftating the market at Southall, and the injury thereto in different ways. Plea. Not Guilty. At the trial before Eyre Ch. J. at the Weftminster 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 inquifition by writ of ad quod damnum, proceeded thus: Dedimus et conceffimus ac per prefentes pro nobis hæredibus et fuccefforibus noftris, damus et concedimus præfato F. M. et hæredibus fuis, liberam et licitam poteftatem licentiam et authoritatem quod ipfe et hæredes fui habeant teneant &c. unum mercatum in vel fuper quemlibet diem Mercurii in perpetuum, ac etiam duas ferias five nundinas annuatim, &c. unà cum curiá 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 leffee of certain penns erected in the year 1775 at Hayes, within two miles of Southall, in confequence of a quarrel between the falefmen and the proprietor of Southall market; and that cattle had been fold in thofe 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 entitled to no toll, and therefore had fuftained no injury; 2dly, that after an undisturbed poffeffion of this market at Hayes, by the Defendant for twenty-three years, the prefent action could not be maintained. The Lord Chief Juftice nonfuited the Plaintiff, giving him leave to move to fet that nonfuit afide, and if the Court fhould think he ought to have recovered, then a verdict to be entered for him with 1s. damages. Accordingly, Le Blanc Serjt. early in this term moved for a rule nifi for that purpofe, and urged, ift, that it was not neceffary in a grant of toll to specify the particular fums 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 tices (fee alfo the Regifler, p. 103.); but Montague Ch, J. held the contrary, and in Pulm.79. faid that it was agreed by Popham in Heedie's cafe (fee Heddy v. Wheelboufe, Gre, Eliz. $58. and 591) that the King ought having been granted as was ufually taken at markets of this kind, the Plaintiff was entitled to take reafonable toll, and that if he exacted unreafonable toll he did it at the peril of forfeiting his market (a). 2dly, Suppofing 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 cafe of a commoner who may maintain an action for injury to his common, though he have no cattle to put in (b). 3dly, That the only ground on which the Defendant's poffeffion of the market for more than twenty years could defeat the Plaintiff's right of action, was the prefumption which it afforded of a grant; but that all fuch prefumption had been rebutted in this cafe by the proof which was given at the trial of the commencement of the Defendant's market. The Court inclined againft the Plaintiff's application, but granted a rule to fhew caufe. On this day the cafe 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 undifturbed poffeffion of the market by the Defendant for twentythree years was a clear bar to the Plaintiff's right of action, the sounfel for the Plaintiff declined arguing the cafe. Per Curiam, ought to determine the quantum of toll. Meere 474. S. C. In Ofbufton v. James and others, 2 Lutr. 1377. where the fame words were used in the grant as in the prefent cafe, the fame objection was taken, but judgment was given on another point. A grant of fuch toll to be taken at two bridges, as is ufed to be taken, ibi et alibi infra regnum Anglia was held uncertain and void in Lightfoot v. Lenet, Gro. Jac. 444. Rule difcharged. (c) (a) Contra Com. Dig. tit. Market (I); only the Toll is forfeited. (b) Vid. Wells v. Watling, 2 Bl. 123.3. (c) In Campbell v. Welfen, 3 Faft, 298. Le Blanc J. faid that the ground on which this cafe went off, was that on a new trial the Judge would direct the jury to prefume a grant after 20 years undisturbed poffeffion. 1799. HOLCROFT 400 HEEL. DD 2 |