
    The Inhabitants of Taunton versus Dolly Caswell, Administratrix.
    
      Oct. 27th.
    
    A town sold to C a privilege of fishing in a river, with a condition that they would not sell any further privilege ; they did however afterwards sell another privilege to D, and thereupon C refused to accept and pay for the privilege first sold. Helds that the town could maintain no action against C for the purchase money, notwithstanding the sale to D was unauthorized by law and void, and notwithstanding G joined D in carrying on the fishery under the privilege sold to D.
    In an action by a town to recover the price of a right of fishing, sold by them under an authority derived from a statute, it is not necessary to set forth in the declaration their authority to make the sale.
    Assumpsit to recover the price of a right to fish with one seine or net in Taunton Great river, for the year 1820, sold by the plaintiffs to one Caswell, the defendant’s intestate, by public auction, in November 1819, for 132 dollars.
    At the trial, before Wilde J., the defendant proved, that at the time when the privilege was bid off, it was a condition of the sale, that the plaintiffs should not sell any further privilege of fishing in that river in the season of 1820, but that they did, in February 1820, sell to one Dean another privilege, and that Dean, in March following, selected a place for exercising his privilege and took fish in that season. It however appeared, that there was a condition in the sale to Dean, that it should be void, if the town had no right by law to make the sale; and the judge was of opinion, that the town had no right to make the sale to Dean, and that it was void. It appeared also, that in March 1820, the intestate offered, in town meeting, to select a place for fishing, if the town would indemnify him against Dean, and that no such indemnification was given, and that the intestate did not select any place ; but it was proved that he was concerned in fishing with Dean, who did select a place as before mentioned.
    The defendant agreed to be defaulted; but if the Court should be of opinion that the plaintiffs were not entitled to judgment, the default was to be taken off, and the plaintiffs were to become nonsuit.
    Williams, for the defendant,
    objected to the declaration because it did not set out the plaintiffs’ right to dispose of the fishery. Their title being derived neither from the common law, nor from a public statute, but from a private act, they should have recited the act, and have averred, that in making the sale to Caswell, they had complied with its requisitions. Com. Dig. Pleader, C, 76 ; Bac. Abr. Pleas §c., B, 5, 3. He also contended, that on the merits the plaintiffs had no cause of action, the condition of the sale to Caswell having been broken.
    
      Aug. 1827, at Taunton.
    
    
      W. Baylies and Cobb, contra.'
    As the sale to Dean was not made at the time prescribed by St. 1819, c. 133, it was in effect no sale, and so the condition in the first sale was not broken.
    The contract having been executed on the part of the plaintiffs, and nothing remaining to be done by the defendant but to pay money, a special count was unnecessary. 1 Chit. Pl. 334. The St. 1818, c. 106, under which the sale was made, was a public statute. Burnham v. Webster, 5 Mass R. 266; Commonwealth v. M' Curdy, ibid. 324.
    
      Williams, in reply, said that admitting it to be a public statute, still it should have been referred to in the declaration 1 Chit. PL 218.
   The opinion of the Court was drawn up by

Parker C. J.

We think it clear that the plaintiffs have no right to recover. The contract of sale was conditional, the condition being for the benefit of the purchaser. They violated this agreement, and by that means forfeited their right to the price. That the sale to Dean may have been unlawful, maltes no difference in their favor, for they gave him authority, and they have no right to deny their power so to do. Nor does it make any difference that the intestate joined Dean in carrying on the fishery under his license ; for finding his own to be void on account of the sale to Dean, he was at liberty to take his chance with him. The intestate’s offer to pay the price for which the privilege was sold, provided the town would indemnify him against the claim ol Dean, and their refusal to do this, takes away all equitable ground in their favor.

We find no validity in the objection to the declaration; but on the merits of the case we think the default ought be taker off and the plaintiff nonsuited. 
      
      
         Morton J. did not sit in this cause.
     