1805. The Bailiffs, &c. of against DISTON. 450 ] action on the case: So in Blakey v. Dinsdale (a), where it was holden that a distress could not be made for the toll of goods sold out of the market, though fraudulently sold TEWKERBURY there to avoid the toll; yet Lord Mansfield said, That if that mode of sale were a fraud upon the toll, the remedy was by special action on the case; and he alluded to an instance of such an action brought by the city of London against persons for bringing corn just by their market, in order to avoid the toll. In confirmation of the same opinion, Lord Kenyon, in Moseley v. Pearson (b), which was an action on the case for selling goods in a clandestine manner in a market, whereby the plaintiff was prevented from taking his toll in specie, said, "That if the plaintiff's de mand had arisen on a contract of sale by sample, he would have brought a different kind of action, namely, an action for the fraud in not bringing the goods into the market." In this view of the case the action may be brought against buyer, or seller, or both as where a wrong is committed by more than one, the party injured has his election to sue all or each; and if brought against two, one may be acquitted and the other found guilty. Even a possibility of damage to the owner of a market has been deemed to be a sufficient ground of action; and, therefore, said Powell, J. in Ashby v. White (c), where one has a market and toll, and another is coming with goods to the market, for which, if sold, toll would be due, and a third person hinders him from coming to the market, an action lies for the lord of the market, because of the possibility of damage. So by Wylde, J.'in Turner v. Sterling (d); " If one have a beast-market and a toll for sale, and another hinder the beasts from going thither; though non constat whether they should be sold, yet for the possibility of that and of the loss of the toll thereon an action lies." And for this he cites 41 Ed. 3, 21, pl. 17, b. And the like was said by the Court in giving judgment in the case of the Tunbridge Wells dippers (e). Upon the 5th count (f) it was further argued, That in (a) Cowp. 661. (b) 4 Term Rep. 107. (c) 5 Mod. 49. (d) 2 Ventr. 26. (f) A verdict had been taken at the trial for the defendant on the 5th count, which alleges that the wheat was brought into the market to be sold, and there sold to the defendant, on an understanding on both sides at the time that the facts proved did not sustain that count; but it was aftergards agreed that the case should be argued upon the whole declaration. order 1805. The Bailiffs, &c. of TWKESBURY * againat DDTON. *[ 451 ]. order to protect the plaintiffs' right, the law by a fiction would consider the delivery of the sample in the market at the time of the sale as a symbolical delivery of the whole commodity in bulk, pars pro toto, in order to meet the averment in this count, that the defendant had purchased wheat brought into the market. In like manner as by fiction of law a sale in a house adjoining to, and during the continuance of the market, is considered as an extension of, and a sale in the market, in support of the owner's right to toll: and the statute of frauds (a) considers a part delivery as equivalent to a delivery of all the goods contracted to be sold. Then, upon the principle of relation, when the corn was afterwards delivered in bulk, in pursuance of the contract of sale made in the market, of which it was the perfection, the delivery related back to the time and place of the contract, and is to be considered as one entire act of sale and delivery in the market. Lord Coke (b), speaking of sales in market overt, which shall bind the property of third persons, says, "That the contract must be originally and wholly made in the market overt, and not to have the inception out of the market, and the consummation in it." For this he cites Dy. 99, b; where one bought stolen beasts over night for a certain price, and paid earnest,, with an election to annul bis bargain before noon the next day; and on the morrow he agreed to his bargain in open market, and paid the whole money, and also to for the beasts: and held, that the property was not altered; because the bargain was made out of the market, and the assent given afterwards should have relation to the first communication; the seller being bound by the contract, and the buyer only having the power of dissolving it. [Lord Ellenborough, C. J. Is not the effect of that case rather this, that the policy of the law, which binds the property of another by sale in market overt, requires that every part of the transaction, as well the contract of sale as the delivery, shall take place in the open [ 452 | market, otherwise it shall not bind the property of third persons?] The rule laid down in 10 Rep. 49, a, is, That when to the perfection of an estate or interest divers acts or things are requisite, the law has more regard to the original (a) 29 Cor. 2, c. 3, 5. 17. (b) 2 Inst. 713, 14. act: 1805. against DISTON. act; for that is the fundamental part on which all the others are founded; and the like rule was given in HaverThe Bailiffs, &c. of gill v. Hare (a), " That the execution of all things execuTEWKESBURY tory respects the original act, and shall have relation thereto, and all make but one act, though done at several times." So when one delivers an escrow to take effect as his deed upon the performance of a certain condition; upon the condition performed, it shall take effect from the first delivery, and bind by relation. Bro. non est Factum, pl. 5. So a bargain and sale, which is not perfected till enrollment, has relation back afterwards. [Lord Ellenborough, C. J. These are all authorities to shew relations back in point of time to the first act done: but they do not refer to local acts, from whence the parties are to derive local rights. How can an act done in one place be transferred by relation to another place, where the locality is to give it its effect? and How can any relation supply the fact of measuring by the hands of the meter to ascertain the toll?] Every fiction of law is against the truth of the case; but the law is astute in taking the symbol for the reality in support of right; and here the sample delivered is not negatived to be part of the corn contracted for, as it was in Cooper v. Elston (b); and may, therefore, fairly be taken as a delivery of a part for the whole. [ 453 ] Arguments for the defendant. What has been said in support of the 5th count is repugnant to the arguments urged in favour of the other counts; for these impute fraud either in fact or in law to certain acts of the defendant, which, it is said prevented the seller from bringing the corn in bulk into the market, and thereby precluded the plaintiffs from taking their toll in specie, to the prejudice of their franchise; whereas the argument upon the 5th count rebuts the imputation of such a fraud in evading the plaintiff's right of toll, by assuming that the corn was actually brought in bulk into the market, and that the toll became due upon the sale of it there; but alleging as the gravamen of the complaint that the toll which had become due on such sale was not paid by the defendant; which is a complaint of an entirely opposite nature from those stated 1805. The Bailiffs, &c. of against DISTON. [ 454 ] in the other counts, and cannot be sustained by the same proof. It is sufficient, however, to answer that the 5th count is disproved by the facts stated: for the case states that the plaintiffs' right of toll is upon corn brought into TEWKESBURY the market to be sold, and there sold in bulk, and that the corn purchased by the defendant was not brought into the market; and consequently the toll, qua toll, did not accrue. The only question then which can be made, arises upon the other counts, Whether the mere act of purchasing corn by sample in the plaintiffs' market, without paying toll, can be imputed to the defendant as a fraud upon their franchise? Now, unless fraud in fact were proved and found by the jury; unless it could have been shewn that the defendant, by some trick, contrivance, violence, or conspiracy, prevented corn from being brought into the plaintiffs' market, which would otherwise have been carried there, in which case a presumption of loss of toll would arise, there is no authority nor principle for supporting an action of this nature, founded in tort, against the buyer;-and fraud in fact, not having been found by the jury, caunot be presumed. Legal inferences of fraud may indeed arise out of endeavours to evade positive obligations or restrictions imposed by law; but there was no previous obligation on the defendant to buy corn in bulk in this or any other market, nor was he restricted from buying it by sample: and nothing can be deemed a fraud in law, unless under all possible circumstances the act done must be fraudulent. It cannot then be deduced from an accidental, and for aught appears, a necessary purchase of it by sample in a market, whither, it may be assumed, that the corn would not otherwise have been brought in bulk, or at least that the defendant did nothing to prevent the bringing of it there. The fallacy of the plaintiffs' argument lies in assuming that the mere fact of such a purchase by sample without paying toll, is an actual wrong to their franchise; which can only be substantiated by shewing an extension of their prescription, from a right to toll on all corn brought in bulk into the market, and there sold, to a right to toll on all contracts for the sale of corn made there, whether the corn be brought into the market or not. While commerce was in its infancy, it was convenient that the necessaries of life should be brought in bulk to 1805. to certain fixed places, whither the neighbouring people might resort to supply their wants with certainty; and for The Bailiffs, &c. of the placing of the commodity on the spot by the seller, and TEWKESBURY the convenience of receiving it there by the buyer, it was against DISTON. reasonable that a small toll should be paid. But this is an attempt to take advantage of a change of habits in the people, by drawing within the prescription executory contracts of sale which never were in the contemplation of the crown when the grant of these franchises was originally made, and on which it was not in the power of the crown to grant toll. [455 Toll is not necessarily incident to a market or fair, but must be prescribed far. The right of holding markets or fairs was a royal franchise, originally granted to the lord of the territory where it was holden, though it may be severed from the soil. And in treating upon this subject, Lord Coke (a) throughout speaks of toll as applicable only to things brought to the market to be sold. And it is expressly said by Powel, J. in Kerby v. Wichelow (b), that the king could not have granted toll upon goods not brought to the market. Nor would it be reasonable to extend the claim of toll over mere executory contracts of sale; for, at the present day, it is well known that large contracts are made in all public markets for the sale of corn at a great distance from the spot, much of it perhaps on shipboard, and imported from foreign countries, for the purpose of being distributed in dif ferent parts of the empire, according to the exigencies of government and the demand and supply of the people. Upon all which contracts, though the corn never was intended to be nor could perhaps be brought to the particular market where it was contracted for, toll would be demandable, to the great hindrance and burthen of commerce. On the contrary, the policy of the law has always been to keep these privileges strictly confined within their ancient limits; and, from early times, it appears (c) that complaints were nade of "new tolls and exactions brought forward under the vizard of antiquity." Here the plaintiff's only prescribe for toll of corn brought into the market and there sold: and in the first four counts they state that the defendant, intending to defraud and deprive them of their toll, wrongfully, deceitful(•) 2 Inet. 222, 3. ~(a) 2 Inst. 2:0, &c. (4) Lutw. 1502, ly, |