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.
*291We 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.