/ersity of California 
 outhern Regional 
 Library Facility
 
 THE LAW 
 
 OF 
 
 MARKETS AND FAIRS
 
 A TREATISE 
 
 ON THE LAW OF 
 
 MARKETS AND FAIRS 
 
 WITH THE 
 
 PRINCIPAL STATUTES RELATING THERETO 
 
 J. G. PEASE 
 
 OF THK INNER TEMPLE AND WESTERN CIRCUIT, BARISTER-AT-LAW 
 B.A. (LOND.) 
 
 HERBERT /CHIT!: 
 
 OF THF. INNER TEMPLE AND WESTERN CIRCUIT, BARRISTER-AT-LAW 
 I. A. (OXON. 
 
 LONDON 
 KNIGHT AND CO. 
 
 4 & 4 A LA BELLE SAUVAGE YARD, LUDGATE HILL 
 
 (LATE OF 90 FLEET STREET) 
 
 1899
 
 DEDICATED 
 
 BY PERMISSION 
 TO THF. 
 
 RIGHT HON. SIR NATHANIEL LINDLEY 
 
 MASTER OF THE ROLLS
 
 PREFACE. 
 
 OUR aim has been to state in a book of moderate size 
 the whole of the English law of markets and fairs. 
 
 Most of the materials were collected by one of us 
 more than ten years ago, but their arrangement for the 
 press was postponed upon the appointment of the Royal 
 Commission on Market Rights and Tolls. 
 
 The first Report of the Commissioners was published 
 in 1889. It contains materials for a history of markets 
 and fairs, prepared by Mr. Elton, Q.C., and Mr. B. F. C. 
 Costelloe, from which we have derived assistance. In 
 the final Report, published in 1891, considerable altera- 
 tions in the law were recommended ; but Parliament 
 has shown no inclination to carry them out. 
 
 This book consists of an Introduction and two Parts, 
 with an Appendix. Part I. contains the common law of 
 markets and fairs, and shows how it has been modified 
 by statute. 
 
 In Part II. we have set out and commented on the 
 enactments under which in recent times markets have 
 usually been established. The common law seems to 
 be applicable to markets established under statutory 
 powers, except in so far as it is inconsistent with those 
 powers. Part II., therefore, does not contain the whole 
 law of statutory markets, but only such additions and
 
 viii Preface. 
 
 modifications as are contained in the Markets and Fairs 
 Clauses Act, 1847, and the general enactments confer- 
 ring on local authorities power to establish or regulate 
 markets. It is hoped that the cross-references and 
 explanations will be sufficient to enable the reader to 
 discover to what classes of markets the various pro- 
 visions of the law apply. 
 
 The Appendix consists of the principal Acts whereby 
 the common law has been modified other than those 
 set out in Part II. 
 
 We have endeavoured to refer to every reported 
 case on the law of markets decided in the English 
 Courts since the seventeenth century. Earlier cases, 
 including those in the Year Books, have been utilised 
 somewhat more sparingly, but all have been noticed 
 which seem to be still useful to lawyers. The printed 
 volumes of early records, such as the Placita de Quo 
 Warranto and the Abbrevatio Pladtorum, contain many 
 cases upon markets and fairs, but most of these 
 are only summaries of the pleadings and the findings 
 of juries, and are of little importance as legal authorities, 
 however valuable they may be to the antiquary or 
 to the historian of particular franchises. From these 
 records we have only cited typical cases to illustrate 
 the law as understood in the thirteenth and fourteenth 
 centuries. 
 
 After the Introduction had been printed our 
 attention was drawn to the passages in Professor 
 Maitland's ' Domesday Book and Beyond ' in which the 
 origin of market-rights is explained. We are glad to find 
 that the views we have adopted do not differ widely from 
 those of Professor Maitland, and we refer our readers to 
 his learned discussion of the subject.
 
 Preface. ix 
 
 We hope that this work will prove to be both a 
 concise treatise on a branch of the law about which 
 but little has been written in recent years, and a practi- 
 cal handbook for clerks of urban authorities and other 
 persons concerned in the management of markets. 
 
 We desire to acknowledge our indebtedness to Mr. 
 Stuart Moore, of the Inner Temple, for advice and 
 information readily given to us. 
 
 J. G. P. 
 H. C 
 
 December, 1898.
 
 CONTENTS. 
 
 PAGE 
 
 TABLE OF CASES . . . . . . - . XV 
 
 TABLE OF STATUTES . xxvii 
 
 INTRODUCTION. 
 
 I. NATURE OF MARKETS AND FAIRS ..... I 
 
 2. COURTS OF PIE POWDER ...... 6 
 
 3. CORRECTION OF THE MARKET . . . , . 8 
 
 4. EXTRAORDINARY JURISDICTION . . . .. . 9 
 
 5. THE CLERK OF THE MARKET. . .' ' . . . IO 
 
 PART I. 
 
 THE LAW OF MARKETS AND FAIRS 
 GENERALLY. 
 
 CHAPTER I. 
 TITLE TO THE FRANCHISE. 
 
 I. ACQUISITION BY GRANT .... 19 
 
 2. ACQUISITION BY PRESCRIPTION OR USAGE . . . 22 
 
 3. ACQUISITION BY STATUTE . . . . . -2$ 
 
 4. DEVOLUTION OF MARKET-RIGHTS . . , " . . . 27 
 
 CHAPTER II. 
 
 THE MARKET-PLACE AND PLACE FOR 
 HOLDING FAIRS. 
 
 I. THE RIGHTS OF THE PUBLIC 31 
 
 2. THE RIGHTS AND DUTIES OF THE OWNER . 33
 
 xii Contents. 
 
 PACE 
 
 3. THE RIGHT OF REMOVAL 37 
 
 4. UPON WHAT LANDS A MARKET OR FAIR MAY BE 
 
 HELD 39 
 
 5. MARKETS AND FAIRS IN CHURCHYARDS AND HIGH- 
 WAYS ... 42 
 
 CHAPTER III. 
 
 THE DAYS AND HOURS FOR HOLDING 
 MARKETS AND FAIRS. 
 
 I. THE DAYS 48 
 
 2. CHANGE OF THE DAYS 50 
 
 3. THE HOURS 53 
 
 CHAPTER IV. 
 TOLL AND STALLAGE. 
 
 I. THE NATURE OF TOLL, STALLAGE AND OTHER 
 
 CHARGES 55 
 
 2. THE RIGHT TO TOLL 56 
 
 3. THE RIGHT TO STALLAGE 63 
 
 4. TOLLS AND STALLAGE IN KIND . . . . .65 
 
 5. VARIABLE AND DIFFERENTIAL TOLLS . . . . 66 
 
 6. THE RECOVERY OF TOLL AND STALLAGE ... 66 
 
 7. THE REMEDIES FOR TOLL WRONGFULLY TAKEN . . 68 
 
 8. EXEMPTIONS FROM TOLL 69 
 
 CHAPTER V. 
 DISTURBANCE OF THE FRANCHISE. 
 
 I. DISTURBANCE BY LEVYING A RIVAL MARKET OR 
 
 FAIR . . . . . . . ... 74 
 
 2. DISTURBANCE BY ACTS OTHER THAN LEVYING A 
 
 RIVAL MARKET OR FAIR . . . . . .82 
 
 3. DISTURBANCE OF MARKET-RIGHTS VESTED IN PERSONS 
 
 OTHER THAN THE LORD 86 
 
 4. NATURE OF ACTION FOR DISTURBANCE ... 86 
 5. REMEDIES FOR DISTURBANCE OF STATUTORY MARKETS 
 
 AND FAIRS 87
 
 Contents. xiii 
 
 CHAPTER VI. 
 HOW THE FRANCHISE MAY BE LOST. 
 
 PAGE 
 
 I. FORFEITURE 90 
 
 2. SURRENDER 93 
 
 3. EXTINCTION BY ACT OF PARLIAMENT 93 
 
 4. THE FAIRS ACT, 1871 . .'..... . . 94 
 
 CHAPTER VII. 
 
 THE ADMINISTRATION OF MARKETS AND 
 FAIRS. 
 
 I. REGULATION AND BY-LAWS . . . . .96 
 
 2. WEIGHTS AND MEASURES . . . . . 98 
 
 3. SALE OF UNWHOLESOME MEAT AND PROVISIONS . 104 
 
 4. DISEASES OF ANIMALS 106 
 
 5. LICENCES FOR SALE OF INTOXICATING DRINKS . 107 
 
 6. LICENCES FOR THEATRICAL PERFORMANCES AT FAIRS 109 
 
 7. ACCOUNTS , . .Ill 
 
 CHAPTER VIII. 
 RATES AND TAXES. 
 
 I. LAND TAX . . . . . . . . . 114 
 
 2. INCOME TAX ... 115 
 
 3. RATES 117 
 
 CHAPTER IX. 
 SALES IN MARKETS AND FAIRS. 
 
 I. THE LAW AS TO SALE OF GOODS IN MARKET OVERT I2O 
 
 2. SALE OF HORSES . . 126 
 
 3. SALE OF HAY AND STRAW IN MARKETS IN AND 
 
 NEAR THE METROPOLIS 128 
 
 CHAPTER X. 
 PROCEDURE AND EVIDENCE. 
 
 I. SCIRE FACIAS 130 
 
 2. QUO WARRANTO 131
 
 xiv Contents. 
 
 PAGE 
 
 3. SUMMARY PROCEEDINGS UNDER THE METROPOLITAN 
 
 FAIRS ACT, 1868 134 
 
 4. EVIDENCE 134 
 
 PART II. 
 
 PUBLIC STATUTES RELATING TO THE 
 
 ESTABLISHMENT OF MARKETS AND 
 
 FAIRS. 
 
 THE MARKETS AND FAIRS CLAUSES ACT, 1847, AND THE 
 INCORPORATED SECTIONS OF THE RAILWAYS CLAUSES 
 
 CONSOLIDATION ACT, 1845 141 
 
 THE PUBLIC HEALTH ACT, 1875, SS. l66-l68 AND 316 . l8l 
 
 THE DISEASES OF ANIMALS ACT, 1894, S. 32 . . . . 1 89 
 
 APPENDIX. 
 
 PRINCIPAL STATUTES RELATING TO MARKETS AND FAIRS. 
 
 1. The Fairs Act, 1871 193 
 
 2. The Fairs Act, 1873 194 
 
 3. The Weights and Measures Act, 1878, Sixth Schedule, 
 
 Second Part (re-enacting 22 & 23 Viet. c. 56, ss. 6, 7, 
 
 8, and 12) 195 
 
 4. The Markets and Fairs (Weighing of Cattle) Act, 1887 . 196 
 
 5. The Markets and Fairs (Weighing of Cattle) Act, 1891 . 198 
 
 6. The Public Health (Confirmation of By-laws) Act, 1884 . 200 
 
 7. The Local Taxation Returns Act, 1860 . . . . 202 
 
 8. The Local Taxation Returns Act, 1877 .... 203 
 
 9. The Metropolitan Police Act, 1839, ss. 38-40 . . . 204 
 10. The Metropolitan Fairs Act, 1 868 . . . 206 
 
 MODEL BY-LAWS ISSUED BY THE LOCAL GOVERNMENT 
 
 BOARD . . . . I . . ... 208 
 
 INDEX .'.... ... . . . . .215
 
 TABLE OF CASES CITED. 
 
 [THIS table does not contain the cases cited from the Placita de Quo 
 Warranto, Abbrevatio Placitorum, or Rotuli Hundredorum. In citing 
 cases from these records, it has been thought sufficient to refer to the pages 
 of the printed volumes. These volumes are referred to respectively by the 
 abbreviations, Plac. Quo. Warr. (or P.Q.W.), Abb. Plac., and Rot. 
 Hund.] 
 
 PAGE 
 
 Abergavenjiy Improvement Commissioners v. Straker, 42 Ch. D. 83 ; 
 
 58 LJ. Ch. 717 ; 60 L.T. 756 ; 38 W.R. 158 ... 89 
 
 Addington v. Clode, 2 W. Bl. 989 xxxi 
 
 Agar v. Lisle, Hob. 187 ; Hutt. 10 . * . 67, 68 
 
 Aiton v. Stephen, I App. Cas. 456 38 
 
 Andrew v. Hancock, I Bro. & Bing. 37 ; 3 Moore, 278. . . 115 
 
 Anon., 12 Mod. 225 132 
 
 , 12 Mod. 521 122 
 
 Ashby v. White, 6 Mod. 49 ; 2 Ld. Raym. 938 ; I Salk. 19 ; Holt. 
 
 524 85 
 
 Ashworth v. Heyworth, L.R. 4 Q.B. 316; 38 L.J.M.C. 91 ; 20 
 
 L.T. 439; 17 W.R. 668; 10 B. & S. 309 . . . 152,153 
 Attorney-General v. Brecon (Mayor of), 9 Ch.D. 204 ; 48 L.J.Ch. 
 
 153; 40 L.T. 52; 27 W.R. 332 25 
 
 v. Cambridge (Mayor of), L.R. 6 H.L. 303; 22 
 W.R. 37 145 
 
 v. Great Eastern Railway Co., 5 App. Cas. 473; 
 
 49 LJ.Ch. 545 ; 42 L.T. 810; 28 W.R. 769 ; 44 J.P. 648 . 29 
 
 v. Horner, II App. Cas. 66 ; 14 Q.B.D. 245 ; 55 
 L.J.Q.B. 193, 54 Id. 227; 54 L.T. 281 ; 34 W.R. 641, 33 
 
 (2. :io Id. 93 ; 50 J.P. 564, 49 Id. 326 . . 24, 31, 34, 41, 43, 44, 49 
 
 v. Metropolitan Railway Co., [1894] I Q.B. 384; 
 
 69 L.T. 811 ; 42 W.R. 381 ; 58 J.P. 342 ; 9 R. 598 . . 146 
 
 v. Scott, 28 L.T. 302 ; 21 W.R. 265 . . 112, 116 
 
 Austin v. Whittred, Willes, 623 31, 40, 57 
 
 Ayr Harbour Trustees v. Oswald, 8 App. Cas. 623 . . .182 
 
 Bailey v. Appleyard, 8 A. & E. 161 ; 2 N. & P. 257 ; I W., W. & 
 
 H. 208; 2jur. 872 .' 24 
 
 Ball v. Ward, 33 L.T. 170 * . . 45 
 
 Barker v. Reading, W. Jones, 163 ; Palm. 485 .... 127 
 
 Barraclough v. Johnson, 8 A. & E. 99 ; 3 N. & P. 233 ; 2 Jur. 839 136 
 
 Barry v. Midland Railway Co., I.R. I C.L. 130 . . . . 179 
 
 Basset's Case, Dyer, 276 b 131 
 
 Beaufort (Duke of) v. Smith, 4 Exch. 450 ; 19 L.J.Ex. 97 60, 136, 137 
 Beckett . Midland Railway Co., L.R. 3 C.P. 82 ; 37 L.J.C.P. 11 ; 
 
 17 L.T. 499; 16 W.R. 221 146
 
 Table of Cases. 
 
 M 
 
 I'AGE 
 
 Bedford (Duke of) v. Emmett, 3 B. & Aid. 366 . . . 55, 64, 66 
 v. Overseers of St. Paul, Covent Garden, 51 
 
 LJ.M.C. 4IJ45L.T. 616 ; 30 W.R. 411 ; 46 J.P. 581 55,64, 118 
 Benjamin v. Andrews, 5 C.B.N.S. 299; 27 LJ.M.C. 310; 4 Jur. 
 
 N.S. 41 24 
 
 v. Storr, L.R. 9 C.P. 400; 43 LJ.C.P. 162; 30 L.T. 
 
 362; 22 W.R. 631 155 
 
 Bennington v. Taylor, 2 Lutw. 1517 . . . 55, 62, 64, 65, 68 
 Bentley v. Vilmont, 12 App. Cas. 471 ; 18 Q.B.D. 322 ; 57 LJ.Q.B. 
 
 18; 57 L.T. 854 ; 36 W.R. 481 ; 52 J.P. 68 . 121, 124, 125 
 
 Birmingham, In re Corporation of, I Tax Cas. 26 . . . .116 
 (Mayor of) v. Foster, 70 L.T. 371 . . . 87, 88, 89 
 Biscoe v. Great Eastern Railway Co., L.R. 16 Eq. 636 ; 21 W.R. 
 
 902 146 
 
 Black v. Sack ett, 10 B. & S. 639 152 
 
 Blackburn (Mayor of) v. Parkinson, I E. & E. 71 ; 28 LJ.M.C. 7 ; 
 
 5 Jur. N.S. 572 175 
 
 Blaker v. Herts & Essex Waterworks Co., 41 Ch.D. 399; 58 
 
 LJ. Ch. 497 ; 60 L.T. 776 ; 37 W.R. 601 ; I Meg. 217 . 30 
 
 Blakey v. Dimsdale, 2 Cowp. 66 1 68, 82, 83 
 
 Bourne v. Lowndes, 22 J.P. 354 152 
 
 Brecon Markets Co. v. Neath & Brecon Railway Co., L.R. 8 C.P. 
 
 157; 42 LJ.C.P. 63 56 
 
 v. St. Mary's (Brecon), 36 L.T. 109 . . . 117 
 
 (Mayor of) v. Edwards, i H. & C. 51 ; 31 LJ. Ex. 368 ; 8 
 
 Jur. N.S. 461 ; 6 L.T. 293 83, 84 
 
 Brett v. Beales, M. & M. 416 136 
 
 Bridgland v. Shapter, 5 M. & W. 375 28, 82 
 
 Briscoe v. Lomax, 8 A. & E. 198 ; 3 N. & P. 308 ; 2 Jur. 682 . 137 
 
 Bristow v. Cormican, 3 App. Cas. 641 135 
 
 Broadbent v. Imperial Gaslight Co., 7 H.L.C. 600 ; 7 De G. M. & 
 
 G. 436 ; 26 LJ. Ch. 276, 29 Id. 377 ; 3 Jur. N.S. 221, 5 Id. 
 
 1319 146 
 
 Brune v. Thompson, 4 Q.B. 543 ; D. & M. 221 ; 12 LJ.Q.B. 251 ; 
 
 7 Jur. 395 61 
 
 Bryant v. Foot, L.R. 3 Q.B. 497; 37 LJ.Q.B. 217; 9 B. & S. 
 
 444 . . . 61 
 
 Burdett's Case, I Salk. 327 .11 
 
 Caledonian Railway Co. v. Walker's Trustees, 7 App. Cas. 259 ; 46 
 
 L.T. 826; 30 W.R. 569; 46 J.P. 676 146 
 
 Campbell v. Wilson, 3 East, 294 87 
 
 Carlisle (Mayor of) v. Wilson, 5 East, 2 ; I Smith, 297 . . . 6l 
 Carnarvon (Earl of) v. Villebois, 13 M. & W. 313 ; 14 LJ. Ex. 
 
 233 xxxi, 136, 137 
 
 Carter v. Parkhouse, 22 L.T. 788 153 
 
 Caswellw. Cook, 11 C.B.N.S. 637; 31 LJ.M.C. 185 . . 151, 153 
 Charing Cross Bridge Co. v. Mitchell, 4 E. & B. 549; 24 LJ.Q.B. 
 
 249; i Jur. N.S. 608 .114 
 
 Chasin v. Betsworth, 3 Lev. 190 . 
 
 Chelsea (Vestry of) v. Stoddard, 43 J.P. 782 . 
 
 Clifton v. Chancellor, Moore, 624 . 
 
 Clowes v. Staffordshire Potteries Waterworks Co., L.R. 8 Ch 
 42 L.J.Ch. 107 ; 27 L.T. 521 ; 21 W.R. 32 . 
 
 125; 
 
 I 4 6 
 
 Collier . North, 35 L.T. 345 151
 
 Table of Cases. 
 
 I'AGE 
 
 Collins^. Cooper, 68 L.T. 450; 57 [.P. 248; 5 R. 256 . . I, 2 
 
 v. Wells (Corporation of), I t.L.R. 328 . . . 98, 165 
 Colonial Bank of Australia z>. Willan, L.R. 5 P.C. 417 ; 43 L.J.P.C. 
 
 39; 30 L.T. 237; 22 W.R. 516 179 
 
 Coltness Iron Co. v. Black, 6 App. Cas. 315 ; 51 L.J.Q.B. 626; 45 
 
 L.T. 145 ; 29 W.R. 717 ; 46 J.P. 20 116 
 
 Comyns v. Boyer, Cro. Eliz. 485 51, 121, 122 
 
 Consolidated Co. v. Curtis, [1892] I Q.B. 495 ; 61 L.J.Q.B. 325 ; 
 
 40 W.R. 426; 56 J.P. 565 123 
 
 Cooper v. Whittingham, 15 Ch. D. 501 ; 49 L.J. Ch. 752 ; 43 L.T. 
 
 16; 28 W.R. 720 88 
 
 Cork (Corporation of) v. Shinkwin, Smith & B. 395 51, 75, 76, 80, 81 
 Cowper Essex v. Acton Local Board, 14 App. Cas. 153 ; 58 L.J.Q.B. 
 
 594; 61 L.T. I ; 53 J.P. 756 146 
 
 :k Co., 5 B. & S. 31 
 Jur. N.S. 984; 10 L.T. 372; 12 W.R". 745 . . . 120, 122 
 
 Crane v. London Dock Co., 5 B. & S. 313 ; 33 L.J.Q.B. 224; 10 
 
 Crease v. Barrett, I C.M. & R. 919, 2 Id. 738; 5 Tyr. 458; I T. 
 
 & G. 112; 4 L.J. Ex. 297, 5 Id. 8 136 
 
 Crump v. Lambert, L.R. 3 Eq. 409 ; 15 L.T. 600, 17 Id. 133 ; 15 
 
 W.R. 417 155 
 
 Cundy v. Lindsay, 3 App. Cas. 459; 47 L.J.Q.B. 481 ; 38 L.T. 
 
 573; 26 W.R. 406 120, 125 
 
 Curtis v. Embery, L.R. 7 Ex. 369; 42 L.J.M.C. 39; 21 W. R. 
 
 143 44, 45 
 
 Curwen v. Salkeld, 3 East, 538 37, 38, 39 
 
 Dartford Rural Council v. Bexley Heath Railway Co., [1898] A.C. 
 
 210; 67 L.J.Q.B. 231 ; 77 L.T. 601 ; 46 W.R. 235 ; 62 J.P. 
 
 227 141 
 
 Davies v. Williams, 16 Q.B. 546; 20 L.J.Q.B. 330; 15 Jur. 752 . 32 
 Davys v. Douglas, 4 H. & N. 180; 28 L.J.M.C. 193; ^ W.R. 
 
 327 no 
 
 Delaney v. Wallis, 14 L.R. Ir. 31 ; 1$ Cox C.C. 525 . . . 123 
 
 Dent v. Oliver, Cro. Jac. 43, 122 85, 86 
 
 De Rutzen v. Farr, 4 A. & E. 53 ; 5 N. & M. 617 ; I H. & W. 
 
 735 136 
 
 - v. Lloyd, 5 A. & E. 456 ; 6 N. & M. 776 . . 37, 39, 86 
 
 Devizes (Mayor of) v. Clark, 3 A. & E. 506 80 
 
 De Winton v. Brecon (Mayor of), 26 Beav. 533 . . -3 
 
 Dixon v. Robinson, 3 Mod. 107 33 
 
 Doe z>. Catomore, 16 Q.B. 745; 20 L.T-Q.B. 728 ... 92 
 
 v. Cowley, I C. & P. 123 63 
 
 v. Michael, 17 Q.B. 276 136 
 
 v. Roberts, 13 M. & W. 520; 14 L.J. Ex. 274 . i . 137 
 
 v. Thynne, 10 East, 206 136 
 
 Dorchester (Mayor of) v. Ensor, L.R. 4 Ex. 335; 39 L.J. Ex. n 
 
 38, 75, 78, 79, 80, 86 
 
 Downshire (Marquis of) v. O'Brien, 19 L.R. Ir. 380 . I, 75, 86, 91 
 Drapers. Sperring, ioC.B.N.8. 131 ; 30 L.J.M.C. 225; 4 L.T. 
 
 365; 9 W.R. 656 46, 96 
 
 Drewry v. Barnes, 3 Russ. 94; 5 L. T-Ch. 47 .... 30 
 
 Drinkwater v. Porter, 7 C. & P. 181" 136 
 
 Dungey v. London (Mayor of), 38 L.J.C.P. 298; 20 L.T. 921 ; 17 
 
 W.R. 1106 144 
 
 Dyson v. London & North-Western Railway Co., 7 Q.B.D. 32 ; 50 
 
 L.J.M.C. 78; 44 L.T. 609; 29 W.R. 565; 45 J.P. 650. 98, 168
 
 PAGE 
 
 xviii Table of Cases. 
 
 Eastern Archipelago Co. v. The Queen, 2 E. & B. 856, i Id. 310 ; 
 
 23 L.J.Q.B. 82 ; 18 Jur. 481 ..... 130,131 
 
 Egremont (Earl of) v. Keene, 2 Tones, Ir. Exch. 307 ... 28 
 
 v. Saul, 6 A. &E. 924 . . . . 57, 137 
 
 Elias v. Nightingale, 8 E. & B. 698; 27 L.J.M.C. 151 ; 4 Jur. 
 
 N.S. 166 155 
 
 Ellis v. Bridgenorth (Mayor of), 15 C.B.N.S. 52 ; 32 L.J.C.P. 273 ; 
 
 9 Jur. N.S. 1078 ; 8 L.T. 668 ; 12 W.R. 56 . . 38, 39, 86, 183 
 
 2 Johns. & H. 67 ; 4 L.T. 112; 9 
 
 W.R. 331 97, 184, 1 86 
 
 Elwes v. Payne, 12 Ch. D. 468 ; 48 L.J.Ch. 831 ; 41 L.T. 118 ; 28 
 
 W.R. 234 74, 75, 76, 78 
 
 Elwood v. Bullock, 6 Q.B. 383; 13 L.J.Q.B. 330; 8 ]ur. 1044 
 
 42, 43, 44, 46, 65, 98, 1 68 
 Escot v. Lanreny, Owen, 109 ....... 57 
 
 Exeter (Mayor of) v. Heaman, 37 L.T. 534 152 
 
 v. Warren, 5 Q.B. 773; D. & M. 524; 8 Jur. 
 441 136 
 
 Fazerkerly v. Wiltshire, I Stra. 462 98 
 
 Fearon v. Mitchell, L.R. 7 Q.B. 690; 41 L.J.M.C. 170; 27 L.T. 
 
 33 80, 89, 152, 153, 183 
 
 Fenwickz/. East London Railway Co. , L.R. 20 Eq. 544; 44 L.J.Ch. 
 
 602; 33 W.R. 901 146 
 
 Ferrar v. Commissioners of Sewers, L.R. 4 Ex. 227; 38 L.J.Ex. 
 
 102; 21 L.T. 295; 17 W.R. 709 144 
 
 Fitzgerald v. Connors, 5 Ir. R. C.L. 191 86 
 
 Fowkes v. Joyce, 3 Lev. 260 ; 2 Lutw. 1161 .... 33 
 
 Fredericks v. Payne, I H. & C. 584; 32 L.J.M.C. 14 ; 8 Jur. N.S. 
 
 1109; 7 L.T. 329; ii W.R. 36 no 
 
 Freeman v. Phillips, 4 M. & S. 486 136 
 
 Fripp v. Chard Railway Co. , n Hare, 241; 22 L.J.Ch. 1084; 17 
 
 Jur. 887 30 
 
 Ganly v. Ledwidge, 10 Ir. R. C.L. 33 . . . . 121, 123 
 
 Gard v. Callard, 6 M. & S. 69 . . . . . . . 60 
 
 Gardiner v. Williamson, 2 B. & Ad. 336 28 
 
 Gardners. London, Chatham & Dover Railway Co. , L.R. 2 Ch. 201 ; 
 
 36 L.J.Ch. 323; 15 W.R. 324 ; 15 L.T. 552 . . . 29, 30 
 Gerring v. Barfield, 16 C.B.N.S. 597 ; II L.T. 270 ... 44 
 
 Gibb's Case, Owen, 27 ; I Leon. 158 .127 
 
 Gibson v. Doeg, 2 H. & N. 615 ; 27 L.J.Ex. 37 . . . .23 
 
 Golightly v. Reynolds, Lofft, 88 124 
 
 Goodson v. Duffield, Cro. Jac. 313, 2 Bulstr. 21 ; Moore, 830 6, 7, 93 
 Great Eastern Railway Co. v. Goldsmid, 9 App. Cas. 927. 25 Ch. D. 
 
 511 ; 54 L.J.Ch. 162, 53 Id. 371 ; 52 L.T. 270, 47 Id. 727 ; 33 
 
 W.R. 81, 32 Id. 341 ; 49 J. P. 260 
 
 25, 36, 43, 44, 77, 78, 80, 81, 83, 87, 130 
 Great Western Railway Co. v. Swindon & Cheltenham Railway Co. , 
 
 9 App. Cas. 787 ; 53 L.J.Ch. 1075 ; 51 L.T. 798 ; 32 W.R. 
 
 957; 48 J. P. 821 29, 144, 147, 182 
 
 Gregspn v. Potter, 4 Ex.D. 142 ; 27 W.R. 840 . . . . 164 
 
 ^^ Hall v. Jones, Cro. Eliz. 773, Moore, 623 ; 10 Co. Rep. 73 a; 2 
 
 Bulstr. 21 6, 7 
 
 v. Metcalfe, [1892] i Q.B. 208 ; 61 L.J.Q.B. 53 ; 66 L.T. 498 119
 
 Table of Cases. xix 
 
 ' Hammersmith Railway Co. . Brand, L.R. 4H.L. 171 ; 38 LJ.Q.B. 
 
 265; 21 L.T. 238; iSW.R. 12 . . . .80, 142, 146 
 Hargreave z/. Spink [1892] I Q.B. 25 ; 61 LJ.Q.B. 318 ; 65 L.T. 
 V 650 ; 40 W. R. 254 . 122 
 
 I ^ ^ Harris v. Hawkins, I Keb. 342 
 
 Harvey v. Facy, 2 And. 115 ; Godb. 131 ; Poph. 61 . 
 Heddy v. Weelhouse, Cro. Eliz. 558, 591 ; Moore, 474 
 
 28, 41, 57, 58 
 Hickman's Case, Noy, 37 ; 2 Roll. Abr. 123 
 
 68 
 
 61, 67, 68 
 64, 65, 68 
 
 Hill v. Hawker, Haukes, or Hank, Moore, 835 ; 2 Bulstr. 201 ; 
 
 Roll. Rep. I, 44 56, 63, 65 
 
 Hill v. Midland Railway Co., 21 Ch. D. 143 ; 51 L.J.Ch. 774 ; 47 
 
 L.T. 225 ; 30 W.R. 774 147,182 
 
 v. Priour, 2 Show. 34 72 
 
 v. Smith, 4 Taunt. 520 ; 10 East 476 . . . 62, 122 
 
 Hitchman v. Watt, 58 J. P. 720 45 
 
 Hobbs v. Midland Railway Co., 20 Ch. D. 418 ; 51 L.J.Ch. 320 ; 
 
 46 L.T. 270; 30 W.R. 516 ... ... 29 
 
 Holcroft v. Heel, i B. & P. 400 . . . . , . 86, 87 
 
 Hollowayz>. Smith, 2 Stra. 1171 57 
 
 Hooper v. Kenshole, 2Q.B.D. 127; 46 LJ.M.C. 160; 36 L.T. 
 
 ill ; 25 W.R. 368 150,151,153 
 
 Hopkins v. Great Northern Railway Co., 2 Q.B.D. 224 ; 46 
 
 LJ.Q.B. 265 ; 36 L.T. 898 147 
 
 v. Worcester & Birmingham Canal Co., L.R. 6 Eq. 437 ; 
 
 37 L.J.Ch. 729 30 
 
 Horner v. Whitechapel Board of Works, 55 LJ.Ch. 289 ; 53 L.T. 
 
 842 46 
 
 Horwood v. Smith, 2 T.R. 750 . . . . . 125 
 
 Howel v. Johns. See Hall v. Jones. 
 
 Hull (Mayor of) v. Horner, i Cowp. 102 . . . . 23, 24 
 Hungerford Market Co. v. City Steamboat Co., 3 E. & E. 365 ; 30 
 
 LJ.Q.B. 25; 7 Jur. N.S. 67; 3 L.T. 732 . . . .66 
 Hunt v. Burn, I Salk. 57 ; Holt, 60 ; I Comyns Rep. 93 . . 70 
 
 Islington Market Bill, 3 Cl. & F. 513 ; 12 M. &W. 20, n ; H. of L. 
 
 Jo. 285, 295, 583. . . 20, 21, 34, 35, 36, 75, 78, 80, 81, 83 
 
 enkinsz>. Harvey, I C.M. & R. 877, 2 Id. 393 .... 23 
 
 ewel's Case, 5 Co. Rep. 3 28 
 
 ewel v. Stead, 6 E. & B. 350 ; 25 LJ.Q.B. 70 ; i Jur. N.S. 1136 78 
 
 ones v. Matthews, I T. L.R. 482 45 
 
 osephs v. Adkins, 2 Stark. 76 128 
 
 Keepw. St. Mary's Newington (Vestry of), [1894] 2 Q.B. 524; 63 
 
 LJ.Q.B. 369 ; 70 L.T. 509 ; 58 J.P. 748 ; 9 R. 346 . . 6, 45 
 Kemp v. West End of London Railway Co., I K. & J. 68 1 ; I Jur. 
 
 N.S. 1012 147 
 
 Kerby v. Wychelow, 2 Lutw. 1498 36, 62 
 
 Kilminster w. Fitton, 53 L.T. 959 151 
 
 Knight's Case, 5 Co. Rep. 56 a 28 
 
 Kruse v. Johnson, [1898] 2 Q.B. 91 ; 67 LJ.Q.B. 782 ; 78 L.T. 
 
 647 ; 46 W.R. 630; 62 J.P. 469 98,168
 
 xx Table of Cases. 
 
 /<" 
 
 PAGE 
 
 Lambton v. Mellish, [1894] 3 Ch. 163 ; 63 L.J.Ch. 929 ; 71 L.T. 
 
 385 ; 43 W.R. 5; 58 J.P. 835 ; 8 R. 807 . . . in 
 
 Lancum v. Lovell, 6 C. & P. 437 58 
 
 Lawes' Case, 2 Co. Rep. 16 b 134 
 
 Lawnson's (Mayor of) Case, Cro. Eliz. 75 . . . . 31,64 
 -^ Lawrence v. Great Northern Railway Co., i6Q.B. 643 ; 20 L.J.Q.B. 
 
 5 293 ; 15 Jur. 652 ; 6 Railw. Cas. 656 146 
 
 v. Hitch, L.R. 3 Q.B. 521 ; 37 L.J.Q.B. 209; 9 B. & S. 
 
 467 59, 61, 136 
 
 Lax v. Darlington (Mayor of), 5 Ex. D. 28; 49 L.J. Ex. 105, 48 
 
 L.J.Q.B. 143 ; 41 L.T. 489 ; 28 W.R. 221 ; 44 J.P. 312 32, 96 
 Lee v. Bayes or Robinson, 18 C.B. 599 ; 25 L.J.C.P. 249 ; 2 Jur. 
 
 N.S. 1093 121 
 
 Leicester Forest, Case of, Cro. Jac. 155 ; Jenk. 316 . . 90, 92 
 Leicester Sanitary Authority v. Holland, 57 L.J.M.C. 75 ; 52 J.P. 
 
 788 45 
 
 Leicester's (Town of) Case, 2 Leon. 190 71 
 
 Leight v. Pym, 2 Lutw. 1336 62, 63, 68 
 
 Le Neve v. Mile End Old Town (Vestry of), 8 E. & B. 1054 ; 27 
 
 L.J.QB. 208; 4 Jur. N.S. 660 46 
 
 Lewis v. Hammond, 2 B. and Aid. 206 68 
 
 Lightfoot v. Lenet, Cro. Jac. 421 ; Bridgm. 88 . . 58 
 
 Llandaff & Canton Market Co. v. Lyndon, 8 C.B. N.S. 515 ; 30 
 
 L.J.M.C. 105 ; 6 Jur. N.S. 1344 ; 8 W.R. 693 . 152, 153, 156 
 Lockwood v. Wood, 6 Q.B. 31; 15 L.J.Q.B. 37; lojur. 158 
 
 55. 63, 67, 72 
 
 Loftos v. Gleave, 55 J.P. 149 151 
 
 w. Kiggins, 55 J.P. 151 151 
 
 London & Brighton Railway Co. v. Watson, 4 C.P.D. 118; 48 
 
 L.J.C.P. 316; 40 L.T. 183; 27 W.R. 614 . . . .177 
 Brighton & South Coast Railway Co. v. Truman, 1 1 App. 
 
 Cas. 455 55 L.J.Ch. 354; 54 L.T. 250; 34 W.R. 657 ; 
 
 50 J.P. 388 146 
 
 (City of) v. Vanacre, 12 Mod. 270, 5 Id. 438 ; I Salk. 142 ; 
 
 Garth. 480; Holt, 431 ; I Ld. Rayrn. 496 ... 90, 96 
 
 - (Mayor of) v. Greenwich Union (Assessment Committee of), 
 
 48 L.T. 437; 47 J.P. 420 118 
 
 v. Low, 49 L.J.Q.B. 144 ; 42 L.T. 16; 28 W.R. 
 250; 44 J.P. 169 . . .78 
 
 v. Lynn (Mayor of), I H.B1. 206 ; I B. & P. 487 ; 
 
 7 Bro. P.C. 120 
 
 v. St. Sepulchre (Overseers of), L.R. 7 Q.B. 
 
 333 n 117 
 
 London's (Chamberlain of) Case, 5 Co. Rep. 62 b ; 3 Leon. 264 ; I 
 
 Rol. Rep. 109 ; 8 Mod. 267 96 
 
 Londonderry (Mayor of) v. McElhinney, 9 Ir. R. C.L. 71 . . 152 
 
 Lowden v. Hierons, 2 B. Mo. 102 57, 58 
 
 Lucan (Earl of) v. Gildea, 2 Hud. & Br. Ir. K.B. 635 . . . 28 
 
 Luke v. Charles, 25 J.P. 148 152 
 
 Lyons v. Depass, u A. & E. 326 ; 3 P. & D. 177 ; 9 C. & P. 68 ; 
 
 4 Jur. 505 122 
 
 Macclesfield (Mayor of) ;>. Chapman, 12 M. & W. 18 ; 13 LJ.Ex. 
 
 32; 7 Jur. 1041 79, 80 
 
 v. Pedley, 4 B. & Ad. 397; i N. & M. 
 
 708 79, 80
 
 Table of Cases. xxi 
 
 PAGE 
 
 Malcolmson v. O'Dea, 10 H.L.C. 593 ; 9 Jur. N.S. 1135 ; 9 L.T. 
 
 93; I2W.R. 178 135, 136 
 
 Manchester (Mayor of) v. Lyons, 22 Ch.D. 287 ; 47 L.T. 677 
 
 27, 53. 79. 87, 94 
 v. Pedley, 22 Ch.D. 294 n. . . 94 
 
 Market Overt, Case of, 5 Rep. 83 b ; Cro. Eliz. 454 ; Moore 
 Poph. 84 
 
 McHole v. Davies, I Q.B.D. 59; 45 L.J.M.C. 30; 33 L.T 
 2 4 W.R. 343 
 
 360; 
 502; 
 
 80, 152 
 
 Mclntosh v. Romford Local Board, 61 L.T. 185 . . . . 103 
 Mercer v. Woodgate, L.R. 5 Q.B. 26; 37 L.J.M.C. 21 ; 18 W.R. 
 
 116 44 
 
 Metropolitan Board of Works v. McCarthy, L. R. 7 H. L. 243 ; 43 
 
 L.J.C.P. 385; 31 L.T. 182; 23 W.R. 115 . . . . 146 
 Middleton (Lord) v. Lambert, I A. & E. 401 ; 3 N. & M. 841 69, 71, 72 
 Midleton (Lord) v. Power, 19 L.R. Ir. I . 38, 49, 53, 81, 90, 93 
 
 Mills v. Colchester (Mayor of), L.R. 3 C.P. 575 ; 37 L.J.C.P. 278 60 
 Mogul Steamship Co. v. McGregor Gow & Co., 23 Q.B.D. 598; 
 
 [1892] A.C. 25 ; 58 L.J.Q.B. 465, 61 Id. 295 ; 61 L.T. 820, 
 
 66 Id. i ; 37 W.R. 756, 40 Id. 337 ; 53 J.P. 709, 56 Id. 101 33 
 Moran v. Pitt, 42 L.J.Q.B. 47 ; 28 L.T. 554 ; 21 W.R. 525 122, 127 
 Morgans. Kingdon, 39 J.P. 471 . . . . . . 153 
 
 Mosley v. Pierson, 4 T.R. 104 62, 83 
 
 v. Walker, 7 B. & C. 40 ; 9 D. & R. 863 34-42, 79-81, 136, 137 
 Motteram v. Eastern Counties Railway Co., 7 C.B.N.S. 58; 29 
 
 L.J.M.C. 59; 6Jur. N.S. 583 169,170 
 
 Mouflet v. Cole, L.R. 7 Ex. 70, 8 Id. 32 ; 41 L.J. Ex. 28, 42 Id. 
 
 62 ; 25 L.T. 839, 28 Id. 678 ; 20 W.R. 339, 21 Id. 175 . 78 
 
 Mountjoy's (Lord) Case, 5 Co. Rep. 3b 28 
 
 Moyce v. Newington, 4 Q.B.D. 32; 48 L.J.Q.B. 125; 39 L.T. 
 
 535; 27 W.R. 319 121 
 
 Mulliner w. Midland Railway Co., II Ch.D. 611 ; 48 L.J. Ch. 258 ; 
 
 40 L.T. 121 ; 27 W.R. 330 29 
 
 Muspratt v. Gregory, I M. & W. 633, 3 Id. 677 ; I T. & G. 1086 ; 
 
 7 L.J. Ex. 385 . . 33 
 
 Newington Fair Case, 2 Roll. Abr. 123 . . . . . 79 
 
 Newport (Mayor of) v. Saunders, 3 B. & Ad. 411 . . . 63, 67 
 Newtownards Town Commissioners v. Woods, II Ir. R. C.L. 506 
 
 8 7 , 89, 152 
 
 Norman . Bell, 2 B. & Ad. 190 65, 66, 68 
 
 Norris v. Staps, Hob. 211 ; Moore, 869 ; Hutt. 5 ; I Brownl. 48 . 96 
 
 North v. Jackson, 2 F. & F. 198 127 
 
 Northampton (Mayor of) v. Ward, I Wils. 107 ; 2 Str. 1238 
 
 32, 55, 63, 64 
 
 Norwich (Mayor of) v. Swann, 2 W. Bl. 1116 . . . 32, 64 
 Nugent v. Kirwan, I Jebb & Symes, 97 33 
 
 Openshaw v. Oakeley, 60 L.T. 929 ; 53 J.P. 740 . . . . 151 
 Osbuston v. James, 2 Lutw. 1377 57 
 
 Parry v. Berry, I Comyns, 269 ....... 98 
 
 Payne v. Wilson, [1895] I Q.B. 653 ; 2 Q.B. 537 ; 64 L.J.Q.B. 
 
 328, 65 Id. 150; 72 L.T. no, 73 Id. 12; 43 W.R. 657 124, 125
 
 xxii Table of Cases. 
 
 Peer v. Humphrey, 2 A. & E. 495 ; 4 N.& M. 430 ; 4 L.J.K.B. 100 123 
 Penny, In re, 7 E. & B. 660 ; 26 L.J.Q.B. 225 ; 3 Jur. N.S. 957 . 146 
 Penryn (Mayor of) v. Best, 3 Ex.D. 292 ; 48 L.J. Ex. 103 ; 38 L.T. 
 
 805 ; 27 W.R. 126 . . . .23, 53, 79, 80, 135, 136 
 
 Percy v. Ashford (Union), 34 L.T. 579 117,118 
 
 Perkins v. Arber, 37 J. P. 406 153 
 
 Peters. Kendal, 6 B. & C. 703 .... 90, 130, 132, 133 
 
 Pirn v. Currell, 6 M. & W. 234 136, 137 
 
 Pinchin v. London & Blackwall Railway Co., 5 De G.M. & G. 851 ; 
 
 24 L.J.Ch. 417; I Jur. N.S. 241 147, 182 
 
 Plaxton v. Dare, 10 B. & C. 17; 5 M. & R. I . . . . 136 
 Player v. Jenkens, I Sid. 284 ; 2 Keb. 420, 501 ; I Ventr. 21 ; Raym. 
 
 288, 324 98 
 
 Pletts v. Beattie, [1896] i Q.B. 519 ; 65 LJ.M.C. 86 ; 74 L.T. 148 ; 
 
 6oJ.P. 185; 18 Cox C.C. 264 -153 
 
 v. Campbell, [1895] 2 Q.B. 229; 64 L.J.M.C. 225 ; 73 L.T. 
 344; 43 W.R. 634; 59 J. P. 502; 15 R. 493. . . .153 
 
 Pope v. Whalley, 6 B. & S. 303; 34 L.J.M.C. 76; n Jur. N.S. 
 
 444; ii L.T. 769; 13 W.R. 402 .... 89, 152, 153 
 Prince v. Lewis, 5 B. & C. 363 ; 3 D. & R. 121 ; 2 C. & P. 66 
 
 34, 35, 38, 81, 83 
 Prince's Case, 8 Co. Rep. 14 a ; 25 
 
 Quilligan v. Limerick Marke Trustees, 14 L.R. Ir. 265 . 153 
 
 Reading (Mayor of) . Clarke, 4 B. & Aid. 268 . . . .66 
 
 Reed v. Jackson, I East, 355 . . . ... . 137 
 
 Reg. v. Aires or Eyre, 10 Mod. 258, 354; I Stra. 43 . 21, 75, 76, 131 
 
 v. Barnard Castle, 27 J. P. 534 117 
 
 v. Casswell or Caswell, L.R. 7 Q.B. 328; 41 LJ.M.C. 108 ; 
 
 26 L.T. 574; 20 W.R. 624 117 
 
 v. Crawley, 3 F. & F. 109 104 
 
 v. Derby J.J., 28 L.T.O.S. 89 117 
 
 . East & West India Docks Co., 2 E. & B. 466 ; 22 L.J.Q.B. 
 380; 1 7 Jur. 1181 146 
 
 v. Edwards, 13 Q.B.D. 586 ; 53 L.J.M.C. 149 ; 51 L.T. 586 ; 
 
 49 J. P. 117 149 
 
 v. Eyre. See Reg. v. Aires. 
 
 - - v. Jarvis, 3 F. & F. 108 104 
 
 v. London (Mayor of), L.R. 2 Q.B. 292 ; 1 6 L.T. 280 . 144 
 
 , L.R. 4 Q.B. 371 ; 38 L.J.M.C. 107 ; 
 
 20 L.T. 604 ; 17 W.R. 722 ; 11 Cox C.C. 280; 10 B. & S. 
 
 34i 123, 124 
 
 v. Prosser, n Beav. 316; 18 L.J.Ch. 35; 13 Jur. 71 . 130 
 v. Stevenson, 3 F. & F. 106 104 
 
 - v. Wood, 5 E. & B. 49; 3 C.L.R. 1134; 34 L.J.M C. 130; 
 
 I Jur. N.S. 802 168, 179 
 
 v. Young, 52 L.J.M.C. 55 45 
 
 Rex. v. ,2 Show. 201 f, 5, 132 
 
 v. Bell, 5 M. & S. 221 63, 117 
 
 v. Bliss, 7 A. & E. 550; 9 Jur. 959 . . . . . 136 
 
 v. Bradley, Tremaine, P.C. 449 132 
 
 v. Burdett, I Ld. Raym. 148 . . . ... .64 
 
 v. Butler, 3 Lev. 220; 2 Ventr. 344; 2 Freem. 50 21, 131 
 
 v. Cotterill, I B. & Aid. 67 37, 38 
 
 v. Cotton, 3 Camp. 444 . 136
 
 Table of Cases. xxiii 
 
 PAGE 
 
 Rex. v. Cross, 2 C. & P. 483 153 
 
 v. Jolliffe, 2 B. & C. 54 23 
 
 v. London (Mayor of), I Show. 240 ; 4 Mod. 53 . . .132 
 
 , 2 Show. 263 58 
 
 v. Maidenhead (Corporation of), Palmer, 76 ; 2 Roll. Rep. 
 
 155 57, 5 8 > 61 
 
 v, Marsden, 3 Burr. 1812; I W. Bl. 579 . . 4, 5, 55, 133 
 
 v. Miles, 7 T.R. 367 131 
 
 v. Mosley, 2 B. & C. 226 ; 3 D. & R. 385 . . . . . 118 
 
 v. Pease, 4 B. & Ad. 30; i N. & M. 690 . . ; .146 
 
 v. Ponsonby, Sayer, 245 . . . . . .132 
 
 v. Smith, 4 Esp. 1 1 1 44 
 
 -v. Starkey, 7 A. & E. 95 ; W., W. & D. 502 9, 38, 40, 41, 42 
 
 v. Staverton, Yelv. 190 132 
 
 v. Button, 4 M. & S. 532 135, 137 
 
 v. Trinity House, I Sid. 54, 86; I Keb. 137, 250, 270. 300 
 
 132, 133 
 
 v. Watts, 2 C. & P. 486 153 
 
 Richards v. Scarborough Public Market Co., 23 LJ.Ch. no . 144 
 
 Ricket v. Metropolitan Railway Co., L.R. 2 H.L. 175 ; 36 LJ.Q.B. 
 
 205; I6L.T. 542; 15 W.R. 937 . . . . .146 
 
 Rivers v. Adams, 3 Ex.D. 361 ; 48 LJ. Ex. 47 ; 39 L.T. 39 ; 27 
 
 W.R. 381 19 
 
 Roberts v. Aylesbury (Churchwardens and Overseers of), I E. & B. 
 
 423; 22 LJ.M.C. 34; I7jur. 236 .... 117, 118 
 
 Roe v. Parker, 5 T.R. 26 137 
 
 Rossz>. Taylerson, 62 J.P. 181 . . . . . . .188 
 
 Rowe v. Brenton, 8 B. & C. 737 ; 3 M. & R. 133 . . . 137 
 Rutherford v. Straker, 42 Ch.D. 85 n. ; 58 LJ.Ch. 718 n. ; 60 
 
 L.T. 756 n. . 153 
 
 St. Mary Newington (Vestry of) v. Jacobs, L.R. 7 Q.B. 47 ; 41 
 
 LJ.M.C. 72; 25 L.T. 800; 20 W.R. 249 .... 46 
 Saunders v. South-Eastern Railway Co., 5 Q.B.D. 456 ; 49 LJ.Q.B. 
 
 761 ; 43 L.T. 281 ; 29 W.R. 56 ; 44 T-P. 781 ... 168 
 Savages. Brook, 15 C.B.N.S. 264; 33 LJ.M.C. 42 ; 10 Jur. N.S. 
 
 587 ; 9 L.T. 334; 12 W.R. 81 .... 98, 165, 186 
 
 Savery v. Smith, 2 Lutw. 1144 ; 3 Salk. 36 69 
 
 Sawyer v. Wilkinson, Cro. Eliz. 627 . . . . . 3 1 , 64 
 Scattergood v. Sylvester, 15 Q.B. 506; 19 LJ.Q.B. 447; 14 Jur. 
 
 977 124 
 
 Se ward v. Baker, i T.R. 616 . . . . ' . .66 
 
 Shephardz;. Payne, 16 C.B.N.S. 132; 33 L.J.C.P. 158; 10 Tur. 
 
 [93 ; 12 W.R. 581 . 
 Shepherd v. Folland, 49 J.P. 165 153 
 
 N.S. 540; ioL.T. 193; 12 W.R. 581 23 
 
 SHfiitOP. Thompson, I Q.B.D. 12 ; 45 LJ.M.C. 18 ; 33 L.T. 506 ; 
 
 24 W.R. 57 104 
 
 Simpson v. Routh, 2 B. & C. 682 178 
 
 v. Wells, L.R. 7 Q.B. 214 ; 41 LJ.M.C. 105 ; 26 L.T. 163 6, 44 
 
 Six Carpenters' Case, 8 Rep. 1 46 a 31 
 
 Slade v. Drake, Hob. 295 ; W. Jones, 6 ; I Roll. Rep. 250 ; Noy, 
 
 97 22 
 
 Smith v. Shepherd, Cro. Eliz. 710 ; Moore, 574 . . . 67, 68 
 Somerset (Duke of) v. Fogwell, 5 B. & C. 875 ; I D. & R. 747 . 27 
 Spear v. Bodmin (Union), 49 LJ.M.C. 69 ; 43 L.T. 127 ; 44 T.P. 
 
 764 H9
 
 xxiv Table of Cases. 
 
 Specot v . Carpenter, Thos. Jones, 207 65 
 
 Spices. Peacock, 39 J.P. 581 45 
 
 Sprosley v. Evans, I Roll. Abr. 103 83 
 
 Spurling v. Bantoft, [1891] 2 Q.B. 384 ; 60 LJ.Q.B. 745 ; 65 L.T. 
 
 584; 40 W.R. 157 151,153,182,183 
 
 Staffordshire & Worcestershire Canal Navigation v. Birmingham 
 
 Canal Navigations, L.R. I H.L. 254; 35 L.J.Ch. 757 . . 29 
 Stamford (Corporation of) -v. Pawlett, I Cr. & J. 57, 400 ; I Tyr. 
 
 291 57, 58, 67 
 
 Stevens v. Emson, i Ex. D. 100; 45 L.J.M.C. 63; 33 L.T. 821 . 107 
 Stockport, Timperley & Altrincham Railway Co., In re, 33 LJ.Q.B. 
 
 251; 10 L.T. 436; 12 W.R. 762; 10 Jur. N.S. 614 . . 146 
 Strata Mercella's (Abbot of) Case, 9 Co. Rep. 25 b . . .28 
 
 Stretch v. White, 25 J.P. 485 152 
 
 Striken. Collins, 55 L.T. 182; 34 W.R. 459; 50 J.P. 741 . 98, 165 
 
 Stubbsz>. Parsons, 3 B. & Aid. 516 115 
 
 Summers v. Holborn District Board of Works, [1893] I Q.B. 612 ; 
 
 62 L.J.M.C. 81 ; 68 L.T. 226; 41 W.R. 445 ; 57 J.P. 326 ; 
 
 5 R- 284 6, 45 
 
 Swindon Central Market Co. v. Panting, 27 L.T. 578 . . 62, 63 
 
 Talbot v. Lewis, I C.M. & R. 495 ; 6 C. & P. 603 . . .137 
 Tarlingz>. Fredericks, 28 L.T. 814 ; 21 W.R. 785 . . . no 
 Taunton Market v. Kimberley, 2 W. Bl. 1 1 20 . . . . 63 
 
 Taylors. Chambers, Cro. Jac. 68 53, 122 
 
 v. New Windsor Corporation, [1898] I Q.B. 186; 67 
 
 LJ.Q.B. 96 ; 77 L.T. 585 ; 62 J.P. 5 . . . 27, 93, 94 
 Tewkesbury (Bailiffs of) v. Bricknell, 2 Taunt. 120 . 62, 72, 83, 84 
 
 v. Diston, 6 East, 438 ; 2 Smith, 508 
 
 62, 83, 84, 85 
 
 Thomas v. Jenkins, 6 A. & E. 525 ; I N. & P. 587 ; I Jur. 261 . 136 
 Thompson v. Gibson, 7 M. & W. 456 ; 9 D.P.C. 717 . . . 85 
 Toronto (Corporation of) v. Vigo, [1896] A.C. 88 ; 65 LJ.P.C. 4 ; 
 
 73 L.T. 449 98 
 
 Torquay Market Co. v. Burridge, 48 J. P. 7 1 . . . .152 
 
 Townend v. Woodruff, 5 Ex. 506; 19 L.J.Ex. 315 . . 32, 63 
 Truro (Mayor of) v. Reynolds, 8 Bing. 275 ; I M. & Scott, 272 . 72 
 Turner v. Sterling, 2 Ventr. 26, I Id. 206 ; 2 Lev. 50 ; 3 Keb. 26, 
 
 32 85 
 
 Tyson v. Smith, 9 A. & E. 406 ; I P. & D. 307 ; W., W. & D. 
 
 749 65, 68 
 
 Vaughan v. Taff Vale Railway Co., 5 H. & N. 679; 29 L.J.Ex. 
 
 247 ; 6 Jur. N.S. 899; 2 L.T. 394; 8 W.R. 594 . . . 146 
 
 Vauxhall Bridge Co. v. Sawyer, 6 Exch. 504 ; 20 LJ. Ex. 304 . 114 
 
 Vines v. Reading (Mayor of), 4 Bing. 8 ; 12 B. Moore, 201 ; I Y. & J. 4 62 
 
 Wallasey Tramway Co. v. Wallasey Local Board, 47 J.P. 821 . 167 
 Walker v. Matthews, 8 Q.B. D. 109; 51 LJ.Q.B. 243; 46 L.T. 
 
 Ward v. Knight, Cro. Eliz. 227 ; I Leon. 231 . . . 70, 71 
 Waterhouse v. Keen, 4 B. & C. 200; 6 D. cS: R. 257 . . 61, 68 
 
 Wells v. Miles, 4 B. & Aid. 559 62 
 
 Whistler's Case, 10 Co. Rep. 63 a 28 
 
 Whiter. Yeovil (Mayor of), 61 L.J.M.C. 213 . . . .152
 
 Table of Cases. 
 
 '. 31,63,68 
 . 127 
 
 . 122 
 
 . 6,7 
 19 
 
 5 L.T. 
 
 Whittaker v. Rhodes, 46 J.P. 182 .... 
 
 Wigley v. Peachy, 2 Ld. Raym. 1589 . 
 Wikes v. Morefoots, Cro. Eliz. 86 .... 
 
 Wilkinson v. King, 2 Camp. 335 ..... 
 --- v. Nethersol, Cro. Eliz. 530 .... 
 Willingale v. Maitland, L.R. 3 Eq. 103 ; 36 L.J.Ch. 64 
 Wiltshire v. Baker, II C.B.N.S. 237; 31 L.J.C.P. 10 n. 
 
 355; loW.R. 89 ......... 
 
 v. Willett, ii C.B.N.S. 240 ; 31 LJ.C.P. 8 ; 5L.T. 355 ; 
 
 10 W.R. 44 .......... 
 
 Wolverhampton New Waterworks Co. v. Hawkesford, 6 C.B.N.S. 
 
 336; 28 LJ.C.P. 242 ; 5 Jur. N.S. 1104 ; 7 W.R. 464 . '. 
 Wood v. Hankshead, Yelv. 13 ....... 
 
 Woolwich Local Boards. Gardiner, [1895] 2 Q.B. 497 ; 64 L.J.M.C. 
 
 248; 73 L.T. 218; 44 W.R. 46; 18 Cox C.C. 173; 59 J.P. 
 
 597 ; 15 R. 590 ......... 151 
 
 Worcester's (L'Evesquede) Case, Moore, 360; Poph. 84 . . 122 
 Worcester v. St. Clement's, 22 J.P. 319 ...... 117 
 
 Wortley v. Nottingham Local Board, 21 L.T. 582 . . 37, 98, i6$ 
 Wright v. Bruister, 4 B. & Ad. 116 ; Gunning on Tolls, 62 . 59, 60, 6 1 
 
 Yard v. Ford, 2 Wms. Saund. 172 . . . -75, 77, 78, 86 
 Yarmouth (Mayor of) v. Groom, i H. & C. IO2 ; 32 L.J. Ex. 74; 
 
 8Jur. N.S. 677 ; 7 L.T. 161 ..... 32, 63, 64, 67 
 York's (Archbishop of) Case, 4 Leon. 1 68, 214 . . . . 72 
 
 153 
 153 
 
 88 
 68 
 
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 2 Will & M sess i c 8 24 
 
 die. Pillorie] . 8, 9, 92, 104 
 3 Edw. I. (St. Westm. I.) c. 
 31 . 59, 60, 64, 68, 69, TOO 
 
 2 Geo. II. c. 25 . . . 175 
 24 Geo. II. c. 23 . . 50, 51 
 9 Geo. III. c. 16 . . .87 
 
 4 Edw. I. st. I (Ruff.) [Exten- 
 ta Manerii] . . -137 
 13 Edw. I. (St. Westm. II.), 
 c. 24 100 
 (St Wynton) [st 
 
 28 Geo. III. . x. . . .44 
 36 Geo. III. . 88 . 53, 54, 103, 
 104, 128, 129 
 38 Geo. III. . 5 . . 114, 115 
 
 2, c. 5, Ruff.] ... 77 
 [st 
 
 56 Geo. III. .138 . .92 
 57 Geo. III. . xxix. 44 45 
 
 2, c. 6, Ruff.] . . .42 
 1 8 Edw I (st. de Quo War ) 
 
 7 & 8 Geo. IV. 27 . 77, 124 
 29 i ''4 
 
 [st. 2, Ruff.] ... 23 
 (st de Quo War 
 
 10 Geo. IV. c. . . .93 
 2 & 3 Will IV 64 38 
 
 
 
 18 Edw. II. (Ruff.) [Visus. 
 Francipleg.] ... 8 
 2 Edw. III. c. 15 . . -49 
 c Fdw III r c AQ 
 
 3 & 4 Will. IV. 27 . .87 
 4 & 5 Will. IV. 21 . 54, 103, 
 128 
 
 14 Edw. III. st. I, c. 12 . 12 
 23 Edw. III. (st. of Labourers) 5 
 13 Ric. II. st. I, c. 4 . . ii 
 i6Ric. II. c. 3 . . .11 
 25 Hen. VI 93 
 27 Hen. VI. c. 5 . . 50, 51 
 17 Edw. IV. c. 2 . . . 6, 7 
 i Ric. III. c. 6 . . .6,7 
 21 Hen VIII c n 124 
 
 5 & 6 Will. IV. 50 . .44 
 76 38, 46, 96 
 7 Will. IV. & i Viet. c. 83 173, 
 174 
 i & 2 Viet. c. 94 . . 135, 137 
 2 & 3 Viet. c. 47 . 44, 45, 54, 134 
 (ss. 38-40 set 
 out) 204 
 
 27 Hen. VIII. c. 24 . .12 
 32 Hen. VIII. c. 20 . .12 
 5 & 6 Edw. VI. c. 3 . .50 
 2 & 3 Ph. & M. c. 7 123, 126, 127 
 SEliz. c. 4 .... 5 
 
 5 & 6 Viet. c. 35 . . 115-117 
 6 & 7 Viet. c. 68 . . 109-111 
 7 & 8 Viet. c. 24 . 33, 92, 104 
 8 & 9 Viet. c. 18 . 145-147, 149, 
 182 
 
 43 Eliz. c. 2 . . . .117 
 21 Jac. I. c. 16 . . . 87 
 c. 28 . .92 
 16 Car. I. c. IQ . 12 
 
 162, 163, 171, 172 
 - (ss. 140-159 
 set out) . . . 175-180 
 c. in . iic. id.8. 161
 
 XXV111 
 
 Table of Statutes. 
 
 I'AGE 
 
 9 & 10 Viet. c. 95 . . . 7 
 10 & ii Viet. c. 14 . 25, 26, 80, 
 88, 100, 103, 105, 112, 113, 175- 
 180, 184-191, 198, 208 
 (set out) 141- 
 174 
 
 37 & 38 Viet. 
 
 I'AGE 
 
 c. 49 . 107-109 
 c. 57 . . 87 
 c. 81 . 21, 131 
 c. 55 .19, 27, 
 S, 97, 103, 104, 112, 
 9-167, 181-188, 208 
 (ss 1 66 
 
 
 38 & 39 Viet. 
 30, 47, 80, 8 
 14 
 
 
 168, 316 set 
 
 out) 181 1 88 
 
 
 c. 63 . 105, 106 
 .66 . . 113 
 
 ii * 12 Viet. c. 43 . . 178 
 12 & 13 Viet. c. 92 . . 162 
 
 40 & 41 Viet. ( 
 
 41 & 42 Viet. c. 49 12, 98, 99, 
 
 IOO 
 /C^V, A Pt 
 
 13 & 14 Viet. c. 23 . . 50' 
 14 & 15 Viet. c. 99 . 135, 161, 
 169, 170 
 15 & i6Vict. c. 62 . . 93 
 16 & 17 Viet. c. 34 . .115 
 17 & 18 Viet. c. 60 . . 162 
 18 & 19 Viet. c. 120 . . 46 
 
 II., set out) 
 
 195 
 c. 74 . 189, 191 
 . 6 . . 112, 113 
 
 .22 . . 124 
 
 . 30 . 105, 106 
 .49 . .180 
 
 . 78 . 21, 131 
 
 19 . 115, 116 
 45 . 150, 151 
 
 9 135 
 50 29, 38, 46, 
 7, 112, 113, 182, 186 
 IS J 47 
 
 12 167, 169, I7O 
 
 (set out) . 200 
 .13 . . 191 
 . 43 172, 177-180, 
 1 86, 1 88 
 47 i9i 
 .61 . . 132 
 .71 . .28 
 3 . . 119 
 .18 . -45 
 79 -93 
 32 . 189-191 
 27 100-102, 160, 
 
 185 
 
 (set out) 196-198 
 .29 . . 105 
 .55 . 8, 12 
 
 .72 . .112 
 
 10 . . 119 
 33 150, 151 
 .41 98, 99, 1 06, 
 no, in, 113 
 . 43 7, 67, 163 
 .46 . .144 
 
 21 . . 98 
 .30 . . 189 
 63 . 29, 135 
 14 . . 191 
 
 CO . IO4. Ill 
 
 42 & 43 Viet. 
 
 
 
 19 & 20 Viet. c. 114 . 103, 104, 
 128, 129 
 21 & 22 Viet. c. 98 27, 160, 181, 
 183, 185, 1 86 
 22 & 23 Viet. c. 56 . 99, 195 
 23 & 24 Viet. c. 27 . . 107 
 
 
 43 & 44 Viet. 
 44 & 45 Viet. 
 45 & 46 Viet. 
 
 72, 73. 9 6 . 9 
 46 & 47 Viet. 
 47 & 48 Viet. 
 
 
 (set out) . _o_ 
 
 c. . -47 
 
 24 & 25 Viet. c. 62 . . 87 
 c. 95 . . 124 
 
 
 
 25 & 26 Viet. c. 22 . IQ/, 108 
 c 80 187 
 
 26 & 27 Viet. c. 33 . 107, 108 
 27 & 28 Viet. c. 18 . 107, 108 
 29 & 30 Viet. c. 36 . .116 
 30 & 31 Viet. c. 125 . . 189 
 
 48 & 49 Viet. 
 
 
 49 & 50 Viet. 
 50 & 51 Viet. 
 
 134 
 
 31 & 32 Viet. c. 5 7, 45, 46 
 c 17 i8<: 
 
 
 ; 
 
 C 1 22 1 78 
 
 
 32 & 33 Viet. c. 18 . . 147 
 c. 70 . 189, 191 
 34 & 35 Viet. c. 12 . 94, 95 
 (set out) . 193 
 
 51 & 52 Viet. 
 
 
 
 35 & 36 Viet. c. 79 . 166, 167 52 & 53 Viet. 
 
 36 & 37 Viet. c. 37 . 51,52 
 
 53 & 54 Viet. 
 
 r 66 i AA
 
 Table of Statutes. 
 
 XXIX 
 
 PAGE 
 
 54 & 55 Viet. c. 70 100-102, 185 
 
 (set out) 198-200 
 76 47, 104, 167 
 
 55 & 56 Viet. 18 . 12, 98 
 
 56 & 57 Viet. 
 
 47 
 62 
 
 19 
 
 _,6 4 f 
 
 c. 67 
 
 IJl 
 
 191 
 
 54 
 98 
 191 
 184 
 54 
 
 56 & 57 Viet. c. 71 
 : c. 73 
 
 PAGE 
 . 120-126 
 
 27, S 2 , 94, 
 112, 182, 186 
 
 57 & 58 Viet. c. 57 27, 30, 80, 
 97, 103, 106, 112, 113, 142-173 
 
 (s. 32, set out) 
 
 189-191 
 
 58 & 59 Viet. c. 5 ' . -54 
 
 59 & 60 Viet. c. 15 . . 106 
 
 60 & 6 1 Viet. c. 46 . . 98
 
 XXXI 
 
 ADDENDA. 
 
 Haiukers and Pedlars. 
 
 Section 23 of the Pedlars Act, 1871 (34 & 35 Viet. c. 96), pro- 
 vides that ' Nothing in this Act shall render it necessary for a 
 certificate to be obtained by .... persons selling, or exposing to 
 sale, goods, wares, or merchandise in any public mart, market, or 
 fair legally established.' 
 
 The Hawkers Act, 1888 (51 & 52 Viet. c. 33), contains, in 
 s - 3 (3) a proviso that ' It shall not be necessary for a licence to 
 be taken out under this Act .... by any person selling or ex- 
 posing for sale, goods, wares, or merchandise in any public mart, 
 market, or fair legally established.' 
 
 Change of Fair Days. 
 (Add at p. 51, at end of the 4th paragraph.) 
 
 After the Calendar (New Style) Act, 1750, many fairs which 
 had been granted to be held on fixed feast days were held, not on 
 the days on which the feast days fell according to the new 
 calendar, but eleven days later, as if the fairs had been granted to 
 be held on nominal days of a month. Thus Bartholomew Fair at 
 Smithfield was no longer held upon the eve, day, and morrow of 
 St. Bartholomew (August 23-25), but upon September 3-5, though 
 St. Bartholomew's Day continued to fall on the same nominal day, 
 viz., on August 24. 
 
 By an order of the Home Secretary, made in 1895 under the 
 Fairs Act, 1873, tne dates of the fairs then held at Dunstable on 
 May 22, August 12, and November 12, were altered to the second 
 Wednesday in May , August, and November. See the ' London 
 Gazette' for June 7, 1895, p. 3260. 
 
 Surrender of Prescriptive Franchise. 
 
 (Add at p. 93, note/) 
 
 See also Addington v. Clode (1775) 2 W. Bl. 989 ; Carnarvon 
 (Earl of) v. Villebois (1844) 13 M. & W. 313 ; Grant on Corpora- 
 tions, 324.
 
 A TREATISE 
 
 OX THE LAW OF 
 
 MARKETS AND FAIRS 
 
 INTRODUCTION 
 
 i . Nature of Markets and Fairs. 
 
 MARKETS and fairs, though probably of different origins,(a> 
 have always been treated in English law as possessing nearly 
 the same incidents. Indeed, the word ' market ' is sometimes- 
 employed to include ' fair ' : and Lord Coke says that ' every 
 fair is a market, but every market is hot a fair.'(^) The maia 
 distinction between markets and fairs at common law appears 
 to be that, as a rule, fairs are held only once, or at most on 
 but few occasions, during the year, whereas markets are held 
 once, if not on several days, in each week, or at any rate at 
 short intervals measured by weeks. The normal market is a , 
 weekly gathering of buyers and sellersT the normal fair is a 
 great annual gathering. If there be any other distinction, it 
 is that the market is given over entirely to business, while 
 amusements have a recognised place in the fair. A ' mart ' 
 seems to be the same as a fair ; Lord Coke called it ' a great 
 fair holden every year.'(^) 
 
 A market is defined by Chatterton, V.C.(d?) to be 'properly 
 
 (a) Suggestions concerning their origins will be found in the learned 
 First Report of the Royal Commission on Market-rights and Tolls (1889), 
 by Mr. C. I. Elton, Q.C., and Mr. B. F. C. Costelloe ; see also the judg- 
 ment of Bruce, J., in Collins v. Cooper (1893) 9 T.L.R. 250. 
 
 (6) 2 Inst. 406. 
 
 (f) 2 Inst. 221. 
 
 (V) Downshire v. O'Brien (1887) 19 L.R. Ir. 380, 393.
 
 Introduction 
 
 ' 
 
 J 
 
 J 
 
 speaking, the franchise right of having a concourse of buyers 
 and sellers to dispose of commodities in respect of which the 
 franchise is given.' This is, perhaps, the happiest definition of 
 a market which has come from the Bench.(a) Any person, so 
 long as he does not interfere with existing market-rights, may 
 rjpjv make provision for a concourse of buyers and sellers upon 
 his land, but such a concourse is not necessarily a market. It 
 is not strictly a market, in the eye of the law, if there be no 
 franchise ; and no person can have a franchise of market, or 
 1 a free market,' as it is sometimes called,(^) without a grant 
 from the crown, or the authority of parliament. 
 
 The incident which at the present time constitutes the chief 
 distinction between a franchise market and a mere concourse 
 of buyers and sellers is that the owner of the former enjoys 
 > protection, and has within certain limits something akin to a 
 monopoly, that is to say, the sole and exclusive right of hold- 
 ing markets. He has the right to prevent the establishment, 
 within seven miles of his market, of any rival market which 
 will dra^w customers away from his own. But a franchise of 
 market was formerly much more than a right to provide for a 
 concourse of buyers and sellers and to prevent other persons 
 from doing the same ; and the principle that no one can hold a 
 market without the authority of the crown is more fundamental 
 than the principle that when the crown has granted a market 
 to one subject it cannot afterwards derogate from its grant by 
 authorising the establishment of a rival, for the monopoly is 
 but the consequence of the grant. 
 
 Even before the Norman Conquest the kings used to make 
 grants of markets and fairs, and at the time of Domesday there 
 were many markets and fairs in existence. The reason why 
 they could not be set up without a grant probably was to 
 secure that trade should be carried on only in places where it 
 could be conducted under proper regulations, where law and 
 order could be enforced, and the publicity of sales (which was 
 looked upon as necessary to their validity) could be ensured. 
 The Anglo-Saxon laws confined buying and selling to cities and 
 
 (a) See also per Bruce, J., in Collins v. Cooper (1893) 9 T.L.R. 250. 
 
 (/>) A ' free market ' appears to mean, not a market free to the public, 
 * or free of toll, but a franchise-market, a market belonging entirely to tin- 
 lord, free from the control of other persons; compare the terms ' free 
 court,' 'free fishery,' 'freehold,' 'free warren,' and the comprehensive 
 expressions liberties ' and franchises. '
 
 Nature of Markets and Fairs 3 
 
 towns, and required the presence of witnesses.(a) The laws 
 of William the First were conceived in the same spirit : ' We 
 forbid also that any live cattle be sold or bought except within 
 cities, and then before three faithful witnesses.' ' Likewise let 
 no market or fair be, or be permitted to arise, except in the 
 cities of our kingdom, and in boroughs enclosed and walled, 
 and in castles and in very secure places where the customs of 
 our kingdom and our common law and the dignities of our 
 crown, which have been constituted by our good predecessors, 
 cannot perish, or be defrauded or violated ; and all things 
 ought to be done regularly and openly and by judgment and 
 justice.'(^) 
 
 To encourage irregular buying and selling of commodities 
 was in direct violation of such a system, and accordingly it was 
 proper to obtain the king's licence before promoting concourses 
 of buyers and sellers at all events, in cases where they were 
 to be held outside established towns. The grantees of such 
 licences became market-owners, charged with ensuring the due 
 observance of the law. The witnessing of sales would be one 
 of the matters for which the lord w~6uld have to provide ; and 
 disputes arising out of such sales would, not unnaturally, be 
 referred to him or his deputy. * To this may be ascribed the 
 origin of courts of p.iejx>wder ; and there would thus be most 
 intimately connected with the holding of a market the exercise 
 therein of a civil jurisdiction. 
 
 By the thirteenth century thejnere gathering together of a 
 concourse of buyers and sellers had ceased to be unlawful ; 
 but by this time the holding of a court had become incident - 
 to every market or fair. The assumption of civil jurisdiction ^ 
 without a grant from the crown was unlawful. For no one 
 could hold a court except by virtue of a franchise or the tenure 
 of lands.(f) Hence, at this period also, a grant from the king 
 
 (a) See Laws of Edward the Elder (901-924) ; Laws of Aethelstan, 
 (circ. 925) ; Laws of Edgar (959-975) ; Laws of Cnut (circ. 1017) ; Laws 
 of Edward the Confessor (1043-1066) ; printed in The Ancient Laws and 
 Institutes of England (\%Af>}, pp. 68, 88, 90, 117, 167. 
 
 () See The Ancient Laws and Institutes of England p. 212. Cf. 
 Id. p. 209. 
 
 (c) See Prof. Maitland's introduction to Select Pleas in Manorial and 
 
 other Seignorial Courts, Selden Soc. , vol. i. , where the difference between 
 
 feudal or manorial jurisdictions and those which were regarded as regalities 
 
 or franchises is discussed. The lord of the manor, as such, had no right to 
 
 it market jurisdiction. He only obtained u l>y chuiu-r ; so that the market 
 
 '/ B2
 
 4 * Introduction 
 
 was necessary for the holding of a market or fair, and these 
 franchises were thenceforth treated on the same footing as the 
 many other liberties the possession of which entitled the holder/ 
 to a definite jurisdiction. It was laid down that where there 
 was no attempt to exercise such jurisdiction the promotion of 
 a gathering of buyers and sellers was not to be regarded as the 
 assumption of a franchise. There are several cases in the 
 Plarita de Quo Warranto (a) which show that such gatherings 
 at stated times were not considered to be necessarily markets. 
 They were sometimes called Wakes, and were not usurpations 
 of a franchise, at any rate when no toll was taken. 
 
 These cases were followed in the eighteenth century in the 
 case of R. v. Marsden,() where it was decided that the mere fc 
 promotion or encouragement of a concourse of buyers and I 
 sellers at stated times was not the usurpation of a franchise, I 
 there being nqjiolding of a court of pie powder, nor taking of| 
 tolj. In this case Wilmot, J., said that ' the reasorTwhy a fair 
 or market cannot be otherwise claimed [than by grant or pre- 
 scription] is not merely for the sake of promoting traffic and 
 commerce, but also for the like reason as in Roman law, for 
 the preservation of order and prevention of irregular behaviour : 
 ubi est multitude, ibi debet esse'rector' 
 
 It was, and is, an essential condition of holding a market 
 or fair that it should be open for all persons to frequent it for 
 the purpose of buying and selling. In consideration of the 
 provision of land for the benefit of the public the crown 
 frequently granted to lords of markets and fairs the right to 
 take toll upon goods sold therein. But no toll could be taken 
 If without a grant. Tojljas not incident to a market or fair, 
 and many of them were toll-free. To take toll in a toll-free 
 market, or to take excessive toll in any market, is unlawful and 
 a ground of forfeiture of the franchise. The market must be 
 kept open to all to buy and sell therein freely, subject only to 
 
 jurisdiction Ixjlongs rather to the class of franchise jurisdictions than to that 
 of manorial or feudal jurisdictions. 
 
 (a) See pp. 115 (Crosthwaite), 801 (Ramesbury), 212 (Emmeseye), 321 
 (Canterbury). In the last case the place seems to have been open, not to 
 the public, but only to the tenants of the manor. The judges said that 
 this is ' iion regale, nee libertas : immo potius debet diet libernm tenevien- 
 ////;/.' See also Abbot of Abingdon's case (Trin. 14 John), Abb. Plac., 
 p. 54. 
 
 (b) (1765) 3 Burr. 1812 ; see also R. v. (1682) 2 Show. 201.
 
 Nature of Markets and Fmrs 5 
 
 the payment of such tolls as have been duly authorised by the 
 crown or parliament. 
 
 Where there is no market or fair there appears to be nothing 
 illegal in demanding payments resembling toll from persons 
 admitted to buy and sell upon one's land. A person may, as 
 a rule, throw open a building to buyers and sellers, and may 
 stipulate for what payments he pleases ; but if he holds a 
 market or fair he is bound to admit the public free of charge, 
 unless he has also a grant of toll. Such payments, when | 
 demanded without any franchise, cannot be recovered as toll. ' 
 They cannot be distrained for or recovered by action without 
 showing a contract ; whereas market- tolls are recoverable by 
 action without proof of contract, and may be distrained for. 
 
 The taking of toll has been treated either as indicating that 
 a gathering was in fact a market , or as being in itself the 
 usurpation of a franchise.(a) Probably it should be regarded 
 only as evidence that the person who takes the toll is assuming 
 to exercise a franchise. 
 
 There are some gatherings which are often spoken of as 
 fairs or markets, but which are not properly so called, and 
 which must be distinguished from franchise fairs and markets. 
 
 In many parts of the country statute sessions are still held Statute 
 in the spring or autumn, at which labourers are hired for the se 
 ensuing season. These statute sessions go by the name of 
 hiring fairs or statute fairs, or sometimes hiring mops, but they 
 have nothing in common with franchise fairs for buying and 
 selling. Their origin is derived from the Statutes of Labourers, 
 the first of wfflcik waS (HUWd ill Ifii ltigil~ol Edward III.,(/;) 
 and was followed by several others in the same and subsequent 
 reigns. These statutes either regulated the rate of wages for 
 labourers or empowered the justices to do so by proclamation, 
 and they imposed penalties on persons who took or gave 
 higher wages. The last statute on the subject was the 5 Eliz. 
 c. 4. This repealed all previous enactments, but at the same 
 time provided (c) that it should be lawful ' for the high constables 
 in every shire to hold and continue petty sessions, otherwise 
 -called statute sessions, in all shires wherein such sessions have 
 
 (a) Lord Mansfield, in R. v. Marsden (1765) 3 Burr. 1812, said : 
 ' There are no marks of a fair or market, no toll taken.' See also R. v. 
 
 (1682) 2 Show. 201 ; and the cases from the Plac. Quo Warr., cited 
 in note (a), p. 4, ante. 
 
 (b) 23 Edw. III. (c) By s. 48.
 
 
 6 Introduction 
 
 been used to be kept, in such manner as theretofore accus- 
 tomed.' The origin, therefore, of these statute fairs was that, 
 when the proclamations at the sessions were to be made, 
 both masters and labourers were in the habit of attending, to 
 hear what the rates of hiring were to be and to make bargains 
 for hiring for the ensuing term.(a) Though stalls be put 
 up and goods sold at these gatherings, that does not make them 
 franchise fairs. (<) 
 
 There are in some towns certain streets in which coster- 
 mongers and hawkers are accustomed to put up stalls and sell 
 their goods. There are many of these so-called street markets 
 in London. No tolls are taken, and they are not franchise 
 markets. It is possible that in some cases they~are held where 
 markets formerly existed, but at the present day they appear 
 to be simply gatherings of costermongers at places chosen by 
 them for their own convenience. 
 
 As regards the metropolis, costermongers may now carry on 
 their business in the streets in this way, provided that they comply 
 with the regulations from time to time made by the Commis- 
 sioner of Police with the approval of the Home Secretary. (c) 
 
 
 2. Courts of Pie Powder. 
 
 There was formerly held in every fair a court of pie 
 powder. (</) Such a court was incident to every fair and 
 market granted by the crown,(^) and might exist by grant, 
 prescription, or custom without a fair or market ;(/) but now 
 nearly all these courts have ceased to be held.(^) 
 
 (a) See per Blackburn, J., in Simpson v. Wells (1872) L.R. 7 Q.B. 
 214. 
 
 (*) Ibid. 
 
 \c] See 30 & 31 Viet. c. 134, s. 6 ; 31 & 32 Viet. c. 5, s. i ; Keep v. 
 Vestry of St. Mary's Newington [1894] 2 Q.B. 524 ; Summers v. Holborn 
 District Board of Works [1893] i Q.B. 612. See dsopost, p. 45- 
 
 (J) ' Court of Pepoudres, vulgarly pipowders ; ' 4 Inst. 272. A corrup- 
 tion of O.F. ' pied pouldre,' Lat. ' curia pedis pulverisati ' ; so called from 
 the dusty feet of the suitors ; see Skeat, Etymol. Diet. In Wilkinson v. 
 Nethersol (1597) Cro. Eliz. 530, Anderson, C.J., said that these courts 
 had this name ' because they are there to hold pleas only of things parvi 
 ponderis' ! 
 
 (e) Stat. 17 Edw. IV. c. 2, preamble, and I Rich. III. c. 6 ; 4 Inst. 
 272; Howel v. Johns (1600) Cro. Eliz. 773 ; Goodson v. Duffield (1613) 
 Cro. Jac. 313, 2 Bulstr. 21 ; Y.B. 8 Hen. VII. 4 b, 12 Hen. VII. 16 b. 
 
 (/) Goodson v. Duffield, supra ; Y.B. 13 Edw. IV. 8 b ; 4 Inst. 272. 
 
 (g) The Report of the Royal Commission, vol. iii., p. 102, refers to a 
 pie powder court as still held at Hemel Hempstead. And such a court 
 still exists at Bristol. With regard to the latter court see the Orders in
 
 Courts of Pie Powder 7 
 
 The court was a court of record, held before the steward 
 (seneschal) appointed by the lord,(<z) or (by special custom) 
 before the mayor or his deputy and two citizens.^) At Stour- / 
 bridge fair, which belonged to the corporation of Cambridge, 
 it was held before the mayor and bailiffs of Cambridge. (c) * 
 The court, as a rule, had jurisdiction only in matters 
 arising within, and during the time of, the fair or market, such 
 as contracts, covenants, debts, deeds, trespasses, batteries, or 
 disturbances made, done, or arising in the fair or market.(</) 
 The court, perhaps, dealt with slanders spoken in the fair or 
 market concerning wares exposed therein, but not with slanders 
 of the person which did not touch any matter of contract made 
 therein.(tf) The court had no jurisdiction in penal matters.(/) ' 
 The jurisdiction was contemporaneous with the holding of < 
 the market, and a court heldat one fair could not decide / 
 questions arising on a contract made at a preceding fair.(^) 
 
 The County Courts Act, i888,(/$) enables the lord of any 
 hundred, honour, manor, or liberty, having any court in right 
 thereof in which debts or demands may be recovered, to sur- 
 render to the crown the right of holding such court for any 
 such purpose, and provides that such surrender shall not be 
 deemed to infer the surrender or loss of any other franchise in- 
 cident to the lordship. (/) The same Act enables the crown, 
 by order in council, to exclude from the jurisdiction of a court 
 of local jurisdiction causes of which a county court has cog- 
 nisance, if a petition, praying for such order, be presented to 
 
 Council dated May 16, 1871, June 26, 1873, July 19, 1883, and the orders 
 and rules for that court, dated June 20, 1878. 
 
 (a) Y.B. 6 Edw. IV. 3 b ; 3 Black. Comm. 32. 
 
 (b) Goodson v. Duffield, supra; see also Com. Dig., Market, G I ; 
 Bac. Abr., Court of Pipowders; 4 Inst. 272. 
 
 (0 Dyer, 132 b, pi. 80. 
 
 (ct) Goodson v. Duffield (1613) Cro. Jac. 313, 2 Bulstr. 21 ; Howel v. 
 Johns (1600) Cro. Eliz. 773, 4; Statutes 17 Edw. IV. c. 2, and I Rich. 
 III. c. 6 (still unrepealed). 
 
 (e) Howel -v. Johns, supra ; see 10 Co. 73 b. 
 
 (/) Wilkinson v. Nethersol (1597) Cro. Eliz. 530. The Record of the 
 Court of the Fair of St. Ives (1275), extracts from which have been pub- 
 lished by the Selden Society in vol. ii. of the Select Pleas in Manorial ' 
 Courts, presents a vivid picture of the procedure in the court of a fair. 
 It is not clear, however, that all the matters dealt with by the steward of 
 the faliTcame before him in the exercise of his jurisdiction as judge of a 
 Court of Pie Powder. (See Prof. Maitland's introduction.) 
 
 (g) Goodson v. Duffield, supra ; Dyer, 132 b, pi. 80. 
 
 (A) 51 '& 52 Vict - c - 43- 
 
 (i) s. 6. The repealed 9 & 10 Vict. c. 95, s. 14, was to the like effect.
 
 8 Introduction 
 
 the crown by the council of any city or borough, or a majority 
 of the ratepayers of any parish, within which the local court 
 is established. (a) 
 
 3. Correction of the Market. 
 
 Notwithstanding some general statements which may be 
 found to the contrary, lords of markets or fairs, as such, do not 
 appear to have had any general jurisdiction therein over 
 matters of a criminal nature. Offences in the market, such as 
 the sale of unwholesome meat, or the use of false weights and 
 measures, mentioned in the ' Judicium Pillorie,' (/>) came more 
 properly within the jurisdiction known as view of frankpledge 
 (visits franci p legit) or court leet, or that of the sheriffs tourn ; 
 and the records of courts leet furnish many examples of the 
 punishment of offences of this nature.(<r) The right to punish 
 forestallers was either a separate franchise,^) or part of the 
 jurisdiction of frankpledge. (e) 
 
 Very often, however, the lord of a market or fair possessed 
 also the view of frankpledge, and in such cases the same 
 authority which had the market jurisdiction had also criminal 
 jurisdiction over market offences. 
 
 Although, as we have just stated, the lord of a market, as such, 
 had no general criminal jurisdiction, yet it seems fairly clear that 
 he had the right and duty of enforcing the assize of bread and 
 ale on market and fair days within the market, and that this right 
 was incident to a market or fair, and followed from the grant.(_/) 
 
 The ' Assize of Bread and Ale ' (g) fixed the price of bread 
 in relation to that of wheat, and the price of beer or ale in 
 relation to that of wheat, barley, and oats. Bakers and 
 brewers convicted of not observing the assize were to be fined 
 for the first three offences, but if the offence were ' grievous 
 
 (a) S. 7. 
 
 (b) 51 Hen. III. st. 6, Ruff. 
 
 (c) See, for instance, The Court-Leet Jurisdiction in Norwich, 
 Selden Soc. vol. v. 
 
 (d) See Plac. Quo. Warr., Northolm, p. 556. 
 
 (e) For the statute for View of Frankpledge, see 18 Edw. II. Ruft". 
 (repealed by 50 & 51 Viet. c. 55, but without prejudice to any court leet, 
 &c., then still held ; see s. 40.) 
 
 (/) See Plac. Quo Warr., Ormskirk (p. 370), Wigan (p. 371,) Hoving- 
 ham (p. 219). 
 
 tf) Assiza Panis et Cervisite (51 Hen. III. st. i, Ruff.); see also 
 .Judicium Pillorie (51 Hen. III., st. 6, Ruff.). These statutes were finally 
 repealed by the St. Law Revision Act, 1863.
 
 Correction of the Market 9 
 
 and often' they were to be sentenced, the baker to the pillory, 
 and the brewer to the tumbrel. For the punishment of 
 offenders against the assize, the market-owner was bound to 
 have in the market-place his pillory and tumbrel, and to use 
 them.(rt) Many jnarkets were forfeited because the lord took 
 fines when he ought to have had recourse to these instruments, i 
 This administration was spoken of as the correction of the assize j 
 or the correction of the market, (b) and the lord's officers for 
 enforcing it were called correctors. So far as the lord of a 
 market or fair was concerned, this right did not, it seems, 
 carry with it any general right of correcting the assize of bread 
 and ale, but only extended to breaches in the market or fair. 
 
 Beyond what has now been stated, we have not been able 
 to trace any general right in a market-owner to exercise crimi- 
 nal jurisdiction. In reading the records of fair courts, no safe 
 conclusion as to the extent of market jurisdiction can be drawn, 
 unless it be clear that the market-owner had not also view of - 
 frankpledge. Moreover, it would be dangerous to conclude 
 that jurisdiction in fact exercised in any such court was always 
 rightfully exercised. 
 
 4. Extraordinary Jurisdiction. 
 
 In some cases lords of fairs claimed very extensive jurisdic- 
 tion by special grant or prescription. An example of this claim 
 will be found in the case of St. Giles' Fair at Winchester. 
 There a charter of Edward Ill,(c) (confirming and enlarging 
 previous charters) granted to the Bishop, who was lord of the fair, <* 
 that the keys of the city should be given up to him before the 
 fair ; ' and the Bishop from the time that the keys and custody 
 of the gates have been delivered to him shall, by his justiciaries 
 and other ministers, have the custody of the whole city and 
 cognisance of all pleas between the men and tenants of the 
 city, and all other persons within a circuit of seven leagues 
 round the fair, regarding breaches of law, debts, and all contracts 
 whatsoever. . . . And the said justiciaries shall hold all the 
 pleas of the crown, whether by appeals or by indictments 
 
 (a) Stat. Judicium Pillorie (supra) ; see also Plac. Quo Warr., North- 
 olm (pp. 551-7), Seton (p. 123), Wahull (p. 36), Ireby (p. 124), likes- 
 ton (p. 137), Suthyevele (p. 75). 
 
 (b) Y.B. II Hen. VI. f. 19; see also per Littledale, J., in R. v. 
 Starkey, 7 A. & E. 95, 107. 
 
 (c) Edited by G. W. Kitchin, D.D., formerly Dean of Winchester, 
 and printed in the Report of Royal Commission, vol. i. p. 91.
 
 I o Introduction 
 
 arising out of the facts, within the aforesaid precinct, shall pass 
 judgment thereon, and take execution during the fair, as our 
 justiciaries do in like case elsewhere in our realm of England.' 
 Similarly, the Archbishop of York had a fair there by pre- 
 scription, and at the time of the fair the city bailiffs handed 
 their staves over to the Archbishop's bailiffs, ' who shall during 
 the fair keep the peace of the city, and collect the tolls, and 
 take all other profits, as the city bailiffs do at other times.' (a) 
 Again, at Hereford, the Bishop claimed by charter ' the whole 
 care and custody of -the city at the time of the fair,' and 'to 
 have all attachments and power over all merchandise, as well in 
 houses as without ; and that all plaints of all manner of for- 
 feitures are to come before the bailiffs of the Bishop, and they 
 are to do justice to all complainants, and are to receive the 
 amercements thereon during the fair.'(^) 
 
 5. The Clerk of the Market. 
 
 The franchise of a market or fair did not carry with it the 
 right to keep standards and hold assizes of weights and 
 i measures. Where the lord of a market possessed this right, 
 he had it as a separate and independent franchise. (c) Any 
 general history of the law of weights and measures would be 
 out of place here,(^) but it seems proper, on account of his 
 name and office, to make some reference to the Clerk of the 
 Market of the King's Household (Clericus mercati hospitii 
 regts). 
 
 It has been said that the duties of this ancient officer of 
 
 the crown originally consisted in the regulation of a continual 
 
 market kept at the gate of the king's court. (e) But in the 
 
 time of Edward I., and afterwards, when this method of 
 
 supplying the royal table had been abandoned, his duties were 
 
 somewhat different. He was entrusted with standards and 
 
 L samples of the king's weights and measurer; and with these 
 
 j he travelled from place to place and held his courts at all 
 
 (a) Plac. Quo. Warr. 222-3 ! Drake's Hist, of the City of York (1736), 
 pp. 218, 256. 
 
 (b) Abb. Plac. p. 113 ; Duncombe's Hist, of Hereford (1804), p. 293. 
 
 (c) See e.g. I'lac. Quo. Warr., Stanford (p. 395), Catthorp (Id.), 
 Stanewyg (p. 70). 
 
 (d) The present law on the subject, so far as it relates particularly to 
 markets and fairs, is dealt with/^/, pp. 98-104. 
 
 (e) 4 Inst. 273 ; 2 Inst. 543.
 
 The Clerk of the Market 1 1 
 
 markets within the verge.(rt) He examined the weights and 
 measures used in the market, burned such as were false, 
 and amerced offenders.(^) The refusal of the bailiff of a 
 market to submit to his jurisdiction was a ground for seizure 
 of the franchise into the king's hands.(r) In some cases he 
 may have had power to inquire into the jurisdiction of the 
 lord of the market, and to ascertain whether the assize of 
 bread and ale had been duly kept.(^) 
 
 By the retention of fines which ought to have been paid 
 into the Exchequer (e) and the exaction of bribes and illegal 
 fees, the office was made very profitable ; and in 1389 and 
 1392 the abuses of the office attracted the attention of 
 parliament. (/) Another matter of complaint about the same 
 period was that the officer acted outside his jurisdiction, and 
 refused to recognise the charters which the crown from time to 
 time granted to cities and other places exempting them from 
 his control.^) Such exemptions seem to have been granted 
 freely down to the reign of Henry VIII. At any rate, two of 
 
 (a) The verge extended to within 12 miles from the place where the 
 king was keeping his court. 
 
 () Fleta, bk. 2, c. 20; Britton, bk. I, c. 31, ff. 75 b, et seq. ; 4 Inst. 
 
 273- 
 
 (c) See Britton, loc. cit. supra; cf. per Brian, C.J., V.B. 2 Hen. VII. 
 f. ii. 
 
 (d) Ibid. In 1406 the clerk of the market was ordered ' to do his office 
 as in the time of Edward ist ordained and used ' ; see Rot. Parl. 8 Hen. IV. 
 no. 82. The extent of his jurisdiction must have depended in each case 
 upon the terms and validity of the letters patent appointing him ; see 
 Burdett's Case (1710) I Salk. 327, which seems to be the latest reported 
 case in which this officer's powers were considered in a court of law. This 
 royal officer must not be confused with the clerk or bailiff of a market 
 appointed by the lord to regulate it on the lord's behalf. 
 
 (e) The accounts of the clerks of the market from 25 Edw. I. to 36 
 Eliz. appear to be kept at the Record Office ; see igth Rep. of the Deputy 
 Keeper of the Public Records, p. 7 (1858), and 2Oth Id. p. xiii. (1859). 
 
 (/) See 13 Ric. II. st. i,c. 4, and 16 Ric. II. c. 3. See also Rot. 
 Parl. 18 Edw. III. no. 12 (4), and 50 Edw. III. nos. 87 and 152. 
 
 (g) See Rot. Parl. 51 Edw. III. no. 53 ; I Ric. II. nos. 75 and 128. 
 Under the charters of 1327, 1462, and 1550, the exclusive right of per- 
 forming all that appertained to the office within the city of London and 
 the borough of Southwark was conferred upon the Lord Mayors and their 
 deputies, who thus acquired authority to regulate the weights and measures 
 used in the London markets (see Birch, Hist. Charters of Lotidon, 1887, 
 pp. 55, 82, 122 ; Royal Commission, 1893, City of London, Statement by 
 the Corporation, p. 272). In the Duchy of Lancaster the Duke acquired 
 by charter the like exclusive right (see Hardy's Charters of the Ducky, 
 1845). The University of Oxford still appoints Clerks of the Market 
 under its statutes. As to their duties, see Corpits Stat. Univ. Oxon. 
 (1768), p. 168. 

 
 1 2 Introduction 
 
 his statutes provided that, notwithstanding any grant to the 
 contrary, the King's Clerk of the Market, and none other, 
 should exercise the office within the verge in places where the 
 king from time to time tarried in person.(a) 
 
 ' The Description of England ' in Holinshed's Chronicles 
 contains an interesting chapter on Fairs and Markets. (b) 
 The ' copiousness ' of the clerks of the market is there be- 
 wailed, and it is stated that at each view of measures they had 
 a trick of providing business for the next. By 1640 further 
 abuses had arisen. The clerks were assuming to have jurisdic- 
 tion both within and without the verge,(^) and the office was 
 usually farmed out in each county at a sum which the lessee 
 could make up only by extortion. To remedy this, the 16 Car. I., 
 c. 19, was passed, which again confined the jurisdiction of the 
 crown official within the verge of the king's court, and entrusted 
 the execution of the office outside, in cities and boroughs, to 
 the mayor or other head officer, and in liberties and franchises 
 to the lord or his deputy. All these persons were subsequently 
 empowered and required to seal or mark measures of corn 
 and salt when brought to them for that purpose ;(d) and it 
 was further provided (e ) that in places where there was no 
 clerk of the market this duty should be performed by ' the 
 person having the benefit of the market.' These seem to be 
 the latest statutes in which the Clerk of the Market of the 
 King's Household is referred to by name.(/) 
 
 Blackstone says that ' the court of the clerk of the market 
 is incident to every fair and market in the kingdom, to punish 
 misdemeanors therein ' ;(g) but at the time when he wrote 
 the court of this officer of the king's household was, in all 
 
 (a) 27 Hen. VIII. c. 24, s. 12 ; 32 Hen. VIII. c. 20, s. 7. The 
 franchise rights of London and certain other places were preserved. 
 V (b) Bk. 2, ch. 18 (2nd edit., 1587.) 
 
 (c) Relying, possibly, on the 14 Edw. III. st. I, c. 12 : ' And it is not 
 the king's mind but that the clerk of the market shall do his office where he 
 will, according as he was wont to do in times past.' 
 
 (d) 22 Car. II. c. 8, s. 4. 
 
 (e) 22 &. 23 Car. II. c. 12, s. 4. 
 
 (/) The repeal of these statutes by the St. Law Revision Act, 1863, 
 was without prejudice to established jurisdictions or existing franchises or 
 offices, though derived therefrom. The Weights and Measures Act, 
 1878, preserved existing franchises to examine, and verify or destroy, 
 weights and measures ; and the Weights and Measures (Purchase) Act, 
 1 892, authorised county and borough councils to purchase such franchises 
 by agreement. 
 
 (g) 4 Bl. Com. 275.
 
 The Clerk of the Market 1 3 
 
 probability, almost obsolete. (a) Indeed, even in Coke's day 
 there was ' no great need for him, for the justices of assize, the 
 justices of oyer and terminer, the justices of the peace, the 
 sheriffs in their tourns, and the lords in their leets, may so 
 inquire of false weights and measures.'(^) It has been 
 stated recently that one of the latest recorded instances of a 
 clerk of the market exercising powers as a king's officer was in 
 Middlesex, in 1738, when such an officer was authorised by 
 letters patent to inspect all weights and measures within the 
 ' little virge.'(<r) 
 
 (a) Blackstone was misled by a passage in Nathaniel Bacon's Law 
 of English Government (bk. I, c. 8) into stating that the court 
 derived its jurisdiction from the bishop. 
 
 (b] See 4 Inst. 273. The sheriff's tourn was abolished by 50 & 51 
 Viet. c. 55, s. 18. 
 
 (<) See Our Weights and Measures, by H. J. Chancy (1897). v'
 
 PART I 
 
 THE LAW OF MARKETS AND FAIRS GENERALLY
 
 17 
 
 THE LAW OF MARKETS AND 
 FAIRS GENERALLY 
 
 CHAPTER I 
 
 TITLE TO THE FRANCHISE 
 
 THE right of holding a market or fair is well known to the Franchises 
 common law. It is an incorporeal hereditament, and is one 
 of those incorporeal hereditaments which are called franchises. (a) , 
 A franchise is usually defined to be a royal privilege, or V 
 branch of the crown's prerogative, subsisting in the hands of a 
 subject. (b} The right of creating a franchise to hold a 
 mark~et or fair has from time immemorial been annexed to the 
 crown as part of the prerogative ;(c} and no market or fair in 
 the hands of a subject can have a legal origin or legal 
 existence unless established by the royal prerogative, or by 
 the authority of an Act of Parliament. (d} 
 
 The crown, indeed, may erect a market or fair 'by Ordi ' 
 ordinance, without granting it unto any ' ;(e) that is to say, the 
 crown may, by virtue of the prerogative, establish a market or * 
 fair to subsist in the hands of the crown, and the formal 
 instrument providing for its establishment is called an 
 ordinance. The early records contain several references to -" 
 markets and fairs subsisting in the hands of the crown, (/) and 
 
 (a) Finch, L. 164; 2 Blac. Comm. 37, 38. (6) Ibid. 
 
 (c) Bracton, lib. 3, tract. 2, cap. i, sect. 3, fol. 117; Bacon, Abr., 
 Fairs and Markets (A. i) ; notes to 2 Wms. Saund. 501 n (b). 
 
 (rf) As to the rare case of the valid creation of a franchise by a subject 
 having jura regalia, see Grant on Corporations, n. Durham market * 
 seems to have originated in a grant in 1180 to the Corporation of Durham 
 by the then Bishop of Durham ; see Report of Royal Commission, vol. xiii. , 
 part ii. p. 176 ; vol. iv. p. 384. 
 
 (e) Hob. 1 5, the source of the statements to the same effect in 2 Roll. 
 Abr. 197, 17 Vin. Abr. 145, Chitty, Prerog. 193. 
 
 (/) See, for example, Rot. Hundred, vol. i. p. ii. (Sallingford fair) : Id. 
 p. 13 (Wycombe fair) : Id. p. 18 (Windsor fair) : Id. p. 70 (Exeter fair, a 
 moiety whereof was in the hands of the king and the citizens) : Abb. 
 
 C
 
 
 1 8 The Acquisition of the Right 
 
 also examples of ordinances for their erection.(a) It seems, 
 however, that, at the present day, there are few, if any, markets 
 or fairs which belong to the crown.() The ' king's markets ' 
 and ' king's fairs ' of former times have been either granted 
 away to subjects (c) or discontinued. 
 
 a whom The franchise of holding markets and fairs was in early 
 
 times usually granted to the lord of the manor within which 
 
 they were to be held, or, where they were to be held within a 
 
 city or borough, to the city or borough corporation. The 
 
 charters whereby the inhabitants of towns were incorporated 
 
 ^ // often contained grants of markets and fairs to the new 
 
 corporations. Sometimes the inhabitants were incorporated 
 
 ^' -j for no other purpose than that the body corporate might hold 
 
 2- ^ a market or fair, as was the case at Hemel Hempstead under a 
 charter of i539-(^) Sometimes the inhabitants were not 
 incorporated, but a body corporate was created to hold 
 markets and fairs in trust for them. Thus at Hungerford the 
 franchise was graTited in 1432 to the then lords of the manor, 
 and the grant incorporated them and made them trustees of 
 the franchise for the inhabitants. (e) In the reign of Queen 
 Anne we find instances of grants to individual persons in fee 
 in trust for the inhabitants, in which neither the inhabitants 
 nor their trustees were incorporated ;(/) and in one case the 
 trust was for the poor of the parish.(^) Markets and fairs at 
 one time existed at Skipsea and Withernsea under grants 
 simply ' to the men of the vill their heirs and successors. \h) 
 The difficulties, both legal and practical, in the way of the 
 
 Plac. p. 206 b (Hereford fair) : Id. p. 246 (Marlborough market) : Plac. 
 Quo War. p. 185 (Bridport market). 
 
 (a) See, for example, Rot. Chart, p. 77 (2 John, Portsmouth) : Id. 
 p. 135 (6 John, Marlborough). 
 
 (6) See the Parliamentary Return on Market Rights and Tolls, 1886 : 
 the 74th Report of the Commissioners of Woods, 1896 : and the Final 
 Report of Royal Commission, on Market Rights and Tolls, pp. 1 8, 
 et seq. 
 
 (c) Thus the crown sold Romford Market in 1829; see Report of 
 Royal Commission, vol. iii. p. 53. See Id. p. 40, as to Hitchin. 
 
 (d) See Report of Royal Commission, vol. iii. p. 102. 
 
 (e) Id. vol. iv. p. 173. 
 
 (/) Pat. 8 Anne, p. 5, No. 13 (Chagford) : Pat. 5 Anne, p. 2, No. 
 18 (Wincalton). See Report of Royal Commission (1888) vol. i. pp. 133, 
 
 (g) Pat. 4 Anne, p. 3, No. 9 (St. Udy). See same report, vol. i. p. 132. 
 
 (A) See Calend. Rot. Chart, p. 174, 12 Edw. III. Nos. 29, 30. 
 Poulson (Hist, of ffolderness, vol. i. p. 445) sets out the grant to the 
 men of Skipsea.
 
 I 
 
 - 
 
 Acquisition by Grant 19 
 
 franchise being exercised by the inhabitants of a place when 
 not incorporated were probably met in these cases by the 
 fact that the manors were in the hands of the king, whose 
 bailiffs seem to have regulated these markets and fairs ;(a) 
 and accordingly these grants should, perhaps, be described as 
 ordinances. There is authority, however, for the view that a 
 grant by the crown to the inhabitants of a particular parish or 
 vill for such a specific purpose as the holding of a market has 
 the effect of incorporating them so as to carry that purpose 
 into effect.(^) 
 
 In more recent times markets and fairs have generally been Market 
 erected by Acts of Parliament, and in such cases they are often authorities 
 owned by trustees or commissioners appointed under such 
 Acts. Acts of Parliament have also frequently been passed 
 for the purpose of regulating markets and fairs already in 
 existence. Now, under the provisions of the Public Health ^f 
 
 Act, 1875,^) urban district councils possess the power 
 to estaljTisTi markets in their districts. In such cases the 
 markets are owned by the district councils which establish 
 them. 
 
 An individual grantee of a market or fair is generally called 
 the lord or the owner of the market or fair. But this is, per- 
 haps, not an altogether convenient expression where a market 
 or fair is in the hands of a body of persons, such as trustees or 
 a district council. "* ' The market authority ' is a suitable phrase 
 which is often used to include every kind of market- owner. 
 
 i . Acquisition by grant. 
 
 The instruments whereby the sovereigns of England make Charters 
 grants and express their intentions to their subjects are called and letters 
 charters, letters patent, and letters close. From the end of P ' 
 the twelfth century to the year 1516 all grants of fairs and 
 markets were made by__charter.(^) Since that date all such 
 grants have been made by letters patent.(^) Since 1846 
 
 (a) See Poulson, Hist, of ffolderness, vol. i. p. 398, vol. ii. p. 458. 
 
 (b) See Rivers v. Adams (1878) 3 Ex. D. 361, 366, per Kelly, C.B., 
 who cites the early authorities ; and Wilhngale v. Maitland (1866) L.R. 
 3 Eq. 103, 109. 
 
 (c) 38 & 39 Viet. c. 55. 
 
 (d) Introduction to Rotuli Chartarum, by Sir Thos. Duffus Hardy, 
 vol. i. part. i. pp. i. ii. 
 
 (e) Introduction to Rotuli Lilterariim Patentium, vol. i. part ii. p. ii. 
 
 C 2
 
 2O The Acquisition of the Right 
 
 few, if any, grants of market-rights have been made by the 
 crown. The difference between charters and letters patent is 
 mainly one of form, charters being documents of a more 
 strictly formal nature. Many examples of grants of markets 
 and fairs may be found in the Rotuli Chartarunv THe follow- 
 ing is given as an example : 
 
 Johannes Dei gratia [rex Angliae, dominus Hiberniae, 
 dux Normanniae, Aquitanniae, et comes Andegaviae, archie- 
 piscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis r 
 vicecomitibus, praepositis, et omnibus ballivis et fidelibus suis, 
 salutem.] Sciatis nos dedisse et concessisse, et hac carta 
 nostra confirmasse, Roberto Corbet et heredibus suis unum 
 mercatum singulis ebdomadis (a) una die, scilicet die Mercurii, 
 apud Cocs.(^) Quare volumus et firmiter praecipimus quod 
 idem Robertus et heredes sui post ipsum praedictum mercatum 
 habeant et teneant in perpetuum cum omnibus libertatibus et 
 liberis consuetudinibus ad hujusmodi mercata pertinentibus, 
 ita tamen quod mercatum illud non sit ad nocumentum 
 vicinorum mercatorum. Testibus Gaufrido filio Petri comite 
 Essexae, W. Marescallo etc., Wilhelmo Briwerro. Data per 
 manum S. Wellensis Archidiaconi et J. de Gray etc., apud 
 Wigorniam, x die Aprilis anno regni nostri primo.(<r) 
 ^ A grant of a market or fair from the crown does not neces- 
 sarily carry with it the right to hold the market or fair granted. 
 For the law does not permit the crown to grant new market- 
 rights which would be injurious to other market-rights already 
 in existence. The crown may not derogate or detracrTby^ new 
 grants from other grants Which it has previously made, even 
 thougn the new grants would be beneficial to the public at 
 large, (d) An Act of Parliament is the only instrument whjch 
 can infringe or detract from a pre'Vluus ' giaiil. TllliJ' rule is 
 well recognised by the clause ' ita ut non sit ad nocumentum 
 vicinarum nundinarum,' or ' alterius mercati,' or other clause 
 with words to that effect, which is usually inserted in grants 
 of markets and fairs. But the omission of such a clause from 
 a grant does not benefit the grantee ; for the law always ' 
 
 (a) ' In every week.' Septimana is the word more commonly used for 
 ' week ' in Latin charters. 
 
 (b) Caux, Caus, Cause, Course, or Corze, Salop. 
 
 (c) Rot. Chart. I John, part ii. membr. 15. 
 
 (d) Bracton, lib. ii. c. 24, fol. 56 b ; Vin. Abr. ' Franchise ' (G) 9 ; 
 Islington Market Bill (1835) 3 Cl. & F. 513, 12 M. & W. 20 n.
 
 Acquisition by Grant 21 
 
 * implies such a clause whenever it is not expressed. (a) It is 
 said, however, that a prior grantee loses the benefit of his 
 priority by not making use of his grant, (b) 
 
 In order to guard against the making of improper grants, it Writs of 
 has been the practice of the crown not to make a grant until^ j an ^" ni 
 an inquisition has been held under a"writ of ~ad quod aamnum, 
 and a jury has found, by their return to the writ, that the 
 proposed market or fair would not be to the damage of the 
 crown or any subject.(<r) But an invalid grant derives no 
 validity from the fact that such an inquisition was held. If it 
 should appear, after the grant has been made, that it works an 
 injury to an earlier grant, or that the crown was otherwise 
 deceived in making it,(d) that is a ground for its repeal by 
 scire facias. (e) Moreover, the grantee or owner of a market or 
 fair which is injured by the erection of a new market or fair f 
 under a later grant has a remedy by action for damages, which 
 he can enforce at once, and without waiting until the later 
 grant has been repealed. (/) 
 
 The procedure to obtain a grant from the crown appears to Obtaining 
 be as follows.^) Thejiat of the Attorney-General, author- agrar 
 ising the issue of a writ of ad quod damnum, must first be 
 obtained. The writ will then be issued upon production of 
 the fiat. It was formerly issued by the clerk of the petty bag 
 as cursitor.(/$) It seems that it would now be issued by the 
 ' senior clerk of the Crown Office Department of the Central 
 J Office of the Supreme Court of Judicature. (/) The writ is 
 directed to the sheriff of the county in which the proposed 
 market or fair would be held. On receiving the writ, the 
 sheriff summons a jury, who try the question whether the grant 
 would be to the detriment of the crown or any subject. If the 
 
 (a) R. v. Butler (1685) 3 Lev. 222. 
 (l>) Bracton, lib. ii. c. 24, ff. 56 b, 57. 
 (e) F.N.B. 225 F. 
 
 (d) Vin. Abr. 'Prerogative' (O.b.) 14. 
 
 (e) R. v. Aires (1714) 10 Mod. 258, 354 ; (S.C.) R. v. Eyre, I Stra. 43 ; 
 R. v, Butler (1685) 3 Lev. 220, 2 Ventr. 344; Islington Market Bill 
 (1835) 3 Cl. & F. 513, 12 M. & W. 20 n. 
 
 (/) 2 Inst. 406. See post, Ch. V. 
 
 (g) Second Report of the Deputy Keeper of the Public Records (1841), 
 p. 28. 
 
 (A) As to the abolition of the office of Clerk of Petty Bag, see 42 & 43 
 Viet. c. 78, s. 14 (2) and sched. I., part ii. 
 
 (i) 37 & 38 Viet. c. 81, s. 5 ; R.S.C., Jan. 30, 1889. See Short and 
 Mellor's Crown Office Practice, p. IO.
 
 22 The Acquisition of the Right 
 
 verdict or inquisition of the jury be to the effect that the grant 
 would not be detrimental, it is returned to the Crown Office 
 Department, and the party who desires the grant must then 
 apply for it by petition to the crown, transmitting with the 
 petition an office copy of the Inquisition. After receiving the 
 petition, the crown makes an order of reference to the 
 Attorney-General as to the expediency of granting the market 
 ) or fair. If his report be favourable, the royal warrant under 
 the jign manual follows, and in due course the grant under the 
 great seal is made and enrolled.(a) 
 uration Grants have generally been made in perpetuity, but . 
 
 occasionally they have been limited in time, as for a term of 
 4 40 or 95 years, or with a clause determining the grant upon a 
 certain event, (b) 
 
 2. Acquisition by prescription or usage. 
 
 A claim to hold a market or fair, as of right, can be sup- 
 ported at the common law only on the ground that the crown 
 has granted a franchise to the claimant or his predecessors in 
 title.(^) But it by no means follows that inability to produce , 
 such a grant is fatal to the claim. * Prescription and antiquity 
 
 ~^of time fortifies all titles and supposeth the best beginnings 
 
 the law^can give them.'(^) 
 
 imemo- If the possessor of a market or fair can show that he and 
 
 1 user m - s p re( j ecessors i n title have held it onenly, uninterruptedly, 
 
 ,and as__of__right,(^) from time immemorial, trie law will 
 
 presume that the market or fair had a. lawful origin m~an 
 
 ancient grant, which in the lapse of time must have been 
 lost.(/) In such case the owner of the market or fair is said 
 to have a prescriptive title to the franchise, and his title to it 
 is said to be a title by prescription. 
 
 A market or fair is said to have been held from time im- 
 memorial, or, to use the fuller phrase, from time whereof the 
 4 memory of man runneth not to the contrary, whenever it has 
 
 (a) See Second Report of the Deputy Keeper of the Public Records, 
 p. 26. 
 
 () See Pat. 6 Anne, p. 4, No. 8 ; 9 Anne, p. 3, No. 7 ; 4 Anne, p. 4, 
 No. 21 ; Report of Royal Commission, vol. i. pp. 132-134. 
 
 (c) Ante, p. 17. 
 
 (d) Slade v. Drake (1618) Hob. 295. 
 
 (e) 'Nee per vim nee clam nee precario ' ; Bracton, fol. 222 b. 
 
 (J) ^o. Litt. 114 b.
 
 Acquisition by Prescription or Usage 23 
 
 been held down from the beginning of the reign of Richard I.(a) 
 For legal memory runs back to that time, but extends no 
 further back, in accordance with the limitation as regards writs 
 of right imposed by the Statute of Westminster !.,() and also 
 in accordance with the provisions of the statutes of Quo 
 Warranto.(f) 
 
 Positive evidence, however, that the market or fair has Long user 
 been held ever since legal memory began is not essential to 
 secure a title by prescription. It would seldom be possible to 
 produce such evidence. 
 
 Whenever an uninterrupted modern usage to hold the 
 marketTJr^lair be proved, the proper direction to a jury is that 
 they ought to infer that the market or fair has existed from 
 time immemorial, unless there be evidence that it has not done 
 so ;(</) and a usage for twenty years, if uncontradicted and 
 unexplained, is sufficient to justify a jury in inferring an im- ) ) 
 memorial right. (*) If, however, it be shown that the usage 
 arose since 1189, then, however long the modern usage may\ 
 have lasted, a claim to a title by prescription necessarily \ ^ 
 fails.(/) 
 
 But, if the usage has continued for any considerable length 
 of time, the right to hold the market or fair may, nevertheless, [ty 
 be established. It is always possible that a franchise was 
 granted within the time of legal memory, and that the instru- ft"^' 
 ment of grant has been lost ; and the law fully recognises this 
 possibility. ' It is a maxim of the law of England to give 
 effect to everything which appears to have been established for 
 a considerable time, and to presume that what has been done 
 has been done of right and not of wrong.'(^) 'It is a most 
 convenient thing that every supposition, not wholly irrational, 
 should be made in favour of long-continued enjoyment.'(^) 
 
 Accordingly, although it is shown that there was a time 
 
 (a) Co. Litt. 215 a ; 2 Roll. Abr. 268, 269. 
 
 (6) 3 Edw. I. c. 39 ; 2 Inst. 238. h^\ " 
 
 (c) 1 8 Edw. I. st. 2, 3 ; 2 Inst. 494. 
 
 (rf) Jenkins v. Harvey (1835) i C.M. & R. 877, 894 ; 2 Id. 393, 407, 
 per Parke, B. ; Shephard v. Payne (1864) 1 6 C.B.N.S. 132, 135, per 
 
 Blackburn, J. 
 
 . . . . . 
 
 ) Co. Litt. 113; Maor of Hull v. Homer 1774) I Cow. 102, 
 1 08. 
 
 (e) R. v. Jolliffe (1823) 2 B. & C. 54. 
 
 . Litt. 1153; Mayor of Hull v. H 
 
 (/) Co. Litt. 1153; Mayor of Hull v. Homer (1774) I Cowp. 102, 
 
 . 
 
 (g) Per Pollock, C.B., Gibson v. Doeg (1857) 2 H. & N. 623. &*- ** #/W '( 
 
 (A) Per Bramwell, B., Mayor of Penryn v. Best (1878) 3 Ex. D. 299. /-/
 
 24 The Acquisition of the Right 
 
 within legal memory at which the market or fair did not exist, 
 yet the fact that for a long time past it has been held, openly, \\ 
 uninterruptedly, a~nd as of right, is always evidence from which V I 
 -a jury may infer that it had a lawful origin in a lost grant. The/ j 
 jury are not bound to draw the inference, but they are entitled 
 to draw it, and the evidence must be left to their consideration 
 to be credited or not, and for them to draw their inference one 
 way or the other, according to all the circumstances of the / 
 case, (a) Markets and fairs are not easements or Profits a II 
 prendre within the Prescription Act, 1832 ;() they must still 
 bT prescribed for at common law,(<r) and no usage short of the 
 time of legal memory does more than enable a jury to infer a 
 legal origin, if they think that the circumstances justify \i.(d) 
 nlawful In some cases the proper inference to be drawn from all the 
 
 'S in facts in evidence is that the origin of the usage was unlawful, so 
 that claims founded on it cannot be supported. Thus, in 
 Benjamin v. Andrews,^) it was considered that a usage during 
 twenty-five years to hold a market on Saturdays was merely an 
 abuse of an existing grant to hold one on Fridays. Similarly, 
 , in A.-G. v. Horner (/) it was considered that a long usage to 
 hold markets on certain week-days arose out of a grant from 
 x James II. which was subsequently made void by statute. (g) In 
 
 both these cases, therefore, the claim failed. 
 
 iture of To establish a claim to a market or fair by prescription or , , 
 
 ;r under a lost grant it is necessary to show a usage which, as 
 
 regards such details as time and place, is in accordance with the 
 right claimed. If the claim be to hold a market on Saturdays, 
 1Ti<r useless to prove a usage to hold it sometimes on Saturdays 
 and sometimes on Wednesdays ; if it be to hold a fair in one 
 place, it is useless to give evidence that it has sometimes been 
 held elsewhere. Such evidence, as a rule, tends to defeat the 
 claim set up. But a claim may be established by proving a 
 larger right which includes the lesser right claimed.(^) A 
 claim to hold a fair at a particular spot within a manor will be 
 sustained by proving a right to hold it anywhere within the 
 
 (a) Mayor of Hull v. Horner (1774) i Cowp. 102. 
 
 (b) 2 & 3 Will. IV. c. 71. 
 
 (f) Benjamin v. Andrews (1858) 5 C.B.N.S. 299. 
 
 (d) Mayor of Hull v. Horner (1774) I Cowp. 102. 
 
 (e) (1858) 5 C.B.N.S. 299. 
 
 (f) (f88 4 ) 14 Q.B.D. 245. (g) 2 W. & M. Sess. i, c. 8. 
 (h) Per Coleridge, J., Bailey v. Appleyard (1838) 8 A. & E. 161.
 
 Acquisition by Prescription or Usage 25 
 
 manor : a claim to hold a market on Saturdays, by proving a 
 right to hold markets on Wednesdays and Saturdays. 
 
 3. Acquisition by statute. 
 
 An Act of Parliament is a better instrument whereby to 
 obtain privileges than a mere charter from the crown ; being 
 made by the authority of parliament, it may ' cross and change 
 the common law, which a charter alone cannot do ' ;(a) and the 
 powers which it confers are therefore much less disputable. 
 The crown has no power to grant a market to the disturbance 
 of another market previously granted,^) nor can it authorise 
 unreasonable tolls ;(r) but parliament is no,t bound to respect 
 existing rights, and the reasonableness of tolls specifically 
 authorised by parliament cannot be questioned. 
 
 In early times there was often no very great difference, as 
 regards the general form of the instrument, between an Act of 
 Parliament and a charter, and it may sometimes be difficult to 
 say to which category a particular document belongs ; but it is 
 clear that a charter made by authority of Parliament is, and has 
 the force of, an Act of Parliament, (d] 
 
 ^STnce the beginning oT this century many Acts of Parliament -Markets 
 have been passed for the establishment or regulation of markets clauses " 
 and fairs; and in 1847, in order to avoid the necessity of re- Act 
 peating provisions usually contained in such Acts, and to ensure 
 greater uniformity therein, the Markets and Fairs Clauses Act, 
 1 847,^) was passed. This Acfhow affects aTTmarkets and fairs 
 the construction or regulation whereof is authorised by any 
 special Act of Parliament which declares that the Act shall be 
 incorporated therewith.(/) 
 
 The special Act may incorporate the whole of this Act, or 
 it may incorporate only a portion thereof, either by incorporating 
 the Act with the exception of specified clauses or by incor- 
 porating specified clauses of the Act ; and the Act, or the 
 portion thereof so incorporated, forms part of the special Act 
 
 (a) The Prince's case (1606) 8 Co. Rep. 19 a. 
 
 () Seeawte, p. 20. (c) See/<?.tf, p. 58. 
 
 (d) The Prince's case (1606) 8 Co. Rep. i a, 20 a; G. E. R. Co. v. 
 Goldsmid (1884) 9 App. Cas. 927, 25 Ch. D. 511. 
 
 (e) 10 & II Viet. c. 14, set out,/<?^, Part II. 
 
 (/) Ss. I, 2. As to the power of a municipal corporation to oppose a 
 bill for establishing a market in the borough, see A.-G. v. Mayor of 
 Brecon (1878) 9 Ch. D. 204.
 
 26 The Acquisition of the Right 
 
 as if the same were set forth therein at length, save in so far as 
 the special Act expressly varies or excepts the same, (a) 
 
 At the date when the Markets and Fairs Clauses Act was 
 passed it was probably thought that it would supply a complete 
 code for market authorities ; but experience has shown that 
 the code is incomplete, and in modern practice special Acts 
 for the establishment of markets usually contain more ample 
 provisions for regulating the markets and keeping order 
 therein, (ft) 
 
 The law of When a market has been created by a special Act, the 
 statutory question may arise whether the whole law of the market must 
 be sought for in that Act and such Acts as are incorporated 
 therewith, or whether the statutory market can have any 
 incidents of a common law market, in addition to the rights 
 expressly attached to it by such Acts. The better opinion seems 
 to be that all the incidents of a common law market are 
 incidents of a statutory market, except in so far as they are 
 expressly or impliedly varied or taken away by the statutes. 
 There seems to be no reason to suppose that the word 'market ' 
 itself bears a different meaning or connotation, when used in 
 an Act of Parliament, from that which it bears when used in a 
 grant from the crown, (c) 
 
 Statutory Similarly, when a special Act has been passed for the regu- 
 
 Uon 'oTold lation of a common law market, the question may arise 
 markets whether rights formerly enjoyed in connection with the market 
 remain intact. When there is a franchise created by charter, 
 and the legislature afterwards operates upon it, it is obvious 
 that the legislature can do exactly what it pleases. It can 
 either leave the old franchise standing, and place a new par- 
 liamentary right beside it, or it may leave the old franchise 
 standing and incorporate certain statutory incidents into the 
 old franchise, provided it makes its intention clear ; or it may 
 I extinguish the old franchise, either expressly or by implication, 
 and substitute in its place, not a franchise properly so called, 
 but parliamentary rights and obligations as distinct from a 
 franchise. It is necessary in each case to look at the Act itself 
 
 (a) Ss. i, 5. 
 
 (b) See Clifford, History of Private Bill Legislation, p. 527. 
 
 (c) See/<tt/, pp. 87 and 121, where the application of this principle to 
 actions for disturbance and to the law of sales in market overt is discussed, 
 and some authorities are referred to.
 
 . Acquisition by Statute 27 
 
 to ascertain what the legislature has chosen to do.(a) And it 
 is a question to be determined by a consideration of the whole 
 of the Act whether the rights thereby given are intended to 
 supersede the rights which previously existed.(^) 
 
 By the Local Government Act, 1858,^) power was given to The Public 
 local boards to provide market-places, to construct market- A( ? t at I 8 7 - 
 houses and other conveniences tor the purpose of holding 
 markets, and to ta&e stallages, rents, anoVtolls. That Act i 
 repealed by the Public Health Act,. 187 5,(^) but its provisions 
 were replaced by the similar provisions (e) of the repealing Act, 
 which conferred the like powers upon urban sanitary authori- 
 ties. 
 
 By ss. 166-168 of the Public Health Act, 1875, urban dis- 
 trict councils (including borough councils acting as district 
 councils) are now empowered to establish and hold markets in 
 their districts. Markets established by local boards before the 
 passing of the Public Health Act, 1875, or by urban sanitary 
 authorities afterwards, or (since the Local Government Act, 
 i894,(/) came into force) by urban district councils, are all 
 now governed by these provisions. The sections are set out 
 and commented upon,/^/, p. 181. 
 
 Certain local authorities were empowered under the Conta- The 
 gious Diseases (Animals) Acts, and are now empowered under ^' A e n l ?^ s , 
 the Diseases of Animals Act, 1894, to provide wharves and Act, 1894 
 markets for the landing and sale of foreign and other animals 
 (see fast, p. 189). 
 
 4. The devolution of market-rights. 
 
 The transfer of market franchises is governed by the law re- Transfer 
 jtflating to incorporeal hereditaments. Accordingly^ conveyance and leasm g 
 Jl of the francmse can only be made by (feed ;(g) ^nd a cleed is 
 ' necessary to create a validleaseof thelrahchise for any term, 
 however short. (h) This general rule, however, may be modi- 
 fied in particular instances by Act of Parliament ; and a statu- 
 tory provision that upon a lease of a market, or its site, and all 
 
 (a) Mayor of Manchester v. Lyons (1882) 22 Ch. D. 287, 310, per 
 Bowen, LJ. 
 
 (b) Ibid. 307, per Cotton, L. J. See Taylor v. New Windsor Corpora- 
 tion [1898] i Q.B. 1 86. 
 
 (c) 21 & 22 Viet. c. 98, s. 50. (rf) 38 & 39 Viet. c. 55, s. 343. 
 (e) Ss. 166-168. (/) 56 & 57 Viet. c. 73. 
 
 (g) Co. Litt. 9 a, 49 a, 169 a. 
 
 (A) Ibid: Duke of Somerset v. Fogwell (1826) 5 B. & C. 875, 882.
 
 28 
 
 The Acquisition of the Right 
 
 Recovery 
 of rent 
 
 Escheat 
 and for- 
 feiture 
 
 Alienation 
 and leasing 
 by public , 
 body 
 
 or any of the buildings thereon, the lessee should be entitled to 
 the tolls, has been construed as giving to a lessee under a 
 parol demise of the market-place a right to the tolls, and not a 
 mere licence to take them, (a) 
 
 Generally speaking, where rent is reserved upon a lease of 
 a market for a term of years, arrears of rent canngt be re- 
 covered by distress, but only by action. (l>) But upon a lease 
 by the crown the arrears may be distrained for upon any lands 
 belonging to the lessee. (c) If the lease be a lease of lands, as 
 well as of the franchise, and one entire rent be reserved, it may 
 be that the whole of the rent is recoverable by distress upon 
 the lands, provided that such lease be valid as regards both 
 lands and franchise ; but if it be invallH as regards the fran- 
 chise, a distress for the entire rent would be wholly un- 
 lawful.^ 
 
 It has been held that a covenant by the lessee to pay the 
 rent reserved upon a lease of the tolls of a market or fair runs 
 with the tenement and binds an assignee of the lessee, 
 whether named in the covenant (e) or not.(/) 
 . Formerly, if the owner in fee of a market or fair died with- 
 out an heir and intestate, the franchise became extinct ;(g) but 
 it now escheats by virtue of the Intestates' Estates Act, i884.(/z) 
 Upon a forfeiture or surrender of the franchise to the crown, 
 the franchise is not extinguished, but continues in esse in the 
 crown, so that the crown can either hold the market or fair 
 on its own behalf or again grant iFout to a subject.(/) 
 
 Where market-rights, whether at common law or statutory, 
 are vested in a public body, a question may sometimes arise as 
 to the powers of such body to alienate such rights, jf a body 
 of persons be invested by -Act of Parliament with duties to bo 
 
 (a) Bridgland v. Shapter (1839) 5 M. & W. 375. 
 
 (b) Co. Litt. 47 a: Jewel's case (1588) 5 Rep. 3; Gardiner v. William- 
 son (1831) 2 B. & Ad. 336. 
 
 (c) Lord Mountjoy's case (1589) 5 Rep. 4 a, b; Knight's case (1588) 
 Id. 56 a ; Chitty, Prerog. 208. 
 
 (d) 2 Roll. Abr. 451 ; Gardiner . Williamson (1831) 2 B. & Ad. 336. 
 
 (e) Earl of Lucan v. Gildea (1831) 2 Hudson & Brooke, Ir. K.B. 
 635. 
 
 (/) Earl of Egremont v. Keene (1837) 2 Jones, Ir. Exch. 307. See 
 notes to Spencer's case, i Smith, L.C. (loth ed.), p. 90. 
 
 (g) 3 Inst. 21 ; Chitty, Prerog. 233. 
 
 (A) 47 & 48 Viet. c. 71, s. 4. 
 
 (i) Heddy v. Wheelhouse (1597) Cro. Eliz. 591 ; case of Abbot of 
 Strata Mercella (1591) 9 Co. Rep. 25 b; Whistler's case (1613) 10 Co. 
 Rep. 65 a. See further, post, p. 93.
 
 The Devohition of Market- Rights 29 
 
 performed for Jhe_benefit of jhe public, and with property to 
 enable them to perform those duties, such body cannot, unless 
 authorised by parliament so to do, make over their duties to 
 third persons, (a) or alienate their property so as to prejudice 
 the performance of their duties. (fr) 
 
 The Municipal Corporations Act, i882,(*r) now prohibits 
 a municipal corporation from selling, mortgaging or alienating 
 any franchise, forming part of their corporate land, without 
 either the authority of an Act of Parliament or the approval of 
 the Treasury.(</) Nor can a municipal corporation now lease 
 or agree to lease any such franchise without the same authority 
 or approval, except for a term not exceeding thirty-one years 
 from the date of the lease or agreement, and with the reserva- 
 tion of a clear yearly rent without any fine.(<?) The Act, how- 
 ever, reserves to a municipal corporation wide powers of 
 renewing leases pursuant to a covenant made, or some ancient 
 custom, usage or practice existing before June 5, i835.(/) 
 
 Under s. 136 of this Act, trustees or commissioners acting 
 under a local Act of Parliament for providing or maintaining a 
 market in a borough have power to transfer to the municipal 
 corporation of the borough, with the consent of the borough 
 council, all their rights, powers, property and liabilities under 
 the local Act ; and upon such transfer being made the J 
 municipal corporation become the trustees for executing by 
 the borough council the powers and provisions of the local Act. 
 
 Under ss. 213-218 of the same Act, whenever a new 
 municipal corporation is created by charter, a scheme can be 
 carried out for the adjustment of the rights, powers, privileges, 
 franchises, duties, property and liabilities of the various local 
 authorities, including trustees or commissioners, who, as a 
 public body, and not for their own profit, act under any Act 
 for providing or maintaining a market. 
 
 (a) See Gardner v. L. C. & D. R. Co. (1866) L.R. 2 Ch. 201, 212 ; 
 A.-G. v. G. E. R. Co. (1880) 5 App. Cas. 473 ; and see the other cases on 
 the ultra -vires doctrine collected in I Smith's L.C. (loth ed. ) 378 et seq. 
 
 (b) See Staffordshire, &c., Canal Navigation v. Birmingham Canal 
 Navigations (1866) L.R. I H.L. 254; Mulliner v. Midland Ry. Co. 
 (1879) II Ch. D. 611 ; Hobbs v. Midland Ry. Co. (1882) 20 Ch. D. 418. 
 
 (c) 45 & 46 Viet. c. 50. 
 
 (d) S. 1 08 (i). As to 'corporate land ' including franchises, see s. 7 
 of the Act ; s. 3 of the Interpretation Act, 1889 ; andG. W. R. Co. v. 
 Swindon, &c., R. Co., 9 App. Cas. 787. 
 
 (e) S. 108 (2) (a). Clause (b) does not seem to apply to a franchise. 
 (/) S. 1 10.
 
 3O The Acquisition of the Right 
 
 The Public Health Act, 1875, contains no provisions 
 enabling an urban district council to sell, mortgage or lease 
 any rights in markets or tolls provided or acquired by them under 
 ss. 166-168 of the Act. Unless, therefore, they be empowered 
 to do so by some local Act, it seems that they are not entitled 
 to make any such sale,(a) mortgage, () or lease. 
 
 The Public Health Act, 1875, s> J 68, contains provisions 
 under which market companies can transfer their rights, 
 powers and privileges, and their property, to urban district 
 councils. 
 
 Local authorities under the Diseases of Animals Act, 
 iSg4,(f) are expressly empowered, (d) when they exercise 
 their powers of borrowing money for the purposes of the 
 Act, to give as security (either with the local rate or sepa- 
 rately therefrom) the charges or tolls which they are authorised 
 to take for the use of a wharf or market provided by them under 
 the Act. But they have no power to sell or mortgage or lease 
 the market undertaking generally, or the land appropriated to 
 and required for the purposes of the undertaking.^) 
 Receiver If the undertakers of a statutory market have power under 
 
 of profits their statutes to mortgage the undertaking or the tolls, the 
 High Court has jurisdiction, unless it be expressly taken away 
 by the statutes, to appoint, at the instance of the mortgagee, a 
 receiver of the rents and profits, or the tolls, and will do so 
 whenever it be necessary or proper for the protection of the 
 > mortgagee's security.(/) The court, however, will not appoint 
 a manager of an undertaking, the management of which has 
 been entrusted by parliament to the undertakers alone.(g) 
 
 (a) As to their power to sell or let superfluous or spare lands, see 
 ss. 175, 177 of the Public Health Act. 
 
 (b) As to their powers to borrow upon the credit of any fund or 
 rate out of which they are authorised to defray their expenses, or of lands 
 held by them for the purposes of the disposal of sewage, see Id. ss. 233, 
 236. 
 
 (<) 57 & 58 Viet. c. 57. (d) By s. 42 (5). 
 
 (e) As to the disposal of superfluous lands, see s. 33 (2. ) 
 
 (/) De Winton v. Mayor of Brecon (1859) 26 Beav. 533 ; Hopkins v. 
 Worcester, &c., Canal Co. (1868) L.R. 6 Eq. 437, 447 ; see also Drewry 
 v. Barnes (1826) 3 Russ. 94, 104; Fripp v. Chard Ry. Co. (1854) II 
 Hare, 241. 
 
 (g) Gardner v. L. C. & D. Rly. Co. (1867) L.R. 2 Ch. 201, 212 ; 
 Blaker v. Herts, &c., Waterworks Co. (1889) 41 Ch. D. 399; De Winton 
 v. Mayor of Brecon (1859) 26 Beav. 533, 542.
 
 
 CHAPTER II 
 
 THE MARKET-PLACE AND THE PLA^E FOR HOLDING FAIRS 
 
 i. The rights of the public therein. ' 
 
 WHEREVER a market or fair be held, every member of the To fre- 
 public has, of common right, the liberty of coming into the ^.jfet- & 
 place and frequenting it for the purpose of buying and selling, place 
 and also the liberty of bringing his goods there and exposing 
 them for sale. (a) The sole limitations on this public right 
 appear to be that it may be exercised only whilst the market 
 or fair is open, and that if the market or fair is not a general one 
 the goods brought or exposed for sale there must be goods of 
 the kind or kinds for which the market or fair is held. With 
 regard to the former limitation, it may be observed that the 
 approaches to a market or fair, and the ways over it, may be 
 public highways (in which case the public may use them as 
 such at all times), but they are not^ necessarily so.(^) 
 
 Whilst the market or fair is proceeding, goods brought To bring 
 into the place for sale,(<r) or goods in course of removal from the oods for 
 place after sale, (d) are not liable to distress damage feasant ; and 
 this is so, even though some toll be due in respect of the goods 
 and payment of the toll be refused.(<?) 
 
 But, although every person has the right of frequenting the Stalls 
 market or fair, and of bringing his goods there, no one has, ofy^ 
 // common right, the liberty of occupying_xclusiy.eTy any parr t 
 ft ticular part of the soil on which it is held,(/) A member of the 
 
 (a) Austin v. Whittled (1746) Willes, 623. 
 
 () A.-G. v. Horner(i885) n App. Cas. 66, 80. 
 
 (c) Austin v. Whittred (1746) Willes, 623 ; Wigley v. Peachy (1732) 
 2 Ld. Raym. 1589; Mayor of Lawnson's (Launceston's) case (1588) Cro. 
 Eliz. 75. 
 
 (d) Sawyer v. Wilkinson (1598) Cro. Eliz. 627. 
 
 (e) Wigley v. Peachy, supra. Non-payment does not constitute a 
 trespass ; Six Carpenters' case (1610) 8 Rep. 146 a. ' 
 
 (/) See cases cited in notes (a) and (), p. 32.
 
 3 2 The Market-Place and the Place for Holding Fairs 
 
 
 public hasno general right to erect a stall, (a) or to place a table, 
 chair, basket^or other article, or his goods, (<) upon the soil, in 
 such a manner as to occupy the land to the exclusion of other 
 persons. He may only do that if he has obtained the leave of 
 the owner of the soil, or has in some way acquired a special 
 right so to do.(r) If he do such an act without any such leave 
 or right, he is a trespasser, and he is liable to an action of 
 trespass at the suit of the owner of the soil.(<^) Moreover, the 
 latter is probably entitled to pursue after notice all the usual , 
 summary remedies in case of a trespass, and to pull down the v 
 stall, (e) put out the offender, (/) and remove the offending article 
 or goods,^) using and doing no unnecessary force and damage. 
 It is proper to add, however, that the mere placing upon 
 the soil for some temporary purpose of goods, or of a basket 
 or sack which contains goods, does not necessarily amount to 
 an exclusive occupation ; whether it does so or not is a ques- 
 tion of fact, depending upon all the circumstances ofthe case.(^) 
 A person who erects a stall, or anything in the nature of a 
 stall, with the express or implied consent of the owner of the 
 soil, is liable for stallage.(/) The subject of stallage will be dealt 
 with more fully later.(y) 
 
 Dangerous An owner of a market or fair who charges a toll for the 
 structures standing of cattle therein owes to the owners of the cattle a 
 duty of providing a reasonably safe place for the standing ;(/) and 
 it has been laid down that, inasmuch as the public come into 
 the market as. of ri^ht, and not merely by licence, the lord is 
 under an_ obligation to every person who attends the market 
 to maintain the market-place in a condition reasonably fit for 
 the purposes of the market, or at any rate to abstain from 
 erecting in it any dangerous structure. (/) 
 
 (a) Mayor of Northampton v. Ward (1746) 2 Stra. 1238. 
 
 (b) Mayor of Yarmouth w. Groom (1862) I H. & C. 1 02 ; Mayor of 
 Norwich v. Swann (1777) 2 W. Bl. Ill, 6. 
 
 (c) See post, p. 64. 
 
 (d) See cases cited in notes (a) and (b) supra. 
 
 (e) Cf. Davies v. Williams (1851) 16 Q.B. 546. 
 
 (/) Sturbridge Market case, n Hen. 6, fo. 23, pi. 20. 
 
 (g) The cases against distress damage feasant (supra, p. 3 1 ) are scarcely 
 authorities against removal for misfeasance. The distinction between non- 
 feasance and misfeasance is recognised in Northampton v. Ward, supra. 
 
 (h) Mayor of Yarmouth v. Groom (1862) I H. & C. 102 ; Townend v. 
 
 Woodruff (i 850) 5 Exch. 506. 
 
 Mayor of Yarmouth v. uroom, supra. (j 
 
 (A) Lax v. Darlington Corporation (1879) 5 Ex. D. 28. 
 
 (/) Mayor of Yarmouth v. Groom, supra. (j) See post, p. 63. 
 
 (/fc) Lax v. Darlington 
 (/) Ibid, per Lush, J.
 
 
 The Rights of the Public Therein 33 
 
 It may be mentioned here that cattle on their way to a Distress 
 market or fair, which are put into a ground with the consent of ^tUfTon 
 the occupier to graze for only one night, are not liable to the the way to 
 distress of the landlord of the ground for "arrears of rent.(a) market 
 This privilege is apparently for the encouragement of persons 
 frequenting markets and fairs from distances which their cattle 
 cannot travel without being fed on the way. 
 
 It is a misdemeanour at common law to prevent or endeavour Fore- 
 to prevent by force or tfTreats any goods, wares, or merchandise j^ 11 ,." 8 
 being brought to any fair or market. Though all the general grating 
 enactments with regard to the offences of forestalling and re- 
 grating were repealed by 7 & 8 Viet. c. 24, that Act provided by * / 
 s. 2 that ' nothing in this Act shall be construed to apply to the vr 
 offence of knowingly or fraudulently spreading or conspiring to 
 spread any false rumour with intent to enhance or decry the . 
 price of any goods or merchandise, or to the offence of pre- 
 venting or endeavouring to prevent by force or threats any 
 goods, wares, or merchandise being brought to any fair or 
 market, but that every such offence may be inquired of and 
 tried and punished as if this Act had not been made.'(^) 
 
 The offender may be punished by fine and imprisonment.(<r) , 
 
 2. The rights and duties of the owner in providing a place. 
 
 A grant of a market or fair usually specifies, more or less Where 
 definitely, some area or district within which the market or fair 
 is to be held ; and whenever that is the case the market or * 
 fair must be held within the area or district specified, and not 
 elsewhereT 
 
 It is laid down in Dixon v. Robinson (d) that if the place for 
 keeping a fair be not limited by the grant, the grantees ' may 
 keep it where they please, or rather where they can most con- 
 veniently.' It would be incorrect, however, to suppose that 
 the area was not limited by the grant then before the court. 
 The grantees, the burgesses of Andover, were merely claiming 
 to keep their fair at Weyhill in any one place where they 
 
 (a) Nugent v. Kirwan (1838) I Jebb & Symes 97 ; see per Parke, B., 
 Muspratt v. Gregory (1836) I M. & W. 633, 647 ; Fowkesz>. Joyce (1689) 
 3 Lev. 260, 2 Lutw. 1161. 
 
 (b) Repealed by S.L.R. Act, 1892. And see per Fry, L.J., in Mogul 
 Steamship Co. v. McGregor, Gow & Co. (1889) 23 Q.B.D. 598, 629. See 
 also/atf, p. 129. 
 
 (c) Russell on Crimes, vol. i. pp. 476 and 66 ; 3 Inst. 196. 
 
 (d) (1687) 3 Mod. 107, per Herbert, CJ. 
 
 D
 
 34 The Market-Place and the Place for Holding Fairs 
 
 
 pleased, and their grant in fact limited this fair to Weyhill.(a) 
 There does not appear to be any instance of a grant imposing 
 no limits whatever as to space ; and it is difficult to see how, 
 with a view to such a grant, any proper return could be 
 made to a writ of ad quod damnum, or in what locality the 
 inquisition could be held. 
 
 In A.-G. v. Horner (&) the question arose as to the effect 
 of a charter which granted a market to be held ' injsive juxta ' 
 Spital Square. It was decided that the grant permitted the 
 extension of the market, if the owner thought fit and had the 
 means of extending it, beyond Spital Square into the surround- 
 ing area. Lord Blackburn, however, was not prepared to 
 accept the view that the grant permitted any and every extension 
 however great, (c) and it is submitted that a grant of a market 
 to be held ' in or near ' a specified place would not authorise 
 an extension to a point which could not reasonably be said to 
 be ' near ' that place. 
 
 Grants have generally been for the holding of a market or 
 fair in some city, borough, township, manor, or other like 
 district. ^ But they have sometimes required it to be held in a 
 particular place in such district. (d) As an instance of a grant 
 limiting a market to a fixed spot, defined by metes and bounds 
 and containing a precise quantity of land, the grant may be 
 mentioned which Charles II. madeofCovent Garden Market.(^) 
 
 Where the grant merely specifies a district, such as a 
 
 borough or manor, for the holding of the market or fair, the 
 
 grantee has a general right, as between himself and the public, 
 
 to hold it anywhere within that district, (/) and to determine 
 
 in what place or places within that district it is to be held.(g) 
 
 This general right is limited, however, by the rule that an 
 
 , obligation is cast upon the grantee by his acceptance of the grant 
 
 ~ J to provide convenient accommodation for all who wish to buy 
 
 and sell in his market or fair.(^) The grant is made for the benefit 
 
 (a) See Patent Roll. 41 Eliz. part 12. 
 
 (6) (1885) ii App. Cas. 66; (1884) 14 Q.B.D. 245. 
 
 (r) ii App. Cas. 81. See also per Cotton, L.J., 14 Q.B.D. 261. 
 
 (d) See, for example, the grant to Charles Hore and Richard Hore of 
 markets to be held ' within a place inclosed with brick walls, called 
 Vinegar Ground,' in the parish of St. James, Clerkenwell, Middlesex ; 
 Pat. Roll. 6 Anne, part 4, no. 8. 
 
 e (e) See Prince v. Lewis (1826) 5 B. & C. 363, 365. 
 
 (/) Islington Market Bill (1835) 3 Cl. & F. 518, 12 M. & W. 20 n. 
 
 / (?) Mosley v. Walker (1827) 7 B. & C. 40, 54, per Bayley, J. 
 J (A) Islington Market Bill (1835) 3 Cl. & F. 518, 12 M. & W. 
 
 20 n.
 
 Rights and Duties of Owner in Providing a Place 35 
 
 of the public as well as for the benefit of the grantee, and if he 
 confines his market or fair to particular places within the district 
 he must fix it in such places as will from time to time yield to 
 the public a reasonable accommodation. (a) . 
 
 The grantee of a market to be held in a fixed spot defined 
 by metes and bounds has a similar general right, limited by 
 similar considerations of public convenience. If the space | 
 allotted by the grant is more than is necessary for the purposes 
 of the market in ordinary times, he may lawfully appropriate 
 a part of that space to other purposes, and he is not bound to 
 extend the market over the whole of the soil.(^) But he is 
 bound to leave sufficient room for the purposes for which the j \/ 
 franchise was granted to him, and whenever the convenience of 
 the public requires that the whole of the allotted space shall be 
 devoted to the use of the market there is an obligation on the 
 part of the grantee so to devote it.(^) 
 
 If the owner of a market fails in his duty by not providing Failure to 
 sufficient accommodation for the public, there would be a good pro> 
 defence to an action ^brought by him against any person for 
 I selling out of the market to the prejudice of his right, provided 
 ' sucTfperson had been prevented from selling in the market by 
 the want of convenient room.(^) 
 
 ' A second consequence would be that this breach of public 
 duty on the part of the grantee of the franchise might, unless 
 these inconveniences were removed, and a sufficient space 
 restored for the accommodation of the public, operate as a 
 forfeiture, and furnish a ground for a sdrc facias to repeal the 
 patent by which tue market was granted. And thirdly, we are 
 not prepared to say that such misconduct of the grantee would 
 not render him liable to an indictment for a misdemeanour, in 
 like manner as the grantee of a ferry is punishable for a 
 default in providing proper boats and ferrymen ; though we 
 are not aware of any instance in which such a proceeding 
 against the owner of a market has been adopted. And if such / 
 an indictment would lie against him for his default, an action I 
 would also lie at the suit of any private individual who should ; 
 have received any special injury thereby. '(e) 
 
 t, (a) Mosley v. Walker (1827) 7 B. & C. 40, 50, per Bayley, J. 
 () Prince v. Lewis (1826) 5 B. & C. 363. " (c) Ibid. 
 
 (d) Prince v. Lewis (1826) 5 B. & C. 363 ; Mosley v. Walker (1827) 7 
 B. & C. 40; Islington Market Bill (1835) 3 Cl. & F. 513, 519, 12 M. & 
 W. 20, 23. (e) Islington Market Bill, supra. , j 
 
 D 2 / 

 
 36 The Market- Place and the Place for Holding Fairs 
 
 In the case of a market held under a grant which confines 
 
 it to a fixed place, limited by metes and bounds, the grantee 
 
 fulfils his duty to the public of providing them with accommo- 
 
 *>- dation if he properly devotes the whole of that place to the 
 
 , purposes of the market ; for the grant does not permit him to 
 
 / do more. If the accommodation be insufficient for the wants 
 
 of the public, that can be no ground for the repeal of the 
 
 grant, or for any proceedings against the grantee. It might 
 
 t . be a sufficient ground for a new grant of a new market to be 
 
 ft held elsewhere in the same neighbourhood ; but such new 
 
 grant would not be valid if it injuriously affected the existing 
 
 grant, and the new market would not be legal if it did more 
 
 than provide merely for the surplus wants of the public which 
 
 the existing market was unable to meet.(fl) 
 
 A like case to which the same principles would be ap- 
 plicable might possibly arise with regard to a market not 
 confined to a fixed place, but granted to be held anywhere in a 
 district. The district might be so narrow, and the residue of the 
 district not appropriated to the market might be so occupied, 
 that the grantee could not be held responsible for not pro- 
 viding all the accommodation required by the public. (V) 
 
 It must be observed that the owner of a market does not 
 fail in his duty to the public merely because the market is 
 sometimes very full. ' The very idea of a market is that it is 
 a place which will on market-days be crowded.'(^) 
 
 Extent of In Mosley v. Walker, (d) Bayley, J., observes that, gene- 
 
 market- ra iiy speaking, the grantee of a market may 'permit every 
 place within the specified limits of the market to be the place 
 where articles may be sold ' ; and on other occasions judges 
 have recognised that the owner of a market or fair, granted to 
 be held in a district, generally has a right, and sometimes owes 
 a duty, to allow it to be held throughout the district.^) In- 
 stances in which whole cities have been given over to fairs are 
 supplied by St. Giles' Fair at Winchester and Lammas Fair at 
 
 (a) Islington Market Bill (1835) 3 Cl. & F. 518, 12 M. & W. 20 n. 
 
 (b) Ibid. 
 
 (c) Goldsmidz>. G. E. R. Co. (1883) 25 Ch. D. 511, 543, per Cotton, 
 L.J. 
 
 (d) (1827) 7 B. &C. 40, 54. 
 
 (e) See the Islington Market Bill (1835) 3 Cl. & F. 518, 12 M. & W. 
 20. In Kerby v. Wychelow (1700) 2 Lutw. 1498, Powell, J., said, ap- 
 parently with regard to the pleadings, that ' the vill, in this case, shall be 
 taken to be the market-place.'
 
 Rights and Duties of Owner in Providing a Place 37 
 
 York ; and in this connection, perhaps, mention may be made 
 of the custom which still prevails in the city of London, ' 
 whereby every shop open to the public is market overt, (a) 
 In early times, when a very great part of the trade of the country 
 was conducted at markets and fairs, their extension over so 
 large a district as a city or town was, no doubt, justified by 
 the wants of the public ; and there may be cases in which 
 it is, or would be, still quite justifiable. It is submitted, <? 
 however, that if the owner of a market or fair were to extend > 
 it so unreasonably that the public lost the benefit of the con- 
 course of buyers and sellers which the grant was intended to 
 bring about, and other substantial inconveniences ensued, that i 
 would constitute a ground for the repeal of the grant by scire ^ 
 facias. The question, however, does not appear ever to have 
 arisen, and it is hardly likely that it ever will arise, 
 
 3. The right of removal, 
 
 Whenever a fair or market is granted to be held within an Within 
 area, such as a city, borough, township, or manor, there is the area 
 incident to such grant a right to remove the fair or market 
 from time to time from one convenient place to another within 
 that area ; and the right continues, although the fair or market 
 has always been held in one particular place.(^) TTie right 
 may be exercised not only with regard to the whole market 
 or fair, but also with regard to particular parts of \\..(c) 
 
 This right of removal is incident to every grant, unless the 
 grantee be tied down by its terms to some particular spot \(cl) 
 and it may be established even in the case of a prescriptive fair 
 or market. Where a market has always been owned, or was 
 originally owned, by the corporation of a borough, or the lord 
 of a manor, a jury may infer that it was originally granted to be 
 held anywhere within the borough, or manor, and if such an 
 inference be drawn the right of removal within the limits of 
 the borough or manor follows as incident to the grant, (e) 
 
 A-iemoval to a situation outside the area defined by the Outside 
 grant is generally illegal, and it constitutes a ground of for- the area 
 
 (a) See, further, as to this custom, post, p. 122. 
 
 (b) Curwen v. Salkeld (1803) 3 East, 538. 
 
 (c) Wortleyw. Nottingham L. B. (1870)21 L.T.N.S. 582; cf. per 
 Bayley, J., Mosley v. Walker (1827) 7 B. & C. 40, 54. 
 
 (d) Curwen v. Salkeld, supra. 
 
 (e) R. v. Cotterill (1817) I B. and Aid. 67 ; De Rutzen v. Lloyd 
 (1836) 5 A. andE. 456.
 
 38 The Market-Place and the Place for Holding Fairs 
 
 feiture.(a) But such a removal may be made legal by statute. 
 In the case of a borough the boundaries of which were ex- 
 tended by the Municipal Corporations Act, 1835,^) a market 
 which might have been held, either by grant or prescription, 
 in any part of the ancient borough, may now be held in any 
 place within the extended boundaries, whether within or 
 beyond the limits of the ancient borough. (c) 
 
 In exercising his power of removal, the owner of a fair or 
 market must take care to accommodate the public. (d) The 
 power must not be exercised to the prejudice of the object of 
 the grant ; and a removal to an inconvenient place would lay 
 the foundation of a srire facias to repeal the grant. (<-) An 
 illegal removal is not a defence to an action for disturbance by 
 setting up a rival market ;(/) but it would probably be a 
 defence to an action for disturbance by selling outside the 
 market ; (g) and it would certainly justify selling in the old 
 market-place, for if a removal be bad the market continues in 
 point of law in the old market -place. (/*) 
 
 Bad ' A removal is not good unless the new market-place be as /j 
 
 removal unrestricted and free as the old.(/) Where a market in which /' 
 no toll or stallage had ever been taken was removed to a close 
 which belonged to the owner of the market, but which he had 
 leased on terms which allowed the lessee to take stallage, it 
 was held that the removal was illegal, and that no nuisance 
 was committed by resorting to the old market- place. (/) 
 
 Where any persons other than the owner of the market 
 possess prescriptive rights therein, a removal without their 
 consent is bad, if it injuriously affects such rights. (^) Thus, 
 where the occupiers of shops adjoining a market-place had a 
 prescriptive right to erect stalls in the market-place opposite 
 
 (d) For an early case of an illegal removal, see Abb. Plac. p. 72, temp. 
 John (Hoiland, Line.). 
 
 (l>) 5 & 6 Will. IV. c. 76, ss. 7, 8, schedules A and B, part i. ; 2 & 3 
 Will. IV. c. 64, s. 35, schedule O ; see 45 & 46 Viet. c. 50, s. 228 (i). 
 
 (c) Mayor of Dorchester v. Ensor (1869) L.R. 4 Ex. 335. 
 
 (d) Curwen v. Salkeld (1803) 3 East, 538. 
 
 (e) R. v. Cotterill (1817) i B. & Aid. 67, 75, per Lord Ellenborough. 
 (/) Midleton v. Power (1886) 19 L.R. Ir. I. 
 
 (g) See Prince v. Lewis (1826) 5 B. & C. 363 ; Mosley v. Walker 
 (1827) 7 B. & C. 40, 53; and cf. Aiton v. Stephen (1876) I App. Cas. 
 456. 
 
 (A) R. v. Starkey (1837) 7 A. & E. 95 ; Ellis v. Mayor of Bridgenorth 
 (1863) 15 C.B.N.S. 52, 79. 
 
 (*') R. v. Starkey, supra. (J] Ibid. 
 
 (*) Ellis v. Mayor of Bridgenorth (1863) 15 C.B.N.S. 52. 

 
 The Right of Removal 3 9 
 
 their shops, it was held that the market-owner could not 7Y 
 remove the market to a place where this right would become , 
 worthless. (a) Where the owner of a market does not own the 
 soil on which it is held, a removal might deprive the owner of 
 the soil of the right to stallage ; but it seems that a removal 
 which did so would not generally be bad on that account.(^) 
 
 It may become the duty of the owner to remove a market Dut 7 to 
 for the better accommodation of the public. ' I take it to be 
 implied in the terms in which a market (<:) is granted, that the 
 grantee, if he confine it to particular parts within a town, 
 shall fix it in such parts as will from time to time yield to the 
 public reasonable accommodation ; and that if the place once 
 allotted ceases to give reasonable accommodation he is bound, 
 if he has land of his own, to appropriate land on which to 
 hold it; or, if not, to get land from other persons, in order 
 that the market, which was originally granted for the benefit of 
 the public, as well as for the benefit of the grantee, may be 
 effectually held ; and that the public may have the benefit 
 which it was originally intended they should derive from it.'(^) 
 The consequences which follow upon the owner of a 
 market failing in his duty to provide reasonable accommodation 
 for the public are stated elsewhere. (e) 
 
 After the majket has been lawfully removed, the public Conse- 
 r have no longer a right to go into the old market-place as 
 1 such.(/) It appears that the owner of a market who removes 
 it ought to fiive a reason jih^e public notice of the removal.^) 
 Probably, public notices ought to be placed at the entrance or 
 entrances to the old market-place. 
 
 4. Upon what lands a market or fair may be held. 
 A market or fair must be held on land on which the lord of 
 the market can properly perform his duties of correcting the 
 market and protecting the rights of the public. Such duties 
 can be most readily performed where the lord owns both the 
 market or fair and the land on which it is held. 
 At no time, however, does it seem to have been thought 
 
 (a) Ellis v. Mayor of Bridgenorth (1863) 15 C.B.N.S. 52. 
 
 (b) De Rutzen v. Lloyd (1836) 5 A. & E. 456, 458 n. 
 
 (c) I.e. a market granted to be held in a town or other like district, 
 (rf) Mosley v. Walker (1827) 7 B. & C. 40, 55, per Bayley, J. 
 
 (e) Ante, p. 35. 
 
 (/) Curwen . Salkeld (1803) 3 East, 538. 
 
 () Ibid.
 
 4O The Market-Place and the Place for Holding Fairs 
 
 necessary that the market -owner should own the fee of the 
 / market-placed In 1433 the Corporation of Cambridge 
 pleaded^*) that they had, by prescription, a fair at Stourbridge 
 as part of the fee of the town of Cambridge ; and the court 
 held that they might so have it, although the land on which the 
 fair was held was the fee of the Prior of Barnwell, because, as 
 
 fPaston, J., said,() the corporation might ' prescribe to have a 
 fair in another's freehold weU^enough.' The case, however, 
 sKows that the corporation had sufficient control over the soil 
 to have the regulation of the stalls in the market. The case 
 of Stourbridge Fair came up again in 1747 ;(c) and then the 
 plea was that the corporation were seised in fee of the fair, and 
 ' of the sole and separate use of the ground and soil of the 
 places at Barnwell and Stourbridge where ' the fair was held, 
 during the times of holding it, 'for pickage, stallage, and 
 groundage there, and all other uses and purposes of the said fair.' 
 In Rex v. Starkey (d) the owner of a market removed it on 
 to land held by his tenant under a lease which did not demise 
 the franchise, but empowered the tenant to exact from vendors 
 in the market certain novel tolls. To these tolls the market- 
 owner himself had no right. The Court held that the removal 
 was illegal because, ' when the lord removes, the new market 
 must be as unrestricted and free as the old.' Littledale, J., 
 however, was of opinion that the removal was also illegal, 
 because ' the market must be held in the soil of the lord ' : ' the 
 lord is to have the correction of the market, and how can he 
 have that when he has not the soil ? ' But an opinion contrary 
 to that of Littledale, J., was expressed in Lockwood v. Wood.(<?) 
 There one of the questions was whether any right to stallage 
 could exist under a grant of a market to be held in lands in 
 which neither the crown nor the grantee had any rights at the 
 , date of the grant. Lord Denman, C.J., in delivering the judg- 
 \ ment of the Queen's Bench, laid it down that the grantee could 
 ] not claim stallage unless he possessed land in which to hold the 
 / market, but could claim it at whatever time after the grant he 
 became interested in the land. His lordship added that ' if he 
 never was so interested, he might, nevertheless, hold the fairs 
 and markets on land belonging to other persons by their mere 
 
 (a) Y.B. ii Hen. VI. fol. 23, pi. 20. 
 
 (6) Ibid. (c) Austin v. Whittred (1747) Willes, 623. 
 
 (flO (i837) 7 A. & E. 95. (e) (1841) 6 Q.B. 31.
 
 Upon What Lands a Market or Fair May be Held 41 
 
 sufferance and permission ; but unless he had the actual posses- 
 sion ol it ne could not claim stallage.' This judgment was 
 afterwards affirmed in general terms in the Exchequer 
 Chamber.(a) 
 
 The question whether a grant of a market could be made ^ 
 otherwise than in respect of lands held by the grantee at the 
 date of the grant was fully considered in the more recent 
 case of A.-G. v. Homer ;(t>) and there the Court of Appeal 
 (over-ruling Stephen, J.) held that it could. ' A grant,' said / /' 
 Lord Esher, M.R., ' of a franchise of a market has nothing to J I* 
 do with the ownership of the land by the person to whom it is j I 
 granted. r (c) The judgment of the Court was affirmed in the 
 House of Lords, (a) 
 
 From the above cases it seems clear that, apart from ques- 
 tions as to the right to stallage, the owner of a market need not 
 own, or even have the possession of, the land upon which his 
 market is held : he may hold the market on any land on which 
 he has obtained a right or^a licence to hold it. All that is 
 necessary is that he hold it upon land in which he can exercise 
 his duties of correcting the market and can secure to the public 
 their rights and immunities. 
 
 It is perhaps hardly necessary to add that if he hold the 
 market upon another's land under a mere licence from the 
 landowner his power to hold it there may be determined at 
 any time by the withdrawal of the licence. 'As against the I 
 owner of land the crown cannot by its grant enable anyone to 
 take that land and use it, either for the purposes of a market or i 
 anything else.'(^) 
 
 It is said by the judges in Heddey v. Welhouse,(/) and 
 repeated in several later cases, (g) that if the crown grant a 
 market to one to be held in land that is Borough English, and 
 the grantee die intestate, the market descends to the heir-at- 
 law, but the soil of the market-place to the heir in Borough 
 English, who will therefore be entitled to stallage. The 
 books, however, do not furnish any instance of such an in- 
 convenient occurrence. If an instance were to occur, 
 questions might arise as to the right of the heir-at-law to 
 
 (a) (1841) 6 Q.B. 47. (3) (1884) 14 Q.B.D. 245. 
 
 (f) Ibid. p. 254. (d) (1885) II App. Cas. 66. 
 
 (<) Per Cotton, L.J., A.-G. v. Horner (1884) 14 Q.B.D. 245, 260. 
 (/) (1597) Moore, 474. 
 
 (g) E.g. in R. v. Starkey (1837) 7 A. & E. 95.
 
 42 The Market- Place and the Place for Holding Fairs 
 
 remove the market, or of the heir in Borough English to 
 require its removal. Similar inconvenience might occur if an 
 owner in fee of a market and the soil should die intestate as to 
 the market, but having devised the soil away from his heir. 
 
 5. Markets and fairs in churchyards and highways. 
 
 Church- Prior to 1285 it was a common practice to hold fairs in 
 
 \^/ If churchyards, and the fair was usually held on the day of the 
 
 " "festival of the saint to whom the church was dedicated. But 
 
 ' the Statute of Winchester (a) enacted that ' henceforth neither 
 
 ^/- fairs nor markets be kept in churchyards, for the honour of the 
 
 church.' 
 
 Highways It was also a common practice in early times to hold a 
 market or fair either wholly or in part in public streets, leaving 
 a sufficient portion of the streets open for public passage. (b) 
 The prevalence of this practice has been recognised by the 
 judicial statement that ' formerly all markets were holden in 
 the public streets ' ;(c} and in one case, in which it was held 
 that a removal of a market from a public street to a private 
 close was bad, the right to hold the market in the street was, 
 apparently, not disputed.^) There are many instances in 
 which the practice still obtains. 
 
 Where the origin of both the highway and the market or 
 fair is immemorial, the practice, if shown to be ancient, is V 
 1 justifiable, although it somewhat abridges the right of the 
 public in the use of the highway as such. For the proper 
 inference is that the grant of the market or fair preceded the 
 dedication of the highway and that the highway was dedicated 
 subject to the right to hold the market or fair on the soil. 
 The law recognises that a highway may be dedicated subject ^/fj 
 to a right of partial interruption during a certain limited and 
 not unreasonable period of time for the purposes of a market A* 
 OlJair as often as it may be lawfully held.(^) Accordingly an 
 immemorial custom fbF victuaflersTo erect stalls in the high- jr 
 
 >j (a) 13 Edw. I. stat. 2, c. 6. 
 
 (b) Cheapside seems to have been used as a market-place until circ. 
 1667, when Honey Lane Market was opened ; and Newgate Street until 
 
 ] circ. 1 68 1, when the market was removed to Newgate Market (replaced, 
 S circ. 1866, by the Meat and Poultry Market in Smithfield). 
 
 (c) Per Lord Tenterden, Mosley v. Walker (1827) 7 B. & C. 40, 52. 
 (rf) R. v. Starkey (1837) 7 A. & E. 95, see ante, p. 38. 
 
 (e) Elwood v. Bullock (1844) 6 Q.B. 383.
 
 Markets and Fairs in Churchyards and Htghzvays 43. 
 
 way during a fair, sufficient room being left for public passage,, 
 has been upheld as reasonable and valid, (a) 
 
 The practice may also be justified although the market or 
 fair was granted, and the highway was dedicated, within the 
 time of legal memory. Upon proof that the market is older 
 
 ' than the highway^ and that, going as far back as living memory 
 ckn go, trie practice has always obtained, the proper infer- 
 ence, in the absence of evidence to the contrary, is that the 
 highway was dedicated subject to the right to hold the market 
 or fair therein. () The burden of proving that he is entitled 
 to hold his market in the highway lies upon the market-owner, 
 but, in considering whether he has discharged that burden, 
 regard must be paid to the principle on which presumptions 
 from usage are made,(<r) and 'all reasonable presumtiops 
 shcmld be made in support, and noFirf destruction, of long 
 
 ;'.' enjoyment. '(^) Evidence that the market-owner did not own 
 
 ' the soil of the highway at the date of its dedication does not of 
 itself make the practice unlawful, as the inference may reason- 
 ably be drawn, until the contrary be shown, that at that date 
 he was exercising a right of holding the market on the soil 
 with some consent or other from the landowner.(^) 
 
 It has been suggested by high authority that the practice 
 might be upheld even though the market were shown to be of 
 later origin than the highway, and that after proper inquiry the 
 crown might grant a valid franchise to hold a market in public 
 streets.(/) But there seem to be great difficulties in the way 
 of accepting the latter proposition. During the argument in 
 Elwood v. Bullock (g) Lord Denman observed that ' if the way 
 was first, no grant of a fair could control it ' ; and the safer 
 view, probably, is that where the market is of later origin than 
 the highway the right to hold it there, so as to obstruct any 
 
 y part of the thoroughfare, could be created only by an Act of 
 Parliament. 
 
 Cases may, perhaps, be found in which markets or fairs are 
 
 (a) Elwood v. Bullock (1844) 6 Q.B. 383. 
 
 (b) A.-G. v. Homer (1885) 11 App. Cas. 66, (1884) 14 Q.B.D. 245. 
 
 (c) Ibid., per Lord Selborne, n App. Cas. 77, 78. 
 
 (d) Per Lord Selborne, G. E. R. Co. v. Goldsmid (1884) 9 App. Cas. 
 
 927. 939- 
 
 (e) A.-G. v. Homer, supra. 
 
 (/) Per Lord Esher, A.-G. v. Horner (1884) 14 Q.B.D. p. 258. 
 Lindley, L.J., however, expressed doubt upon the point, Id. p. 265. 
 (g) (1844) 6 Q.B. 383, 407. 

 
 44 The Market- Place and the Place for Holding Fairs 
 
 known to have been held from a very early date in public 
 
 streets, whilst those streets are known to be older than the 
 
 grants of the markets or fairs. It may be that such markets or 
 
 1 fairs were originally held on narrow strips of land at the side of 
 
 I the highway, which have subsequently become part of the high- 
 way; and perhaps a presumption to this effect ought to be 
 - made, whenever necessary and possible, in order to support an 
 
 ancient usage. 
 
 Highway Market rights in public streets are not taken away or 
 
 Acts ; affecteoTTby Acts of Parliament which prohibit the exposure for 
 sale of marketable articles, or the placing of stalls in the streets, 
 ,' so as to incommode the passage thereof, if the statutes ought 
 to be construed as being aimed merely against nuisances ; for 
 no acts lawfully done in the exercise of market-rights can be 
 treated as nuisances.(a) For this reason it appears that valid 
 rights and customs relating to markets and fairs lawfully held 
 in highways are not affected by the provisions of the Highway 
 Act, 1 835, ($) which prohibit obstructions by tethering animals 
 or^pitcrTing booths or stalls in high ways. (c\ But a custom 
 to set up stalls on a highway at statute sessions cannot be 
 immemorial, and therefore affords no justification for obstruct- 
 ing an ancient highway.(^) 
 
 The Metropolitan Police Act, 1839,^) prohibits the com- 
 mission of a variety of acts in any thoroughfare or public place 
 within the limits of the metropolitan police district. And the 
 Town Police Clauses Act, i847,(/) contains like prohibitions with 
 regard to any street (g) within the towns and districts to which 
 the Act applies. In prohibiting the exposure for show or sale 
 of any horse or other animal, these statutes expressly except 
 
 (a) G. E. R. Co. v. Goldsmid (1884) 9 App. Cas. 927, (1883) 25 Ch. 
 D. 511; A.-G. v. Homer (1885) n App. Cas. 66, (1884) 14 Q.B.D. 
 245 ; where the effect of 12 Geo. III. c. xxxviii., 28Geo. III. c. lx.,and 57 
 Geo. III. c. xxix. was considered. 
 
 (/>) 5 & 6 Will. IV. c. 50, s. 72. 
 
 (c) See Elwood v. Bullock (1844) 6 Q.B. 383; Gerring v. Barfield 
 (1864) 1 6 C.B.N.S. 597; Mercer v. Woodgate (1869) L.R. 5 Q.B. 
 26. 
 
 (d) Simpson v. Wells (1872) L.R. 7 Q.B. 214, where the origin of 
 statute sessions for hiring servants was, considered. R. v. Smith (1802) 4 
 Ksp. 109, seems of doubtful authority. 
 
 (e) 2 & 3 Viet. c. 47, ss. 54, 60. 
 (/) 10 & II Viet. c. 89, s. 28. 
 
 (g) Street here includes any road, square, court, alley, and thorough- 
 fare, or public passage (s. 3); see Curtis v. Embery (1872) L.R. 7 Ex. 
 369-
 
 Markets and Fairs in Churchyards and Highways 45 
 
 from the prohibition such an exposure in a market lawfully 
 appointed for that purpose.(a) No such express exception is 
 made with regard to certain other prohibited acts which, apart 
 from the statutes, might be justified in some cases by some 
 valid right or custom in connection with a market or fair, such 
 as the causing of an obstruction in a public footpath or 
 thoroughfare, or the placing of a stool or stall on a footway. 
 It seems, however, that the statutes do not affect such acts if 
 it can be proved that the thoroughfare or street, or the portion 
 thereof upon which the acts are committed, was only dedicated 
 subject to the right to commit them.(^) 
 
 An auctioneer who sells in an open market-place situate by 
 the side of a street cannot be convicted under s. 28 of the 
 Town Police Clauses Act of causing an obstruction in the 
 street because a crowd collects in the street to listen to 
 him.(^) 
 
 The Metropolitan Streets Act, 1867,^) provides that no 
 goods or other articles shall be allowed to rest on any footway 
 or other part of a street within the general limits of the Act,(r) 
 or be otherwise allowed to cause obstruction or inconvenience 
 to the passage of the public, for a longer time than may be 
 absolutely necessary for loading or unloading such goods or 
 other articles. But, by reason of the Metropolitan Streets 
 Amendment Act, i867,(/) the above provision, prohibiting 
 the deposit of goods in streets, does not apply to costermongers, 
 street hawkers, or itinerant traders, so long as they carry 
 on their business in accordance with the regulations from 
 time to time made by the Commissioner of Police with 
 the approval of the Home Secretary.^) Under the 
 
 (a) The exception in 10 & II Viet. c. 89, s. 28, is 'in any market, 
 market-place, or fair lawfully appointed for that purpose.' 
 
 (b) See Spice v. Peacock (1875) 39 J.P. 581 ; Jones v. Matthews (1885) 
 i T.L.R. 482; Leicester Sanitary Authority v. Holland (1888) 57 
 LJ.M.C. 75 ; see also Curtis v. Embery (1872) L.R. 7 Ex. 369 ; and cf. 
 Whittaker v. Rhodes (1881) 46 J.P. 182; R. v. Young (1883) 52 
 LJ.M.C. 55 ; Hitchman v. Watt (1894) 58 J.P. 720. 
 
 (c) Ball v. Ward (1875) 33 L.T. 170. 
 
 (d) 30 & 31 Viet. c. 134, s. 6. 
 
 (e) Viz. within six miles from Charing Cross ; see 48 Viet. c. 18. 
 (/) 31 & 32 Viet. c. 5, s. i. 
 
 (g) As to the effect of the amending Act upon the Act which it amends, 
 and also upon the 57 Geo. III. c. xxix. s. 65, see Keep v. Vestry of St. 
 Mary Newington [1894] 2 Q.B. 524, where Summers v. Holborn District 
 Board of Works [1893] I Q.B. 612 was considered.
 
 46 The Market- Place and the Place for Holding Fairs 
 
 original Act (a) the surface of any space over which the public 
 have the right of way that intervenes in any street between the 
 footway and the carriage way was to be deemed to be part of 
 the footway, notwithstanding any claim of any person by pre- 
 scription or otherwise to the deposit or exposure for sale of 
 any goods or other articles on such surface ; but the amend- 
 ing Act (b) repealed this definition. It would seem that 
 the provisions of the original Act, as now amended, cannot 
 be construed as taking away actual market-rights in streets. 
 This view appears to be supported by the speedy repeal, as 
 already mentioned, of the definition given by the original Act 
 to footways, which might certainly have been considered to 
 interfere with rights subject to which streets had been dedi- 
 cated. 
 
 With regard to the Metropolis Management Act i855,(r) it 
 has been decided that the provisions of this Act which relate to 
 streets are subordinate to paramount rights reserved when the 
 streets were dedicated.(^f) S. 91 of the Act provides that 
 ' nothing in the Act shall extend to or affect any rights, privi- 
 leges, powers or authorities vested in any person in reference 
 to a market.' This provision prevents other provisions of the 
 Act from vesting the control of the markets in the vestries ; 
 and such bodies are not entitled to interfere with the rights of 
 the market-owners or of persons frequenting the markets. (e) 
 
 TheJMunicipal Corporations Act, i882,(/) which author- 
 ises the making of by -Taws for the "good rule and government 
 of any borough to which the Act applies, does not justify a 
 by-law which prohibits or restricts the exercise of market-rights 
 in streets. () 
 
 The owner of a market held in a street may, however, be 
 answerable for a nuisance arising in the market-place. Thus, 
 in Draper v. Sperring (K) it was held that the owner of such 
 
 (a) 30&3I Viet. c. 134, s. 6. 
 
 (d) 31 & 32 Viet. c. 5, s. I. (c] 18 & 19 Viet. c. 120. 
 
 (rf) Le Neve v. Vestry of Mile End Old Town (1858) 8 E. & B. 1054 ; 
 Vestry of St. Mary Newington v. Jacobs (1871) L.R. 7 Q.B. 47 ; Vestry 
 of Chelsea v. Stoddard (1879) 43 J.P. 782. 
 
 (e) Homer w. Whitechapel B. of W. (1886) 53 L.T.N.S. 842. 
 
 (/) 45 & 46 Viet. c. 50, s. 23, which replaced 5 & 6 Will. IV. c. 76, 
 s. 90, to the same effect. 
 
 (g) Elwood v. Bullock (1844) 6 Q.B. 383, a decision upon the earlier 
 Act of 1835. 
 
 (/&) (1861) loC.B.N.S. 131. 
 
 lly] 
 
 ,#*
 
 Markets and Fairs in Churchyards and Highways 47 
 
 a market in which sheep were penned so that their droppings 
 created a nuisance was a person by whose ' act, default, per- 
 mission or sufferance,' the nuisance arose, and was therefore 
 liable to an order to remove the nuisance under the Nuisances 
 Removal Act, i852.(a) Such a case can now, no doubt, be 
 dealt with under the provisions of the Public Health Act, 
 1875,^) or the Public Health (London) Act, 1891. (<:) 
 
 (a) 1 8 & 19 Viet. c. 121 ; repealed by 38 & 39 Viet. c. 55, s. 343; 
 54 & 55 Viet. c. 76, s. 142. 
 
 (/>) 38 & 39 Viet. c. 55, ss. 91 et seq. 
 (c) 54 & 55 Viet. c. 76, ss. 2 et seq.
 
 4 8 
 
 CHAPTER III 
 
 THE DAYS AND HOURS FOR HOLDING MARKETS AND FAIRS 
 
 i. The days. 
 
 IN grants of markets and fairs, the days on which they are 
 to be held are usually specified. Where a market or fair is 
 j held under a prescriptive title, it is presumed that it is held 
 under a lost grant, and that such grant specified as the days 
 for holding it the days upon which the evidence shows that it 
 has in fact been held. 
 
 In most grants of fairs the specified days have reference 
 to some saint's day, usually the day of the patron saint of the 
 place where the fair is to be held.(a) For a three days' fair 
 the grant generally provides for its being held on the eve, the day, 
 
 yand the morrow of such a saint. Grants allotting^hree days 
 to a fair "aTe common. ~TBut in some cases a greater number of 
 days have been allotted. Thus, Westminster Fair was granted 
 to be held from the eve of St. Edward for 15 days.() 
 
 Markets are usually granted to be held upon a particular 
 day or particular days in every week. Instances can be found, 
 however, of monthly (c) and fortnightly (d) markets. A grant 
 of markets to be held on two days in the week is often treated 
 ' as a grant of two separate franchises. 
 
 As a general rule, the grantee is bound to hold his fair or 
 market upon the days for which itliasToeen granted, and it is 
 unlawful for him to hold it on other days. Holding a market 
 
 (a) The Latin ' feria ' (fair) was the proper ecclesiastical term for a 
 saint's day. 
 
 (b) See Chart. 29 Hen. III. part i, memb. 3; 'and Plac. Quo. 
 Warr. p. 480. 
 
 (c) E.g. at Chester, Okehampton, Aberclare, Lechlade, &c. 
 
 (rf) E.g. at Cranbrook, Axminster, Gillingham, Stalbridge, &c. At 
 Llangadock there is a market every third Tuesday. 
 
 fc
 
 The Days 49 
 
 or fair upon days other than those on which there is a right to 
 hold it was, at one time, a common cause of forfeiture.!^)'" ^ 
 
 There is, however, a distinction in this respect between 
 fairs and markets. An^gnjirp. change of day, whether for a 
 fair or a market, being illegal, is a cause of forfeiture. (V) But 
 whereas illegally to extend the time of holding a fair is a cause 
 of forfeiture of the whole fair,(<r) yet if a market be held on 
 the proper day, and also on an additional and improper day, 
 that does not lead to a forfeiture of the whole market, but 
 only to a forfeiture of the market held on the improper day,(</) 
 for the market held on the additional day is treated as an 
 entire and separable market, wrongfully usurped, and not as a 
 mere extension of the lawful market. 
 
 In the case of fairs, the duty of the lords to keep them \ 
 open for a time neither longer nor shorter than that specified 1 
 in the grants is enjoined by the Statute of Northampton. (<?} \ 
 That statute requires ' all the lords that have fairs ' to hold the / 
 same 'for the time that they ougnt to hoia mem, and no 
 longer; that is to say, such as have them by the king's 
 charter granted to them, for the time limited by the said 
 charter ; and also they that have them without charter(/) for 
 the time that they ought to hold them of right.' The statute 
 also requires every lord at the beginning of his fair there to 
 publish how long the fair shall endure.^) The penalty 
 imposed by the statute for holding a fair over the due time is 
 seizure of the fair into the king's hands (after office found) (K) ' 
 until payment of a fine for the offence. 
 
 This statute makes it unlawful for merchants to remain at 
 fairs over the due time, but imposes no penalty upon them 
 for the offence. That omission, however, is supplied by the 
 5 Edw. III. c. 5, which provides that any merchant who shall 
 sell any ware or merchandise at a fair after the due time shall 
 
 (a) See Abb. Plac. p. 36 (4 John, Luton), p. 43 ($ John, 
 Lichfield and Wolverhampton) ; Plac. Quo. Warr. p. 384 (temp. Edw. I. 
 Lancaster) : Select Pleas of Crown (Selden Soc.) vol. i. pi. 22, 44, 50. 
 
 (6) Ibid. See Y.B. 22 Ass. f. 93, pi. 34. 
 
 (c) Stat. of Northampton, 2 Edw. III. c. 15, infra ; Y.B. 22 Ass. 
 f. 93, pi. 34. As to the metropolis, see also post, p. 205. 
 
 (d) Y.B. 22 Ass. f. 93, pi. 34 ; Com. Dig., Market (I) ; A.-G. v. Homer 
 (1884) I4Q-B.D. 245. 
 
 (e) 2 Edw. III. c. 15. (/) See ante, p. 22. 
 
 (g) For a form of proclamation, see First Report of Royal Commission ,. 
 vol i. appendix xiv. 
 
 (A) See Midleton v. Power (1886) 19 L.R. Ir. I.
 
 50 Days and Hours for Holding Markets and Fairs 
 
 forfeit to the crown the double value of what he shall so sell, 
 such double value to be recoverable at the suit of a common 
 informer, who shall be entitled to a fourth part of the amount 
 recovered. 
 
 2. Change of the days. 
 
 In early times any change of the market-day was unlawful, 
 including a change from Sunday to a week-day.(a) But in 
 the thirteenth century it appears that the opinion began to 
 prevail that Sunday marketing was wrong, and consequently 
 changes of market-days from Sunday to week-days were often 
 allowed without payment of a fine,(^) and at last they came to 
 be regarded as lawful, (c) Finally, in 1448 a statute (d} was 
 passed which made it illegal to show or expose any goods or 
 ' merchandise (except necessary victual) for sale in any fair or 
 market held upon any Sunday,^) or upon Good Friday,(/) or 
 upon certain ' principal feasts ' ; and permitted persons who 
 had no day for holding their fair or market other than these 
 days to hold it within three days later or three days earlier, 
 ,* \ after making proclamation of the change of day. The feast 
 days mentioned in the statute are Ascension Day,(g) (k) 
 Corpus Christi Day,(/) (/') Assumption Day,(<) (/') and All 
 Saints' Day.(/) (h) With regard to Sundays, an exception was 
 made of ' the four Sundays in harvest ' ;(m) but this exception 
 was abolished in i85o.() The penalty for exposing goods con- 
 
 (a) Plac. Quo. Warr., p. 710 (temp. Edw. I. Eccleshall) ; Abb. Plac. 
 p. 43 (5 John, Litchfield and Newcastle-under-Lyme). 
 
 (b) Abb. Plac. p. 71 (temp. John, Edenham and Lafford) ; Mait- 
 land, Pleas of (he Crown for Gloucester, p. 12, and note at p. 139. 
 
 (c) Bracton, fol. 117. 
 
 (d) Stat. 27 Hen. VI. c. 5, c considering the abominable injuries and 
 offences done to Almighty God, and to his saints, always aiders and 
 singular assisters in our necessities.' 
 
 (e) At a much earlier date, Sunday markets had been forbidden ; see 
 the Laws of Athelstan (circ. 925 A.D.) and of Aethelred, Witan of 1014. 
 
 (/) ' Accustomably and miserably holden and used in the realm of 
 England.' 
 
 (g) Moveable feast, falling on the Thursday which comes forty days after 
 Easter. 
 
 (A) A holy day under 5 & 6 Edw. VI. c. 3, and a feast day accord- 
 ing to the calendar of 1750 (24 Geo. II. c. 23). 
 
 (/) Thursday next after Trinity Sunday. 
 
 (j ) Not a holy day under 5 & 6 Edw. VI. c. 3, nor recognised as 
 a feast day in the calendar of 1750. 
 
 (&) Assumption B.V.M., August 15. 
 
 (/) November 1. (m) Lat. 'in autumpno.' 
 
 () By Stat. 13 & 14 Viet. c. 23. (Repealed by S.L.R. Act, 1875.)
 
 
 CJiange of the Days 5 1 
 
 trary to the statute is forfeiture of the exposed goods to the lord * 
 of the fair or market. 
 
 This statute does not affect the prescriptive or charter rights 
 of persons entitled to markets or fairs by making it unlawful 
 to hold them on Sundays or the other specified days : it only 
 imposes penalties on persons who expose goods for sale in 
 markets and fairs held on such days. (a) 
 
 When the calendar was reformed by the Calendar (New Reformed 
 Styje) Act, 1750,^) the nominal days for keeping the HXEd Calendar 
 feasts and tasts remained the same ;(c) and accordingly all 
 fairs and markets the dates for holding which depended upon 
 the dates of such feasts and fasts continued holdable on the 
 same nominal days; and the Act provided (b) that any 
 market, fair, or mart which had been held at a moveable time 
 depending upon the fall of Easter, or any other moveable feast, 
 should continue so to be held, the fall of Easter or such other 
 moveable feast being computed in accordance with the new 
 tables. 
 
 But in the case of markets, fairs, and marts fixed to certain 
 nominal days of a month, or depending upon the beginning or 
 any certain day of a month, the nominal days for holding them 
 were changed by the provisions of the Act ;(d) and such 
 markets, fairs, and marts are now held eleven days later than 
 their old nominal days. So that, for example, Dunstable Fair, 1 1 v 
 which was originally granted to be held on August i and May 1 1, 
 was afterwards properly held on August 12 and May 22. 
 
 The Fairs Act, 1873,0?) gives to a principal Secretary of Fairs Act, 
 State power to alter or increase or abridge the days of holding l873 
 fairs in England and Wales. He may order that a fair shall be 
 held (i) on some other day or days, or (2) on the same day or 
 days and any preceding or subsequent day or days, or (3) on 
 or during a less number of days than the fair is used to be 
 held.(/) But he can only make such an order upon a 
 representation duly made to him (g) that it would be ' for the 
 convenience and advantage of the public ' that the change 
 should be made ; and the representation can only be made to 
 him (g) either (i) by the owner of the fair or (2) by the 
 
 (a) Comyns v. Boyer (1596) Cro. Eliz. 485; Corporation of Cork v. 
 Shinkwin (1825) Smith and B., 395, 399. It is curious, therefore, that the 
 penalty should go to the lord. 
 
 (/>) 24 Geo. II. c. 23. (c) s. 3. (d) s. 4. 
 
 () 36 & 37 Viet. c. 37. (/) s. 6. (g) Ibid. 
 
 E 2
 
 52 Days and Hours for Holding Markets and Fairs 
 
 district Council of the district in which the fair is situate, or, if 
 the fair be situate in the county of London, by the justices 
 acting in and for the petty sessional division in which the fair 
 is held."(a}~-~ 
 
 Before the Secretary of State takes the representation into 
 consideration, the Act requires a notice of (i) the representa- 
 tion, and (2) the time when it will be considered by him, to be 
 both given and published.(^) Where the representation is 
 made by the owner of the fair, this notice must be given to the 
 district council,(<r) or, if the fair is situate in the county of 
 / London, to the clerk of the justices ;(<-) and where the 
 representation is made by the district council, or the justices, 
 the notice must be given to the owner of the fair.(/;) In every 
 case, before the representation is considered, the notice must 
 be published (i) once in the ' London Gazette,' and also (2) in 
 three successive weeks in some one and the same newspaper 
 published in the county, city, or borough in which the fair is 
 held, or, if there be no newspaper published therein, then in the 
 newspaper of some county adjoining or near thereto. (d) 
 
 As soon as the order has been made, notice of the making 
 of the order must be similarly published ;(<?) and the order 
 has apparently no force until such publication has been com- 
 pleted. When the requirements of the Act with regard to 
 publication have been complied with, the fair may only be held 
 on the day or days mentioned in the order. (<?) The Act 
 
 I ( expressly preserves all the rights of the owner of the fair, with 
 
 I 1 regard to toll or otherwise, notwithstanding the change of day 
 \\ ordays.(<?) 
 
 For the purposes of the Act, ' owner ' means ' any person or 
 persons, or body of commissioners or body corporate, entitled 
 to hold any fair, whether in respect of the ownership~oT any 
 lands or tenements or under any charter, letters patent, or 
 otherwise howsoever. '(/) 
 
 Presumed If a market or fair has been held for a long time past upon 
 
 grant to fa^ ot h er than the days specified in the grants which relate 
 
 day 
 
 (a) The Local Government Act, 1894 (56 & 57 Viet. c. 73, s. 27 (i.) (,?), 
 has substituted the district council for the justices, except as regards the 
 County of London (see s. 35). If the fair be situate in a borough, includ- 
 ing a county borough, the borough council may make the representation in 
 its capacity of district council. See Id. ss. 21, 27, and 32. 
 
 (6) s. 6. (f) Ibid., and see note (a), supra. 
 
 (ft) s. 6. () s. 7. (/) s. 3 .j
 
 Change of the Days 53 
 
 to the market or fair, it may sometimes be presumed from the 
 long user that there was a furthergrant or licence, which has 
 since been lost, authorisingThe ^Kange or the days, (a) 
 
 3. The hours, * 
 
 With regard to the proper hours for holding fairs and 
 markets, it has been said that dies in grants means dies Solaris 
 (i.e. from sunrise to sunset), and not dies naturalis (i.e. from 
 midnight to midnight), so that fairs ancTTnarkets can be 
 lawfully held only by day.(^) It cannot be said that this doc- 
 trine has always been maintained in practice. It seems, 
 
 I however, to be recognised in the custom of .the city of London 
 
 I 1 whereby every shop open to the public is market overt only 
 between sunrise and sunset. (c) In and near London, the 
 hours for holding hay and straw markets through which there 
 is a public carriage-way, and also for holding fairs, are regu- 
 
 i. lated, to some extent, by statute. 
 
 /W The Hay and Straw Act, i796,(</) enacts that every market 
 ( / for sale of hay ana straw witnm the cities of London and 
 AVestminster, or the weekly bills of mortality, or within thirty 
 miles thereof, (e) must end at 3 P.M. on every market-day 
 between Lady Day and Michaelmas, and at 2 P.M. on every 
 market-day between Michaelmas and Lady Day,(/) and the 
 clerk or toll -gatherer, or his deputy, must give notice thereof 
 on each market-day by ringing ' a large hand bell ' round the 
 market one hour before the time, and again at the time, when 
 the market must end.(/) If the market be held on Michael- 
 mas or Lady Day, it seems doubtful, from the wording of the 
 Act, whether it ought to end at 2 P.M. or 3 P.M. 
 
 The Act imposes upon the person whose duty it is to ring 
 the bell a fine of not more than ten nor less than five shillings 
 for every offence in not ringing.(/) It also imposes upon every 
 person who shall sell any hay or straw in the market after the 
 market hours a fine of sixpence for every bundle or truss of 
 
 (a) See Mayor of Penryn v. Best (1878) 3 Ex. D. 292, as explained in 
 Mayor of Manchester v. Lyons (1882) 22 Ch. D. 287, 300; Midleton v. 
 Power (1886) 19 L.R. Ir. I, 12. 
 
 (b) 2 Inst. 714. 
 
 (<-) See Taylor v. Chambers (1604) Cro. Jac. 68; and, as to the 
 custom generally, seefost, p. 122. 
 
 (d) 36 Geo. III. c. 88. (e) s. 2. (/) s. 15.
 
 54 Days and Hours for Holding Markets and Fairs 
 
 hay, and of threepence for every bundle or truss of straw, so 
 sold.(a) 
 
 The Act also provides that if any person having the care 
 or direction of any waggon, wain or cart, used for the purpose 
 of bringing hay and straw, shall suffer the same to remain in 
 the market, on a market-day from Lady Day to Michaelmas 
 after 5 P.M., or on a market-day from Michaelmas to Lady 
 Day after 3 P.M., he shall forfeit for every such waggon, wain 
 or cart, a sum not exceeding twenty and not less than five 
 shillings.(^) The penalties imposed by the Act are recover- 
 able summarily, under the Summary Jurisdiction Acts. When 
 recovered, they are payable to the prosecutor, (c) 
 
 The Act does not now apply to any markets ' through which 
 there does not exist by law any public right of way for carts 
 and carriages,' as it was repealed, so far as regards those 
 markets, by the Hay and Straw Act, iB^.(d) The latter Act 
 expressly casts the burden of proving the public right of way 
 upon a party suing for any penalty. 
 
 The business and amusements of fairs held within the 
 metropolitan police district are required by the Metropolitan 
 Police__Act r ._i_8.39,(e) to cease at n P.M., and not to begin 
 earlier than 6 A.M. If any house, room, booth, standing, tent, 
 caravan, waggon, or other place, be ' open ' between 1 1 P.M. 
 and 6 A.M., for any purpose of business or amusement, in the 
 place where the fair is held, a constable may_take_into custody 
 the person having the care or management thereof, and also 
 every person being therein who shall not quit the same forth- 
 with upon being bidden by the constable so to do.(<?) The 
 former is liable to a penalty not exceeding five pounds, and 
 the latter to a penalty not exceeding forty shillings, upon sum- 
 mary conviction, (e) 
 
 For the purposes of the Shop Hours Acts, 1892 to i895,(/) 
 'shop' includes markets and stalls in which assistants are 
 ejnployedforjiire. 
 
 (a) s. 15. (6) s. 1 6. (c)s. 30. 
 
 (d) 4 & 5 Will. IV. c. 21. (e) 2 & 3 Viet. c. 47, s. 38. 
 
 ( f) 55 & 56 Viet. c. 62 ; 56 & 57 Viet. c. 67 ; 58 Viet. c. 5; see s. 9 
 of the first mentioned Act.
 
 55 
 
 CHAPTER IV 
 
 TOLL AND STALLAGE 
 
 i. The nature of tolls and stallage and other charges. 
 
 THE usual payments made to the owners of markets and 
 fairs are of toll and stallage. In some places, however, piccage> 
 pennage, and other dues are payable. These terms require 
 explanation. 
 
 The legal definition of toll (in connection with a fair or 
 market) is ' a reasonable sum of money due to the owner of the 
 fair or market upon the sale of things tollable within the fair or 
 market, or for stallage, piccage or the like ' ;(a) and it has 
 been held that in grants, (l>) Acts of Parliament, (<:) as well as in 
 
 ! pleading.(^) ' toll ' may include stallage, as a general word for 
 
 I all such duties~or payments. 
 
 It is, however, convenient and usual to limit the word toll, 
 in this connection, to payments made on the sale within the \d\~ 
 market or fair of things tollable, as distinguisnlidfroin stallage 
 
 Sand other payments which are made in respect of some user of 
 the soil beyond tfre mere entry tnereon ;(e) and the word will 
 generally be used in this book in this limited sense. 
 
 Stallage is a satisfaction to the owner 'of the soil on which 
 a market or fair is held for the liberty of placing a stall upon it *-^ 
 or for standing room for cattle or goods within frTe""""market or 
 fair ; and if the soil be broken it is called piccage \f} Pennage 
 is payable for the erection of pens.(^) 
 
 (a) 2 Inst. 220. 
 
 (6) Lockwood v. Wood (1841) 6 Q.B. 31. 
 
 (c) Duke of Bedford v. Emmett (1820) 3 B. and Aid. 366, 371. 
 
 (d) Bennington v. Taylor (1701) 2 Lutw. 1517. 
 
 (e) Com. Dig., Market (F. i); Duke of Bedford v. Overseers of St. 
 Paul (1881) 51 LJ.M.C. 41, 45, per Bowen, J. 
 
 (/) Mayor of Northampton v. Ward (1746), 2 Stra. 1238; and see 
 Spelman's Glossary and Termes de la Ley. 
 (g) R. v. Marsden (1765) 3 Burr. 1812.
 
 56 Toll and Stallage 
 
 It may be convenient here to state very briefly the nature 
 of certain other tolls (some of them are now obsolete) which 
 are or have been more or less connected with markets and 
 fairs, (a) 
 
 Lastage, or Lestage : a toll paid for liberty for persons to 
 carry their goods up and down to markets and fairs, (b) 
 
 Pesage or Poizage : a duty paid for weighing commodities.^) 
 
 Tronage :~a~ctuty paid for weighing wool, and other heavy 
 commodities, (d) 
 
 Scavage, or Shwvage : toll paid for a licence to show or 
 expose wares, (e) 
 
 Sumage, or Summage : toll paid for carrying goods on horse- 
 back^/) 
 
 Toll-turn : toll paid for cattle or goods on their return from 
 a fair or market, (g) 
 
 Toll-traverse : toll paid for cattle or goods taken over 
 private land.(/fc) 
 
 Toll-through : toll paid for passing through or into a town 
 or over a public. way, bridge or ferry. (/') 
 
 In particular markets or fairs tolls of a special kind may be 
 payable by custom or prescription. Thus, at Lichfield market 
 there was payable to a bell-man for sweeping out the market a 
 toll on all corn brought into the market, whether sold or not.(/ ) 
 
 2. TJxrizhttotoll. 
 
 The right of taking toll is not incident to a fair or market, ^ 
 and some markets and many fairs jirejtollrfree. Every person 
 has of common right the liberty of buying and selling in a 
 public market or fair, and toll is not payable to the lord in 
 
 (a) It is difficult to say what meanings are to be attached to some of 
 the terms, but to the best of the authors' judgment the definitions given 
 are fairly accurate. 
 * (6) See Birch's Historical Charters ; &c., of London (1887) p. 328. 
 
 (c) Ibid. 331. (d) Ibid. 336. Lat. 'trutina' (scales). 
 
 (e) Ibid. 333 ; Jacob's Law Diet. The ' scavenger ' collected it. 
 
 (/) Jacob's Law Diet. Cf. ' Sumpter,' a pack-horse. 
 
 (g) Com. Dig. Toll. (B.). 
 
 (A) Com. Dig. Toll (D. a) ; see Brecon Market Co. v. Neath R. Co. 
 (i8 7 2)L.R. 7 C.P. 555. 
 
 (i) Com. Dig. Toll (C). 
 
 (j) Hill v. Hawker (1615) Mo. 835 ; S.C. Hill v. Hank, 2 Bulstr. 
 201, I Roll. Rep. 44; and see Riley's Memorials of London, p. 366: 
 Ordinance for the cleansing of Smithfield, 46 Edw. III.
 
 The Right to Toll 57 
 
 respect of sales there unless he be entitled to it by special grant 
 or prescription (a) or statute. 
 
 According to Moore's report of Heddy v. Weelhouse,() the 
 judges there said that toll is payable of common right for liv.e 
 cattle, but not for victual or other wares ;(c) but this statement 
 is not borne out by the decision in the case, which was that toll 
 is not demandable for a heifer or cow, unless by grant from the 
 king or by prescription. The case seems to be more correctly 
 reported by Croke.(^) 
 
 A grant of a fair or market does not carry with it a grant of 
 toll, unless there be special words appropriate to create a right 
 to toll. It is not enough that a fair be granted ' cum omnibus 
 libertatibus et liberis consuetudinibus ad hujusmodi feriam 
 spectantibus vel pertinentibus,'(^) or ' with all profits, com- 
 modities, emoluments, liberties, and free customs appertaining 
 to such a fair,'(/^ or any similar general words, not peculiarly 
 applicable to toll. For toll is not incident to a fair. 
 
 There is a distinction, however, between an original grant 
 of a new market or fair and a confirmatory grant of an ancient 
 one, or a re-grant of the latter after it has passed by forfeiture 
 or otherwise into the hands of the crown. In the case of such { 
 a confirmatory grant, or of such a re-grant, general words may 
 be sufficient to continue any right to toll, whether by grant or 1 
 prescription, which had previously existed.(^) But the grant V 
 or re-grant must be of the ancient market or fair, and not 
 merely a grant of a new franchise, as was the case in Holloway 
 v. Smith, (K) where new fairs were granted, and it was held that 
 
 (a) R. v. Corporation of Maidenhead (1620) Palmer 76; Osbuston v. 
 James (1688) 2 Lutw. 1377; Holloway v. Smith (1743)2 Stra. 1171 ; 
 Austin v. Whittred (1747) Willes, 623 ; Lowden v. Hierons (1818) 2 B. 
 Mo. 102 ; Mayor of Stamford v. Pawlett (1830) I Cr. and J. 57 ; Earl of 
 Egremont v. Saul (1837) 6 A. and E. 924. 
 
 (*) 0597) Mo. 474. 
 
 (c) Toll is not due by common usage ' for hens or geese, or for many 
 other things of such nature,' per Clench, J., Escot v. Lanreny (1594) 
 Owen, 109. Cf. i Rot. Hundred, p. 280 b. (Lafford, Line.), and 
 p. 239 b. (Lutterworth, Leic.). 
 
 (d) Heddy v. Weelhouse (1597) Cro. Eliz. 558, 591. 
 
 (e) Heddy v. Weelhouse (1597) Cro. Eliz. 558, 591; Earl of 
 Egremont v. Saul (1837) 6 A. and E. 924. 
 
 (/) Holloway v. Smith (1743) 2 Stra. 1171 
 
 (g) Heddy v. Weelhouse (1597) Cro. Eliz. 591, per Popham, J. ; 
 Earl of Egremont v. Saul (1837) 6 A. and E. 924, 931. 
 (A) (1743) 2 Stra. 1171.
 
 58 Toll and Stallage 
 
 a custom to take toll in an old fair, though recited in the grant r 
 did not justify taking toll in the new fairs. 
 
 Toll-free if the crown grant a market or fair without a special grant 
 
 of toll, the market or fair is toll-free ; and the crown has no 
 power afterwards to grant toll for such market or fair ' without 
 quid pro quo, some proportionable benefit to the subject. '() 
 For la market or fair, when once established, exists for the 
 benefit of the public, as well as for the benefit of its owner. 
 In Lowden v. Hierons,(^) however, it appeared that there had 
 t been a usage to take toll in Covent Garden market for some 
 150 years before action brought, but that the market had been 
 free down to 1670, when a further grant (c) was obtained of 
 the market cum tolnetis hujusmodi mercaturae aliquatinus 
 spectantibus. On these facts the court seem to have thought 
 that it was open to a jury to presume from the usage that a 
 valid grant of toll had been made since the original charter. (</) 
 
 Amount of A grant of toll sometimes specifies the amount which may 
 be taken, and such amount must be reasonable. A grant of 
 an unreasonable toll is wholly void, and no portion of it 
 whatever is payable, (e) 
 
 Reason- A grant of a toll which does not specify the amount to be 
 
 able toll taken is interpreted to be a grant of a reasonable toll ;(/) but 
 ^/ [,o if the language of the grant be ambiguous it may be void for 
 uncertainty, as was held in the case of a grant of ' such toll as 
 is used to be taken ibi et alibi infra regnum Angliae.\g) 
 
 In Corporation of Stamford v. Pawlett,(A) it was argued 
 that the grant of a reasonable toll without specifying the 
 amount was void, on the ground that ' to permit the grantee 
 to take whatever may appear to him to be a reasonable toll 
 is to make the grantee a judge for himself, and to expose the 
 subject to extortion.' But, as Alexander, C.B., said in delivering 
 the judgment of the Court of Exchequer,(/) 'the grantee 
 
 (a) 2 Inst. 220; R. v. Mayor of London (1682) 2 Sho. 266; Lancum v. 
 Lovell (1834) 6 C. and P. 437, 465. 
 
 (6) (1818) 2 B. Mo. 102. (r) 22 Car. II. 
 
 (d) See per Dallas, J. 
 
 (e) 2 Inst. 220; Heddy v. Weelhouse (1597) Cro. Eliz. 558, 591, 
 Mo. 474. 
 
 (/) R. v. Corporation of Maidenhead (1620) Palmer, 76; Corporation 
 of Stamford v. Pawlett (1830) I Cr. & J. 57, 400. 
 (g) Lightfoot v.. Lenet (1618) Cro. Jac. 421. 
 (A) (1830) i Cr. and J. 57, 400. 
 (*') At p. 8 1 ; affirmed in the Exchequer Chamber, Id. 400.
 
 The Right to Toll 59 
 
 demands it at his_peril, and at the hazard of a private as well 
 as of_a public prosecution ; of a private, at the suit of the party 
 injured ; of a public, at the suit of the Attorney-General in 
 the name of his Majesty. The inconvenience of raising such /. 
 questions cannot be avoided by specifying the sum. The king 
 cannot grant an unreasonable toll : and it is competent to 
 every subject of the realm from whom the toll is demanded to 
 question its being reasonable, even when the exact sum is 
 specified in the charter. This question may always be brought 
 under discussion, in whatever terms the grant may be ex- 
 pressed.' In that case the grant(a) was of two fairs or markets 
 'cum omnibus tolnetis et aliis proficuis predictis feriis sive 
 nundinis pertinentibus et spectantibus,' and it was held that 
 the grant passed the right to a reasonable toll. 
 
 Where the right to take toll is founded on prescription, it Prescrip- 
 seems that a jury may find, if the evidence be adequate, either tlve to11 
 a lost grant of-a reasonable toll, or a lost grant of a toll of v 
 specified amount, (b) The former finding is the more favour- 
 able for the lord of the market or fair, as such a grant does not 
 prevent his varying the amount of his toll, provided that the 
 amount taken is always reasonable, and the toll is not liable 
 to be invalidated on the ground of rankness.(r) 
 
 Where^ajreasonablejoll is due, and excessive toll is taken, "oiitra- 
 or where no toll at all is due and yet toll is unjustly usurped, S eous to11 
 the toll taken is said to be outrageous ;(d] sometimes it is 
 called excessive, or undue, or unjust.(^) Such toll is dealt 
 \vithrb'y the Statute of Westminster (the first).(/) In com- 
 menting upon the statute Lord Coke says (g) that toll is there 
 used in the widest application, as including stallage, piccage 
 and the like ; and that it includes toll to the fair as well as 
 toll to the market. The statute(^) enacts that if outrageous 
 
 (a) 13 Anne. 
 
 (b) See Wright v. Bruister (1832) 4 B. and Ad. 116, Gunning on 
 Tolls, 62; Lawrence v. Hitch (1868) L.R. 3 Q.B. 521. In the Worksop 
 market and fair case, Plac. Quo. War. p. 627, the crown alleged as an 
 abuse, and proved, that the lord had taken twice as much for tolls as he 
 and his predecessors from time immemorial had before taken, and the 
 market and fair were forfeited. The tolls were prescriptive. It does not 
 appear whether the lord's claim was to tolls of specified or of reasonable 
 amount ; but the case is consistent with either view. 
 
 (c) Lawrence v. Hitch (1868) L.R. 3 Q.B. 521; and see post, p. 60. 
 
 (d) 2 Inst. 220. (e) Ibid. (/) 3 Ed\v. I. c. 31. 
 (g) 2 Inst. 220. 
 
 (h) 3 Edw. I., Stat. of Westm. (the first) c. 31.
 
 60 Toll and Stallage 
 
 toll is taken by the lord, the crown may seize the franchise of 
 the market or fair into its own hands ; and that if it be taken 
 by a bailiff, or any mean officer, without the authority of his 
 lord, the bailiff or officer shall restore to the injured party as 
 much more for the outrageous taking as he would have had of 
 him if he had carried away his toll, and moreover shall have 
 forty days' imprisonment.(tf) 
 
 Lord Coke says that the statute authorises the crown to 
 seize the franchise of the market or fair ' until it be redeemed 
 by the owner ' ; but that the seizure can be had only upon an 
 office found. (b} Apart from the statute, an abuse of the 
 franchise of toll, by taking outrageous toll, renders that 
 franchise liable to forfeiture, but does not, it seems, create a 
 forfeiture of the market or fair.(^) 
 
 Reason- Reasonableness is a question of law. If a jury find 
 
 that the sum demanded is due in accordance with the grant or 
 P rescr ipti n > it is the duty f the Court to support that verdict, 
 unless the toll be unreasonable, and the onus of showing that 
 ^ is such lies on the party disputing the toll.(^) A continuance 
 !7 /^ij^tr of uniform payment and acquiescence therein is evidence of 
 -"' // .' reasonableness.(<?) The mere fact that a toll of particular 
 fc '/ '. amount has been taken for a long period of time will not, in 
 ^f.ic^' Q the absence of all evidence on the subject, warrant the assump- 
 *>/ 3 ^ tion that a toll of a larger amount is unreasonable. (/) 
 
 Recently an attempt was made to defeat a prescriptive toll 
 by showing that the amount, though reasonable at the present 
 time, would have been unreasonable in 1189, when the time of 
 t legal memory began, and for many years afterwards, from which 
 it was argued that the toll could not have had a lawful origin. 
 This principle, known as the doctrine of rankness, had some 
 
 (a) See Revised Statutes, 2nd. edit. vol. i. p. 13. 
 
 (b) 2 Inst. 221. ' Office found ' seems to mean here a verdict in quo 
 warranto proceedings. 
 
 (c) See Com. Dig. 'Market' (I.), citing Palmer, 82. Vin. Abr. 
 Market (F.) 7, to the contrary, cites 2 Show. 265 ; but the passage in 
 Shower is mere argument, on the false assumption that toll is incident to 
 a market. 
 
 (d) Wright v. Bruister (1832) 4 B. and Ad. 116, where a toll of \d. on 
 every pig brought into a market was held to be not necessarily unreason- 
 able. 
 
 (e) Card v. Callard (1817) 6. M. & S. 69. As to slight variations 
 from time to time, see Duke of Beaufort v. Smith (1849) 4 Kxch. 450. 
 
 (/) See Mills v. Mayor of Colchester (1868) L.K. 3 C.P. 575.
 
 The Right to Toll 61 
 
 place in the law of tithes,() but it has never been successfully- 
 applied to prescriptive tolls, though its application would have 
 been fatal to many. The answer to the argument is that it 
 may be presumed that the grant was of a reasonable toll, to 
 vary in amount from time to time according to the varying 
 value of money ;(V) and such a toll is valid in point of law.(r) 
 Accordingly, a toll of is. on every cartload of vegetables brought 
 into the market has been successfully prescribed for as a 
 reasonable toll varying in amount, though atoll of that amount 
 would have been unreasonable in the time of Richard !.(*/) 
 But if a toll were claimed by charter granting a toll of 
 specified amount, which, though reasonable now, must have 
 been unreasonable at the time of the grant, it might be 
 successfully contended that on that ground the grant of toll was 
 void.(^) 
 
 Many tolls which are now taken in ancient charter and 
 prescriptive markets would have been unreasonable in the 
 times when the charters were granted, or in the first year of 
 Richard !.,(/) and would be bad unless they could be sup- 
 ported as tolls varying in amount. 
 
 It has been questioned whether toll is payable on articles 
 not in use at the time of the grant, or not then known, which 
 have subsequently become marketable articles. It is submitted 
 that there can be no objection to taking toll on such articles if 
 the terms of the charter by which the tolls were granted be 
 sufficiently wide ;(g) and in the case of a prescriptive market, 
 
 (a) See Eagle on Tithes, p. 186. 
 
 (6) Lawrences. Hitch (1868) L.R. 3 Q.B. 521. 
 
 (c) See R. v. Corporation of Maidenhead (1620) Palmer, at p. 86. 
 Wright v. Brewster (1832) as reported in Gunning on Tolls, pp. 62, 63. 
 This point does not appear from the report in 4 B. and Ad. 116. 
 
 (d) Lawrence v. Hitch, supra. 
 
 (e) See Lawrence v. Hitch, supra ; and compare Bryant v. Foot (1868) 
 L.R. 3 Q.B. 497. 
 
 (/) Thus, in the time of Edward III. the following tolls were held to 
 he unreasonable, viz. one penny for each of the following when sold in 
 market or fair : horse, ox, cow, eight sheep, four pigs over one year old, 
 eight young pigs, and a cart laden with merchandise ; for a horse's load one 
 
 halfpenny or farthing, and for a man's load one farthing. Plac. Quo. Warr. 
 p. 146 (Meysham), and p. 140 (Bauquell). See also Id. p. 627 (Worksop). 
 In 1832 a toll of a penny for a pig sold in market was held to be reason- 
 
 able. (Wright v. Bruister, 4 B. and Ad. 1 16). See also Heddy v. Weelhouse 
 (1598) Cro. Eliz. 558, Moore 474. 
 
 (g) See R. v. Corporation of Maidenhead (1620) Palmer 85 ; Brune v. 
 Thompson (1843) 4 Q.B. 543, 552 ; Mayor of Carlisle v. Wilson (1804) 
 5 East 2 ; Waterhouse v. Keen (1825) 4 B. and C. 200.
 
 62 
 
 Toll and Stallage 
 
 By who 
 payable 
 
 Sales by / 
 sample /' 
 
 ' V^ 
 
 
 or a market with prescriptive tolls, there might be evidence 
 from which it could be inferred that the lost grant contained a 
 clause which provided for such articles, as by granting a reason- 
 able toll on all chattels and things brought into the market and 
 there sold. ~~* 
 
 Toll is payable, as a general rule, by the buyer, and not by 
 the seller. (a) Nevertheless, by statute iPmay be payable in 
 particular markets by the seller, and not by the buyer ; and 
 this is generally the case in modern statutory markets. (b) A 
 custom or prescription for payment of toll by the seller would 
 probably be good.(<r) In a very early case,(</) the lord claimed 
 prescriptive right to take toll from both buyer and seller : the 
 amount taken was held unreasonable, but if the total amount 
 taken were not excessive, perhaps such a right might be success- 
 fully prescribed for. 
 
 Toll is usually payable only on tollable articles actually 
 brought into the market and there sold.(<?) If goods are sold 
 by sample in a market, and the bulk is never brought into the 
 market, toll is not payable on the bulk ;(/) and there cannot 
 be a grant or prescription to take toll on goods not actually 
 brought into the market and there sold.(^) ' Fairs were invented 
 that contracts might have good testimony and be made openly, 
 and that the seller might know what to ask and the buyer 
 what to give. . . . The goods should be sold publicly. This 
 sale by sample is directly contrary to the origin and purpose of 
 markets ; and it would be a strange thing that toll should be 
 taken by the owners of the market on that very transaction 
 which is contrary to the intention of the market. \ti) 
 
 (a) Leight v. Pym (1687) 2 Lutw. 1336; Y.B. 9 Hen. VI. f. 45, 
 pi. 28 ; 2 Inst. 221. 
 
 (b) See Final Report of Royal Commission, p. 45. 
 
 (e) See Leight v. Pym (1687) 2 Lutw. 1336; Hill v. Smith (1809) 
 10 East 476, overruled on another point (1812) 4 Taunt. 502. 
 
 (d) Case of Bauquell, Plac. Quo Warr. p. 140. 
 
 (e) Wells v. Miles (1 82 1) 4 B. and Aid. 559; Kerby v. Whichelow 
 (1701) 2 Lutw. 1498; Leight v. Pym (1687) 2 Lutw. 1336; Bennington 
 v. Taylor (1701) 2 Lutw. 1517 ; Swindon Central Market Co. v. Panting 
 (1872) 27 L.T.N.S. 578; Viner v. Mayor of Reading (1826) 12 B. Mo. 
 201 ; 2 Inst. 221 ; Y.B. 9 Hen. VI. f. 45, pi. 28. 
 
 (/) Bailiffs of Tewkesbury v. Diston (1805) 6 East 438 ; Moscley v. 
 Piers jn (1790) 4 T.R. 104. But an action lies for the injury done to the 
 market ; see Bailiffs of Tewkesbury v. Bricknell (1809) 2 Taunt. 120, and 
 infra, p. 83. 
 
 (g) Hill v. Smith (1812) 4 Taunt. 520 ; Wells v. Miles (1821) 4 B. and 
 A. 559 ; Kerby v. Whichelow (1701) Lutw. 1498. 
 
 (h) Per Mansfield, C.J., 4 Taunt. 532.
 
 The Right to Toll 63 
 
 By special custom, however, toll may perhaps be payable for On goods 
 goods brought into the market for sale andnot sold, (a) 
 
 3. The right to stallage. 
 
 : 
 
 For taking stallage, piccage or pennage, no grant or pre- 
 ^T scription need be_h6Wtt. It may te demanded in the c&te of 
 | a newly erected market. (b} The soil of the market or fair is no 
 further appropriated to the public use than that every man has 
 a legal right to enter into the market or fair to buy and sell. 
 Stallage and the like payments are_m_ade in respect of some 
 user of the soil beyond the mere entry into the market ; for no 
 one has a right to erect a stall, or appropriate part of the 
 market-place as a standing, without making a satisfaction for it 
 to the owner of the soil ;(c) and such satisfaction may always 
 be demanded by implied, if not by express, agreement. It is 
 not necessary to show a special contract to pay it. An action 
 for stallage is analogous to an action for use and occupation of 
 land ;(d] and where there is no express agreement, or no 
 special sum fixed by custom or prescription, a reasonable sum 
 is demandable.(e) 
 
 Stallage can never be claimed unless there is some ex- 
 clusive occupation ot me piL Where a cattle market was held 
 in the streets, and no stalls or pens were erected, but the cattle 
 stood or were driven on the public street, a claim for stallage 
 failed.(/) 
 
 Persons using a market may rest their baskets or goods on 
 the ground for a time without being liable for stallage :(g) but 
 
 (a) Leight v. Pym (1687) 2 Lutw. 1336 ; Hill v. Hawker (about 1616) 
 Moore 835. 
 
 (A) Per Lee, C.J., Mayor of Northampton v. Ward (1746) 2 Stra. 
 1238 ; Mayor of Yarmouth v. Groom (1862) I H. and C. 102 ; and see 
 per Lord Denman, Lockwood v. Wood (1841) 6 Q.B. 31. 
 
 (c) Ibid. But though he is liable in trespass, it seems that ejectment 
 will not lie for a stall erected in a public street; Doe v. Cowley (1823) I C. 
 and P. 123 ; Cole on Ejectment ', p. 92. Nor probably, fora stall erected in 
 a close to which the public had admission for market purposes ; see Mayor 
 of Northampton v. Ward (1746) 2 Stra. 1238. 
 
 (d) I Roll Abr. 106 ; Mayor of Newport v. Saunders (1832) 3 B. and 
 Ad. 411 ; Taunton Markets. Kimberley (1777) 2 W. Bl. 1120. 
 
 (e) Mayor of Newport v. Saunders (1832) 3 B. and Ad. 411; and 
 see pp. 59 and 64. 
 
 (/) Swindon Central Market Co. Ld. v. Panting (1872) 27 L.T.N.S. 
 578. 
 
 (ff) Townend v. Woodruff (1850) 5 Exch. 506; and see R. v. Bell 
 (1816) 5 M. & S. 221 ; Wigley v. Peachy (1732) 2 Lord Raym. 1589 ;
 
 64 Toll and Stallage 
 
 where there is an exclusive occupation of a particular portion 
 of the market-place by tables or baskets placed upon the 
 / ground, then stallage is due, and it is always a question of fact 
 " whether a basket is so used as to amount to a stall. (a) 
 
 Stallage may take the form of a rent payable weekly or at 
 other intervals for the continuous hire of a stall ; or a payment 
 may be made for the use of a stall during the whole course of 
 a single fair or market day. 
 
 Sometimes stallages are paid upon goods pitched in the 
 
 market, and are then not at first sight distinguishable from tolls. 
 
 Thus, in Covent Garden market, beside the rents paid for 
 
 stalls, payments are made upon articles pitched for sale in the 
 
 market. These payments are called tolls, but are stallages, as 
 
 they are paid upon articles placed or pitched in the market in 
 
 respect of the space occupied by them, and not upon sales. (l>) 
 
 The amount "due for stallage may be a matter of express or 
 
 implied agreement ;(c) but must jn_alLcgses be reasonable ;(d~) 
 
 and a market-owner who extorts an unreasonable~staliage by 
 
 compelling people to take stalls and running up their price may 
 
 , be indictable for so doing.(<?) The amount due may be fixed 
 
 I by custom or prescription, and in such cases the customary 
 
 amount cannot be exceeded.(/) 
 
 Customary Though generally no one has a right to occupy a stall with- 
 
 stallage out t h e i eave o f the owner of the soil, and anyone so doing will 
 
 be a trespasser,^) nevertheless there may be a custom for a 
 
 particular class of persons to erect stalls in a market or fair 
 
 Mayor of Launceston's case (1587) Cro. Eliz. 75; Sawyer v. Wilkinson 
 (1598) Cro. Eliz. 627, where the owner of the soil was held not justified in 
 distraining damage -feasant goods brought into the market-place and laid 
 down for sale. 
 
 In Spelman's Glossary, stallage is defined as 'Jus stationis, Jus 
 erigendse officinae vel exponendarum mercium in foris et nundinis, Etiam 
 nummus hoc nomine datus.' But this is not consistent with the cases here 
 quoted. 
 
 (a) Mayor of Norwich v. Swann (1777) 2 W. Black. 1116 ; Mayor of 
 Yarmouth v. Groom (1862) I H. and C. 102. 
 
 (i>) Duke of Bedford v. Overseers of St. Paul (1881) 51 L.J.M.C. 41 ; 
 Duke of Bedford v. Emmett (1820) 3 B. and Aid. 366. 
 
 (<:) Mayor of Northampon v. Ward (1746) 2 Stra. 1238 ; I Wils. 114. 
 
 (d) 3 Ed. I. c. 31, vide supra, p. 59. 
 
 (e) R. v. Burdett (1697) I Lord Raym. 149; Russell on Crimes, 
 pp. 425-428. 
 
 (/) Bennington v. Taylor (1701) 2 Lutw. 1517 ; Hickman's case, 2 Rol. 
 Abr. 123, < Market,' B. 2. 
 
 (g) Mayor of Northampton v. Ward (1746) 2 Stra. 1238; Mayor of 
 Norwich v. Swann (1777) 2 W. Black. 1116.
 
 The Right to Stallage 65 
 
 paying a certain, or a reasonable, sum as stallage. And such Xx 
 a custom will be an answer in an action of trespass. (a) Thus 
 in Tyson v. Smith (b) a custom that victuallers should erect 
 stalls on a common at the times of fairs, and continue the same 
 for a reasonable time, paying 2d. to the lord of the manor, was 
 held a good justification in an action for trespass. Tindal, C.J., 
 said : ' At the early time at which this custom originated it may 
 have been a profit to the lord, and at all events it may have 
 been an object to him, with respect to the profits of his fair, to 
 give encouragement to those who would erect booths and stalls 
 for the entertainment of strangers coming to the fair. It is 
 clear that a prescription for a certain toll by way of stallage is 
 good notwithstanding toll and stallage are different things ; as 
 was held in the case of Bennington v. Taylor ;(c} and if the lord 
 of a fair can justify distraining for such toll under a prescription 
 there seems no reason why the person who uses the stall on 
 payment of the toll, and who cannot prescribe either in a que 
 estate or in himself and his ancestors, being a stranger, should 
 not justify under such a custom as the present. The custom,, 
 in fact, comes at last to an agreement, which has been evi- 
 denced by such repeated acts of assent on both sides from the 
 earliest times, beginning before time of memory and continuing 
 down to our own times, that it has become the law of the 
 particular place.' 
 
 4. Tolls and stallage in kind. 
 
 Tolls, stallage, and the like, are usually paid in money ;: 
 but by custom or prescription they may be payable in kind, as 
 by taking a pint of every bushel of wheat exposed for sale.(</) 
 
 In cases of a custom to take in kind, the custom must be 
 closely followed. At Cockermouth market the custom was / 
 for the collector to ' lift ' a handful of corn out of every sack ; \/ 
 he varied from the regular mode by ' sweeping ' the corn out, 
 
 (a) Tyson v. Smith (1838) 9 A. & E. 406 ; Elwood v. Bullock (1844) 
 6 Q.B. 383 ; Chasin v. Betsworth (1684) 3 Lev. 190. 
 (!>) (1838) 9 A. & E. 406. 
 
 (c) (1701) 2 Lutw. 1517. 
 
 (d) Specot v. Carpenter (1681) Thos. Jones, 207 ; Norman v. Bell 
 (1831) 2 B. & Ad. 190; Hickman's case (1599) Noy, 37 ; Roll. Abr. 
 Market, B. 2 ; Hill v. Hawker (circ. 1616) Moore, 835 ; Abb. Plac. 
 (4 John) p. 41, (8 Edw. I.) p. 321 ; Plac. QuoWarr. (Twywell) p. 569; 
 Final Report of Royal Commission, p. 101. 
 
 F
 
 66 Toll and Stallage 
 
 and by so doing took more than a handful ; and he was held 
 liable in trover.(a) 
 
 5. Variable and differential tolls. 
 
 Toll, being a payment on the sale of goods, is clearly dis- 
 tinguishable from stallage, which is a payment for the use of 
 * part of the soil, and which is generally payable whether a sale is 
 effected or not. The amount of toll payable thereon depends 
 on the goods sold, not the part of the market in which they 
 are sold ; and it is perhaps impossible to sustain at common law 
 a different toll for the same article in different parts of the same 
 market.(^) But payments in the nature of stallage, though taken 
 in the name of toll, may vary according to the part of the market- 
 ' place in which the goods are pitched ; for one part may be so 
 much more convenient than another for exposing wares for sale 
 as to justify a different payment for the privilege of erecting 
 stalls there, (b) 
 
 In some markets differential tolls are taken, according as 
 the person charged is or is not one of a particular class. Some- 
 times inhabitants or freemen of a borough, or copyholders of 
 a manor, are charged less for toll or stallage than outsiders, and 
 sometimes persons of a particular calling, such as auctioneers, 
 pay more or less than others when buying or selling the same 
 goods. There is a great variety of differential tolls in fact 
 taken in markets ;(c) and there appears to be nothing unlawful 
 ^ at common law in taking differential tolls, provided that the 
 highest do not exceed the maximum which may be taken in the 
 particular market. (</) There seems no reason why a partial 
 remission of toll should not be valid to the same extent as a 
 total exemption. 
 
 6. The recovery of toll and stallage. 
 
 By action s Toll and_ stallage^jnay^ be recovered by action without 
 /proof of a special contract.(<?) A form of statement of 
 
 (a) Norman v. Bell (1831) 2 B. & Ad. 190. 
 
 (3) Duke of Bedford v. Emmett (1820) 3 B. & Aid. 366. 
 ,,_^/-~ (f) See Final Report of Royal Commission, pp. 95-98. 
 
 (d) Hungerford Market Co. v. City Steamboat Co. (1860) 3 E. & E. 
 365. See also, Plac. Quo Warr. (Derby) p. 158 Rot. Hund. (Walling- 
 ford) p. 2 ; Abb. Plac. (Faversham) p. 140. 
 
 (). For forms of action and declarations before the Judicature Acts, see 
 Bullen & Leake, 3rd edit. p. 227; Seward v. Baker (1787) I T.R. 616 ; 
 Duke of Bedford v. Emmett (1820) 3 B. & A. 366 ; Mayor of Reading v.
 
 The Recovery of Toll and Stallage 67 
 
 claim for tolls is given in 'Allen's Forms of Pleading,' 
 p. 'ios.(a) 
 
 In an action for toll the facts to be proved are usually as 
 follows: (i) That the plaintiff was in possession (as owner or 
 lessee) of the market or fair and the tolls: (2) The duejiolding 
 of the market or fair at the time and place in question : 
 (3) That the toll claimed is reasonable; and that it was payable 
 (either by charter, prescription^ or otherwise) by the buyer or 
 seller x as the case may be) on any sale in the market or fair of 
 the articles in respect of which it is claimed : (4) That tollable 
 goods were brought into the market, and were there bought or 
 sold (as the case may be) by the defendant : (5) That the toll 
 has not been paid. 
 
 And in an action for stallage, or piccage, the facts to be 
 proved are usually as follows : (i) That the plaintiff was in 
 possession (as owner or lessee) of the soil of the market or 
 fair : (2) The due holding of the market or fair at the time and 
 place in question : (3) That the defendant erected therein a 
 stall, or took a standing, and, if piccage be claimed, that in so 
 doing he broke the soil : (4) That the sum claimed is a 
 reasonable sum, and if it be claimed by special agreement, or 
 by custom or prescription, that the agreement was made, or 
 the custom or prescription exists : (5) That the defendant has 
 not pafd the amount due. 
 
 No action for toll (or stallage) can be maintained in a 
 county court if the title to the toll, or the fair or market, be in 
 question unless the parties consent to the jurisdiction, (b) 
 
 After demand and refusal of toll due in respect of any By distress 
 
 particular goods, the owner of a market or fair may seize those 
 
 goods, or a reasonable part thereof, by way of distress, and 
 
 1 dejainjhe same until the toll be paid or the goods repleviecf(V) 
 
 In some of the cases on this subject the right to distrain was 
 
 Clarke (i 82 1) 4 B. & Aid. 268; Corporation of Stamford v. Pawlett (1830) 
 I Cr. & J. 57; Mayor of Newport v. Saunders (1832) 3 B. & Ad. 411; 
 Lock wood . Wood (1844) 6 Q.B. 31 ; Mayor of Yarmouth v. Groom 
 (1862) i H. & C. 102. See also Chitty on Pleadings, 7th edit., vol. ii., 
 pp. 41-44 ; Wentworth's System of Pleading, vol. i., pp. 153 and 156. 
 
 As to the recovery of statutory tolls and stallage, see the Markets and 
 Fairs Clauses Act, 1847, ss. 31-41, post, pp. 160-164. 
 
 (a) For Indorsement on Writ, see R.S.C. 1883, Appendix A. sect. ii. 
 
 (b) County Courts Act, 1888 (51 & 52 Viet. c. 43), ss. 56, 61 and 64. 
 (c} Heddy v. Weelhouse (1596) Cro. Eliz. 558, Moore 474; Agar v. 
 
 Lisle (1674) Hob. 187 ; Roll. Abr. 666; see Smith v. Shepherd (1599) 
 
 F 2
 
 68 Toll and Stallage 
 
 claimed by prescription ;(a) and possibly it cannot be claimed 
 except by prescription, toll not being due of common right.(/>) 
 It has been said, however, that distress is incident to every 
 toll ;(r) and this seems to be the sounder view. The distress 
 must be made, it seems, while the goods are stiUin the market 
 or fair.(^f) The goods may not be sold undeT"the distress, (e) 
 No distress "for toll can be made on goods sold outside the 
 market, though such sale amounts to a disturbance of the 
 market. (/) The proper rerredy for that is an action for damages 
 for the disturbance.^) 
 
 With regard to stallage, a claim to distrain after demand 
 and refusal was upheld in Bennington v. Taylor, (//) when the 
 owners of a fair prescribed for a reasonable stallage of ascer- 
 tainable amount, and also for the right to distrain therefor 
 during the fair upon the goods exposed for sale in the stall. 
 
 7. The remedies for toll wrong fully taken. 
 
 An action on the case lies against anyone who takes toll 
 when none is due, or takes more than is due, or takes from one 
 wEo is exempt. (/*) If the toll-taker improperly takes too much 
 by way of toll in kind, or wrongfully distrains for any toll, he 
 is liable in an action of trespass (/) or trover. (K) Money 
 improperly exacted as a toll may be recovered as money had 
 and received to the plaintiffs use.(/) 
 
 Cro. Eliz. 710; Hickman's case (1599) Noy, 37 ; Harris v. Hawkins 
 (1674) I Keb. 342 ; Leight v. Pym (1687) 2 Lutw. 1329. 
 
 (a) See Agar v. Lisle (1674) Hob. 187; Smith v. Shepherd (1599) 
 Cro. Eliz. 710; Bennington v. Taylor (1701) 2 Lutw. 1517. 
 
 (b) See Com. Dig. Distress (A. I), citing II Co. 44 b; Harris v. 
 Hawkins (1674) I Keb. 342. 
 
 (<:) Hickman's case (1599) Noy, 37 ; Viner, Ab. Toll (I.); Gunning 
 on Tolls, 216; see also Heddy v. Weelhouse (1596) Cro. Eliz. 558, 
 where the right apparently was not prescribed for ; Gilbert, Distress, 19. 
 
 (d) Hickman's case (1599) Noy, 37 ; Viner, Ab. Toll (I.). 
 
 (e) Gunning on Tol/s, 217 ; Gilbert, Distress, 19. 
 (/) Blakey v. Dimsdale (1777) 2 Cowp. 661. 
 
 (f) gee/te/, p. 82. 
 
 (A) (1701) 2 Lutw. 1517; see Tyson v. Smith (1838) 9 A. & E. 406, 
 425. 
 
 (i) Com. Dig. Toll (H. 2), Market (F. i) ; Wood v. Hankshead 
 (1602) Yel. 13 ; F.N.B. 94 F. For the remedy under the Statute of 
 Westminster I., see ante, p. 60. 
 
 (j) Leight v. Pym (1687) 2 Lutw. 1329; Wigley v. Peachey (1732) 2 
 
 Ld. Raym. 1589; F.N.B. 94 F 
 
 (k) Norman v. Bell (1831) 2 B. & Ad. 190. 
 
 (/) Waterhouse v. Keen (1825) 4 B. & C. 200 ; see Lewis v. Hammond 
 <i8i8) 2 B. & Aid. 206.
 
 Exemptions from Toll 69 
 
 8. Exemptions from toll. 
 
 The subject of exemptions from toll is now of less import- 
 ance than it formerly was. But as some persons still claim , 
 exemption, (a) the subject cannot be omitted. Certain persons 
 are entitled to exemption from toll by the common law. 
 Other persons may be entitled to it by grant from the crown, 
 by grant from the owner of the fair or market in which 
 exemption is claimed, oj by prescription. 
 
 (i.) /// favour of the king. The king is not liable to pay Exemp- 
 toll for any of his goods ;(b) and it "has been said(^) that to tions by 
 talce foil for them is punishable under the Statute of West- 
 minster I., c. 31. (d) The queen consort is likewise not liable 
 to pay toll.(tf) But other members of the royal family are 
 not exempt from toll at common law, though they may be 
 exempt from particular tolls by statute.^/) 
 
 (ii.) In favour of ecclesiastical persons. Ecclesiastical persons 
 are at common law quit of toll for their ecclesiastical goods, 
 and for goods bought by them for their sustenance, but not for 
 merchandise.^) This privilege extends to all ecclesiastical 
 persons within the realm, of what quality or order soever.(/5) 
 
 (iii.) In favour of the lord of a manor which is ancient demesne, 
 and his tenants therein, whether free tenants or tenants for 
 lives, or years, or at will. These persons are quit of toll in ail 
 markets and fairs by the custom of the realm.(/) Manors 
 which were in possession of Edward the Confessor and after- 
 
 (a) Thus the commoners of the manor of Hungerford appear to claim 
 exemption in Hungerford Market ; see Report of Royal Commission, vol. 4. 
 p. 173 (1888). The men of the Duchy of Lancaster appear to be quit of 
 toll under various charters ; see Hardy's Charters of the Duchy f 
 Lancaster (1845). For a form of certificate of exemption given by the 
 steward of the Duchy in 1828, see Report of Royal Commission, vol. 
 Appendix, xiii. 
 
 (b) 2 Inst. 221; Com. Dig. Market (F. I); Chitty, Prerog. 195, 
 377- 
 
 (f) 2 Inst. 221. 
 
 (d) See ante, p. 60. 
 
 (e) Co. Lit. I33b; Chitty, Prerog. 402. 
 (/) Chitty, Prerog. 405 n. (c). 
 
 (^) F.N.B. 227 F. ; 2 Inst. 4; Com. Dig. Ecclesiastical Persons (D), 
 p. 549 (5th. ed.) ; Rot. Parl. 8 Edw. II., m. 4; Y.B. 30 Edw. III. 15 b. 
 
 (A) 2 Inst. 3. See Com. Dig. Ecclesiastical Persons, as to what 
 persons are such ; see also Lord Middleton v. Lambert, I A. & E. 401, 421. 
 
 (0 Savery v. Smith (1687) 2 Lutw. 1144 ; F.N.B. 14 E., 228 A. D. ; 
 Y.B. 9 Hen. VI. f. 25 b, ol. 20.
 
 7O Toll and Stallage 
 
 wards came to William the Conqueror, and were described in 
 ' Domesday ' as Terra Regis, are ancient demesne.(a) __Np_. 
 lands are ancient demesne but those described as such in 
 ' Domesday. '(a) 
 
 Tenants in ancient demesne have ' many and divers 
 liberties, gifts and grants by law : as to be quit of toll and 
 passage, and such impositions which men shall demand of 
 them for the goods or chattels sold or bought by them in fairs 
 or markets.'(^) The reason for the exemption is stated by 
 Coke to be, ' because at the beginning of their tenure they 
 applied themselves to the manurance and husbandry of the 
 king's demesnes, and therefore, for those lands so holden, and 
 all that came or renewed thereupon, they had the said 
 privilege.'(f) This privilege of exemption still remains, and it 
 may be claimed even though the tenants have been paying 
 toll time out of mind(rf) ? ' 
 
 The better opinion appears to be tna^'the exemption does 
 not extend to every purchase or sale by tenants in ancient 
 demesne ;(e) but there has been a difference of opinion on the 
 subject. It is clear that it extends to sales by them of the 
 produce of their tenements and to purchases by them of goods to 
 maintain their tenements, or themselves, or their households 
 there ;(/) and that consequently it extends to their buying and 
 re-selling of beasts bought to stock the land, and to be fatted 
 and resold when fatted.^) These are transactions arising 
 out of the cultivation of tenements, and are not merchandisings. 
 FitzHerbert says :(//) ' I conceive that they shall be quit of toll 
 generally, although they merchandise with their goods.' But 
 Hale (/) and Coke (_/) are of a different opinion ; and Coke says, 
 ' if such a tenant be a common merchant for buying and selling 
 of wares or merchandise that rise not upon the manurance or 
 husbandry of those lands, he shall not have the privilege for 
 them, because they are out of the privilege of ancient demesne, 
 
 (a) F.N.B. 14 D., 16 D. ; Hob. 118; Hunt v. Burn (1701) 
 Salk. 57. 
 
 (6) F.N.B. 14 D. (c) 2 Inst. 221. 
 
 (rf) 2 Inst. 654. 
 
 (e) Ward v. Knight (1588) Cro. Eliz., 227. 
 
 (/) Y.B. 9 Hen. VI. 25 b, pi. 20 ; 19 Hen. VI., 66 b, pi. 9. 
 
 (g) Y.B. 7 Hen. IV. 44 b, pi. 11. 
 
 (h) F.N.B. 228 E., citing Y.B. 7 Hen. IV. 
 
 (0 F.N.B. 228 E., note b. (/ 2 Inst. 221.
 
 Exemptions from Toll 7 I 
 
 and the tenant in ancient demesne ought rather to be a 
 husbandman than a merchant by his tenure, and so are the 
 books to be intended. '(a) 
 
 In Ward v. Knight (/>) it was expressly decided that ' the 
 tenants in ancient demesne should pay toll for their merchan- 
 ts.' 
 
 In early times the crown frequently gave charters of exemp- Exemp- 
 tion from toll in one or more market towns in England to llons b X 
 the corporations of favoured cities or boroughs, such right of p re scrip- 
 exemption to be exercised and enjoyed by the corporators of the tion 
 corporation in whom it was vested. Thus, the "Corporation of 
 London obtained the liberty or privilege, granted and confirmed 
 by various charters and statutes, that the citizens of London and 
 all their goods should be quit and free of and from toll, 
 and passage, and lastage,(^) and other customs, throughout 
 the whole kingdom of England, and the ports of the seas, 
 r.v.vpt only the due and ancient customs of the crown, and the 
 prisage of wines.(^) And to claim the exemption a citizen of 
 London need not reside within the city.(^) 
 
 Grants of exemption by the crown are either general or 
 special ; and they are good except in so far as they derogate , 
 from previous grants. A grant of exemption may exempt the 
 grantees from payment of toll in a market or fair which belongs 
 to the crown at the date of the grant, or in which toll is 
 claimed under a later grant ; butji grant of exemption does not \ \ 
 avail against a toll claimed under an earlier grant, for the I 
 former cannot detract from the latter, nor against a prescrip- \ 
 tive toll, for that is presumed to have existed from time imme- ' J 
 morial under a lost grant. 
 
 After the crown has granted a market or fair with the right 
 to take toll, the crown cannot grant any exemption from such , 
 toll ; but, as a general rule, the grantee or owner of the market 
 or fair can do so, and, in this way, rights to exemption, founded 
 upon grant or prescription, may arise after the market or fair has 
 
 (a) See the subject discussed in Lord Middleton v. Lambert (1834) 
 i A. & E. 401. 
 
 (&) (1588) Cro. Eliz. 227, I Leon. 231 ; see also the case of the town 
 of Leicester (1586) 2 Leon. 190 ; Savery v. Smith (1687) 2 Lutw. 1144. 
 
 (c) See ante, p. 56. 
 
 (d) A duty payable to the crown on the importation of wines. 
 
 (e) Mayor of London v. Mayor of Lynn (1796) I H. Bla. 206 ; I B. & 
 1'. 487 ; 7 Bro. P.C. 120.
 
 Statutory 
 abolition 
 of exemp- 
 tions i 
 
 7 2 Toll and Stallage 
 
 been established. (a) Exemption may be claimed by prescrip- 
 tion or by long usage from which a lost grant win be pre- 
 sumed.^) A grant of exemption from toll may include 
 exemption from stallage. (c) If the grantee of a franchise grant 
 any immunity thereout, and the franchise afterwards comes into 
 the hands of the crown, the crown can only re-grant the fran- 
 chise subject to the immunity. (a?) 
 
 A lord of a manor may prescribe that his tenants therein 
 ought to be free of toll .; and it has been said that if he can 
 establish such a prescriptive right he can maintain an action 
 against any person who takes or claims toll from his tenants, (e) 
 
 All exemptions from toll are liable to be taken away by 
 Act of Parliament. Where a market or fair has been esta- 
 blished, or is now regulated, by some statute, the question 
 whether any exemption from toll is abolished or preserved 
 must depend upon the words of the statute and the proper 
 construction to be put upon them. 
 
 Where a claim is made to exemption from any toll or due 
 ' levied wholly or in part by or for the use or benefit of any 
 borough (/) or body corporate,' it is now necessary to consider 
 the provisions of the Municipal Corporations Act, i882.(g) 
 
 That Act provides (K) that no person shall have any exemp- 
 tion from any such toll or due ' except a person who, on the 
 5th of June, 1835, was an inhabitant, or was admitted or 
 entitled to be admitted a freeman,(/) or was the wife, widow, 
 son or daughter of a freeman, or was bound an apprentice.' 
 The Act, however, does not affect the right of any person 
 claiming exemption from toll ' otherwise than as an inhabitant, 
 or freeman, or member of a municipal corporation,(/) or widow 
 
 (a) See F.N.B. 226 I., 227 B., note c ; 2 Inst. 221 ; Bracton, lib. 2, 
 c. 24, f. 56 b ; Viner, ' Prerogative,' I. c. 2, K. c. I ; Archbishop of York's 
 case (1574) 4 Leon. 168 ; Lockwood v. Wood (1841) 6 Q.B. 31. Other 
 cases which may be consulted on the construction of grants of exemption 
 are Mayor ofTruro v. Reynolds (1832) 8 Bing, 275; Hill v. Priour 
 (1679) 2 Show. 34; Lord Middleton v. Lambert (1834) A. & E. 401. 
 
 (b) See ante, p. 22. 
 
 (c) Lockwood v. Wood (1841) 6 Q.B. 31. 
 
 (al) Bailiffs of Tewkesbury v. Bricknell (1809) 2 Taunt. I2O. 
 
 (e) Viner, Actions ' [Case] N.C. 8, M.C. 2 ; Y.B. 43 Edw. III. 30. 
 
 (f) I.e. a city or town to which the Municipal Corporations Act, 1882, 
 applies; see s. 7 (i). 
 
 (g) 45 & 46 Viet. c. 50, s. 208. 
 
 (A) s. 208 (2). (/) See s. 201. 
 
 (f) I.e. the body corporate constituted by the incorporation of the 
 inhabitants of a city or town to which the Act applies ; s. 7 ( I ).
 
 Exemptions from Toll 73 
 
 or kin of such an inhabitant, freeman, or member.'(<z) Accord- 
 ingly, the Act would not affect any right of a person claiming 
 exemption as tenantjn ancient demesne, or as freeholder of 
 the Duchy of Lancaster ; nor would it affect any right of a 
 person claiming exemption as a citizen of London, for the City 
 of London is not a municipal corporation within the meaning | 
 of the Act(^) 
 
 (a) s. 208 (3). (l>) See note (/), p. 72, ante.
 
 74 Disturbance of the Franchise 
 
 CHAPTER V 
 
 DISTURBANCE OF THE FRANCHISE 
 
 THE owner of a market or fair is entitled to the peaceable en- 
 joyment of his franchise, and for the disturbance thereof he 
 has remedies both at common law and in equity. The common 
 law will give him damages, formerly recoverable in an action 
 on the case for a nuisance ; and equity will grant an injunc- 
 tion, (a) Both remedies are now obtainable in one action. 
 
 Disturbance of a market may be either by unlawfully setting 
 up a rival market, or by doing some other wrongful act or acts 
 whereby the market-owner is deprived, either wholly or in part, 
 of the benefit of his franchise. UUs*- ' ^^ Lq./'J 
 
 **{ 11^] f I 
 
 i. Disturbance by levying a rival market or fair. 
 
 If a new market or fair be set up within the\x>mmon law 
 distance (i.e. seven^niies) (&) ot an Old marketer fair, and 
 be held orT tHe^same day, the new market or fair jsptesumed 
 "to be a nuisance to the old. rKfe^S^^TEntea teemTo 
 have treated it as a rule or'law that the new market in such 
 circumstances is necessarily injurious to the old, though there 
 be no damage in fact. Thus Bracton says, ' when, therefore, 
 a market has been obtained within such a limit it will have to 
 be levelled, since it is a hurtful and tortious nuisance because 
 it is so near.'(^) 
 
 Agreeably with that view the law is thus stated by Channell, 
 B., in delivering the considered judgment of the Court of 
 
 (a) An interlocutory injunction is not usually granted if the defendant 
 undertakes to keep an account ; Elwes v. Payne (1879) 12 Ch. D. 468. 
 
 (6) See/**/, p. 77. 
 
 (c) Bracton, Bk. iv. c. 46, f. 235!), and to the same effect are Britton, ii. 
 c. 32, s. 8, f. 159 ; Fleta, iv. c. 28, s. 13.
 
 Disturbance by Levying a Rival Market or Fair 75 
 
 Exchequer in Mayor of Dorchester v. Ensor :(a) ' We take the 
 rule of law to be as laid down in the notes to Yard v. Ford,(/>) 
 that is, that where_a_new market is held on the samgjlay as 
 the old it shall be intended to be a nuisance, that where it is 
 held upon a different day it shall be put in issue whether it be 
 a nuisance or not.' 
 
 ' On the other hand, the nine judges who gave their opinion 
 on the Islington Market Bill stated the rule as amounting only 
 to a rebuttable presumption, throwing the burden of proof on 
 the party who denies the nuisance, but not necessarily exclud- 
 ing the issue altogether. They thus stated the rule : ' The 
 establishment of a new market to be holden at the same times 
 within the common law distance of an old market, prinia facie 
 is injurious to the old market, and therefore void.'(<r) Two of 
 the judges (d) also suggested facts the proof of which would 
 be sufficient to rebut the presumption. 
 
 Beyond these dicta there is very little authority. In Clinton's 
 case (e) an issue was left to the jury whether a market alleged to 
 have been set up within two miles of an old market, and held 
 on the same day, was a nuisance or not. This seems to sup- I ; 
 port the proposition laid down in the Islington Market case, | ' 
 rather than that laid down in Mayor of Dorchester v. Ensor.(/) { 
 
 If a new market or fair be levied within the common 
 law distance of an older market or fair, and held on different 
 days, it cannot be presumed that the new market is a nuisance 
 to the old, and actual jiarnage must be proved in order to 
 establish that an injury is done to the old market. (g) In 
 
 (a) (1869) L.R. 4 Ex. 343. See also to the same effect, Elwes v. 
 Payne (1879) 12 Ch. D. 468, per Jessel, M.R., p. 472 ; and Corporation of 
 Cork v. Shinkwin (1825) Sm. & B. 395, per Chatterton, V.C., at p. 398. 
 
 (/>) 2 Wms. Saunders, at p. 174, citing F.N.B. i84a, note (/>), where 
 
 V. f. 5, . 
 proposition ; but Weston's case seems to be a direct authority only upon 
 
 Hale cites Weston's case, Y.B. n Hen. IV. f. 5, in support of the above 
 
 the second part of this proposition. Hale also refers to Clinton's case, 
 Y.B. Pasch. 13 Ed. III. pi. 20, referred to in the text. 
 
 (r) Islington Market Bill (1835) 3 Cl. & Fin. 513 ; 12 M. & W. 20 n. 
 
 (d) Parke, B.,and Littledale, J. 
 
 (e) Y.B. Pasch. 13 Edw. III. pi. 20. See Pike's edition of Y.B. 12 and 
 13 Edw. III. p. 208. 
 
 (/) The Newton case, P.Q.W. p. 184, and the Lyme case, P.Q.W. 
 p. 185, may also be considered. 
 
 (g) Weston's case, Y.B. n Hen. IV. ff. 5, 6 ; Yard v. Ford (1670) 
 2 Wms. Saunders, 172; R. v. Aires (1761) IO Mod. 354; Mayor of 
 Dorchester v. Ensor (1869) L.R. 4 Ex. 335; Elwes v. Payne (1879) 12 
 Ch. D. 468, 472 ; Corporation of Cork v. Shinkwin (1825) Sm. & B. 395 ; 
 Downshire v. O'Brien (1887) 19 L.R. Ir. 380, 387.
 
 76 Disturbance of the Franchise 
 
 deciding that question, account may be taken of the facilities 
 of traffic and communication, by railway or otherwise, existing 
 at the time when the new market is set up.(a) 
 
 To prove actual damage, it is not necessary to show loss of 
 tolls to show loss of stallage is enough ; and, even though no 
 such pecuniary loss can be shown, it has been said that the 
 exclusive privilege of holding a market, with the authority and 
 jurisdiction incident thereto, may perhaps have a value which 
 will render an encroachment upon the privilege the subject ol 
 an action for damages.(^) 
 
 It is said by Bracton (c) that a new market held on the 
 second or third day after the old market may be advantageous 
 ^ to the old market, but that, if held on the second or third day 
 before it, it will be injuriosum quia damnosum. In either case, 
 however, the effect of the new market seems now to be a 
 question of fact for the jury.(^) 
 
 It seems that a new market or fair levied more than the 
 common law distance from an older cannot be injurious in law 
 to the latter. Bracton (e) and Blackstone (/) both say expressly 
 that il cannot be ; and there appears to be no modern reported 
 case in which an action has been brought for disturbance by 
 erecting a new market or fair more than seven miles from an 
 old(f) 
 
 The com- Accordingly a new market, though it is to be held on 
 
 mon law the same days, will not be a disturbance of an old if the 
 
 distance former be set up at a greater distance from the latter than 
 
 what is known as ' the common law distance.' Bracton (/i) 
 
 lays it down that the distance within which it may be a 
 
 disturbance of an old market to set up a new one is 6 
 
 (a) See per Jessel, M.R., Elwes v. Payne (1879) 12 Ch. D. 468, 472. 
 
 (/>) Corporation of Cork v. Shinkwin (1825) Sm. & B. 395, 402. For an 
 early case of disturbance by setting up a rival market, see Selden Society's 
 Publications, vol. v. (Lett Jurisdiction of Norwich] p. 17. 
 
 (c) Bk. iv. c. 46, f. 235 b; cf. Fleta, lib. 4, c. 28, f. 14 ; Com. Dig. 
 Market (C. 2). 
 
 (</) Reg. v. Aires (1761) 10 Mod. 258, 351. 
 
 (e) Bk. iv. c. 46, f. 235 b. 
 
 (/) Bk. iii. c. 13, p. 218, citing Hale on F.N.B. 184. Blackstone also 
 explains the reason for the rule. 
 
 (g) See, however, to the contrary, for what they are worth, the 
 Leominster Fair case (1285) Abb. Plac. 206, and the Bath Market case 
 (1377) Rot. Parl. 50 Edw. III. vol. ii. p. 347. 
 
 (h) Bk. iv. c. 46, f. 235 b; cf. Britton, lib. ii. c. 32. s. 8, f. 159 ; Fleta, 
 bk. iv. c. 28,5. 13.
 
 Disturbance by Levying a Rival Market or Fair 77 
 
 miles :() ' because (he says) every reasonable day's journey 
 consists of 20 miles. The day's journey is divided into three 
 parts. The first part, that of the morning, is to be given to those 
 who are going to the market. The second is to be given to 
 buying and selling, which ought to be sufficient to all, unless 
 they be merchants who have stalls, who have deposited their 
 goods and exposed them for sale, to whom a longer delay in the 
 market may be necessary. But the third part is left for those 
 returning from the market to their homes. And all these 
 things it will be necessary (/>) to do by day and not by night, 
 on account of the snares and attacks of robbers, (c) that all 
 things may be in safety. When, therefore, a market has been 
 obtained within such a limit, it will have to be levelled, since 
 it is a nuisance, doing damage and injury because it is so 
 near.' 
 
 The common law distance, however, is generally con- 
 sidered to be 7 miles, as stated in the declaration in Yard v. 
 Ford.(^) That is the distance expressly mentioned in the 
 charter granted by Edward 1 1 !.(<?) to the corporation of London, 
 which contained a clause providing that no grant of markets 
 should be made to others within 7 miles (/) of the city. 
 
 Markets and fairs are usually granted to be held at any 
 
 (a) ' Infra sex leucaset dimidiam et tertiam partem dimidiae.' Leuca, in 
 this passage, has been generally translated by lawyers as ' mile ' ; see F.N. B. 
 184 n (a) ; 3 Bl. Comm. 218 ; and cf. 2 Inst. 567. As to some of the 
 various distances from time to time denoted by the word, see Spelman's 
 Glossary. Mr. Stuart Moore, in his Introd. to the Domesday Book for 
 Northamptonshire (p. 13), says 'the leuca consisted of 12 furlongs, and 
 (computing the perch at 1 6 feet) contained about 2640 yards, or a mile 
 and a half of our present measure. ' 
 
 (i>) Sir T. Twiss translated this passage somewhat differently (ed. 1 880, 
 vol. 3, p. 585) ; but cf. the corresponding passage in Fleta, loc. cit. supra. 
 
 (c) The danger was so great that the St. of Winchester, 13 Edw. I. 
 c. 5 (repealed by 7 & 8 Geo. IV. c. 27) required the clearance of under- 
 wood and bush, whereby a man might lurk to do hurt, to be made for 200 
 feeYbn either side of highways leading from one market-town to another. 
 
 (d) (1670) 2 Wms. Saund. 173. See 3 Black. Comm. 218. In the 
 Newton case (Plac. Quo Warr, p. 184) it was alleged for the crown that 
 every market ought to be distant from another 5 miles (quinque miliaria). 
 In the Lyme case (Id. p. 185), however, Lyme market was held to be a 
 nuisance to Bridport market, which was more than 5 (but under 6) miles 
 off. 
 
 (e) I Edw. III., confirmed by the charter of 7 Rich. II. Both 
 charters were granted with the consent of parliament. 
 
 (f) Leucae, which is translated as ' miles ' in G .E. R. Co. v. Goldsmid 
 (1884) 9 App. Cas. 927 ; as also in Birch's Historical Charters of the City 
 of London, p. 58 ; cf. Nichol's Britton, vol. i. p. 413 n. (L). The use of
 
 7 8 Disturbance of the Franchise 
 
 j)lace within a town or manor, and not at some denned spot 
 within such town or manor, and may be moved at the will of 
 the grantee from one place to any other place therein.(a) It 
 seems that where the grant is in that form the circuit of pro- 
 tection must be measured from the boundaries of such town 
 or manor, and not from the particular place where the market 
 is for the time being held.(^) 
 
 There appears to be no authority as to whether the seven 
 miles should be measured by the nearest road or in a straight 
 line. In view of the reason for fixing the distance at 6 or 7 
 * miles, viz. that it is one-third of a day's journey of 20 
 miles,(r) it might be thought that the proper way to measure 
 the distance is by the nearest road. More probably, however, 
 the distance should be measured as the crow flies.(</) 
 What is a To sustain an action for disturbance by setting up a rival 
 
 nval mar- mar k etj j t j s no t necessary to show that the defendant has set 
 , up"what purports to be a legal market, or has usurped a 
 j franchise upon the crown by taking toll or holding a court of 
 pie powder. (e) It is enough that he has erected stalls on his 
 own soil and taken rents in the nature of stallage tor their use 
 by persons bringing their goods thither for sale,(/) or has so 
 used his land as to encourage and provide for a concourse 
 thereon of buyers and sellers : for instance, by establishing a 
 depot with conveniences for the benefit of buyers and sellers, (/) 
 or by holding public auctions or sales whereby persons are 
 provided with a means of selling their goods without bringing 
 them to the market, (g) It is not necessary that the defendant 
 
 the word 'league ' as an equivalent in the Islington Market case (1835) 
 3 Cl. & F. 513, 12 M. & W. 20 n, was probably due to the desire to 
 avoid a definite translation. The judges there expressed the opinion that 
 such clause in a grant is void, if'\i adds, without any consideration there- 
 for, 'any prohibition other than that which is attached by the common 
 law to the grant of a market.' 
 
 (a) See ante, Ch. 2. 
 
 () Cf. the terms of the charter to the City of London, and the 
 judges' observations thereon ; Islington Market Bill (1835) 12 M. and W. 
 20 n ; 3 Cl. & Fin. 513. See also 9 App. Cas. 936. 
 
 (c) See Bracton, Bk. iv. c. 46, f. 235 b. ; 3 Black. Com. 219. 
 
 (d) See Mouflet v. Cole (1872) L.R. 7 Ex. 70, 8 id. 32, and Jewel v. 
 Stead (1856) 6 E. & B. 350. 
 
 (e) Yard v. Ford (1670) 2 Wms. Saund. 172. 
 
 (/) G. E. R. Co. v. Goldsmid (1884)9 A PP- Cas - 9 2 7- 
 
 (g) Mayor of Dorchester v. Ensor (1869) L.R. 4 Ex. 335 ; Elwes ?'. 
 
 Payne (1879) 12 Ch. D. 468; Mayor of London v. Low (1879) 49 L.J. 
 
 Q.B. 144.
 
 
 Disturbance by Levying a Rival Market or Fair 79 
 
 should have actually sold or conducted sales in the rival market. 
 Any active interference by him in the conduct of the market, 
 or "his participation in its profits or risks, is sufficient : for 
 instance, if he provides land for sales by auction, and, in 
 consequence of the use to which the land is put, takes an in- 
 creased rent above that which would otherwise be obtainable.(a) 
 
 Nevertheless, every sale in a shop or private house near a p r i vat e 
 market is not necessarily a disturbance. There is a substantial shops 
 difference between the case of a man who sells his own goods ( / 
 on his own premises and that of a man who provides premises 
 upon which others may sell their goods without taking them ^ 
 into the market. From a misunderstanding of an early case,(/') '<- 3 
 it was once supposed that a grant of a market carried with it a / ^ -, 
 
 right to prevent persons from selling their goods on market /?///^* ' 
 days in their own private shops or houses. But it is now settled / , . 
 that such a right is not incident to a grant of a market. The "** 
 
 mere selling of marketable articles on a market-day in a private / 
 shop, not within the limits of the market-place, is not, as a rule, 
 an injury to the market. (c) Though, if the shop be in or next 
 teethe market-place, and the owner opens his shop for selling 
 in the market, he may be liable to stallage, (d) 
 
 A right to exclude sales in private houses or shops within ; 
 the limits of the franchise on market-days may, however, exist 
 by immemorial custom, or by prescription. Such a right would 
 appear to have been reasonable in former times, for, while it \ 
 secured to the lord a more certain profit in return for his 
 holding the market, it benefited the public by securing the 
 lord's supervision over all articles for sale on market-days, (e) 
 It is probable, however, that in a modern grant of a market a 
 
 (a) Mayor of Dorchester v. Ensor (1869) L.R. 4 Ex. 335. 
 
 (i>) Prior of Dunstable's case, Y.B. II Hen. VI., f. 19, pi. 13, f. 25, 
 pi. 2 ; see Mayor of Macclesfield v. Chapman (1843) 12 M. & W. 18, 20, 
 per Parke, B. 
 
 (<) Mayor of Macclesfield v. Chapman (1843) 12 M. & W. 18 ; The 
 Same v. Pedley (1833) 4 B. & Ad. 397. See Mayor of Penryn v. Best, 
 (1878) 3 Ex. D. 292; Mayor of Manchester v. Lyons (1882) 22 Ch. D. 
 287, 311. 
 
 (d) Newington Fair case (1608) 2 Roll. Abr. 123, B. I ; Com. Dig. 
 Market (F.) 2. 
 
 (e) See the argument in Mosley v. Walker (1827) 7 B. & C. 40. 
 See also Abb. Plac. p. 113, where the Bishop of Hereford claimed to 
 prevent persons selling marketable goods in their own houses in Hereford 
 during the fair. The townsmen, on the other hand, claimed to sell in 
 their own shops, but admitted the right of the bishop to toll.
 
 So 
 
 Disturbance of the Franchise 
 
 Grant, no 
 defence 
 
 clause purporting to confer such a right would be void, (a) The 
 only cases in which the right has been established have been 
 cases of ancient markets in which the lord claimed the right as 
 from time immemorial, and the evidence supported that claim. 
 If the market be an ancient market, and the lord at all times 
 appears to have prevented a sale in private houses, the exercise 
 of such control is evidence of the right. (^) 
 
 It is impossible to lay down a precise definition by which 
 sales in a private shop may be distinguished from such a 
 system of selling as amounts to establishing a rival market. 
 The mere fact that the sale in a shop attracts some persons who 
 would otherwise buy in the market is not enough to constitute 
 a disturbance, nor is the character or name of the building in 
 which the sale is conducted. All the circumstances of the case 
 must be taken into consideration, the nature and method of the 
 business done,(r) and the character and management of the 
 building, whether it be let out in stalls or entirely occupied by 
 the proprietor for his own purposes.(<f) 
 
 To an action for disturbance by erecting a rival market it 
 is no defence to plead a grant from the crown. For the crown 
 ' has no power to grant a new market to the injury of an existing 
 market. (<?) But it would be a good defence that the new 
 market was established under a private Act of Parliament, (/) 
 or pursuant to the Public Health Act, 1875, s. i66,(g) or the 
 Diseases of Animals Act, 1894, s. 32,^) or any other like 
 enactment. 
 
 (a) See Mosley v. Walker, supra, per Holroyd, J. ; Mayor of 
 Penryn v. Best (1878) 3 Ex. D. p. 295. 
 
 (b) Mosley v. Walker (1827) 7 B. & C. 40 (where Bayley, J., justifies 
 the right in a somewhat different manner) ; Mayor of Macclesfield v. 
 Chapman (1843) 12 M. & W. 18 ; The Same v. Pedley (1833) 4 B. & Ad. 
 397 ; Mayor of Devizes v. Clark (1835) 3 A. & E. 506 ; Mayor of Penryn 
 v. Best (1878)3 Ex. D. 292; Prior of Dunstable's case, Y.B. II Hen. 
 VI. ff. 19, 25. 
 
 (c) G. E. R. Co. v. Goldsmid (1884) 9 App. Cas. 927, 947 ; McHole 
 v. Davies(i875) I Q.B.D. 59; Fearon v. Mitchell (1872) L.R. 7 Q.B. 
 690 ; Mayor of Dorchester v. Ensor (1869) L.R. 4 Ex. 335. 
 
 (</) Corporation of Cork v. Shinkwin (1825) Sm. & B. 395, 400 ; 
 G. E. R. Co. v. Goldsmid, supra. See also the cases under the Markets 
 and Fairs Clauses Act, 1847, s. 13, Post, Part II. 
 
 (e) 2 Inst. 406 ; Islington Market Bill (1835) 3 Cl. & F. 513, 520. 
 
 See also ante, p. 20. If the crown grants a market which turns out to be 
 
 injurious to an older market belonging to the crown, the crown may repeal 
 
 the new market by scire facias, and recover damages for disturbance ; 
 
 Weston's case, Y.B. II Hen. IV. ff. 5 & 6. 
 
 (/) Hammersmith Ry. Co. v. Brand (1869) L.R. 4 H.L. 171. 
 
 fy 38 & 39 Viet. c. 55. (A) 57 & 58 Viet. c. 57.
 
 Disturbance by Levying a Rival Market or Fair 81 
 
 It is not a good defence to an action for disturbance by insuffi- 
 
 unlawfully levying a rival market that there was not room for ciency of 
 
 iT i * i i T~~ , ,, . , , .__ " . . , accommo- 
 
 all wKo wished to buy and sell in the plaintiffs market.(a) <i at i on 
 
 Want of room in a market may justify an individual in selling 
 his goods outside it,() but cannot excuse the levying of a rival 
 market without lawful authority.(a) The insufficiency of the 
 public accommodation provided in a market may be given in 
 evidence in mitigatipn_pf the damage claimed for setting up a 
 rival market, (c) but is not of itself a good answer to the action. 
 An abuse or misuse of the franchise, though it may entitle the 
 crown to take proceedings against the owner, does not entitle 
 third persons to usurp the market or fair rights, and thereby 
 disturb the franchise. (</) 
 
 That a defence grounded on the impossibility of suffi- 
 cient accommodation being provided in the old market might 
 be good was suggested by two judges (e) in answer to questions 
 proposed to them by the House of Lords when consider- 
 ing the Islington Market Bill.(/) The judges were of opinion 
 that in the case of a market granted to be held in a fixed place, 
 defined by metes and bounds, ' if those limits are not sufficient 
 for the accommodation of the buyers and sellers at the market, 
 and the market-owner has no power to enlarge the limits, that 
 circumstance, coupled with the fact that it would be for the 
 advantage of the public that a new market should be erected, 
 would be a sufficient ground for the crown to take such steps 
 as, according to law, would have the effect of erecting a 
 new market to such an extent as would remedy the incon- 
 venience without affecting the rights of the owner of the old 
 market ' ; that is to say, ' to such an extent as to provide 
 for what may be called the surplus accommodation of the 
 public beyond what the old market can afford, and that the 
 old market is not to be affected by the new. For instance, if 
 the public require twenty acres of market accommodation, and 
 the old market could only furnish ten, the new market could 
 
 (a) G. E. R. Co. v. Goldsmicl (1884) 9 App. Cas. 927, (1883) 25 Ch. D. 
 511 ; Islington Market case (1835) 3 Cl. & F. 513. As to the duty of 
 the lord to supply sufficient accommodation for the public, see ante, p. 33. 
 
 (6) Prince v. Lewis (1826) 5 B. & C. 363 ; Mosley v. Walker (1827) 
 7 B. & C. 40; see/<w/, p. 83. 
 
 (c) Corporation of Cork v. Shinkwin (1825) Sm. & B. 395. 
 
 (d) Midleton v. Power (1886) 19 L.R. Ir. i. 
 () Littledale, J., and Parke, B. 
 
 (/) (1835) 3 Cl. & F. 513, and 12 M. & W. 20 n. 
 
 G
 
 82 Disturbance of the Franchise 
 
 not be granted for the whole twenty acres, but only for the 
 additional ten acres, so as, upon the whole, the twenty should 
 be capable of being used by the public.' ' For if a new market 
 were granted for twenty acres, that would be to the damage of 
 the old market, and it might have the effect of totally ruining 
 it, when there was no default in the owner, but the necessity for a 
 new market arose from the increase of population.' 
 
 The judges further suggested that the same principle would 
 apply to the case of a market to be held in a district (and not 
 in a place therein defined with metes and bounds), supposing 
 that the district were so narrow, or the residue thereof not appro- 
 priated to the purposes of the market were so occupied, that 
 further space could not be acquired by the market-owner to 
 meet the increased wants of the public. 
 
 These opinions of the judges, however, though carefully 
 considered, were delivered with some diffidence, as they had 
 not had an opportunity of hearing argument on the matter, or 
 of conferring with the other judges. 
 
 2. Disturbance by acts other than levying a rival 
 market or fair. 
 
 There may be an actionable disturbance of a market without 
 levying a rival market. 
 
 Selling Whenever a person seeks to take, and takes, the benefit of 
 
 outside the a market without payment of thelnarket toll, that is a fraud 
 upon the market, for which an action on the case will lie. A 
 person who has goods for sale commits an actionable wrong 
 against a market-owner if he takes advantage of the concourse 
 of persons assembled in the market, but yet sells outside the 
 market in order to evade the toll. Thus, in Bridgland v. 
 Shapter,(a) it was held that an action lay against a cattle- 
 jobber, who left his sheep at a public-house, but went himself 
 into the market in quest of customers, whom he brought 
 thence to the public-house, and there sold to them the sheep, 
 refusing to pay toll. 
 
 Such acts, however, in order to be actionable, must be done 
 designedly, and with an intention to obtain the benefit of the 
 mnrket without payment of toll. If a person in the ordinary 
 course of his business comes to a town to sell goods there, and 
 
 (a) (1839) 5 M. & W. 375; cf. Blakey v. Dimsdale (1777) 2 
 Cowp. 661. 

 
 Disturbance by Evading Toll 83 
 
 sells them outside the market on a day which happens to ij 
 
 be market day, without any design or trick whereby he may ^ 
 get the benefit of the market without paying toll, that does not 
 constitute a disturbance of the market. (a) 
 
 In the Prior of Dunstable's case (b) the allegation was that 
 the defendant sold in his shop, adjoining the market-place, 
 secretly (occulte) ; and this raised the question of fraud, upon 
 which issue alone the case was tried. The mere selling in a I 
 shop, unless done secretly to evade toll, would not have been 
 actionable. 
 
 In an action for selling near to a market, but outside its No room 
 limits, to the prejudice of the lord's rights, it is a good defence in the 
 to show that there was not sufficient room within the market 
 for the defendant to sell" therein. (^) And if at ordinary times 
 there is not sufficient room within the market, a person is not 
 bound to attend day by day for the purpose of seeing whether 
 there be room or not, but he may sell outside the market, though 
 there be room within it, unless the lord give him notice that 
 there is room.(</) This defence may be raised where the want 
 of room in the market arises from the lord's neglect of his duty 
 to provide sufficient accommodation for the public,^) whether 
 the market be limited by metes and bounds (/) or not.() And 
 it seems, on principle, that it can be raised, although the want 
 of room arises without any default in the lord, provided that 
 the defendant has done nothing which amounts to the unlawful 
 levying of a rival market. 
 
 In markets where toll is payable by the seller, it is an Selling by 
 actionable disturbance to sell by sample m the market goods samp'e 
 which are kept out of the market in order to evade the toll.(>4) 
 
 (a) Mayor of Brecon v. Edwards (1862) I H. & C. 51 ; Bailiffs of 
 Tewkesbury v. Diston (1805) 6 East, 438; Blakey v. Dimsdale (1777) 
 2 Cowp. 661 ; Sprosley v. Evans, I Roll. Abr 103. 
 
 (6) Y.B. II Hen. VI. f. 19 b; n Hen. VI. f. 25. 
 
 (c) Prince v. Lewis (1826) 5 B. & C. 363 : see Islington Market case 
 (1835) 12 M. & W. p. 23 ; G. E. R. Co. v. Goldsmid (1884) 9 App. Cas. 
 p. 960, per Lord Blackburn ; 25 Ch. D. p. 542, per Cotton, L.J. 
 
 (d) Prince v. Lewis, supra, per Bayley and Littledale, J.J. See per 
 Cotton, L.J., G. E. R. Co. v. Goldsmid, loc. cit. supra. 
 
 (e) See ante, p. 33. 
 
 (/) Prince v. Lewis (1826) 5 B. & C. 363. 
 
 (g) Islington Market Bill (1835) 12 M. & W. p. 23. 
 
 (A) Bailiffs of Tewkesbury v. Bricknell (1809) 2 Taunt. 120. See 
 Mayor of Brecon v. Edwards (1862) I H. & C. 51 ; Mosley v. Pierson, 
 (I790)4T.R. 104. 
 
 G 2
 
 84 Disturbance of the Franchise 
 
 The seller, by going into the market, takes the benefit thereof, 
 
 while the lord is deprived of his toll by reason of the goods not 
 
 being brought into the market.(a) The gist of the action is 
 
 \ the seller's intention to take the benefit of the market without 
 
 ) payment of toll.(^) To sell by sample near the market is not 
 
 of itself a disturbance.^) In some circumstances it might be 
 
 such ; but it is necessary to prove that the defendant by some 
 
 device or other in fact obtained the benefit of the market, and 
 
 designedly evaded the toll ; otherwise no action will lie.(</) 
 
 Bailiffs of Tewkesbury v. Diston (e) was an action brought 
 against a buyer of corn by sample in Tewkesbury market, where 
 toll was payable in kind. It was alleged that the defendant 
 intentionally deprived the plaintiffs of their toll by buying corn 
 in the market by sample. It was proved that he bought by 
 sample in the market, knowing of the claim to toll, and refused 
 to pay toll on the subsequent delivery of corn outside the 
 ' market. It was held that no cause of action was disclosed, on 
 the ground that it did not appear that the buyer induced the 
 seller to keep the corn out of the market, or that the seller 
 would have brought the corn into the market if the buyer had 
 not bought by sample. 
 
 In Bailiffs of Tewkesbury v. Bricknell (/) an action was 
 successfully brought against the seller of corn by sample in 
 the same market. The toll seems to have been treated as 
 payable by and was demanded of the seller, who had clearly 
 evaded toll by keeping the bulk out of the market.^) It 
 seems probable that an action might lie against the seller who 
 sold by sample in the market although the toll were payable by 
 the buyer ; for instance, if it was the seller's intention to take the 
 benefit of the market and deprive the lord of the benefit of the 
 toll. 
 
 In some circumstances a buyer who buys by sample in a 
 market would perhaps be liable in an action of disturbance 
 for instance, if he conspired with the seller to evade the toll by 
 some trick or fraud.(//) But to buy by sample in a market is 
 
 (a) See note (A), p. 83. (/>) Ibid. 
 
 (<) Mayor of Brecon v. Edwards (1862) i H. & C. 51. (d) Ibid. 
 
 (e) (1805) 6 East, 438. (/) (1809) 2 Taunt. 120. 
 
 (g) In the earlier case of Bailiffs of Tewkesbury v. Diston (1805) 6 
 East, 438, the toll was treated as payable by the buyer ; see Id. p. 440 n. 
 In Mayor of Brecon v . Edwards, supra, the toll was payable by the seller. 
 
 (//) See 6 East, 460.
 
 Disturbance by Evading Toll 85 
 
 not of itself actionable ; (a) and it may be observed that the 
 buyer's case is very different from that of the seller. The 
 seller has a choice whether he will sell by sample or bring the 
 bulk into the market ; the buyer has usually no such choice. 
 Moreover, the buyer does not get the benefit of the market 
 unless the whole of the goods are in the market ; he has not 
 the benefit of a view of the whole bulk ; he has not the advan- 
 tage in reduction of price which often results to the buyer 
 from the seller's dread of being obliged to carry back his 
 commodity in bulk unsold ; and he does not acquire a title 
 as by sale in market overt. All these circumstances make it / j 
 more difficult to establish a case of designedly buying by ' > 
 sample in order to evade toll ; they rather give countenance to j 
 the view that the buyer has bought by sample because he had ' 
 not the opportunity of buying in bulk.(^) 
 
 An action for disturbance will lie for wrongfully hindering Other acts 
 or stopping cattle or goods from being brought to the market,(f) ^J^ 1 ' 
 or wrongfully disturbing or beating persons who are coming to 
 the market, whereby the lord may lose his toll,(^) or for 
 wrongfully assaulting and disturbing the lord or his servants in 
 taking toll.(^) In more recent times an action of nuisance 
 was successfully maintained by the owner of a market against 
 persons who wrongfully erected a building which excluded 
 the public from part of the space on which the market was 
 used to be held.(/) 
 
 (a) Bailiffs of Tewkesbury v. Diston, supra. 
 
 (b) Ibid, per Lord Ellenborough. 
 
 (c) Per Wylde, J., Turner v. Sterling (1671) 2 Ventr. 26, citing Y.B. 
 41 Ed. III. f. 24, pi. 17, an observation by Belknap, counsel, in argument 
 (cf. 2 Ventr. 28, per Vaughan, J.) ; per Powell, J., Ashby v. White (1704) 
 6 Mod. 49. 
 
 (d) Abbot of Denesham's case, Y.B. 29 Ed. III. f. 18 ; Viner, 'Actions 
 [Case],' (N. c.) 3, citing Y.B. n Hen. IV. f. 47b (infra'), 9 Hen. VI. f. 
 46, 41 Ed. III. f. 24b (supra), F.N.B. 1246 ; Fitzh., Actions sur le case, pi. 
 28, citing Y.B. n Hen. IV. f. 47b, where Skrene, counsel, states in 
 argument that such is the law. 
 
 (e) Dent v. Oliver (1607) Cro. Jac. 122; Barton's case, Y.B. 9 Hen. 
 VI. f. 45 ; Viner, 'Toll,' I. 4, and 'Actions [Case],' (N. c.) 4; F.N.B. 
 91 G. H. ; Abbot of Ramsey's case, Abb. Plac. p. iSib; de Kenedon's 
 case, Id. p. 233. In the Rot. Parl. (Temp. Ed. I.) there is a quaint 
 complaint by the Prior of St. Freswide in Oxford that the Chancellor and 
 Scholars of Oxford made an affray and riot in his fair, ' to the perpetual and 
 final destruction of it,' Rot. Parl. vol. iii. p. I76b. 
 
 (/) Thompson v. Gibson (1841) ^ M. & W. 456.
 
 86 Disturbance of the Franchise 
 
 3. JDisttirbance of market-rights vested in persons other tJian 
 the lord. 
 
 It seems that actions for disturbance may be brought, not 
 only by the market-owner, but by any person who has a 
 x^prescriptive or other well-established right in the market, such 
 as a person who has a prescriptive ngETto place a stall in the 
 market in front of his shop. He has a right in the market for 
 injury to which he may maintain an action against the wrong- 
 doer. Thus, he may maintain an action against the market- 
 owner if the latter disturb him in the enjoyment of his right by 
 wrongfully removing the market to another place, (a) 
 
 4. Nature of action for disturbance. 
 
 Possessory The action for disturbance is a possessory action. (<) The 
 plaintiff must prove the existence of the franchise, and that at 
 the time of the disturbance he was in possession thereof ; 
 but he need not regularly deduce his 7 title tfiereto, for, as 
 against a stranger and wrong-doer possession is sufficient. (<) 
 
 The owner of a fair who has been compelled to discontinue 
 it, owing to the absence of buyers and sellers, may nevertheless 
 be in possession of the franchise for the purpose of an action 
 for disturbance. (*f) But if the owner of several markets has 
 voluntarily discontinued to hold some of them, he will be 
 unable to recover in an action of disturbance, except in 
 respect of the markets which he continues to hold ; and that 
 will be so, although he may be entitled to revive the markets 
 which he has discontinued. (e) 
 
 Limitation It has been suggested that the undisturbed possession of a 
 of actions r i v al market for twenty years is a bar to an action for dis- 
 turbance^/) But the better opinion is that the uninterrupted 
 user of a rival market for twenty years is merely evidence from 
 
 (a) Ellis v. Mayor of Bridgenorth (1863) isC.B.N.S. 52. 
 
 (b) Yard v. Ford, 2 Wms. Saund. 171 n (l); Fitzgerald v. Connors 
 (1871) 5 Ir. Rep. C.L. 191. 
 
 (c) Dent v. Oliver (1607) Cro. Jac. 122 ; De Rutzen v. Lloyd (1836) 
 5 A. & E. 456. 
 
 (d) Downshire v. O'Brien (1887) 19 L.R. Ir. 380, 389. 
 
 (e) See per Channel!, B., Mayor of Dorchester v. Ensor (1869) L.K. 
 4 Ex. 335, 339. 
 
 (/) Holcroft v. Heel (1799) i B. & P. 400, as explained in notes to 
 Yard v. Ford, 2 Wms. Saund. 175.
 
 Nature of Action for Disturbance 87 
 
 which a jury may infer that the rival market has had a lawful 
 origin in a grant from the crown,(rt) supported by a grant from 
 the owner of the older market, without which the grant from the 
 crown would not be effectual.^-) In an action of disturbance the 
 period of limitation for the recovery of damages is six years - } (c) 
 but it seems that no length of adverse user creates a positive 
 bar to the action. The Prescription Act, 1832, (d) has no 
 application to market rights ;(e) nor have the Real Property 
 Limitation Acts, 1833 and i8y4.(/) And it may be added that 
 franchises are expressly excepted from the provisions of the 
 Crown Suits Acts, 1769 and i&6i.(g) 
 
 5. Remedies for disturbance of statutory markets and fairs. 
 
 **<**" 
 
 Acts which would amount to a disturbance of a market 
 
 established l)y royafgrant may also constitute a disturbance 
 
 of a market established by statute, and persons disturbing a 
 
 statutory market may be liable to an action for damages or an 
 
 injunction. Bill this is riot necessarily the case, inasmuch as 
 
 the statutes under which a market is established may contain 
 
 provisions rendering the rights and liabilities between the 
 
 market-owners and other persons different from what they 
 
 would be at common law. The law with regard to disturbance 
 
 . is not altered, in the case of any particular market, by the mere 
 
 j fact that the charters of the market were granted with the con- 
 
 \ sent of parliament, or that the market was originally established 
 
 under an Act of Parliament, or has subsequently become merely 
 
 1 statutory.(^) But it may nevertheless be altered by the 
 
 express or implied terms of the provisions which parliament 
 
 has inserted in the charters or statutes regulating the market. 
 
 Local Acts regulating statutory markets often incorporate 
 
 (a) Holcroft v. Heel, supra, as explained by Le Blanc, J., in Campbell 
 v. Wilson (1803) 3 East, 294, 298. 
 
 (b) See ante, p. 20. (c) 21 Jac. I. c. 16, s. 3. 
 
 (d) 2 & 3 Will. IV. c. 71. 
 
 ( e) See ante, p. 24. 
 
 (/) 3 & 4 Will IV. c. 27 ; 37 & 38 Viet. c. 57 ; see s. I of the earlier 
 Act. 
 
 (g) 9 Geo. III. c. 16 (Nullum Tempus Act) ; 24 & 25 Viet. c. 62. 
 
 (A) See G. E. R. Co. v. Goldsmid (1884) 9 App. Cas. 927 ; Mayor of 
 Birmingham v. Foster (1894) 70 L.T. 371 ; Mayor of Manchester v. Lyons 
 (1882) 22 Ch. D. 287; Newtownards Town Commissioners v. Wood (1877) 
 ii Ir.R.C.L. 506, 509, per Morris, C.J.
 
 88 Disturbance of the Franchise 
 
 section 13 of the Markets and Fairs Clauses Act, 1847, ( a ) 
 or contain sections to the like effect. 
 
 This section 13 of the Markets and Fairs Clauses Act is 
 also incorporated by the Public Health Act, 1875, s - I ^7-(^) 
 It is dealt with more fully elsewhere, (c) The section makes it 
 an offence, punishable by fine on summary conviction, for any 
 person, other than a licensed hawker, to ' sell or expose for 
 sale in any place within the prescribed limits, (d) except in his 
 
 own dwelling-place or shop,^3yarticles in respect of which 
 tolls are l^^espeSSRTct authorised to be taken.' 
 
 It is not altogether clear what are the rights of a market- 
 owner, with regard to bringing actions for disturbance, if his 
 market-rights, including his right to toll, depend upon an Act 
 which incorporates the above section, or contains a section to 
 the like effect. But the position appears to be as follows : 
 
 1. It cannot be said that the market-rights are infringed, 
 or that the market is disturbed, merely because a person sells 
 
 , tollable articles in his own dwelling-place or shop, although it 
 ! be within the prescribed limits.(^) A fortiori, it is not a ground 
 ' of complaint that a person sells such articles in his own dwelling- 
 place or shop outside the prescribed limits. 
 
 2. If an offence be committed against the section, the 
 penalty thereby imposed may be recovered in a court of summary 
 jurisdiction. Probably, in a proper case, ari^njunction to pre- 
 vent a commission of the offence or its repetition will be granted 
 by a court of competent jurisdiction.(/) But it seems probable 
 also that for a mere offence against the section no action for 
 damages lies. The section appears to create a liability not 
 existing at common law,(^) and, as it prescribes the particular 
 remedy for enforcing it, that remedy must be adopted. (h) 
 
 3. If the market be disturbed by the unlawful levying of a 
 
 (a) 10 & II Viet. c. 14. (b) 38 & 39 Viet. c. 55, s. 167. 
 
 (c) See/^/, p. 150. 
 
 (d) I.e. ' prescribed for that purpose in the special Act ; ' see s. 2, 
 post, p. 142. 
 
 (e) See per Romer, J., Mayor of Birmingham v. Foster (1894) 70 L.T. 
 
 37i 372- 
 
 (/) See Cooper v. Whittingham (188o) 15 Ch. D. 501, 506. 
 
 (g) The offence created by the section appears to differ in several 
 respects from the common law wrong of intentionally taking the benefit of 
 the market without payment of toll, which is dealt with ante, p. 82. 
 
 (A) See the third rule stated by Willes, J., in Wolverhampton New 
 Waterworks Co. v. Hawkesford, 28 L.J.C.P. 242, 246 ; i Smith L.C. 
 (iothed.)28s.
 
 
 
 Remedies for Disturbance of Statutory Markets 89 
 
 rival market in a manner which does not constitute any offence 
 against the section, an action lies for damages, as well as for 
 an injunction. (a) It will be observed that a person may set 
 up a rival market without committing an offence under the 
 section, for the section only prohibits selling and exposing for 
 sale, acts which a person who sets up a market does not 
 necessarily commit, (b) Consequently, if the remedy by action M 
 did not exist, the market-owner might be without remedy | 
 against very serious infringements of his rights. 
 
 4. It is probable that, on similar grounds, an action is 
 maintainable against persons who disturb the market by 
 wrongful acts other than that of setting up a rival market, pro- 
 vided that the wrongful acts complained of amount to more 
 than the commission of an offence under the section. But 
 there~seems to be no authority directly on this point.(^) 
 
 The effect of the section on the market-owner's rights of 
 action is in some cases complicated by the fact that the section 
 has to be read in conjunction with other sections of the special 
 Act which incorporates it, and when so read its effect may be 
 considerably altered. (d) 
 
 In the foregoing observations it has been assumed that the < 
 protection given by s. 13 of the Markets and Fairs Clauses Act 
 is given, not in substitution for, but by way of addition to, the 
 protection against disturbance by levying a rival market, which 
 a market enjoys at common law. It cannot, however, be 
 regarded as finally determined whether this} assumption is 
 correct, (e) 
 
 (a) Mayor of Birmingham v. Foster (1894) 70 L.T. 371. ^ An inquiry 
 as to damages was there granted. 
 (6) See ante, pp. 78, 79. 
 
 (c) See, however, the dictum of Morris, C.J., Newtownards Town 
 Commissioners v. Wood (1877) II Ir.R.C.L. 506, 509. 
 
 (d) See Abergavenny Imp. Commrs. v. Straker (1889) 42 Ch. D. 83. 
 
 (e) See the judgments of Blackburn, J., in Pope v. Whalley (1865) 
 34 L.J.M.C. 76 ; and in Fearon v. Mitchell (1872) L.R. 7 Q.B. 690 ; and 
 cf. Mayor of Birmingham v. Foster, supra.
 
 CHAPTER VI 
 
 HOW THE FRANCHISE MAY BE LOST 
 
 i. Forfeiture. 
 
 Abuse and THE owner of a market or fair is liable to be deprived of 
 
 user his franchise if he misuse or abuse it, or if he neglect tojase 
 
 jt.(a) Such a franchise is granted on the implied" condition 
 
 that it be duly exercised according to the grant, and if this 
 
 condition be broken the grant is liable to be repealed. (^) 
 
 The non-user of a franchise which is merely to the profit 
 or pleasure of the owner is no ground for its loss or forfeiture ; 
 but a fair or market is held, not merely for the profit of the 
 owner, but also for the benefit of the public, who suffer a loss 
 if the fair or market be not duly hel3"7"and accordingly the 
 non-user of a fair or market, or the neglect to hold it, is a 
 good ground for the crown taking the necessary steps to seize 
 the franchise. (c) The non-user or neglect of the franchise, 
 or its abuse, does not of itself destroy the right, but it entitles 
 the crown to obtain a repeal of the grant by scire facias or quo 
 warranto.(d) An abuse of the franchise may entitle the 
 crown to take proceedings for its forfeiture, but it does riot 
 entitle third persons to usurp market or fair rights, and 
 thereby disturb the franchise.(<?) Notwithstanding that he 
 himself is in default, the owner of the franchise has a remedy 
 against such wrong-doers. (/) 
 
 (a) ' Retinet possessionem per usum . . . donee amiserit per abusum 
 vel non usum ' ; Bracton, lib. 2, c. 24, fol. 56, cited 2 Inst. 222. See 
 also Cru. Dig. 4th ed. vol. iii. p. 268. 
 
 (i>) See per Holt, C.J., City of London v. Vanacre (1700) 12 Mod. 
 270 ; Y.B. 20 Edw. IV. ff. 5, 6. 
 
 (f) See per Sir Edward Coke, case of Leicester Forest (1608) Cro. 
 Jac. 155. 
 
 (d) See per Bayley, J., Peter v. Kendal (1827) 6 B. & C. 703; 
 Midleton v. Power (1886) 19 L.R. Ir. i. As to the result of long 
 acquiescence in disturbance, see ante, pp. 86, 87. 
 
 (e) Midleton v. Power, supra. (/) Ibid.
 
 Forfeiture 9 1 
 
 Prescriptive markets are liable to forfeiture for non-user or 
 abuse, as well as markets created by grant. But the crown 
 cannot take proceedings to forfeit statutory markets. If 
 abuses arise in connection with statutory markets, and the 
 remedies provided by the statutes regulating them prove to 
 be inadequate, recourse must be had to parliament to pass 
 further statutes which will provide adequate remedies. 
 
 The printed volume of the ' Placita de Quo Warranto ' Non-user 
 contains many instances of forfeiture for non-user. (a) But 
 the franchise was generally re-granted on payment of a fine. 
 In one case the defendants "produced a charter containing a 
 clause that ' although they have not used any liberty, yet they 
 may lawfully use it,' and so justified a market which they had 
 been holding, since the date of this charter, by virtue of an 
 earlier market-charter upon which they had not acted until 
 that date.(^) In several cases the defendant pleaded success- 
 fully that he had held his fair or market as far as he could if 
 any chose to attend it, but that it often happened that there 
 was no access of buyers and sellers. (c) If a fair become ^ 
 
 unfrequented and useless, and to that extent be discontinued, 
 
 
 the franchise right nevertheless remains unimpaired, (if) 
 
 Amongst abuses which entitle the crown to take proceed- Abuse 
 ings to forfeit the franchise may be mentioned that of holding 
 a fair on additional days beyond those authorised by the 
 grant,(^) or of holding a market on a day other than the 
 authorised day.(/) But to hold a market on an additional 
 day, as well as on the authorised day, seems to be treated, not 
 as an abuse of the franchise granted, but as an usurpation of 
 another and separate franchise.^) 
 
 Abuse may be of negative character, consisting in the 
 neglect of something which ought of necessity to be done, or 
 non-user of an essential part of the franchise. (//) 
 
 (a) E.g. Ljamington (pp. 128, 129) ; Sandiacre (pp. 162, 163) ; Or- 
 landston (p. 32JjJT 
 
 (6) Melcheburne (pp. 6, 7). 
 
 (c) P.Q.W., Wardon (p. 64), Ilkeston (p. 137), Aston-in-Weston 
 (pp. 143, 144), Hovingham (pp. 218, 219), Fiskarton (pp. 635, 636), Lib. 
 Rad'i de Berners (p. 742), Lib. Prioris de Novo Loco (p. 747), Lib. Joh'is 
 de Sc'o Joh'e (748). 
 
 (d) Downshire v. O'Brien (1887) 19 L.R. Ir. 380, 389. 
 
 (e) See ante, p. 49. (/) See ante, p. 48. 
 (g) See ante, p. 49. 
 
 (A) Y.B. 2 Hen. VII. f .11, per Brian, C.J., who refers, as an example, 
 to ' an office of clerk of the market ' ; see ante, p. 1 1 .
 
 92 How the Franchise May be Lost 
 
 One of the grounds of forfeiture of frequent occurrence 
 in the printed volume of the ' Placita de Quo Warranto ' is 
 the neglect to keep judicial instruments of pillory or tumbrel 
 for the punishment of persons breaking the assize of bread 
 .and ale, or the neglect to use those instruments and the 
 substitution of fines in cases where corporal punishment is 
 due. (a) The pillory, however, was abolished by statute in 
 1816 ;(b) and in 1844 the statute called 'Judicium Pillorie,' 
 or the ' Statute of the pillory and tumbrel and of the assize ot 
 bread and ale '(c), was entirely repealed.(</) In the case of a 
 market not confined by metes and bounds, neglect to provide 
 sufficient accommodation for the public may be an abuse on 
 account of which the grant may be repealed. (e) 
 
 It seems that a market or fair cannot be forfeited for non- 
 user of a part of the franchise which is not necessary to the 
 due holding of the market or fair. If a market be granted 
 with a right to take toll, the grant of the market cannot be 
 repealed on the ground that no toll is taken. Toll is not an 
 incident of the market,^) and the grant of toll benefits the 
 lord, and not the public. 
 
 There remains the question, however, whether the right to 
 toll can be lost by non-user. It seems that non-user does not 
 of itself destroy the right.(^) But it may be that if the public 
 have been using a market or fair for a great number of years 
 without any demand of toll being made, this fact may, in the 
 absence of any other explanation, warrant the inference that 
 the right to toll has been at some time or other surrendered to 
 the crown, or otherwise become extinguished, or, at any rate, 
 that it has become severed from the ownership of the market 
 or fair. Probably a forfeiture ought not to be presumed if 
 there be no evidence that there was at any time any ground of 
 forfeiture ; for a forfeiture implies a wrong done by the owner 
 of the franchise, and, as a general rule, the presumption is 
 against wrong.(^) But this objection does not apply to a 
 presumption of a voluntary surrender. 
 
 (a) E.g. Wahull (p. 36), Hegham (p. 133), Lillebum (pp. 536, 537). 
 See ante, p. 9. 
 
 (6) 56 Geo. III. c. 138. (f) 51 Hen. III. st. 6 (Ruff). 
 
 (d) By 7 & 8 Viet. c. 24, s. 2. (e) See ante, p. 35. 
 
 (/) See ante, p. 56. 
 
 (g) See per Sir E. Coke, case of Leicester Forest (1608) Cro. Jac. 155. 
 
 (A) See Doe v. Catomore (1851) 16 Q.B. 745.
 
 Forfeiture 93 
 
 It has been laid down that if a franchise become liable to Waiver of 
 forfeiture the crown may waive the forfeiture by any act, forfeiture 
 such as the receipt of rent, which recognises a continuance of 
 the right to the franchise, and that the crown cannot take 
 advantage of any forfeiture which has been so waived, (a) 
 
 Markets and fairs, when forfeited to the crown, are not Effect of 
 extinguished, but continue to exist in the crown's hands, (<fr) eit 
 and unless re-granted are placed under the management of the 
 Commissioners of Woods,(<r) who are entitled to collect the 
 tolls and other dues. But the Commissioners have the power 
 at any time, with the consent of the Treasury, to abandon or 
 discontinue, either permanently or for any limited time, the 
 collection of any tolls or profits of any markets or fairs 
 belonging to the crown which it may be considered inexpedient 
 to collect, and also, with the consent of the Treasury, by deed, 
 absolutely to relinquish any such tolls or profits.(</) 
 
 2. Surrender, 
 
 Prescriptive and charter markets and fairs may be lost by 
 their surrender to the crown.(^) It has been said that if the \ 
 owner of prescriptive franchises accepts from the crown a grant 
 of the sajne liberties, he cannot afterwards claim them by pre- 
 scription, but he must rely upon the grant. (/) 
 
 3. Extinction by Act of Parliament. 
 All franchises are liable to be extinguished by Act of Parlia- 
 ment. The statute of 25 Henry VI. expressly annulled all grants 
 of markets and fairs in North Wales which had been made at 
 any time to Welshmen.^) Express words, however, are not 
 necessary to cause an extinguishment ; and a statute may 
 abolish a franchise by implication. Where the owners of a pre- 
 
 (a) Midleton v. Power (1886) 19 L.R. Ir. I. As tojwaiver of for- 
 feiture, see notes to Dumpor's case, I Sm. L.C. loth-ed". 31. 
 
 (b) See ante, p. 28. 
 
 (<:) 10 Geo. IV. c. 50, s. 8 ; 48 & 49 Viet. c. 79, s. 2. 
 
 (rf) 15 & 16 Viet. c. 62, s. 6. 
 
 (e) Cru. Dig. 4th ed. vol. iii. p. 267. 
 
 (/) Com. Dig. 'Prescription,' G; cited by A. L. Smith, L.J., in ,- 
 Taylor v. New Windsor Corporation [1898] I Q.B. 196 ; Cru. Dig. 4th ed. 
 vol. iii. p. 428, citing Finch, Bk. I, c. 3, s. 23, who in turn cites Y.B. 21 otX* 
 Hen. VII. f. 5 ; but the decision in the Year Book supports the contrary 
 proposition ; and see also Goodson v. Duffield (i6i3)Cro. Jac. 313. The 
 effect of the grant is probably a matter of construction in each case. 
 
 (g) 25 Hen. VI., repealed by 21 Jac. I. c. 28, s. n.
 
 94 How the Franchise May be Lost 
 
 scriptive Saturday market obtained an Act of Parliament which 
 empowered them to hold markets on every week-day, over an 
 extended area, and with higher tolls, it was decided that the 
 prescrfptive rights were superseded by the parliamentary rights, 
 and that the statute, on its true construction, conferred the 
 latter in substitution for, and not by way of addition to, the 
 former.(a) The intervention of parliament for some subordi- 
 nate purpose which presupposes the continuance of the old 
 rights does not necessarily merge or extinguish the tenure of the 
 old rights ;(b) but in each case the effect of the statute is a 
 question of construction, (c) 
 
 4. The Fairs Act, 1871. 
 
 By the Fairs Act, 1871, (d} special powers are given to the 
 Home Secretary which enable him, under certain circum- 
 stances, to make an order abolishing any fair held in England 
 or Wales. 
 
 The Secretary of State cannot make such an order without 
 the previous consent in writing of the owner for the time being 
 of the fair or of the tolls or dues payable in respect thereof ;(<;) 
 and he can only make the order in cases where he has received 
 a representation that it will be for the convenience and advan- 
 tage of the public that the fair be abolished, and where it ap- 
 pears to him that such is the fact.(/) The representation, to 
 entitle him to act upon it, must be made either (i) by the 
 owner of a fair, or (2) by the district council of the district in 
 which the fair is held, or, if it be within the county of London, 
 by the justices of the petty sessional district within which it is 
 held.(^) Before the representation is considered by the Home 
 Secretary, notice of the representation, and of the time when he 
 will take it into consideration, must be published once in the 
 ' London Gazette,' and in three successive weeks in some one 
 
 (a) Mayor of Manchester v. Lyons (1882) 22 Ch. D. 287; Mayor of 
 Manchester v. Pedley (1876) 22 Ch. D. 294 n ; cf. Taylor v. New Windsor 
 Corporation [1898] i Q.B. 186. 
 
 (b) Mayor of Manchester v. Pedley (1876) 22 Ch. D. 296 n. 
 
 (c) See ante, pp. 26, 27. (d) 34 Viet. c. 1 2. 
 () s. 3. (/) Ibid. 
 
 (g) s. 3, as amended by the Local Government Act, 1894 (56 & 57 
 Viet. c. 73) s. 27 (I) e, which substituted the district council for the 
 justices, except as regards the county of London (see s. 35). If the fair be 
 held in a borough, including a county borough, the borough council may 
 make the representation in its capacity of district council ; see the same 
 Act, ss. 21, 27, 32.
 
 TJie Fairs Act, 1871 95 
 
 and the same newspaper published in the county, city or 
 borough in which the fair is held, or, if there be no newspaper 
 published therein, then in the newspaper of some county adjoin- 
 ing or near thereto.(a) As soon as the order that the fair be 
 abolished has been made, notice of the making of the order 
 must be similarly published, and thereupon the fair becomes 
 abolished ;{b} but the order appears to have no force until 
 such publication has been completed. 
 
 For the purposes of the Act ' owner ' means ' any person, 
 or persons, or body of commissioners, or body corporate, 
 entitled to hold any fair, whether in respect of the ownership 
 of any lands or tenements, or under any charter, letters patent, 
 or Act of Parliament, or otherwise howsoever. \c) 
 
 (a) s. 3. (b) s. 4. c) s. 2.
 
 9 6 
 
 CHAPTER VII 
 
 THE ADMINISTRATION OF MARKETS AND FAIRS 
 
 i. Regulation and by-laws. 
 
 Regula- THE lord of a market or fair had at common law extensive 
 powers for regulating it. Thus he had axpurUrf pie-powder for 
 the determination of disputes arising therein ~ffi) and he was 
 bound to keep in the market-place pillory and tumbrel for the 
 punishment of offenders.(^) How far the duties in connection 
 with these and other matters belonged to the owner of a fair 
 or market as such, or how far they properly belonged to other 
 jurisdictions usually held along with that franchise, is a some- 
 what obscure subject, and not now of much practical import- 
 ance. The question is referred to somewhat more fully in the 
 Introduction.(^) 
 
 As owner or occupier of the market-place, he may be 
 criminally liable if he keeps it so filthy as to be a public 
 nuisance. (d) And if he keepTFTrTa dangerous condition he 
 may be liable in damages to one lawfully using the market- 
 place and suffering thereby. (e) 
 
 By-laws The private owner of a common law market or fair has, 
 
 / as such, no power to make by-laws. His regulations with 
 / regard to the use of the market or fair cannot be enforced 
 either by fine or imprisonment. A municipal corporation, 
 however, had at common law,(/) and now those corporations 
 to whlcTTfiie Municipal Corporations Act, 1882, applies have, 
 by that Act,(^) power to make by-laws ' for the good rule and 
 
 (a) See ante, p. 6. (6) See ante, p. 8. 
 
 (c ) See ante, p. 8. 
 
 (d) Draper v. Sperring (1861) 10 C.B.N.S. 131 ; see ante, p. 46. 
 
 (e) Lax v. Mayor of Darlington (1879) 5 Ex - D - 28 ; see ante, p. 32! 
 (/) 2 Selwyn, N.P. 1129 ; City of London v. Vanacre (1700) 12 Mod. 
 
 270 ; I Salk. 142 ; Garth. 482 (per Holt, C.J.) ; Chamberlain of London's 
 case (1590) 5 Rep. 62 b; Norris v. Staps (1611) Hob. 211. 
 
 (g) 45 & 46 Viet. c. 50, s. 23 ; cf. the repealed 5 & 6 Will. IV. c. 76, 
 s. 90. The Act does not apply to the Corporation of London.
 
 Regulation and By-laws 97 
 
 government of the borough ' ; and therefore a municipal 
 corporation which, as such, owns a market or fair within the 
 borough, can make by-laws for its regulation. 
 
 When a municipal corporation, acting as such, makes by- 
 laws for the regulation of its markets or fairs, under the powers 
 conferred by the Municipal Corporations Act, i882,() it must 
 make them in the manner prescribed by that Act.() 
 
 A municipal corporation, however, in its capacity of urban 
 district council, has power, under the Public Health Act, 1875, 
 ss. 166-168, to establish new markets and acquire existing 
 markets, and to make by-laws with respect to such markets 
 for the purposes mentioned in s. 42 of the Markets and Fairs 
 Clauses Act, i847.(*r) When it makes such by-laws in its 
 capacity of district council, it must make them in the manner 
 prescribed by the Public Health Act.(^) 
 
 When, in pursuance of s. 136 of the Municipal Corporations 
 Act, 1882, a transfer has been made to a municipal corporation 
 of a market provided by trustees acting under a local Act, it 
 seems that the municipal corporation may, for the purpose of 
 making by-laws with respect to such market, rely upon the 
 powers, if any, contained in the local Act.(^) 
 
 Urban district councils may, under s. 167 of the Public 
 Health Act, make by-laws, for the purposes mentioned in 
 s. 42 of the Markets and Fairs Clauses Act, with respect to 
 any markets belonging to them as such. S. 32 of the Diseases 
 of Animals Act, i894,(/) enables a local authority to make 
 by-laws for the same purposes with respect to any market 
 provided by them under that section. Undertakers of 
 statutory markets and fairs usually possess power, under their 
 Acts, of making by-laws. In all these cases the by-laws 
 must be made in the manner prescribed by the Act which 
 confers the power. 
 
 All by-laws, by whatever authority made, are invalid and Validity of 
 of no effect if not made in the manner (if any) directed by the b >'" laws 
 statute, charter, or other authority under which they purport to 
 
 (a) 45 & 46 Viet. c. 50, s. 23. 
 
 (6) See Ellis . Bridgenorth (1861) 2 J. & H. 67. S. 187 of the Public 
 Health Act, 1875 (as amended by s. 23 (6) of the Municipal Corporations 
 Act, 1882), seems not to affect by-laws ' for the good rule and government 
 of the borough. ' 
 
 (f) See/atf, Part II. (d) See 38 & 39 Viet. c. 55, ss. 182 et seq. 
 
 (e) See s. 136 (3). (/) 57 & 58 Viet. c. 57. 
 
 H
 
 98 The Administration of Markets and Fairs 
 
 be made,(0) or if they be inconsistent therewith, or if they be 
 unreasonable,^) or inconsistent with the law of the land,(^) or < 
 in restraint of trade ;(d) but a by-law may regulate, and to that 
 end be in partial restraint of, trade.(<?) So by-laws for the follow- 
 ing purposes have been held good viz. for regulating the times 
 at which sales by auction may take place in a market, (f) for 
 setting aside a certain part of a market for sale by wholesale 
 f and forbidding sale by retail in that part,(^) and for confining 
 j sales of particular articles to special parts of the market. (/*) 
 ButalDy-law which prevents all dealing in a particular article 
 in a market without permission!? bad, if the article is one of 
 ; those for which the market was established.(z) 
 
 2. Weights and measures. 
 
 The general law with regard to weights and measures is 
 to be found in the Weights and Measures Acts, 1878 to 1897. (f) 
 These Acts provide for the use of the same weights and 
 measures throughout the United Kingdom. (k) County 
 councils (/) and borough councils (m) are now the local 
 authorities to execute the Acts and appoint inspectors of 
 
 (a) Parry v. Berry (1718) I Comyns, 269. 
 
 (*) Ell wood v. Bullock (1844) 6 Q.B. 383 ; see also Kruse v. Johnson 
 [1898] 2 Q.B. 91. 
 
 (f) Dyson v. L. & N. W. R. Co. (1881) 7 Q.B.D. 32. 
 
 (d) Parry v. Berry (1718) I Comyns, 269. Bacon Abr. ' By-laws,' B. ; 
 see Corporation of Toronto v. Vigo [1896] A.C. 88. 
 
 (e) Collins v. Corporation ofwells (1885) i T.L.R. 328. Fazerkerly 
 v. Wiltshire (1721) I Stra. 462. 
 
 - (/) Collins v. Corporation of Wells (1885) I T.L.R. 328. 
 
 <) St "k" e v - Collins (1886) 55 L.T.N.S. 182. 
 
 W Wortley v. Nottingham Local Board (1870) 21 L.T.N.S. 582 ; 
 Savage f. Brook (1863) 15 C.B.N.S. 264 ; Player v. Jenkens (1666) i Sid. 
 284. 
 
 (i) Wortley v. Nottingham Local Board (1870) 21 L.T.N.S. 582. 
 For more information on the subject of by-laws at common law, see Com. 
 Dig. tit. ' By-law ; ' Selw. N.P. pp. 1129-1133 ; and Grant on Corporations. 
 
 (j) 41 & 42 Viet. c. 49 (1878), which consolidated and amended the 
 provisions of the earlier Acts thereby repealed ; 52 & 53 Viet. c. 21 (1889) ; 
 55 & 56 Viet. c. 18 (1892) ; 56 & 57 Viet. c. 19 (1893) ; 60 & 61 Viet, 
 c. 46 (1897). 
 
 (k) See the Act of 1878, s. 3. The Act of 1897 permits the metric 
 system. 
 
 (/) 51 & 52 Viet. c. 41, ss. 3 (xiii.) and 39. 
 
 (/;/) 41 & 42 Viet. c. 49, ss. 40, 43, and Schcd. IV. As to boroughs 
 which, according to the census of 1881, had less than 10,000 inhabitants, 
 see 51 & 52 Viet. c. 41, s. 39. In the city of London the common council 
 is now the local authority; see 51 & 52 Viet. c. 41, ss. 41 (i) (a) and 
 100 ; 41 & 42 Viet. c. 49, s. 40, and Sched. IV.
 
 Weights and Measures 99 
 
 weights and measures. It is proposed here to consider the 
 enactments which more particularly relate to the weighing or 
 measuring of goods or cattle or other things in markets or 
 fairs. 
 
 Under the Weights and Measures Act, i878,(a) it is the Goods in 
 duty of the owner or manager of every public market in which 
 goods are exposed or kept for sale to provide proper scales and 
 balances and weights and measures or other machines for the 
 purpose of weighing or measuring all goods sold, offered, or 
 exposed for sale in the market : to deposit the same at the 
 office of the clerk or toll-collector of the market, or some other 
 convenient place : and to have their accuracy tested at least 
 twice a year by the local inspector of weights and measures. 
 The expenses of so doing are to be paid out of the moneys 
 collected for tolls in the market. 
 
 It is the duty (b] of the clerk or toll -collector at all reason- 
 able times, whenever called upon to do so, to weigh or measure 
 all goods which have been sold, offered or exposed for sale in 
 the market, upon payment of such reasonable sum as may from 
 time to time be decided upon by the owner or manager, subject 
 to the approval and revision of the justices at general or 
 quarter sessions.(<:) 
 
 For a breach of any of the above duties, the offender is 
 liable, on summary conviction, to a fine not exceeding $.(d) 
 
 In addition to his duty to weigh and measure when required 
 to do so, the clerk or toll-collector may, at all reasonable times, 
 of his own accord, weigh or measure any goods sold, offered, 
 or exposed for sale in the market ; and if, upon such weighing 
 or measuring, any such goods are found deficient in weight or 
 measure, or otherwise contrary to the provisions of the Weights 
 and Measures Act, 1878, he must take the necessary pro- 
 ceedings for recovering any fine to which the person selling, 
 offering, or exposing the goods is liable ; and the court con- 
 victing the offender may award out of the fine a reasonable 
 
 (a) 41 & 42 Viet. c. 49, s. 86, and Sched. VI. pt. 2, whereby the pro- 
 visions of the repealed Act, 22 & 23 Viet. c. 56, ss. 6-8, 12, are re-enacted. 
 
 (6) Ibid. 
 
 (c) This jurisdiction of the justices seems not to be affected by 51 & 52 
 Viet. c. 41, s. 3 (xiii.), which makes the County Council the 'local 
 authority ' of the Acts relating to weights and measures ; see the Weights 
 and Measures Act, 1878, s. 40, and Sched. IV. 
 
 (at) Authorities cited note (a) supra.
 
 IOO The Administration of Markets and Fairs 
 
 remuneration to the clerk or toll-collector. For any offence 
 against, or disobedience to, these provisions the offender is liable 
 on summary conviction to a fine not exceeding ^5. 
 
 I These provisions of the Act of 1878 do not apply to fairs, 
 unless the word ' market ' can be construed as including 
 ir.'(rt) The provision for the payment of the expenses out 
 of the tolls in the market suggests that the Act does not apply 
 to a toll-free market. The Act provides only for the weighing 
 of l goods.' It is doubtful whether ' cattle ' are included in this 
 expression.(^) 
 
 Cattle in Markets and fairs in which, for the time being, tolls are 
 
 authorised to be taken, and actually are taken, in respect of 
 cattle, are subject to the provisions of the^Markets and Fairs 
 (Weighing of Cattle) Acts, 1887 and 1 89 1 .(<r)~ T Cattle ' here 
 '^/^ A ^includes ram, ewe, wether, lamb, and swine,(</) as well as such 
 animals as wouid ordinarily be described as cattle. The com- 
 pany, corporation or person authorised to take the tolls is called 
 ' the market authority, '(e) 
 
 Under these Acts it is the duty of the market authority to 
 provide and maintain, in or near the market or fair, ' sufficient 
 and proper buildings or places for weighing cattle brought for 
 sale within the market or fair.'(/) The market authority is 
 also bound, unless exempted by order of the Board of Agri- 
 culture, to 'provide and maintain, to the satisfaction of the 
 Board, sufficient and suitable accommodation for weighing 
 cattle. '() It is suggested that the object of this additional 
 requirement is to provide facilities for weighing any cattle, 
 whether brought for sale or not. The market authority is also 
 required to keep in or near the market or fair weighing 
 machines and weights for the purpose of weighing cattle : to 
 
 (a) It is so construed by Coke in Stat. Westm. II. c. 24 ; ' de inercato 
 . . . note that fairs are taken within this law, for every fair is a market, 
 but every market is not a fair * (2 Tnst. 406) ; and in Stat. Westm. I. c. 31 : 
 ' marche : this word doth here include a fair, as well as a market ' (2 Inst. 
 221). But in many modern Acts of Parliament, and usually in grants, 
 markets and fairs are distinguished, and ' market ' does not include ' fair.' 
 
 (b) Compare the provisions of the Act with the preamble and provisions 
 of 50 & 51 Viet. c. 27 ; see also 2 Blac. Com. 389. 
 
 (c) 50 & 51 Viet. c. 27 (see s. 2) ; 54 & 55 Viet. c. 70. These Acts 
 may affect markets and fairs to which the Markets and Fairs Clauses 
 Act, 1847, applies. As to the special provisions to which such markets 
 and fairs are subject, seepos/, pp. 103 and 156-160. 
 
 (d) 50 & 51 Viet. c. 27, s. 3. (e) Ibid. s. 2. 
 
 (/) Ibid. s. 4. tf) 54 & 55 Viet. c. 70, s. 2.
 
 Weights and Measures \ o I 
 
 appoint proper persons to have charge of the machines and 
 weights : to afford the use of the machines and weights to the 
 public for weighing cattle : and to have the accuracy of the 
 machines and weights tested at least twice a year by the local 
 inspector of weights and measures, at the cost of the market 
 authority.(a) Failure to fulfil these duties renders it unlawful 
 for the market authority, so long as such failure continues, to 
 demand or take any tolls whatever, in respect of any cattle 
 brought to the market or fair for sale ; and any person who 
 demands or takes any such toll while the market authority is in 
 default is liable, on summary conviction, to a fine not exceed- 
 ing s-V) 
 
 Every person selling, offering for sale, or buying cattle in a 
 market or fair provided with accommodation for weighing cattle 
 may require such cattle to be weighed ;(c} and the person ap- 
 pointed to weigh cattle sold in the market or fair is liable on 
 summary conviction to a fine not exceeding 40^., and not less 
 than 2$. 6d., (i.) if he refuse or neglect to weigh such cattle 
 when required, or (ii.) if he refuse or neglect to deliver to the 
 seller or buyer a ticket specifying the true weight of the cattle 
 weighed, or (iii.) if he give to any person a false ticket or 
 account of any cattle weighed. (d) Every person who know- 
 ingly acts or assists in committing any fraud respecting the 
 weighing of any cattle is liable, on summary conviction, to a 
 fine not exceeding ^5 for each offence.(e) 
 
 Unless it be otherwise expressly provided by any Act, the 
 market authority may demand and receive in respect of the 
 weighing of cattle tolls not exceeding zd. for every head of 
 cattle other than sheep or swine, or id, for every five or less 
 number of sheep or swine, or such other amounts as the Local 
 Government Board may authorise. (/) These tolls for weighing 
 must be paid by the person requiring the cattle to be weighed 
 to the person authorised by the market authority to receive 
 them ;(g) and ss. 36 to 41 of the Markets and Fairs Clauses 
 Act, 1847, apply to such tolls as if the Act of 1887 were the 
 
 (a) 50 & 51 Viet. c. 27, s. 4. 
 
 (6) Ibid, and 54 & 55 Viet. c. 70, s. 2. 
 
 (() 50 & 51 Viet. c. 27, s. 5. 
 
 (d ) Ibid. s. 6. (e) Ibid. s. 7. 
 
 (/) 50 & 51 Viet. c. 27, s. 8. The duties of the Local Governmen 
 Board under s. 8 are not affected by the Act of 1891 (54 & 55 Viet. c. 70) 
 s. I, which only substitutes the Board of Agriculture in s. 9. 
 
 (g) 50 & 51 Viet. c. 27, s. 5.
 
 IO2 The Administration of Markets and Fairs 
 
 special Act, and the market authority were the undertakers. (a) 
 The principal provisions of these sections are (i.) that the tolls 
 may be recovered by distress or in any court having competent 
 jurisdiction : (ii.) that disputes respecting tolls are to be settled 
 by a justice : and (iii.) that lists of tolls are to be conspicuously 
 set up in the fair or market, and in each weighing house.(^) 
 
 Certain market authorities (c) are required to send to the 
 Board of Agriculture, at such intervals and in such form and 
 with such particulars as the Board may order, returns showing 
 so far as can be ascertained, the number of cattle entering the 
 market or fair, the number and weight of cattle weighed, and 
 the price of the cattle sold, thereat. These market authorities 
 may, for the purpose of making such returns, cause cattle sold 
 at the market to be weighed without fee. The Board has 
 power to publish these returns. Wilful default in respect of 
 these returns renders the market authority liable on summary- 
 conviction to a fine not exceeding ^20 for each offence, or in 
 case of a continuing offence to a fine not exceeding ^10 a 
 day. It is a misdemeanour to make a false and fraudulent state- 
 ment in any return, (d) 
 
 Upon the application of any market authority, the Board of 
 Agriculture has power to make an order exempting the market 
 or fair from the provisions of the Acts, olTthe ground that the 
 sale of cattle thereat is, or is likely to be, so small as to render 
 it inexpedient to enforce the provision and maintenance of a 
 place for weighing cattle and of a weighing machine ; but the 
 order must limit the time, not to exceed three years, during 
 which it is to be in force ; and it may be wholly or partially- 
 rescinded, altered or extended by any subsequent order.(^) 
 
 The Acts apply to a cattle market held on a highway de- 
 dicated subject to the right to hold the market thereon ; and 
 the highway authorities cannot prevent the market authority 
 from setting up, in pursuance of the Acts, a proper weighing 
 
 (a) 50 & 51 Viet. c. 27, s. 8. 
 
 (b) The sections are set out /or/, Part II. 
 
 (c) These are the market authorities of every market or fair held at 
 Ashford, Birmingham, Bristol, Leicester, Leeds, Lincoln, Liverpool 
 (Stanley Market), London (Metropolitan Cattle Market), Newcastle-on- 
 Tyne, Norwich, Salford, Shrewsbury, Wakefield, York ; hut the Board of 
 Agriculture may from time to time vary or add to this list of places ; 54 & 
 55 Viet. c. 70. s. 3(1) and (5), and Sched. 
 
 (d) 54 & 55 Viet. c. 70, s. 3. 
 
 (e) 50 & 51 Viet. c. 27, s. 9 ; 54 & 55 Viet. c. 70, s. I.
 
 Weights and Measures 103 
 
 machine in the market-place.(a) The Acts contemplate a 
 permanent, and not merely a moveable, weighing-machine, (b) 
 
 The Acts which have hitherto been dealt with apply, so far Com- 
 as they are applicable to markets and fairs, whether they were ^j c {^ St 
 established under the common law or under or by the and carts, 
 
 authority of a statute. But further provisions with regard to under the 
 
 ... . . -J-I.HTI j Markets 
 
 weighing and measuring are contained in the Markets and am j Fairs 
 
 Fairs Clauses Act, 1847,^) and these apply to all markets and Clauses 
 fairs established under a private Act which incorporates those Act> l847 
 provisions, and to all markets established in accordance with 
 the Public Health Act, i8"j5,(d) or the Diseases of Animals 
 Act, 1 894,(e) or any of the earlier Acts which are now super- 
 seded by either of these two Acts. The provisions are set out 
 in full elsewhere.(/) 
 
 The buying and selling of hay and straw in markets and Ha 7 a . nd 
 other places in or within thirty miles of the cities of London mar k e t s m 
 and Westminster are regulated by the Hay and Straw Acts, and near 
 1796, 1834 and i8 5 6.(e) 
 
 Under the Act of 1796 the hay and straw may be sold only 
 in trusses,(/fc) which must be of the prescribed weight,(/) and 
 must be made up of only one quality of hay or straw. (_/') 
 Penalties may be incurred through non-compliance with these 
 requirements of the Act.(^) 
 
 For the purpose of settling disputes as to the weight of any 
 hay or straw sold within the limits within which the Act 
 applies, the Act casts certain duties upon the clerk or toll- 
 gatherer of every market which is held within those limits. He 
 must provide and keep at his office proper scales and weights 
 or engines for the weighing of all hay and straw which shall be 
 required to be weighed ; and he or his deputy must act as one 
 of the public ' hay weighers ' appointed by the Act.(/) The 
 buyer of any hay or straw sold within the above-mentioned 
 
 (a) Mclntosh v. Romford Local Board (1889) 61 L.T. 185. 
 
 (b) Ibid. 
 
 (c) 10 & ii Viet. c. 14, ss. 21-30, 34, 42. (d) 38 & 39 Viet. c. 55. 
 
 (e) 57 & 5 8 Vict - c - 57- (/) See t***t Part n - 
 
 (g) 36 Geo. III. c. 88 ; 4 & 5 Will. IV. c. 21 ; 19 & 20 Vict. c. 114. 
 
 (A) s. 2. 
 
 (i) s. 3. A truss of straw must weigh 36 Ibs. ; of new hay, 60 Ibs. ; 
 of old hay, 56 Ibs. Hay ceases to be new by September I. Under s. 6 
 the bands with which the truss is bound must not weigh over 5 Ibs. 
 
 (j) s. 5. (k) ss. 2-7 ; but see also ss. 14, 25. 
 
 W s. 13-
 
 104 The Administration of Markets and Fairs 
 
 limits, or his agent, may cause it to be weighed in the presence 
 of the seller or his agent at the agreed place of delivery ; and 
 if either party be dissatisfied with this weighing the buyer or 
 his agent may send for a hay-weigher. In parishes containing 
 a hay market he must send for the clerk or toll-gatherer of the 
 market, or his deputy, but elsewhere for the nearest hay- 
 weigher. The hay-weigher, upon a weighing-fee at the rate of 
 three shillings per load (a) being paid or tendered to him, is 
 bound to go with all convenient speed to the place where the 
 hay or straw in question may be, and there weigh it ; and the 
 weight as ascertained by him is conclusive to all parties. (/;) 
 A clerk or toll-gatherer incurs a penalty by neglecting the 
 duties imposed upon him by the Act(<r) 
 
 Both the Act of 1796^) and the Act of 1856^) make it 
 an offence fraudulently to increase the weight of a truss by mixing 
 water, sand, or other matter therewith. The latter Act em- 
 powers and requires the clerk of any hay-market within the 
 limits to which the Acts apply to weigh or examine any hay or 
 straw exposed for sale in the market, if he has received a 
 complaint that it is deficient in weight, or has been mixed or 
 packed contrary to the provisions of the Acts.(/) If his 
 weighing, or examination, discloses an offence, the clerk is 
 empowered to prosecute the offender. (/) 
 
 3. Sale of unwholesome meat and provisions, 
 It is a misdemeanour at the common law knowingly to send 
 to market or expose for sale therein as fit for human food meat 
 which is not fit therefor.^) Butchers and victuallers com- 
 mitting such an offence have long been punishable by statute.(^) 
 The main enactments now in force for preventing 
 the sale of unsound food are to be found in the Public 
 Health Act, i875,(/) which applies to all places except the 
 metropolis,(y ) the Public Health (London) Act, i89i,() 
 which applies to the county of London,(/) and the Towns 
 
 Ja) I.e. 36 trusses ; s. 3. () s. 13. (c) Ibid, 
 
 d) s. 21. (e) s. i. (/) s. 3. 
 
 4") Shillito v. Thompson (1875) i Q.B.D. 12 ; R. v. Stevenson (1862) 
 & F. 106 ; R. v. Jarvis, Id. 108 ; R. v. Crawley, Id. 109. 
 (h) See Judicium Pillorie, 51 Hen. III. St. 6. (Ruff), repealed by 7 &8 
 Viet. c. 24, s. 2. 
 
 (i) 38 & 39 Viet. c. 55, ss. 116-119; as extended by 53 & 54 Viet, 
 c. 59, s. 28. 
 
 ( ss. 2, 4. (*) 54 & 55 Viet. c. 76,5. 47. (/) ss. 132, 141.
 
 Sale of Unwholesome Meat and Provisions 105 
 
 Improvement Clauses Act, i847,(a) which applies only where 
 it has been made applicable by some special Act.(^) The 
 provisions of these Acts, and also of the Sale of Food and 
 Drugs Acts, 1875 an d i&79,(c) which are aimed against the 
 sale of adulterated food, are general, and are not confined to 
 sales in markets and fairs. On the other hand, the Markets 
 and Fairs Clauses Act, i847,(</) contains, in s. 15, like pro- 
 visions against the sale of unsound food, which concern only 
 such markets and fairs as are governed by that Act.(^) 
 
 The Sale of Food and Drugs Act, 1875, empowers (amongst 
 other persons specified) any inspectorjjf a market, under the 
 direction and at the cost of the local authority appointing him, 
 or charged with the execution of the Act, to procure samples 
 of food, and, if he suspect the same to have been sold contrary 
 to any provision of the Act, to submit them to be analysed, 
 with a view to taking proceedings against the offender. (/) 
 The Sale of Food and Drugs Act, 1879, gives similar powers 
 in respect oi milk in course Of delivery to a purchaser or con- 
 signee in pursuance of a contract for the sale to him thereof.^) 
 A person exposing an article of food for sale is liable to a 
 penalty if he refuse to sell it to the inspector or other persons 
 specified.(^) It is not altogether clear who is an ' inspector 
 of a market ' within the meaning of the Acts ; but the expression 
 probably includes such an official as an ' inspector of pro- 
 visions ' appointed by the undertakers of a market to which the 
 Markets and Fairs Clauses Act, 1847, applies, (z) The Acts 
 contemplate that the inspector shall act ' under the direction 
 and at the cost of the local authority appointing ' him, ' or 
 charged with the execution of the Acts.(/) Probably an 
 urban district council, owning a market to which the Markets 
 and Fairs Clauses Act applies, and appointing an inspector 
 of provisions, would be a ' local authority ' within the meaning 
 of the Acts, but it may be doubted whether a market corn- 
 
 (a) IO & II Viet. c. 34, s. 131. (6) ss. i, 2. 
 
 (<:) 38 & 39 Viet. c. 63 ; 42 & 43 Viet. c. 30. See also the Margarine 
 Act, 50 & 51 Viet. c. 29, and the Acts relating to the adulteration of seeds 
 and of fertilisers and feeding stuffs. 
 
 (d) 10 & II Viet. c. 14. (e) See/0tf, p. 154. 
 
 (/) s. 13. (g ) s. 3. 
 
 (h) Act of 1875, s. 17 ; Act of 1879, s. 4. 
 
 (/') See 10 & ii Viet. c. 14, s. 15. 
 
 (/) 38 & 39 Viet. c. 63, s. 13 ; 42 & 43 Viet. c. 30, s. 3.
 
 106 The Administration of Markets and Fairs 
 
 pany would be such. The local authorities ' charged with the 
 execution ' of the Acts are probably those referred to in s. 10 
 of the Act of 1875, as amended by the Local Government Act, 
 i888.(a) The inspector must act under the direction and at 
 the cost of such local authority, or of the local authority (if 
 any) by which he is appointed. 
 
 4- Diseases of animals. 
 
 By the Diseases of Animals Act, 1894,^) the Board of 
 Agriculture have extensive powers of control over the holding 
 of markets and fairs, for the purpose of preventing or checking 
 pleuro-pneumonia, foot-and-mouth disease, and other diseases 
 of animals. 
 
 The Board are empowered to make orders, from time to 
 time, for prohibiting or regulating the holding of markets and 
 fairs for the sale of animals, or for allowing them to be held 
 only on such terms and conditions as the Board prescribe ;(c} 
 for prohibiting or regulating the exposure of diseased or 
 suspected animals in markets or fairs, or the placing of them in 
 lairs or other places adjacent to, or connected with, markets or 
 fairs ;(d) for dealing with animals found to be affected whilst 
 exposed for sale in a market or fair, or in transit ;(e) for 
 prescribing or regulating the cleansing or disinfection of places 
 used for holding markets or fairs or for lairage,(/) and gene- 
 rally for the purpose of the prevention of the spread of 
 disease.^) 
 
 The orders have effect as if they were parts of the Act,(//) 
 and severe penalties are imposed for disobedience.(/) 
 
 The orders which have been made in accordance with the 
 provisions of this Act are far too numerous to be set out in 
 this work, and many of them are of only local and temporary 
 operation. 
 
 (a) 51 & 52 Viet. c. 41, ss. 3 (x.), 38, and 39 : in the City of London, 
 the common council ; elsewhere in the metropolis, the vestries and district 
 boards ; in counties (including the smaller boroughs), the county councils ; 
 in boroughs which according to the census of 1881 had a population of 
 not less than 10,000, the borough councils. 
 
 (6) 57 & 58 Viet. c. 57 (as amended by 59 & 60 Viet. c. 15). 
 
 (c) 57 & 58 Viet. c. 57, ss 9 and 22 (xix. ). 
 
 (d) Ibid. s. 22 (ix.). (e) Ibid. s. 21. 
 
 (/) Ibid. s. 22 (xx.). (g) Ibid. s. 22 (xxxvii.). 
 
 (A) Ibid. s. 49. (*') Ibid. ss. 51 to 57.
 
 Licences for Sale of Intoxicating Drinks 107 
 
 5. Licences for sale of intoxicating drinks. 
 
 The Licensing Acts contain special provisions for meeting 
 the requirements of persons who attend at markets and fairs. 
 These provisions are of two kinds (i) for granting occasional 
 licences for selling at fairs, and (2) for granting exemptions 
 from the provisions ot' the Acts as to closing, in respect of 
 licensed premises near markets. 
 
 Occasional licences for selling intoxicating liquors at fairs Occasional 
 are granted (a a) according to the following rules : fiST** 6 * 
 
 1. A licence may be granted to any of the following 
 persons : 
 
 (i.) Any person authorised to keep a common inn, or ale- 
 house, or victualling-house, who holds excise licences to sell 
 therein beer, spirits, wine, or tobacco.(a) 
 
 (The occasional licence will empower him to sell at the 
 specified pTace~the like articles for which he holds licences).(^) 
 
 (ii.) Any person holding an excise licence, either (A) to 
 keep a refreshment house (under 23 & 24 Viet. c. 27), or (B) 
 to sell by retail in a refreshment house foreign wine to be 
 consumed therein (under 23 & 24 Viet. c. 107), or (C) to retail 
 beer to be consumed on the premises where sold (under 
 4 & 5 Will. IV. c. 8s).() 
 
 (The occasional licence will authorise him to carry on at 
 the specified place the same trade as he is authorised to carry 
 on by his licence).(^) 
 
 2. The written consent must first be obtained of a justice 
 of the peace usually acting at the petty sessions for the petty 
 sessional division within which the proposed place of sale is 
 situate, (c) 
 
 But the licence will not be void because of a mere irregu- 
 larity (without fraud) TrPobtaining the consent of a wrong 
 justice.(</) The excise authorities provide forms for the 
 justice to sign in giving his consent. 
 
 3. Upon such consent being obtained, the licence may be 
 granted by an officer of excise authorised by the Commissioners 
 of Inland Revenue. It may be granted in cases within 
 
 (a a) As to a licence being necessary, see 37 & 38 Viet. c. 49, s. 1 8. 
 (a) 25 & 26 Viet. c. 22, s. 13. (i>) 27 & 28 Viet. c. 18, s. 5. 
 
 (c) 25 & 26 Viet. c. 22, s. 13, as amended by, and 27 & 28 Viet. c. 18, 
 s. 5, as subject to, 26 & 27 Viet. c. 33, s. 20. 
 
 (d) Stevens v. Emson (1876) I Ex. D. 100.
 
 io8 TJie Administration of Markets and Fairs 
 
 Rule i (i.) whenever the commissioners consider it conducive 
 to public convenience, comfort and order \(a) in cases within 
 Rule i (ii.) whenever they consider it necessary for the 
 accommodation of the public.(^) 
 
 4. The licence holds good for the specified period of time, 
 not exceeding six (c) consecutive days in cases within Rule i (i.), 
 or three (b} in cases within Rule i (ii.) ; after which a new 
 licence must be taken out, if required, upon a new consent by a 
 justice. 
 
 5. The licence may authorise sales from such hour, not 
 earlier than sun-rise, until such hour, not later than ten o'clock 
 at night, as may be specified in the consent given by the jus- 
 tice.^) 
 
 6. The licence will be no protection to the licensee unless 
 he produce it whenever requested so to do by an officer of 
 excise or constable or police-officer. (e) 
 
 7. No licence may be granted for any Sunday, Christmas 
 Day, Good Friday, or day appointed for a public fast or thanks- 
 giving.^) 
 
 8. The duty payable in cases within Rule i (i.) is half-a- 
 crown a day, provided that if consecutive licences are taken 
 out, and the first is for six days, the duty is not to exceed ten 
 shillings for any licence after the first :(/) in cases within 
 Rule i (ii.) (B) or (C), one shilling a day :(g) in cases within 
 Rule i (ii.) (A) niLfe) 
 
 Exemp- Orders exempting licensed premises near markets from the 
 
 tions from provisions of the Licensing Acts with respect to closing are 
 licensed granted according to the following rules(^) : 
 premises i. The order may be made by the local authority of the 
 
 near mar- licensing district, upon the production of such evidence as the 
 authority may deem sufficient to show that the order is 
 necessary or desirable for the accommodation of any con- 
 siderable number of persons attending a public market. 
 
 (a) 25 & 26 Viet. c. 22, s. 13. () 27 & 28 Viet. c. 18, s. 5. 
 
 (f) 25 & 26 Viet. c. 22, s. 13, as amended by 26 & 27 Viet. c. 33, 
 s. 19. 
 
 (rf) 26 c<k 27 Viet. c. 33, s. 20, as amended by 37 & 38 Viet. c. 49. 
 s. 19. 
 
 (e) 25 & 26 Viet. c. 22, s. 13 ; 27 & 28 Viet. c. 18, s. 5. 
 (/) 26 & 27 Viet. c. 33, s. 19. 
 
 (g) 27 & 28 Viet. c. 18, Sched. B. 
 
 (k) 35 & 36 Viet. c. 94, s. 26, as amended by 37 & 38 Viet. c. 49, 
 s. 5-
 
 Licences for Sale of Intoxicating Drinks 109 
 
 2. The order may be granted, if the local authority think fit, 
 to any licensed victualler, or any licensed keeper of a refreshment 
 house, or person licensed to sell beer or cider by retail to be 
 consumed upon the premises, in respect of premises in the 
 immediate neighbourhood of the market. 
 
 3. The order entitles the holder of the order to keep the 
 premises open on such days, and during such time except 
 between i A.M. and 2 A.M., as may be specified in the order ; 
 and protects him from any penalty for keeping the premises 
 open on such days and during such time, but does not exempt 
 him from any other penalty under the Licensing Acts, or 
 otherwise. 
 
 4. The holder of the order must affix in a conspicuous 
 place outside the premises a notice, in the form prescribed by 
 the local authority, stating the days and hours during which 
 the premises are permitted by the order to be kept open. He 
 is liable to a penalty not exceeding $ if he makes 
 default in affixing the notice or in keeping it affixed during any 
 part of the time for which his exemption is granted. 
 
 5. Any person who keeps affixed to his premises any such 
 notice when he does not hold an order is liable to a penalty 
 not exceeding ^5. 
 
 6. The local authority may at any time, if it seem fit to 
 them, withdraw the order, or alter it by way of extension or 
 restriction, as they may deem necessary or expedient, so, how- 
 ever, as not to render any person liable to any penalty for any- 
 thing done under the order before the holder was informed of 
 the withdrawal or alteration. 
 
 7. The local authority in the metropolitan police district 
 is the commissioner of police for the metropolis, subject to the 
 approbation of a principal Secretary of State : in the city of 
 London and its liberties, so far as they are not included in the 
 metropolitan police district, the commissioner of city police, 
 subject to the approbation of the Lord Mayor of London : in 
 any other place, two justices of the peace in sessions 
 assembled. 
 
 6. Licences for theatrical performances affairs. 
 The Theatres Act, 1843,^) provides by section 23 that 
 nothing contained in that Act ' shall be construed to apply to 
 (a) 6 & 7 Viet. c. 68.
 
 1 10 The Administration of Markets and Fairs 
 
 any theatrical representation in any booth or show which,() 
 by the justices of the peace or other persons having authority 
 in that behalf, shall be allowed in any lawful fair, feast, or 
 customary meeting of the like kind.' This section does not 
 exempt from the operation of the Act a theatrical representa- 
 tion in a booth, unless the booth has been duly ' allowed.' 
 
 Section 2 of the Act imposes penalties on any person who 
 keeps 'any house or other place of public resort in Great 
 Britain for the public performance of stage plays' without 
 authority under letters-patent from the crown, or without a 
 licence from the Lord Chamberlain, or the justices, as provided 
 by the Act. But it has been held, apparently, that this 
 section does not affect the owner of a temporary booth for 
 theatrical representations. (b) 
 
 Section u, however, imposes penalties on any person who 
 for hire (c) acts, or presents, or causes, permits, or suffers, to 
 be acted, or presented, any part in any stage play ' in any 
 place not being a patent theatre or duly licensed as a theatre ; ' 
 and it has been held that this section applies to a stage play in 
 a temporary booth, if the booth be neither patented nor 
 licensed, nor within the protection of s. 2^.(d) 
 
 To come within the protection of s. 23, a booth at a fair 
 must have been allowed ' by the justices of the peace, or other 
 persons, having authority in that behalf.' If the fair is held 
 anywhere outside the limits of the Lord Chamberlain's 
 authority, (<?) the allowance may be obtained from the authority 
 which now conducts the licensing business formerly entrusted 
 by the Theatres Act, 1843, to justices at special sessions : 
 namely, in county boroughs, the council of the borough, and, 
 elsewhere, the county council. (/) The council of the county 
 or county borough, however, have power to delegate the 
 business to a committee of the council, or to the justices of 
 the county or county borough sitting in petty sessions.^) 
 
 (a) ' Which ' appears to refer to ' booth or show,' not to ' theatrical 
 representation. ' 
 
 (/>) Davys v. Douglas (1859) 4 H. & N. 180. The judges gave no 
 reasons for their decision in this case. 
 
 (c) See s. 1 6 of the Act. 
 
 (</) Fredericks v. Payne (1862) I H. & C. 584 ; Tarling v. Fredericks 
 (1872) 28 L.T. 814. 
 
 (e) As to which see 6 & 7 Viet. c. 68, s. 3. As to letters patent from 
 the crown, see Id. s. 2. 
 
 (/) S 1 & S 2 Vict - c - 4*. SS- 7. 34 and 36. 
 
 () Or in the case of a county council to a district council ; Id. ss. 28 
 and 34.
 
 Licenses for TJieatrical Performances at Fairs ill 
 
 Councils which retain the business in their own hands, 
 may, by standing orders for the regulation of their proceedings, 
 prescribe the procedure whereby licences may be obtained ; but 
 in the absence of such standing orders they must follow, as 
 nearly as circumstances admit, the procedure prescribed by the 
 Theatres Act, 1843. (a) If the business be delegated to justices 
 at petty sessions, it would seem that the justices must follow 
 the procedure prescribed by the Theatres Act, 1843.^) 
 
 With regard to other forms of amusement frequently offered By-laws 
 to the public at fairs, it may be observed that under the Public whirligigs 
 Health Acts Amendment Act, i89o,(<r) s. 38, an urban author- 
 ity (d) which has adopted the Act may make by-laws for the 
 prevention of danger from whirligigs and swings when such 
 whirligigs and swings are driven by steam-power, and from the 
 use of firearms in shooting ranges and galleries. A person 
 living in the neighbourhood of a fair can obtain an injunction to Nuisances 
 restrain a nuisance to him arising from the noise of steam 
 organs played in the fair.(<?) 
 
 7. Accounts. 
 
 At common law the owner of a market or fair, as such, is 
 under no obligation to keep accounts or publish returns of his 
 receTptiTor expenditure in connection with his franchise ; and 
 at the present day, apart from the law relating to rates and 
 taxes, no such obligation lies upon private persons who own^ 
 common law "markets ~bf~fairs and take tolIsT under charters or 
 by prescription for their private benefit. Various statutes, how- 
 ever, with reference to accounts and returns affect, as a rule, 
 municipal corporations and district councils owning markets or 
 fairs, undertakers of statutory markets, and public trustees or 
 commissioners or local authorities levying tolls in markets under 
 the authority of Parliament. These statutes may be shortly 
 referred to by grouping markets and fairs under the following 
 heads : 
 
 i. Markets and fairs owned by a municipal corporation sub- 
 feet to the Municipal Corporations Act, 1882. The municipal 
 
 (a) See 51 & 52 Viet. c. 41, s. 78. As to the proceedings of a com- 
 mittee of a council, see Id. s. 82. 
 
 (d) 51 & 52 Viet. c. 41 apparently gives no directions on the point. 
 (() 53 & 54 Viet. c. 59. 
 
 (rf) Or a rural authority with the necessary urban powers ; see ss. 5, 50. 
 
 (e) See Lambton v. Mellish [1894] 3 Ch. 163.
 
 1 12 The Administration of Markets and Fairs 
 
 corporation, and their officers, must comply, with regard to 
 accounts and returns, with the provisions contained in ss. 25-28 
 of the above Act.(a) These provisions contain nothing which 
 relates peculiarly to markets and fairs. They concern rather 
 the general administration of municipal corporations, and 
 therefore no further mention need be made of them. 
 
 2. Markets established or regulated under the Public Health 
 Act, 1875. The district council owning the market, and 
 their officers, must comply, with regard to accounts and returns, 
 
 (with the provisions of the Public Health Act, 1875,^) the 
 District Auditors Act, i879,(c) and the Local Government 
 Act, i894.(</) These provisions contain nothing which relates 
 peculiarly to markets. 
 
 3. Markets and fairs constructed or regulated under a 
 special Act which incorporates s. 50 of the Markets and Fairs 
 Clauses Act, 1847. Under this section, the undertakers of the 
 market or fair must, at the end of each financial year, cause an 
 account in abstract to be prepared, showing the whole receipt 
 and expenditure of all rents and other moneys levied by virtue 
 of their statutory powers during that year, under the several 
 distinct heads of receipt and expenditure, with a statement of 
 the balance of such account, duly audited or certified by the 
 chairman of the undertakers, and by the auditors, if any ; and, 
 on or before the expiration of one calendar month from the day 
 on which such accounts end, they must send a copy of the 
 account, free of charge, to the clerk of the peace of the county 
 in which the market or fair is situate. The section is set out 
 in full post, p. 170. This section is not incorporated with the 
 Public Health Act, 1875, and therefore its provisions do not 
 apply to a market established or regulated under s. 167 of that 
 Act. But they apply to a market or fair constructed or regu- 
 lated by a municipal corporation under a special Act which 
 incorporates the section. 
 
 4. Markets provided by a local authority under the Diseases 
 of Animals Act, 1894, s. 32, or under the earlier Contagious 
 Diseases (Animals) Acts. Section 50 of the Markets and Fairs 
 
 (a) 45 & 46 Viet. c. 50. As to the desirability of keeping market 
 accounts separate from other accounts, for purposes of assessment to the 
 income tax, see A.-G. v. Scott (1873) 28 L.T. 302, and/w/, p. 116. 
 
 (/>) 38 & 39 Viet. c. 55, ss. 245-250. 
 
 (f) 42 Viet. c. 6 ; see 50 & 51 Viet. c. 72. 
 
 (rf) 56 & 57 Viet. c. 73, ss. 21 and 58.
 
 Accounts 113 
 
 Clauses Act, 1847, mentioned above, applies to the market, 
 and the local authority must comply with the provisions of that 
 section. The local authority must also comply with the pro- 
 visions of s. 32 of the Diseases of Animals Act, 1894, and 
 must therefore carry the tolls received by them to a separate 
 account, and apply them as directed by the section, and make 
 such periodical returns to the Board of Agriculture of their 
 expenditure and receipts in respect of the market as the Board 
 require. The section is set out in full post, p. 191. 
 
 5. Markets in respect of which tolls or dues are levied by 
 authority of parliament. Under the Local Taxation Returns 
 Acts, 1860 and 1877,^) the clerk or treasurer of a market 
 authority which levies, or orders to be levied, under the 
 authority of parliament, any tolls or dues in respect of the 
 market, is required to make an annual return to the Local 
 Government Board of the sums levied or received by or in 
 respect of such tolls and dues and of the expenditure thereof. 
 As a rule, the accounts must be made up to Lady Day in each 
 year, and the return sent in within one month after being 
 audited. The material provisions of these Acts are set out 
 post, p. 202. 
 
 These Acts do not extend to ' any tolls or dues taken by 
 any joint stock company as profits of their undertaking, or to 
 any tolls or dues taken by prescription or otherwise as private 
 property.'(^) And the following classes pf markets are exempt 
 from the operation of the Acts : 
 
 (1) Markets which belong to municipal corporations to 
 which the Municipal Corporations Act, 1882, applies.(f) 
 
 (2) Markets provided under the Diseases of Animals Act, 
 1894, by a county council (d) or borough council.(e) 
 
 (3) Markets belonging to a district council the accounts of 
 which are audited by a district auditor: unless the Local 
 Government Board require the return to be made.(/) 
 
 The Acts, however, apply to markets with statutory tolls, 
 if vested in public bodies other than those above mentioned ;. 
 unless the officers of such bodies are exempted from the 
 operation of the Acts by any other Act of Parliament. 
 
 (a) 23 & 24 Viet. c. 51 ; 40 & 41 Viet. c. 66. 
 
 (b) 23 & 24 Viet. c. 51, s. 8. 
 
 (c) 45 & 46 Viet. c. 50, s. 5, and Sched. I. part 2. 
 
 (d) Ibid, and 51 & 52 Viet. c. 41, s. 71. 
 
 (e) Ibid. (/) 42 Viet. c. 6, s. 3.
 
 114 
 
 CHAPTER VIII 
 
 RATES AND TAXES 
 
 i. Land tax. 
 
 UNDER the Land Tax Acts, 1797 and i798,(a) all lands and 
 tenements, tolls, yearly profits, and all hereditaments of what 
 nature or kind soever they be, and all persons having or 
 holding the same, stand charged with the land tax. Market- 
 places are lands and tenements, and franchises of markets and 
 fairs are hereditaments. They are therefore liable to the tax. 
 
 ' Tolls ' riefemclude tolls leviable by authority of a statute 
 in respect of a franchise created by statute or^ otherwise, or in 
 respect of the user of land,() and the latter tolls form a 
 separate tenement and hereditament distinct from the land.(<:) 
 Stallages seem to be included in the word ' tolls ' ; at any rate, 
 they are included in the word ' tenements. \c) 
 
 Land tax is generally payable by four quarterly payments 
 in every year ;(e) but as fairs are usually held only for some 
 short time in the year, this method of payment is unsuitable to 
 fairs. Accordingly, the entire sum assessed for the whole year 
 on a fair, and the booths, stalls, and standings in the fair, is 
 to be demanded by the collector, at any time within seven 
 days after the first proclaiming of the fair, from the persons 
 who set to sale any goods or merchandises in the fair, booths, 
 stalls, or standings, or otherwise occupy the same, or, if they 
 cannot be found, upon the premises charged with the assess- 
 ment.(/) And in default of payment, the sum assessed is to 
 be levied by distress and sale of all the goods and chattels to 
 
 (a) 38 Geo. III. c. 5, s. 4 ; 38 Geo. III. c. 60. 
 
 (b) Charing Cross Bridge Co. v. Mitchell (1855) 4 E. & B. 549; 
 Vauxhall Bridge Co. v. Sawyer (1851) 6 Exch. 504. 
 
 (c) Ibid. 
 
 (d) Ibid. 
 
 (e) 38 Geo. III. c. 5, s. 4. 
 
 (/) Ibid. s. 125. As to the town of Cambridge, sees. 124.
 
 Land Tax 1 1 5 
 
 be found in the booths, stalls or standings. (a) But the tenants of 
 the booths, stalls, and standings which are rated are required 
 and authorised to pay the sum or sums rated thereon, and to 
 deduct the same out of the rent payable for such booths to 
 their landlords.(^) 
 
 In case of non-payment, within six days after demand, of 
 the tax charged on any tolls or profits of a market or fair, 
 which are not distrainable, the collector, constable, or other 
 officer thereunto appointed by warrant under the hands and seals 
 of any two of the commissioners, may seize and sell so much 
 of the tolls or profits as may be sufficient for levying the tax 
 and all the charges occasioned by non-payment, rendering any 
 overplus to the owner. (<:) 
 
 Under the Taxes Management Act, i88o,(*/) if a person 
 charged with the tax refuses to pay it on demand made by the 
 collector, the collector may distrain him by his goods and 
 chattels, and may sell the distress by public auction at the 
 expiration of five days ; and if there be no sufficient distress 
 the defaulter is liable to be committed to prison. 
 
 2. Income fax. 
 
 Under Schedule (A) of the Income Tax Act, 1853,^) income 
 tax is payable yearly in respect of the property in rights of 
 markets and fairs, and in tolls, upon the annual value of the 
 property. 
 
 The general rules for estimating such property are contained 
 in Schedule (A), No. iii., of the Income Tax Act, i842.(/) 
 
 Under these rules, the annual value of the property is 
 understood to be the full amount of profits received from the 
 property within the preceding year. The tax may be charged 
 either on the persons or corporation carrying on the concern 
 or on their agents having the management thereof or being in 
 receipt of the profits thereof.^) It is to be charged on the 
 amount of the profits before they are paid or distributed to or 
 between the persons who claim the profits ; and such persons 
 
 (a) 38 Geo. III. c. 5, ss. 125, 126. As to distress, see s. 17. 
 (6) Ibid. s. 126. As to deducting from rent, see ss. 17, 1 8. The 
 deduction must be made from the current rent ; Andrew v. Hancock (1819) 
 I Bro. & Bing. 37 ; Stubbsw. Parsons (1820) 3 B. & Aid. 516. 
 
 (r) Ibid. s. 42. (d) 43 & 44 Viet. c. 19, ss. 86 et seq. 
 
 (e) 16 & 17 Viet. c. 34, s. 2. 
 
 " 5 & 6 Viet. c. 35, s. 60, Schedule (A), No. iii., third case. 
 Ibid. 
 
 I 2 
 
 ri r ' 
 
 rec 
 
 (/) 5 
 
 Ib
 
 1 1 6 Rates and Taxes 
 
 must allow the tax to be deducted out of the profits. The 
 charge is to be made on the profits of the concern, exclusive 
 of profits from land used in the concern.(a) 
 
 Under the Revenue Act, i866,(^) the concern is made 
 chargeable and assessable to the tax in the manner mentioned 
 in the Income Tax Act, 1842, Schedule (A), No. iii., according 
 to the rules prescribed by Schedule (D) of that Act, so far as 
 such rules are consistent with Schedule (A), No. iii. 
 
 But, though the rules prescribed by Schedule (D) apply to 
 the concern, the concern still remains chargeable under 
 Schedule (A) ; and therefore, notwithstanding s. 101 of the Act 
 of 1842, the tax must be assessed on the profits of a market or 
 fair as a separate concern, and the accounts of the market or 
 fair may not be combined with the accounts of any other 
 concern for the purpose of setting off profits from the former 
 against losses in the latter.(^) 
 
 The Act of 1842 requires the persons or corporation 
 carrying on the concern, or their agents liable to be charged 
 with the tax, to make an annual return of the amount of the 
 profits received from the concern in the preceding year.(</) 
 And the Act renders every owner or occupier of a market or fair, 
 or receiver of the profits thereof, answerable for the tax charged 
 thereon : and entitles every such receiver to retain and deduct 
 the tax out of such profits : and authorises the collector to 
 recover the tax by distress upon any person answerable there- 
 for.() 
 
 Proceedings for the recovery of the tax by distress upon the 
 goods and chattels of a defaulter are regulated by the Taxes 
 Management Act, 1 880, (/) which renders the defaulter liable to 
 be committed to prison in the absence of such distress.^) 
 
 (a) 5 & 6 Viet. c. 35, s. 60, Schedule (A), No. iii., third case. 
 (6) 29 & 30 Viet. c. 36, s. 8. For Schedule (D), see the Act of 1842, 
 s. 100. The concern falls within the first case mentioned in the rules. 
 
 (c) A.-G. v. Scott (1873) 28 L.T. 302 ; Re Corporation of Birmingham 
 (1875) ' Tax Cas. 26. In these cases the question arose with regard to 
 corporations owning markets ; but it seems that the principle applies 
 equally to individuals. See also Coltness Iron Co. v. Black (1881) 6 App. 
 Cas. 315. 
 
 (d) 5 & 6 Viet. c. 35, s. 190, Schedule (G), iii. See also ss. 47 et seq. 
 
 (e) s. 72. As to the right of receivers to deduct the tax out of all 
 moneys coming to their hands as such receivers, see also s. 44. 
 
 (J ) 43 & 44 Viet. c. 19, ss. 86-88, 90. See ante, p. 115. 
 (g) ss. 89-91.
 
 Rates ^r 117 
 
 tates. 
 
 A market-place, or market- house, is rateable property under 
 43 Eliz. c. 2. In estimating the yearly value of a market-place 
 profits from stallage and piccage must be taken into account, as 
 enhancing the value of the occupation. (a) A person using a 
 stall has, for the time being, the use and occupation of that 
 portion of the soil on which the stall stands, and whatever 
 profit is made by the occupation of the soil is properly 
 rated, (a) 
 
 But franchise tolls, which are payable merely as market 
 tolls for the use of a market, must not be taken" infcf'account 
 
 I! 
 
 tol 
 
 in estimating the yearly value of the occupation of the market- 
 place ; nor are such tolls rateable property.(^) 
 
 Such tolls are incorporeal hereditaments, not incident to or 
 arising out of the occupation of the soil. They are usually 
 payable in respect of goods sold in the market-place, and are 
 quite different in their nature" From a compensation paid to the 
 owner of the soil or his lessee for the use of the soil. They 
 /// are payable irrespective of the ownership or occupation jj_the 
 soil^) 
 
 Tolls payable by statute, not upon the sale of goods in a 
 market, but upon the mere entry o/_gpods into the market, 
 have been held to be franchise tolls for the use of the market, 
 and not stallage tolls for the occupation of the soil. Such tolls, 
 therefore, must not be considered in rating the market-place, (d) 
 
 But charges made by the occupier of a market for admis- 
 sion frlereto are jvecessarily incidental to the use of the soil, if 
 they cannot be supported as due to a franchise, whether by 
 rhuner, prescription, statute, or otherwise: and such charges 
 must be takt-n into consideration in estimating the value of the 
 occupation. (<?) This rule, it seems, must apply equally 
 
 (a) Roberts v. Overseers of Aylesbury (1853) I E. & B. 423 ; and see 
 Worcester . St. Clement's (1858) 22 J.P. 319 ; Reg. v. Derby J.J. (1856) 
 28 L.T.O.S. 89 ; Reg. . Barnard Castle (1863) 27 J.P. 534; and as to 
 deductions see Brecon Markets Co. v. St. Mary's, Brecon (1877) 36 
 L.T.N.S. 109. 
 
 (b) R. v. Casswell (1872) L.R. 7 Q.B. 328 ; R. v. Bell (1816) 5 M. & S. 
 221. 
 
 (f) See Roberts v. Overseers of Aylesbury (1853) i E. & B. 423. 
 (d) R. v. Casswell (1872), L.R. 7 Q.B. 328; Mayor of London v. 
 Overseers of St. Sepulchre (1871) Id. 333 n. 
 
 () Percy v. Ashford Union (1876) 34 L.T.N.S. 579.
 
 n8 
 
 Rates and Taxes 
 
 Stall- 
 holders 
 
 whether the market itself can be supported as a franchise or 
 not. 
 
 The onus of showing that a charge is due to a franchise 
 lies upon the person who asserts that it is.(a) 
 
 All payments made for any occupation of the soil of a 
 market-place beyond that to which the general public is 
 entitled are i^ayments in the nature of stallage, and therefore 
 to be taken mto account in making the rate. It is not 
 necessary that the payments should be made in respect of a 
 single separate stall for each holder, so long as a distinct portion 
 of the soil is allotted. A payment is stallage equally whether 
 there be a single stall for each holder or a comparatively small 
 portion of the market be assigned to a certain number of 
 ( holders by a sort of tenancy in common. It is enough if the 
 payment be made for some standing room in the market, as 
 distinct from the mere entrance into it. Such a payment is 
 made in respect of the soil, and enhances the value of the 
 occupation.(^) 
 
 Accordingly, payments taken at Deptford Foreign Cattle 
 Market on the landing of cattle there, for ' wharfage, lairage, 
 market dues and charges,' under which the cattle might be kept 
 . in the market for ten days, were held tobe payments for the 
 use and occupation of the soil, and therefore rateableTfT In 
 this case the consignees had no right to have the cattle kept in 
 any particular pens, but only in such pens as the clerk of the 
 market authority might direct, and the clerk was entitled to 
 have the cattle shifted from one pen to another. 
 
 Holders of stalls in markets are not generally rateable in 
 respect of their occupation of such stalls. It is submitted that 
 a stall-holder might have such an occupation as would make 
 him liable to be rated ; and as a matter of fact the holders of 
 stalls in the central_avenue of Covent Garden Market pay rates 
 in respect of their stalls. But usually a stall-holder's occupa- 
 tion is too fleeting to render him properly liable.(^) 
 
 In iBSo an attempt was made to rate a stall-holder in 
 
 (a) Percy v. Ashford Union (1876) 34 L.T.N.S. 579, per Field, J. 
 (6) Duke of Bedford v. Overseers of St. Paul, Covent Garden (1881) 
 51 L.J.M.C. 41. 
 
 (c) Mayor of London v. Assessment Committee of Greenwich Union 
 (1883) 48 L.T.N.S. 437. 
 
 (d) Per Coleridge, J., in Roberts v. Overseers of Aylesbury (1853) I E. 
 & B. 423 ; see also R. v. Mosley (1823) 2 B. & C. 226.
 
 Rates 119 
 
 Bodmin Market.(a) It appeared that his stalls were capable 
 of being removed, and were liable to be removed from one 
 spot to another, provided that they continued in the same 
 position relatively to other stalls. He therefore had no 
 exclusive right to any definite portion of the soil, and for this 
 reason it was held that he had no rateable occupation. 
 
 But this reason would not apply to fixed stalls, occupied 
 exclusively for a year or a longer period, such as are found . in 
 some markets ; and there seems to be no reason why the 
 holders of such stalls should not be rated. 
 
 Stall-holders who occupy fixed spaces at a fixed rent of not 
 less than ten pounds a year may be qualified to be on the 
 Parliamentary and Local Government Registers as occupation 
 voters.(^) 
 
 (a) Spear v. Guardians of Bodmin Union (1880) 49 L.J.M.C. 69. 
 (3) Hall v. Metcalfe [1892] i Q.B. 208; 48 Viet. c. 3, s. 5 ; 51 & 52 
 Viet. c. 10, s. 3. 
 
 < \ 
 
 ^ "" 
 

 
 
 
 120 
 
 
 
 
 The rule 
 
 Origin of 
 the rule 
 
 . 
 
 CHAPTER IX 
 
 ^ vT 
 
 SALES IN MARKETS AND FAIRS 
 
 i. The law as to sale of goods in market overt. 
 As a general rule, where goods are sold by a person who is 
 not the owner, and who does not sell them under the authority 
 or with the consent of the owner, the buyer acquires no better 
 title than the seller had. But where goods are sold in market ', 
 overt, according to the usage of the market, the buyer acquires 
 a good title to the goods, provided he buys them in good faith 
 and without notice of any defect or want of title on the part of 
 the seller, (a) 
 
 The law as to sales in market overt arose at a time when 
 there was much greater simplicity in transactions between 
 buyer and seller. The practice then was to sell and buy in 
 markets and fairs. Shops jyere_very few, and persons whose 
 goods were taken feloniously knew where to resort in order to 
 prevent their being sold. We can therefore well understand 
 how the law was established for the protection of buyers. If a 
 man did not pursue his goods to market, where such goods 
 were openly sold, he ought not to interfere with the right of 
 the honest and bona fide purchaser. But still, the law gives 
 him this protection, that the goods must be exposed for sale 
 and the whole transaction begun, continued, and completed in 
 open market, so as to give full opportunity to the owner to 
 pursue them and prevent their sale.(^) 
 
 (a) See the Sale of Goods Act, 1893 (56 & 57 Viet. c. 71) ss. 21, 22. 
 The sections contain certain qualifications to the general rule, not expressed 
 in the text. As to horses, see post, p. 126. For a clear statement of the 
 common law, see per Lord Cairns (1878) Cundy v. Lindsay, 3 App. Cas. 
 
 (6) See per Cockburn, C.J., in Crane . London Dock Co. (1864) 5 B. & 
 S- 313, 318; 33 L.J.Q.B. 224, 228. The law on this subject was well 
 established by the time of Henry VI. ; see Y.B. 9 Hen. VI. f. 45 b : 35 
 Hen. VI. f. 29 : II Ed. IV. f. 6 : 12 Ed. IV. ff. 8, 12 b : Jenk. Rep. 83. 
 It probably originated in the merchant law administered in courts of pie
 
 The Law as to Sale of Goods in Market Overt 1 2 1 
 
 I 
 
 In what 
 markets 
 
 - 
 
 ,1 
 
 It seems to be clear that at common law a sale in an open 
 fair gives the same protection as a sale in an open market,^) 
 and that in the Sale of Goods Act, 1893, which now contains 
 the law on this subject, the word ' market ' includes ' fair.'(^) 
 
 The market must be an open, public and legally constituted 
 market, (c) Therefore a safe by public auction ""at a horse 
 repository is generally qgi within the rule.(^) Whether a sale in 
 a modern statutory market is within the rule is perhaps doubtful. 
 In one English case counsel seem to have admitted that such 
 a sale was not a sale in market overt ;(e) but in the Irish 
 Courts (/) the contrary has been decided. It_!s^ifric: u lt 
 to see upon what principle a sale in a statutory market should 
 not have the same effect as a sale in a market granted by 
 charter, as the doctrine of market overt depends not on the 
 origin of the market, but on the publicity of the sale. More- 
 over, we have seen that there is some ground for the opinion 
 that modern statutory markets have all the incidents of fran- 
 chise markets, except in so far as such incidents are expressly 
 or impliedly modified or taken away by the Acts under which 
 the markets are established.^) 
 
 A sale in market overt does not protect the buyer unless What is a 
 the whole transaction of contractlmd sale is begun and con^ j^ 161 " 1 """ 
 eluded in the market. (h) A bargain outside the market that 
 the buyer shall have the option of purchasing in the market at 
 a particular price, followed by such purchase, is not a sale in 
 
 
 powder. The custom seems to have been known on the continent as early 
 as the ninth century A.IX Notker, who was living about 850 A.D., says 
 that ' merchants contend that the purchase which is made at an annual fair 
 should be valid, whether it be just or unjust, because it is their custom ; ' 
 see Report of Royal Commission, vol. i. p. 4. The Anglo-Saxon law required 
 that all goods above a certain value should be sold in market-towns (ports), 
 and that the sale should be witnessed by the port-reeve or other persons. 
 A sale so conducted did not give the buyer an absolute title available 
 against the true owner of goods which had been stolen, but it protected 
 him from the consequences of being found in possession of stolen property ; 
 see the Laws of Ina, Atliehtan, Cnut, and William the Conqueror, edit, of \ 
 1840, pp. 51, 87, 88, 167, 209, 212. 
 
 (a) See, e.g., Comyns v. Boyer (1596) Cro. Eliz. 485; and see 2 
 Black. Comm. 449; 2 Inst. 713. 
 
 (6) s. 22 (i). Every fairj^a market ^ ; 2 Inst. 406 ; cf. ante, p. 100. 
 
 (c) Lee v. Bayes (1856) 18" C. B. 599. \d] Ibid. 
 
 (e) Moyce . Newington (1878)4 Q.B.D. 32. The case was over- 
 ruled, but not on this point, in Bentley v. Vihnont (1887) 12 App. Cas. 
 471. 
 
 (/) Ganly v. Ledwidge (1876) 10 Ir. Rep. C.L. 33. 
 
 (g) See ante, pp. 26, 87, 121. (h) 2 Inst. 713 (gth point).
 
 
 122 Sales in Markets and Fairs 
 
 I/I market overt, (a) .Nor^is a sale by sample, for a sale in 
 J I , market overt requires that the commodity sTiould be ofifflly 
 
 / sold and delivered in the market, (b}. / 
 
 V The sale must take place in the usual, rrydrket-place, upon 
 
 the lawful day for holding the market, during the usual market 
 hours, and not at night.(<r). In markets in which tolls are 
 payable the buyer is not protected unless payment be made of 
 the toll which is due upon the sale ; but in markets which are 
 tqll^ree the sale changes the property, though no toll be 
 I paid.(</) It has been held that the burden of showing that toll 
 was due, and was not paid, lies upon the party impeaching the 
 sale.(^) The protection only extends to things which are 
 Ij vendible in the market. (/) - 
 
 City of ' By the custom of the city of London, every shop in the 
 
 //&T/&- ' S* tv wmcn i s open to the public is market ^vert between sun- 
 ..x^'rise and sun-set, on all days except Sundays and holidays ; but 
 
 yit is market overt only^ for^such goods as the shop-keeper 
 professes to trade in ; and it seems that the custom does not 
 apply where the shop-keeper is the buyer, and not the seller, of 
 the goods, (g) 
 
 Limita- The principal limitation upon the doctrine of sale in 
 
 ^" s ( market overt is that the buyer is not protected unless he buy 
 
 / ' in good faith and without any notice of any defect or want of 
 
 title on the part of the seller.' The common law limitation to 
 
 this effect (K) is expressly retained by the Act of i8Q3.(*) The 
 
 Act also provides that the sale must be 'according to the 
 
 (a) Roll. Abr. ' Market,' E ; Dyer, p. 99 b, pi. 66. 
 (d) Hill v. Smith (1812) 4 Taunt. 520, 532 ; Crane v. London Dock 
 Co. (1864) 5 B. & S. 313. 
 
 (c) 2 Black. Comm. 449 ; 2 Inst. 713 (2nd, 3rd, nth points) ; Clifton 
 v. Chancellor (1600) Moore, 624; Harvey v. Facy (1594) 2 And. 115; 
 Godb. 131. 
 
 (d) Comyns -v. Boyer (1596) Cro. Eliz. 485 ; 2 Inst. 713 (loth point) ; 
 V.B. 12 Ed. IV. ff. 8, 9; 35 Hen. VI. f. 29 ; Jenk. Rep. 83. 
 
 (e) Comyns v. Boyer, supra', but see Moran v. Pitt (1873) 42 
 L.J.Q.B. 47. 
 
 (/) Case of Market Overt (1896) 5 Co. Rep. 83 b ; 2 Inst. 713. 
 
 (g) 2 Blac. Com. 449 ; case of Market Overt ( 1 596) 5 Rep. 83 b, Cro. 
 Eliz. 454 ; S.C. sub. nom. L'Evesque de Worcester's case, Moore 360, 
 Popham 84; Taylor v. Chambers (1604) Cro. Jac. 68 ; Anon. (1701) 12 
 Mod. 521 ; Wilkinson v. King (1810) 2 Camp. 335 ; Lyons v. De Pass 
 (1840) II A. & E. 326; Hargreave v. Spink [1892] I Q.B. 25. In 
 Clifton v. Chancellor (1600) Moore, 624, a similar custom was alleged to 
 exist in Bristol. 
 
 (A) See 2 Inst. 713 (5th, 6th, and 7th points). 
 
 (*) 56 & 57 Viet. c. 71, s. 22 (I) and s. 62 (2).
 
 The Law as to Sale of Goods in Market Overt 123 
 
 usage of the market ' ;(a) and that there is to be no change 
 in the law relating to the sale of horses. (b) Buyers of horses, 
 therefore, are not protected unless the sale take place with the 
 formalities prescribed by 2 Ph. & M. c. 7, and 31 Eliz. 
 c. \2.(c) 
 
 Before the passing of the Sale of Goods Act, the crown was 
 not affected by an unauthorised sale in market overt of goods 
 belonging to the crown ;(</) and the Act, though silent upon 1 
 the point, has not altered the law in this respect, as it does not i 
 purport to bind the crown. Before the Act, the rule was that 
 the property in goods was not affected by a transaction in 
 market overt if one of the parties to the transaction had no 
 capacity to buy or sell ;(<?) and the Act appears to have pre- j^/ ' 
 served this rule.(/) &*, ^ 
 
 j The doctrine does not protect the seller, against whom an 
 // action of trover may lie, though he act innocently,^) and even 
 though he be a public sales-master selling by auction in a 
 market in the ordinary course of his duty.(^) 
 
 It remains to be stated that in the case of stolen goods (/) Revesting 
 the title acquired by a buyer in market overt is liable to be andrestitu- 
 defeated. ' Where goods have been stolen and the offender, is . 
 prosecuted to conviction, the property in the goods so stolen 
 revests in the person who was the owner of the goods, .gr his 
 personal representative, notwithstanding any intermediate 
 dealing with them, whether by sale in market overt or other- 
 
 If the conviction be upon an indictment bv^or |a on behalf of 
 the owner or his personal representative, the court before 
 whom the offender is tried (K) has power to award a writ of 
 restitution for the stolen goods, or to order their restitution in 
 summary manner.(^) 
 
 (a) s. 22 (I). 
 
 (6) s. 22 (2), which prevents s. 22 (l) from applying to the sale of 
 horses. But s. 24 (see post) applies. (c ) See post, p. 1 26. 
 
 (d) 2 Blac. Comm. 449 ; 2 Inst. 713 (ist point). 
 
 (e) 2 Inst. 713 (8th point). (/) Sees. 2. 
 
 (g) Peer v. Humphrey (1835) 2 A. & E. 495; Delaney v. Wallis- 
 (1883) 14 L.R. Ir. 31. 
 
 (A) Ganly v. Ledwidge (1876) 10 Ir. Rep. C.L. 33. See further, as to 
 the liability of auctioneers, Consolidated Co. v. Curtis [1892] i Q.B. 495. 
 
 (i) Including horses. As to horses, see also post, p. 127. 
 
 ('/) Sale of Goods Act, 1893 (56 & 57 Viet. c. 71) s. 24 (i). 
 
 () See Reg. v. Mayor of London (1869) L.R. 4 Q.B. 371. 
 
 (/) The Larceny Act, 1861 (24 & 25 Viet. c. 96) s. 100.
 
 1 24 Sales in Markets and Fairs 
 
 The same court (a) has similar power where the prosecution 
 is by the Director of Public Prosecutions, provided that the 
 || owner has given to the Director all reasonable information and 
 assistance. (b) If he fail or neglect to obtain such writ or ' 
 order, and though he have taken no part in the prosecution, 
 the owner can still recover his goods by action, (c) 
 
 The rule that the goods are to be restored upon an 
 indictment and conviction for stealing is as old as 2 1 Henry VII I. 
 c. n.^7 TKe~ provisions in the Larceny Act, 1861, s. 100, 
 widened the rule by providing for the restoration of the goods 
 upon a conviction for any offence mentioned in that Act, and 
 consisting in ' stealing, taking, obtaining, extorting, embezzling, 
 converting, or disposing of, or in knowingly receiving' the 
 goods.(^) In Bentley v. Vjlmont (/") the House of Lords 
 decided, with some reluctance7 "fnat the effect of this section 
 was to revest the goods, even as against an innocent buyer in 
 market overt, upon a conviction for obtaining the goods by 
 false pretences, notwithstanding that the owner had been 
 induced to pass to the offender the property in the goods, as 
 well as their possession. 
 
 It is probably in consequence of this decision that the Sale 
 of Goods Act, 1893, provides that 'notwithstanding any 
 enactment to the contrary, where goods have been obtained 
 by fraud or other wrongful means not amounting to larceny, 
 the property in such goods shall not revest in the person who 
 
 (a) See Reg. v. Mayor of London (1869) L.R. 4 Q.B. 371. 
 
 (6) 42 & 43 Viet. c. 22, s. 7. As to orders for restitution upon a 
 summary conviction, see the Summary Jurisdiction Act, 1879 (42 & 43 
 Viet. c. 49) s. 27 (3). 
 
 (c) Scattergood v. Sylvester (1850) 15 Q.B. 506. The Sale of Goods 
 Act, 1893, does not make prosecution by the owner a condition of the 
 goods revesting. 
 
 (d) Repealed by 7 & 8 Geo. IV. c. 27. The substituted enactment in 
 7 & 8 Geo. IV. c. 29, s. 57, was repealed by 24 & 25 Viet. c. 95. The 
 Act of Hen. VIII. does not seem to have altered the earlier law, except 
 by putting an indictment on the same footing as a writ of appeal ; see 
 Golightly v. Reynolds (1772) Lofft. 88, 90, per Lord Mansfield ; 2 Inst. 
 714 ; Bracton, lib. 3, cap. 32, fol. 151. 
 
 (e) 24 & 25 Viet. c. 96, s. 100. Under this section the goods do not 
 revest unless the indictment be by or on behalf of the owner or his 
 personal representative. The section contains a proviso that nothing in 
 the section shall apply to the case of any prosecution of any trustee, 
 banker, merchant, attorney, factor, broker, or other agent entrusted 
 with the possession of goods or documents of title to goods, for any mix- 
 demeanour against the Act. As to this proviso, see Payne v. Wilson 
 [1895] i Q.B. 653, 659 ; 2 Q.B. 537. 
 
 (/) (1887) 12 App. Cas. 471.
 
 ; 
 
 The Law as to Sale of Goods in Market Overt 125 
 
 was the owner of the goods, or his personal representative, by 
 reason only of the conviction of the offender. '(a) The effect 
 of this provision appears to be that the decision in Bentley v. 
 Vilmont(^) is no longer law, and that, notwithstanding the 
 Larceny Act, 1861, s. 100, goods do not now revest upon a 
 conviction unless they were obtained by wrongful means 
 amounting to larceny. 
 
 None but stolen goods revest under s. 24 (i) of the Sale of jfc 
 (ioods Act, 1893. It seems that if goods are embezzled by a 
 clerk or servant, they are ' stolen ' within the meaning of that 
 sub-section, and do not fall within the provision in s. 24 (2), 
 which relates to goods obtained by fraud or other wrongful 
 means not amounting to larceny, (f) 
 
 Before the Sale of Goods Act, 1893, stolen goods revested 
 upon the conviction of a receiver for knowingly receiving 
 them, and it was not essential to gfrtain thp mnvirtinn nf the 
 actual thief.Q/) It is submitted that this is still the law, I ^ 
 although the Act of 1893 is not explicit upon the point. I/ 
 There seems to be nothing in s. 24 (2) to alter the law in this 
 respect. 
 
 Notwithstanding the prosecution of the thief to conviction, 
 the title acquired by a buyer in market overt will not be 
 defeated if the buyer can avail himself of the provisions of the 
 Factors Acts or any enactment enabling the apparent owner of 
 goods to dispose of them as if he were the true owner.(^) 
 
 Although the conviction revests the property, yet until the 
 conviction the title acquired by buying in market overt remains 
 good Accordingly, the owner has no right of action against 
 the buyer if the buyer parts with or consumes the goods^be- 
 fore the conviction, even though he does so with notice of the ,, 
 theft. (/) Nqrjias the buyer any claim against the owner for 
 the expenses he Incurred in keeping the goods before they 
 rev^Fed.fc) 
 
 l/\ revesi 
 
 
 (a) 56 & 57 Viet. c. 71, s. 24 (2). (b) Supra. 
 
 (c) See 24 & 25 Viet. c. 96, ss. 67-73. The misdemeanours dealt with 
 in ss. 75-87 of that Act seem not to ' amount to larceny.' 
 
 (d) See 24 & 25 Viet. c. 96, s. loo. 
 
 () Sale of Goods Act, 1893 (56 & 57 Viet. c. 71) s. 21 (2) (a) ; see 
 Payne v. Wilson [1895] I Q.B. 653, 66 1 ; 2 Q.B. 537. 
 
 (/) Horwood v. Smith (1788) 2T.R. 750. Only persons in possession 
 of the goods at or after the date of the conviction are liable to the owner ; 
 Ibid. ; set- Lindsay T. Cundy (1878) 3 O.I5.D. 348, 3 App. Cas. 455. 
 
 (g) Walker -v. Matthews (1881) 8 Q.B D. 109.
 
 126 Sales in Markets and Fairs 
 
 
 II 
 
 2. Sale of horses. 
 
 Sales of horses, mares, geldings, colts, and fillies in markets 
 and fairs ougnTto be 'conducted with the formalities prescribed 
 by the statutes passed in 1555 and 1589 to prevent horse- 
 stealing, (a) These statutes" modify in the case of such sales 
 the general doctrine as to the title acquired by buying in 
 market overt.(^) But subject to those modifications the 
 doctrine applies to such sales, by the common law.(<r) 
 
 It is the duty of the owner, bailiff, or steward of every 
 market or fair at which horses are sold to appoint and limit out 
 yearly a certain and special open place for such sales, and to 
 put in and appoint a sufficient person to take toll (if any) and 
 keep the open place from 10 A.M. until sunset on every market 
 or fair day.(^) The duties of the toll-gatherer are to take the 
 toll payable on any sale at the open place, and between 10 A.M. 
 and sunset on the day of the sale, and not at any other place 
 or time : to have before him at the taking of the toll the parties 
 to the sale and also the horse sold : and then and there to 
 make th"e~necessary entries relating to the sale in the book to 
 be kept for that purpose.(e) The toll-gatherer or book-keeper 
 must, within one day after the market or fair, deliver the book 
 to the owner, bailiff, or steward, who must then make and sign 
 a note of the true number of sales at the market or fair.(/) 
 Penalties are imposed for breaches of these duties.^) 
 
 Every horse which is sold in the market or fair must be 
 openly exposed in the open place appointed for the sales, in 
 the time of the market or fair at which it is sold, by the space 
 of one hour together at least, between 10 A.M. and sunset.(^) 
 And the parties to the sale must, before sunset on the day of 
 the_sale,.(/) come together, bringj,ng the horse with them, into 
 
 (a) 2 & 3 Ph. & M. c. 7 ; 31 Eliz. c. 12. As to the extent to which 
 horses were stolen, and stolen horses sold in markets and fairs, in the 
 sixteenth century, see the ' Description of England ' in Holinshed's 
 Chronicles (edit. 1587), Bk. 2, ch. II 
 
 () See ante, pp. 120 et. seq. For a form of proclamation, in connec- 
 tion with these statutes, used at the opening of the horse-fairs held at 
 York, see Drake's History of York (1736), p. 218. 
 
 (c) 56 & 57 Viet. c. 71,5. 22 ( i) does not apply to the sale of horses ; 
 see s. 22 (2) ; but s. 24 applies. 
 
 (rf) 2 & 3 Ph. & M. c. 7, s. i. () Ibid. (/) Ibid. 
 
 (g) Ibid. : see ss. 2 ad Jin., 3. (A) Ibid. s. 2. 
 
 (*) 2 & 3 Ph. & M. c. 7, s. i.
 
 Sale of Horses 127 
 
 the open place to the toll-gatherer or book-keeper there, and 
 cause him to make the necessary entries in the book, at the 
 same time paying to him the toll, if there be any, or, if there 
 be no toll, then one penny for making the entries. (a) 
 
 The entries prescribed by the earlier statute are thejcolpur 
 or colours and at least one special mark of the horse, and the 
 full names and dwelling-places of the buyer and seller.(^) 
 The later statute requires entries also to be made of the true 
 price or value given for the horse, and (besides the full name, 
 dwelling-place and occupation of the seller) either an entry that 
 the book-keeper knows the seller, and his name, dwelling-place 
 and occupation, or, if that be not the case, then an entry of the 
 name, dwelling-place, and occupation of some creditable person 
 known to the book-keeper, then and there declaring that he 
 has the necessary knowledge of the seller. (c} This statute 
 imposes penalties in respect of false declarations and entries ;(d) 
 and gives the buyer a right to receive a copy of the entries upon 
 payment of twopence, (e) 
 
 If the requirements of the statutes are not strictly complied 
 with, and the horse has been stolen or wrongfully taken from 
 its owner, the sale does not take the property out of the owner, 
 who may retake the horse wherever he happens to find it, or 
 may recover it by action.(/) This appears to be the case, 
 notwithstanding the bona fides of the buyer, if the seller or his 
 voucher be entered in the book by a false name.(^) The onus 
 of proving that the requirements of the statutes were complied 
 with lies upon the buyer or other person relying upon that 
 fact.(>&) 
 
 Moreover, although all the requirements of the statutes be Recovery 
 complied with, yet if the sale be of a horse stolen within six 
 months before the sale, the property is not taken away from 
 the owner, provided that he take the prescribed steps to recover 
 
 (a) 2 & 3 Ph. & M. c. 7, s. 2 ; cf. ss. i, 4. 
 
 (*) 2 Ph. & M. c. 7, ss. I, 2. (c) 31 Eliz. c. 12, s. I. 
 
 (d) Ibid. (e) Ibid. 
 
 (/) 2 & 3 Ph. & M. c. 7, s. 2 ; 31 Eliz. c. 12, s. I ; see 2 Inst. 717 ; 
 Com. Dig. Market, E; 2 Black. Com. 451; Moran v. Pitt (1873) 4 2 
 LJ.Q.B. 47. 
 
 (g) Gibb's case (1588) Owen 27, I Leon. 158 ; Barkers. Reading (1627) 
 W. Jones, 163 ; Palm. 485 ; 2 Inst. 717. The decision in Wikes v. More- 
 foots (1588) Cro. Eliz. 86, was probably wrong. 
 
 (A) Moran v. Pitt (1873)42 L.J.Q.B. 47 ; see North v. Jackson (1859) 
 2 F. & F. 198.
 
 128 Sales in Markets and Fairs 
 
 the horse. (a) For this purpose he must, within six months 
 
 after the theft, make a claim to the horse before some justice 
 
 of the peace at the place where the horse happens to be found, 
 
 ^ and then within the next forty days prove by two sufficient 
 
 , witnesses his title to the horse and its theft from him within six 
 
 \ months before his claim. If he establish his case he is entitled 
 
 I to recover the horse upon paying or tendering to the person in 
 
 possession of it the sum which that person deposes that he 
 
 paid for the horse bonafide and without fraud or collusion.(^) 
 
 Until the theft has been proved, a justice ought not to 
 order a seizure of the horse if in the hands of an innocent 
 buyer.(r) 
 
 3. Sale of hay and straw in markets in and near 
 the metropolis. 
 
 Markets for the sale of hay or straw which are held in or 
 within thirty miles of the cities of London and Westminster are 
 subject to the provisions of the Hay and Straw Acts, 1796, 
 1834, iS$6.(d) Reference has already been made to the 
 provisions of these Acts with regard to market hours, (e) and 
 the weighing of hay and straw. (/) But there still remain 
 some other provisions to which it is necessary to refer, 
 and particularly the provision of the Act of 1796 which 
 requires a public book or register of sales to be kept in each of 
 these markets.^) 
 
 Register l n the city of London this book or register must be kept 
 
 by the clerk or toll-gatherer appointed by the corporation ; 
 and elsewhere by ' the clerk or toll-gatherer appointed within 
 their several jurisdictions.'^) 
 
 Upon any sale of hay or straw exceeding four trusses in 
 one quantity being made within the limits within which the 
 Act applies, (;) it is the duty of the seller to make and subscribe 
 the prescribed entries in the register of the market in which 
 the sale was made, or, if it was made out of the market, then in 
 the register of the market nearest to the place of sale. The 
 
 (a) 31 Eliz. c. 12, s. 3. (b) Ibid. 
 
 (c) Joseph v. Adkins(i8l7) 2 Stark. 76. 
 
 (d) 36 Geo. III. c. 88 ; 4 & 5 Will. IV. c. 21 ; 19 & 20 Viet. c. 114. 
 
 (e) See ante, p. 53. 
 
 (/) See ante, p. 103. (g) 36 Geo III. c. 88, s. 10. (A) Ibid. 
 (') I.e. in, or within 30 miles of, the cities of London and West- 
 minster.
 
 Sale of Play and Straw in and near the Metropolis 129 
 
 prescribed entries are the names and places of abode of the 
 buyer and seller, and their principals (if any), the place of sale, 
 and the price paid or agreed. These entries must be made 
 and subscribed before 6 P.M. on the day of the sale if it was 
 made in any market, or within seven days after the sale if it was 
 made out of market ; and the book-keeper is entitled to a fee 
 of id. for each sale entered, (a) 
 
 The book must be kept at some convenient place in the 
 market, and must be open to every person applying to inspect 
 it and paying id. for the inspection, at all times between 9 A.M. 
 and 6 P.M. on every day except Sundays.() 
 
 Penalties are imposed upon sellers who omit to make the 
 required entries in the register and upon keepers of registers 
 who knowingly suffer untrue entries to be made or refuse inspec- 
 tion of the book to a person tendering the inspection fee.(a) 
 
 The Act expressly provides that no entries need be made 
 in the register with regard to hay or straw delivered within the 
 above-mentioned limits under a special contract, but that 
 entries must be made of all hay and straw which is sent to a 
 market or place within those limits to be there sold, and which 
 is accordingly sold there.(^) 
 
 The Act of 1796 imposes penalties for buying hay or straw Fore- 
 on its way to the market (forestalling), and for buying in the ^ lmg 
 market for the purpose of selling again in the market (regrat- regrating 
 ing) ;(c} and also for not bringing to the market on the 
 ensuing market-day hay or straw exposed for sale, and not sold, 
 on any market-day, (d) 
 
 With regard to other provisions of the Acts, it may be 
 mentioned that the Act of 1796 prohibits the clerk or toll- 
 gatherer of any market to which the Act applies from buying 
 or selling, or being concerned in the buying or selling of, any 
 hay or straw within the limits of the Act.(^) It also prohibits 
 common salesmen from dealing in hay, straw or grass on their 
 own account.(/) The Act of 1856 requires salesmen selling in 
 any market or place within the limits of the Act to deliver, 
 with the delivery of any hay or straw sold by them, a ticket 
 stating the number of trusses sold and the name and address of 
 the owner, (g) 
 
 (a) 36 Geo. III. c. 88, s. 10. (A) Ibid. s. u. 
 (c) Ibid. s. 1 8. (rf) Ibid. s. 23. (e) Ibid. s. 12. 
 (/) s. 8. (g) 19 & 20 Viet. c. 114, s. 2.
 
 130 
 
 CHAPTER X 
 
 PROCEDURE AND EVIDENCE 
 
 i. Scire facias. 
 
 appropriate process for obtaining the repeal__of__a 
 }| charter ornetiters^atent for holding a markelTor fair is that of 
 ) \ scire facias.. The action of scire~facias to repeal a granTTTy 
 ^harteTorletters patent is a proceeding taken by or on behalf 
 of the crown upon information that the grant is void because 
 /(unadvisedly made or improperly obtained, or that it has 
 ' become forfeited through misuse or abuse, or through non- 
 fulfilment of conditions attached to the grant.(a) These 
 grounds for instituting proceedings by scire facias have been 
 already referred to in earlier pages of this work.(^) 
 
 The writ of scire facias was formerly issued from the Petty 
 
 Bag Office in Chancery. It now issues, since the abolition of 
 
 that office, from the Crown Office. (c) It can only issue upon 
 
 "" a' fiat of the AttoTney-General, who has the right and duty of 
 
 controlling the action, and of determining upon what and 
 
 ^xSryhose information, and on what terms and security as to costs, 
 
 he will permit the action to be prosecuted. _The writ issues as 
 
 . of rightjbr every subject aggrieved, but not as of~course Tor 
 
 I every"jubject applying tor it.(</) Formerly the practiceTwaif 
 
 forthe Attorney-General not to grant his fiat until he had 
 
 received a warrant under the sign manual directing him to 
 
 cause the writ to be issued ; and the warrant had to be 
 
 obtained by a memorial to the crown, and was only issued upon 
 
 (a) See Eastern Archipelago Co. v. The Queen (1853) 2 E. & B. 856 ; 
 G. E. R. Co. v. Goldsmid (1884) 9 App. Cas. 927, 965; Peter v. Kendal 
 (1827) 6 B. & C. 703, 710 ; 3 Blac. Comm. 261 ; 4 Inst. 88. 
 
 (t>) See ante, pp. 21, 90-93. 
 
 (c) Short & Mellor, Crown Office Pr. 444. 
 
 (it) R. v. Prosser (1848) u Beav. 316 ; Eastern Archipelago Co. v. The 
 Queen (1853) 2 E. & B. 856.
 
 
 Scire Facias 1 3 1 
 
 the Attorney-General's advice \(a) but the modern practice 
 seems to be for the Attorney-General tg__act on his own 
 initiative. (V) He endorses his fiat upon a draft ot the pro- 
 posed writ, which must be submitted to him.(r) 
 
 The writ may now he issued to the sheriff of afly county,(^) 
 and it directs the sheriff to make known (e) to the defendant 
 that he must appear and showjvhy the charter or letters paTent 
 should not be cancelled. The sheriff, by a summons to the 
 defejidant, warns him to appear to the^ writ. If he fail to 
 appear, judgment that the grant be cancelled will go against 
 him by default. As it is unlikely that proceedings by scire 
 facias will now be taken in connection with a market or fair, 
 nolurther description of the practice will be given here. It is 
 considered sufficient to refer the reader to the authorities 
 mentioned below.(/) 
 
 2. Quo Warranto. 
 
 A person who holds a market or levies toll without charter 
 or other lawful authority may be proceeded against by informa- 
 tion in the nature of a Quo Warranto to compel him to show 
 by what authority the market is held or the toll levied. 
 
 Formerly the process was by Writ of Quo Warranto, and 
 in the printed volume of the " Placita de Quo Warranto " (g) 
 
 (a) See Richardson's C.P. Practice, 391-398 ; Tidd's Practice, gth ed. 
 
 1094 ; Chitty, Prerog. of Crown, 331. 
 
 (6) See I Webster's Patent Cases, 669 n (f) ; Foster on Scire Facias, 
 247. 
 
 (r) I Webster, 64 n (a) ; Foster, 249. 
 
 (d) 12 & 13 Viet. c. 109, s. 29. 
 
 (e) Hence the title 'scire facias.' 
 
 (/) See Foster on Scire Facias ; Godson on Patents, 2nd. ed. p. 269 ; 
 TTidd's Pr., gth ed., pp. 1093 et seq ; Chitty, Prerog., 330, 331 ; 2 
 Saund. Rep. 72 a ; I Webster's Patent Cases, 64 n (a), 669 n (f) ; Grady 
 & Scotland's Pr., 290; 2 Richardson's C.P. Pr., 391 et seq. ; Eastern 
 Archipelago Co. v. The Queen (1853) 2 E. & B. 856, I Id. 310 ; R. v. 
 Aires (1717) 10 Mod. 258, 354; K. v. Butler (1685) 3 Lev. 220, 2 Vent. 
 344 ; Basset's case (1568) Dyer, 276 b ; also Dyer, 197, 198 ; 4 Inst. 72, 88 ; 
 R. v. Eyre (1717) I Str. 43; R. v. Miles (1797) 7 T.R. 367 ; 11 & 12 
 Viet. c. 94 ; Rules in Chancery of December 29, 1848, and August 3, 1849 ; 
 12 & 13 Viet. c. 109 ; 37 & 38 Viet. c. 8l, ss. 5, 12 ; 42 & 43 Viet. c. 78, 
 s. 4 ; R.S.C. January 30, 1889. 
 
 (g) The volume entitled Placita de Quo Warranto was printed under the 
 superintendence of the Record Commission in 1818. The volume contains 
 records of most of the (/no warranto proceedings in the reigns of Edw. I., 
 II., and III. As to the nature and purpose of these proceedings, see Intro- 
 duction to the volume, and Stuart Moore on Foreshore, pp. 42-46 & 69- 
 72. 
 
 K 2
 
 132 Procedure and Evidence 
 
 many cases occur in which the titles of market-owners were 
 enquired into and the markets seized for want of title. This 
 i v^ writ was a writ of right jfor the crown against subjects who 
 claimed or usurped any office, franchise, liberty, or privilege 
 belonging to the crown, to enquire by what authority they 
 maintained their claim, in order to have the right determined. 
 It also lay in case of non-user or long neglect of a franchise, or 
 misuser or abuse thereof; being a writ commanding the 
 defendant to show by what warrant he exercised such a 
 franchise, having never had any grant of it, or having forfeited 
 it by neglect or abuse.(fl) 
 
 Informa- This writ having fallen into disuse on account of the delay 
 
 with which it was attended,^) a more expeditious mode of pro- 
 ceeding has been adopted, viz., an information^ in the nature 
 || of a quo warranto.(c) This was formerly a proceeding of a 
 criminal nature, but is now a civil proceeding for all pur- 
 poses. (</) The proceeding suggoses the_ defendant to be in 
 actual, though not in legal, possession of the franchise, and 
 judgment of ouster is necessary to dispossess him.(e?) It is the 
 
 1 proper process where it is desired to oust the defendant on the 
 ground that he never had a charter,(/) or has lost it by mis- 
 use \(g) scire jactas^ where it is sought" 16 Mytml the charter 
 under which he holds.(/fc) 
 
 To found an information in the nature of a quo warranto 
 there must be both a claim of the franchise and actual usej,(?) 
 as byjaking tolls (j) or holding a court of pie powder. (k) It 
 is insufficient to show that" the defendant holds an informal 
 market without demanding toll,(/) or_that he has promoted or 
 encouraged a market : for mere promotion or encouragement is 
 
 (a) 3 Blac. Comm. 262 ; Com. Dig. ' Quo Warranto.' 
 
 (b) A very different objection to it was that judgment thereon against 
 the crown was final ; see ft. v. Trinity House (1666) I Sid. 86; Anon. 
 12 Mod. 225. 
 
 (f) See 3 Blac. Comm. 262 ; R. v. Ponsonby (1755) Sayer, 245. 
 
 (d) 47 & 48 Viet. c. 61, s. 15. 
 
 (e) Peter v. Kendal (1827) 6 B. & C. 703, 710. 
 
 (/) Per Holt, C.J., R. v. London (1691) i Show 240, 4 Mod. 53. 
 (sf) R. v. Staverton (1611) Yelv. 190. 
 (A) Seeawfc, p. 130. 
 (/) Com. Dig., 'Quo Warranto,' C. ',5). 
 
 (_/) Plac. Quo Warr. (Crossthweyt) p. 115, (Emtneseye) p. 212. 
 (k) Ante, p. 3. 
 
 (/) R. v. (1682) 2 Show. 201 ; S. C. sub. nom. R. v. Bradley, 
 Tremaine, P.C. 449 ; Plac. Quo. Warr. (Ramesbury) p. 801.
 
 Quo Warranto 133 
 
 not usurpation of the franchise. (a) So holding an annual 
 gathermg^ or wake is not an encroachment of a franchise, 
 although the people buy and sell there, if no toll be taken or 
 other franchise exercised, (b) 
 
 An information in the nature of a quo warranto for levying 
 a market or fair without lawful warrant may be filed by the 
 Attorney-General ex officio, in his own name, without any 
 relator, without leave of the court, and without any recognisance. 
 Such an information may also be exhibited and filed, by express 
 leave of the court, in the name of tfie Queen's Coroner and 
 Attorney, at the instance of a private prosecutor. Leave must I 
 be obtained in open court, by moving for a rule nisi t and the / 
 prosecutor will be required to enter into a recognisance in ^50 
 effectually to prosecute.(r) No order for filing any information 
 will be granted unless, at the time of moving, an affidavit be 
 produced by which some person deposes on oath that such 
 motion is made at his instance as relator (d) 
 
 If, upon the trial, judgment be given for the defendant, he 
 has an allowance of his franchise. (e) If it appear that he has 
 levied the market by wrong and without title, the judgment is 
 that he be ousted of the market, for it has no legal existence. But 
 if the crown granted the market to the defendant or his prede- 
 cessors in title, and he has either misused or not used the 
 market, then the judgment should be that the market be seized 
 by the crown to be granted out again to whomsoever the crown 
 please,(/) for the franchiseJa not thereby extinguished.^) So 
 also if the defendant does not appear, the judgment should be 
 for seizure by the crown.(^) 
 
 (a) R. v. Marsden (1766) I W. Bl. 579 ; 3 Burr. 1812. 
 
 (b) Plac. Quo Warr., pp. 115, 212, 801 ; Abb. Plac. (Salingeford) 
 p. 85. 
 
 (f) See C.O.R. 1886, r. 46 ; Corner, C. Pr. 180 et stq. ; Shortt, 
 Informations, part ii. ; Short & Mellor, C.O. Pr. 279. For a precedent 
 of an information by the A.-G., see Tremaine, P.C. 449. 
 
 (</) C.O.R. 1886, r. 54. 
 (e) 3 Blac. Comm. 263. 
 
 (/) Y.B. 15 Ed. IV. f. 7 b, per Billing, J., and agreed ; 3 Blac. Comm. 
 263. 
 
 (g) Peter v. Kendal, 6 B. & C. 703, 710. 
 
 (h) Y.B. 15 Edw. IV. f. 7 ; R. v. Trinity House (1666) I Sid. 86. The 
 only forms of judgment given by the C.O.R. 1886 are for ouster; see 
 forms No. 36 (judgment after disclaimer), and No. 123 (after trial by jury) ; 
 but rule 308 contemplates that cases may arise to which the forms given 
 are inapplicable. As to disclaimer, see rule 59.
 
 134 Procedure and Evidence 
 
 3. Summary proceedings for declaring fairs in the 
 metropolis unlawful. 
 
 The Metropolitan Fairs Act, i868,(a) supplies a simple 
 process to prevent the holding of unlawful fairs within the 
 limits of the metropolitan police district. If a fair be held, 
 or notice be given of any fair proposed to be held, on any 
 ground within the district other than that on which a fair has 
 been held during each of the seven years immediately preced- 
 ing, the Commissioner of Police can, under this Act, have the 
 question whether the fair is legal summarily raised before a 
 magistrate, and, if the fair be declared to be unlawful, he 
 can take summary steps to suppress it. 
 
 4. Evidence. 
 
 It is proposed here to treat shortly of the evidence which 
 may be available to establish market and fair rights. 
 Grants From the close of the twelfth century to the year 1516, the 
 
 king's grants of franchises were made by charter, and thence- 
 II forward by letters patent. All these grants are recorded 
 If respectively in the Charter Rolls and Patent Rolls deposited at 
 j! the Record Office. The grants recorded in the charter rolls 
 may be either grants of liberties which had not been previously 
 granted, or confirmation charters, i.e. charters confirming 
 previous grants with" or without the addition of further 
 privileges. When the original grant is recited in the con- 
 firmation charter, the latter is called an inspeximus charter.(^) 
 The origin of a fair or market may be proved by a charter of 
 one of the above kinds, or by letters patent. 
 
 Both charters and letters patent may be proved by the 
 production of the original under the great seal, of which the 
 court talces judicial notice.^) Primary evidence of charters 
 or letters patent may also, it seems, be given (without account- 
 ing for the original) by an exemplification or enrol ment.(</) An 
 
 (a) 31 & 32 Viet. c. 106. See also 2 & 3 Viet. c. 47, ss. 39, 40 (as 
 amended by 30 & 31 Viet. c. 134, s. 2l),post, p. 204. 
 
 (b) See Introduction to printed volume of the Rotuli Chartarum, by Sir 
 T. Duffus Hardy, 1837. Palmer's Index, No. 93, in the Record Office, 
 contains a list of grants of markets and fairs from I John to 22 Edw. IV. 
 
 (c) Lawe's case (1596) 2 Rep. 17 b. 
 
 (d) See the Introduction to the Rotuli Chartarum by Sir T. Duffus 
 Hardy (1837) pp. xviii. and ix.
 
 Evidence 135 
 
 exemplification is ,an jgcact copy sealed with the great seal. (a) 
 An enrolment is the roll of charters and letters patent now 
 preserved in the Public Record Office ;(&) and the enrolment 
 \ is itself a public document, which need not be produced in ff 
 \ court7*but may be proved by an exemplification, or by an 
 examined copy,(r) or by a copy examined and certified by the /f 
 deputy keeper of the records or one of the assistant record 
 keepers, and sealed or stamped with the seal of the Record 
 Office.(</) 
 
 Most local and personal Acts passed before 1851 Acts of 
 contain a section declaring them public, and every Act passed 
 after the year 1850 is a public Act, unless the contrary is 
 expressly provided.(<?) The courts take judicial notice of public 
 Acts.(/) If, however, an Act is not public, it must be proved. 
 This is most conveniently done by producing a copy purporting 
 to be printed by the Queen's printer, or under the authority 
 or superintendence of Her Majesty's Stationery Office. (g) 
 
 To establish a market or fair by prescription, or pre- Evidence 
 sumption of lost grant, (/z) or to prove customary rights s er anc ' 
 therein,(/) user within the time of living memory will usually y 
 be proved by the evidence of living witnesses. Though not ^/ 
 absolutely necessary ,77 J^it is always advisable to carry the 
 evidence further back than the date to which the memory of the 
 oldest living witnesses can carry it. For this purpose, evidence 
 of reputation^ and ^dpcumentary__eyidence of various kinds 
 may be used, and a careful searchshould therefore be made in 
 the Record Office, and in the muniment room of the supposed ^^" 
 owner of 1 the franchise. 
 
 Some documents are admissible in evidence as acts of Acts of 
 ownership. Amongtrlese''aie old JRUHai JUiU conveyances or ownership 
 the market or fair, or of the t,oTTs,(/) tables of tolls which have 
 
 (a) See the Introduction to the Rotuli Chartarum by Sir T. Duffus 
 Hardy (1837) p. vii. 
 
 (/>) Ibid. pp. i. and vii. ; and see I & 2 Viet. c. 94. 
 
 (c) I.e. a copy which a witness swears he has examined with the 
 original and found to be correct. 
 
 (if) 1 & 2 Viet. c. 94, ss. 12 and 13 ; 8&9 Viet. c. 113, s. I ; 14 & 15 
 Viet. c. 99, s. 14. 
 
 (e) 52 & 53 Viet. c. 63, s. 9. 
 
 (/) R. . Sutton (1816) 4 M. & S. 532, 542. 
 
 () 8 & 9 Viet. c. 1 1 3, s. 3 ; 45 Viet. c. 9, s. 2 
 
 (A) See ante, p. 22. (/') See ante, pp. 64, 86. (j) See ante, p. 23. 
 
 (k) Mayor of Penryn v. Best (1878) 3 Ex. D. 292, 296 ; Bristow v. 
 Cormican (1878) 3 App. Cas. 641, 653 ; Malcolmson v. O'Dea (1863) 10
 
 136 
 
 Procedure and Evidence 
 
 Declara- 
 tions 
 against 
 interest 
 
 Evidence 
 of reputa' 
 tion 
 
 been exhibited in the market or used by collectors of toll,(<?) 
 appointments of jteWards^ bailiffs, or other officers, (b) writs, 
 pleadings, and other proceedings in actions brought by *tne 
 
 ! owner for toll or disturbance, proceedings.. iu~the, .GQlirLof pie 
 powder, and proceedings relating to the market or fair in the 
 court leet or borough court, (c) 
 
 Accounts made out by_j3eceased bailiffs or stewards, 
 wherein they debit themselves with tolls which they profess 
 to have collected personally, are admissible in evidence, as 
 
 .declarations by_deceased persons against their interest, to 
 prove that tolls were in fact paid.(^) And payments of rent 
 for a market may be proved in the same way. 
 
 The public have a right to enter and buy and sell,(^) and 
 it seems that the public interest in market-rights is sufficient 
 to let in evidence of re"putaition when the question is as 
 to the existence of a market or the right to take tplL(/) If so, 
 the" rriere statements' of deceased persons, whether oral or 
 written, which embody a cpnirnon^ report, and were made 
 befo'fe any controversy had arisen, are admissible, and may be 
 proved by a living witness. (g) Of greater value are formal 
 written statements in the nature of reputation. Among writ- 
 ings of this kind are depositions, (ti) rates and assessments,(/) 
 recitals or descriptions in Teases and conveyances, (/) or in Acts 
 
 H.L.C. 593, 672, 614 ; De Rutzen v. Farr (1835) 4 A. & E. 53 ; Mosley 
 v. Walker (1827) 7 B. & C. 40, 43 ; Duke of Beaufort v. Smith (1849) 4 
 Exch. 450, 471. 
 
 (a) Brett v. Beales (1816) M. & M. 416, 419 ; Lawrence v. Hitch 
 (i868)L.R. 3 Q.B. 521. 
 
 (b) Mayor of Penryn v. Best, supra ; Malcolmson v. O'Dea, supra ; 
 Earl of Carnarvon v. Villebois (1844) 13 M. & W. 313, 329. 
 
 (c) Mosley v. Walker, supra. 
 
 (d) De Rutzen v. Farr (1835) 4 A. & E. 53 ; Mayor of Exeter v. 
 Warren (1844) 5 Q.B. 773 ; Doe v. Thynne (1808) IO East, 206 ; Doe v. 
 Michael (1851) 17 Q.B. 276; Duke of Beaufort v. Smith (1849) 4 Exch. 
 450,471; and see notes to Higham v. Ridgway (1808) 2 Smith, L.C. 
 (lothed.), 317. 
 
 (e) See ante, pp. 31, 38, 56. 
 
 (/) Cf. Earl of Carnarvon v. Villebois (1844) 13 M. & W. 313, 332 ; 
 Brett v. Beales (1829) M. & M. 416 ; Drinkwater v. Porter (1835) 7 C. & 
 P. 181 ; Pim v. Currell (1840) 6 M. & W. 234. 
 
 (g) See Crease v. Barrett (1835) I C. M. & R. 919, 929 ; Barraclough 
 v. Johnson (1838) 8 A. & E. 99 ; Thomas v. Jenkins (1837) 6 A. & E. 
 525 ; R. v. Cotton (1813) 3 Camp. 444 ; R. v. Bliss (1837) 7 A. & E. 550. 
 
 (A) Freeman v. Phillips (1816) 4 M. & S. 486. 
 
 (i) See R. v. Cotton (1813) 3 Camp. 444. 
 
 ( /) Plaxton v. Dare (1829) 10 B. & C. 17 ; Brett v. Beales (1829) M. 
 & M. 416.
 
 Evidence 137 
 
 of Parliament. (a) And some evidence may be found in 
 presentments of manorial and other customary courts. (b} 
 Extracts from Domesday Book are probably admissible as I 
 evidence of this kind. That book contains many references to 
 markets existing at the time of its compilation.^) 
 
 Upon the same principle verdicts and judgments in previous Verdicts 
 actions in which the existence of a market or fair, or the right ai 
 to take toll, was in issue are receivable in evidence in subsequent 
 actions where the same matter is in issue, although the parties 
 be different, provided they have the same relative interests. (<t) 
 So the proceedings, and the judgment and finding of the jury, 
 in quo warranto proceedings,^) allowances before Justices in 
 Eyre,(/) inquisitions to ascertain theextent of crown lands, (g) the 
 returns to inquisitions/^/ niortem(Ji) and extents of manors,(/) 
 may be given in evidence. The ' Placita de Quo Warranto,' 
 ' Abbrevatio Placitorum,' and ' Rotuli Hundredorum ' all con- 
 tain many records relating to markets and fairs. 
 
 (a) Earl of Carnarvon v. Villebois (1844) 13 M. & W. 313, 332; R. v. 
 Sutton (1816) 4 M. & S. 532. 
 
 (b) See Duke of Beaufort v. Smith (1849) 4 Exch. 45 ; Roez>. Parker 
 (1792) 5 T.R. 26; Talbot v. Lewis (1834) i CM. & R. 495. 
 
 (c ) Extracts from Domesday may be proved by an examined or certified 
 copy in accordance with I & 2 Viet. c. 94, ss. 12 and 13. 
 
 (rf) Pirn v. Currell (1840) 6 M. & W. 234; Briscoe v. Lomax (1833) 8 
 A. & E. 198, 214 ; Earl of Carnarvon v. Villebois (1844) r 3 M - & w - 3*3, 
 331 ; Reed v. Jackson (1801) I East, 355. Cf. Duke of Beaufort v. Smith 
 (1849) 4 Exch - 450. 
 
 (e) Earl of Carnarvon v. Villebois (1844) 13 M. & W. 313, 331 ; Earl 
 of Egremont v. Saul (1837) 6 A. & E. 924. 
 
 (/) Per Parke, B., in Earl of Carnarvon v. Villebois (1844) 13 M. & W. 
 313, 331 ; Doe d. William IV. v. Roberts (1844) 13 M. & W. 520. 
 
 Of) Rowe v. Brenton (1828) 8 B. & C. 737, 747. 
 
 (h) Mosley v. Walker (1827) 7 B. & C. 40, 42, and see the Calendarum 
 Inquisitionum post mortem, vol. i., introductory note (1806). 
 
 (/) See the statute Extenta Manerii, 4 Ed. I. Stat. I (Ruff.); Incert. 
 Temp. (Stat. Realm) ; repealed by S. L. R. Act, 1863.
 
 PART II 
 
 PUBLIC STATUTES RELATING TO 
 THE ESTABLISHMENT OF MARKETS AND FAIRS
 
 141 
 
 THE MARKETS AND FAIRS CLAUSES 
 ACT, 1847. 
 
 (10 & n VICT. c. 14.) 
 
 An Act for consolidating in one Act certain provisions 
 usually contained in Acts for constructing or regu- 
 lating markets and fairs. [23 April 1847.] 
 
 [' WHEREAS it is expedient to comprise in one Act sundry pro- 
 visions usually contained in Acts of Parliament authorising the 
 construction or regulation of markets and fairs, and that as well 
 for avoiding the necessity of repeating such provisions in each of 
 the several Acts relating to such undertakings as for ensuring 
 greater uniformity in the provisions themselves : Be it enacted 
 by the Queen's most Excellent Majesty, by and with the advice 
 and consent of the Lords Spiritual and Temporal, and Commons, 
 in this present Parliament assembled, and by the authority of the 
 same, That '] this Act shall extend only to such markets or fairs Extent of 
 as shall be authorised by any Act of Parliament hereafter to be Ct 
 passed which shall declare that this Act shall be incorporated 
 therewith ; and all the clauses of this Act, save so far as they shall 
 be expressly varied or excepted by any such Act, shall apply to the 
 undertaking authorised thereby, so far as the same shall be ap- 
 plicable to such undertaking, 2 and shall, with the clauses of every 
 other Act which shall be incorporated therewith, form part of such 
 Act, and be construed therewith as forming one Act. 
 
 1 The preamble and other words in the brackets may now be omitted 
 from any revised edition of the statutes published by authority ; S. L. R. 
 Act, 1891 (54 & 55 Viet. c. 67), s. I, and schedule. Provisions relating 
 only to Scotland or Ireland are omitted, but the omission is indicated by- 
 asterisks. 
 
 '-' It is important to notice this qualification ; for, notwithstanding the 
 incorporation of the whole of this Act, the undertaking will not be affected 
 by any provisions of this Act which are not applicable thereto. For 
 instance, if the undertaking be merely a market, it will not be affected by 
 provisions of this Act which relate exclusively to a fair or a slaughter- 
 house, unless the incorporating Act, by apt words, renders such provisions 
 applicable. See also as to the application of the provisions of such an Act 
 as this, Dartford Rural Council v. Bexley Heath R. Co [1898] A. C. 210.
 
 1 4 2 
 
 Markets and Fairs Clauses Act, 1847 
 
 S. 2 
 
 Interpre- 
 tations in 
 this Act 
 
 Interpreta- 
 tions in this 
 and the 
 special Act 
 
 And with respect to the construction of this Act, and any Act 
 incorporated therewith, 1 be it enacted as follows : 
 
 The headings to the various portions of this Act are to be referred to, 
 to determine the sense of any doubtful expression in a section occurring 
 nder a particular heading, (a) 
 
 Clauses 2 and 3 are not incorporated with the Public Health Act, 1875, 
 but they are incorporated with the Diseases of Animals Act, 1894, by s. 32 
 thereof. 
 
 1 The only Act which, by this Act, is incorporated therewith is the 
 Railways Clauses Consolidation Act, 1845, ss - 140-161 ; see s. 52 of this 
 Act. 
 
 S. 2. The expression the special Act used in this Act shall be 
 construed to mean any Act which shall be hereafter passed autho- 
 rising the construction or regulation of a market or fair, and 
 with which this Act shall be incorporated ; and the word prescribed 
 used in this Act in reference to any matter herein stated shall be 
 construed to refer to such matter as the same shall be prescribed 
 or provided for in the special Act, and the sentence in which such 
 word occurs shall be construed as if instead of the word 'pre- 
 scribed ' the expression ' prescribed for that purpose in the special 
 Act ' had been used ; and the expression the lands shall mean the 
 lajnds which shall by the special Act be authorised to be taken or 
 used for the purposes thereof ; and the expression the undertaking 
 shall mean the market or fair, and the works connected there- 
 with, by the special Act authorised to be constructed or regulated ; 
 and the expression the undertakers shall mean the persons autho- 
 rised by the special Act to construct or regulate the market or fair. 
 S. 3. The following words and expressions in both this and 
 the special Act, and any Act incorporated therewith, shall have 
 the meanings hereby assigned to them, 1 unless there be something 
 in the subject or context repugnant to such construction ; (that is 
 to say,) 
 
 Words importing the singular number shall include the 
 plural number, and words importing the plural number 
 shall include also the singular number : - 
 Words importing the masculine gender shall include 
 
 females : 
 The word person shall include a corporation, whether 
 
 aggregate or sole : 
 The word lands shall include messuages, lands, tenements, 
 
 and hereditaments ... of any tenure : 3 
 The word lease shall include ... an agreement for a 
 
 lease : 
 The expression the market or fair shall mean the market 
 
 (a) See Hammersmith Rly. Co. v. Brand (1869) L.R. 4 H.L. 171.
 
 S. 3 Interpretation 143 
 
 or fair, and the works connected therewith, by the special 
 Act authorised to be constructed or regulated : 2 
 
 The word cart shall include waggon, and also any carriage 
 used wholly or chiefly for the conveyance of goods : 
 
 The word driver shall include the carter or other person 
 having the care of any cart : 
 
 The word cattle shall include horse, ass, mule, ram, ewe, 
 wether, lamb, goat, kid, or swine : * 
 
 The expression the collector shall mean the person appointed 
 by the undertakers to collect the stallages, rents, or tolls 
 authorised by the special Act, and shall include the assistants 
 of the collector : 
 
 The word month shall mean calendar month : 
 
 The expression superior courts when the matter submitted 
 to the cognisance of the court arises in England . . . shall 
 mean her Majesty's \J' superior courts of record at West- 
 minster''] . . . [ 6 and shall include the court of common 
 pleas of the county palatine of Lancaster, and the court of 
 pleas of the county of Durham. 6 ]. . . 
 
 The word oath shall include affirmation in the case of 
 quakers, and any declaration lawfully substituted for an 
 oath in the case of any other persons allowed by law to 
 make a declaration instead of taking an oath : 7 
 
 The word county shall include riding or other division of 
 a county having a separate commission of the peace ; . . . 
 and it shall also include county of a city or county of a 
 town : 
 
 The word justice shall mean justice of the peace acting for 
 the place where the matter requiring the cognisance of 
 any such justice arises ; and if such matter arise in respect 
 of lands situated not wholly in any one jurisdiction 
 shall mean a justice acting for the place where any part of 
 such lands shall be situated ; and where any matter is 
 authorised or required to be done by two justices, the 
 expression two justices shall be understood to mean 
 two or more justices assembled and acting together : 8 
 The expression quarter sessions shall mean quarter sessions 
 as defined in the special Act : and if such expression be 
 not there defined it shall mean the general or quarter 
 sessions of the peace which shall be held at the place 
 nearest to the market or fair, or the principal office thereof 
 for the county or place in which the market or fair is 
 situate, or for some division of such county having a 
 separate commission of the peace. 
 
 1 The effect of not incorporating this section with the special Act seems 
 to l>e that it is not decisive upon the meaning of words in the special Act,
 
 144 Markets and Fairs Clauses Act, 1847 S. 3 
 
 but is nevertheless decisive upon the meaning of words in the sections of 
 this Act which are incorporated with the special Act. 
 
 2 A special Act authorising the erection of ' a market-house ' may be 
 construed as authorising the erection of two market-houses, (a) 
 
 3 I.e. 'of any tenure, if any,' for 'hereditaments' here include incor- 
 poreal hereditaments, (b) 
 
 4 The expression ' animals,' in s. 32 of the Diseases of Animals Act, 
 1894, is defined by s. 59 of that Act, and includes ' cattle,' as defined by 
 the same section ; but neither 'animals' nor 'cattle,' as thereby defined, 
 include horse, ass, or mule. It is submitted that the definition of ' cattle ' 
 in this Act does not override that in the Act of 1894, as regards markets 
 provided under s. 32 of that Act. 
 
 5 For the words in brackets read now ' High Court of Justice. ' See 
 the Supreme Court of Judicature Act, 1873 (36 & 37 Viet. c. 66), ss. 16, 
 76). 
 
 6 The words in brackets were repealed by the S. L. R. Act, 1891. 
 The jurisdiction of the Courts referred to was transferred to the High 
 Court of Justice by the Judicature Act, 1873, s. 16. 
 
 7 See the Oaths Act, 1888 (51 S: 52 Viet. c. 46). 
 
 8 See s. 55, infra. 
 
 And -with respect to citing this Act or any part thereof, be it 
 enacted as follows : 
 
 Short title S. 4. In citing this Act in other Acts of Parliament, and in legal 
 of this Act instruments, it shall be sufficient to use the expression ' The 
 
 Markets and Fairs Clauses Act, 1847.' 
 
 Form in S. 5. For the purpose of incorporating part only of this Act 
 
 which por- with any Act hereafter to be passed it shall be enough to describe 
 
 tionsofthis the clauses of this Act with respect to any matter in the words 
 
 inco^o^ 6 introductory to the enactment with respect to such matter, and to 
 
 rated in enact that the clauses so described, or that this Act, with the 
 
 other Acts exception of the clauses so described, shall be incorporated with 
 
 such Act, and thereupon all the clauses of this Act so incorporated 
 
 shall, save so far as they shall be expressly varied or excepted by 
 
 such Act, form part of such Act, and such Act shall be construed 
 
 as if such clauses were set forth therein with reference to the 
 
 matter to which such Act relates. 1 
 
 1 If the special Act incorporates or excepts any part of this Act 
 merely by a description in the words of an introductory heading, all the 
 clauses of this Act which occur between that heading and the next are 
 incorporated or excepted, as the case may be.(^) But if the special Act 
 excepts clauses occurring under one heading, the exception does not 
 extend to clauses referring to the same subject matter, but falling under 
 another heading, (d) 
 
 (a) Richards v. Scarborough Public Market Co. (1853) 23 L.J. Ch. no. 
 (6) See G. W. R. Co. v. Swindon and Cheltenham Rly. Co. (1884) 9 App. 
 Cas. 787. 
 
 (c) Ferrar v. Commissioners of Sewers (1869) L.R. 4 Ex. 227 ; Dungey v. 
 Mayor of London (1869) 38 L.J.C.P. 298. 
 
 (d) R. v. Mayor of London (1867) L.R. 2 Q.B. 292.
 
 S. 6 Construction of Market or Fair 145 
 
 And with respect to the construction of the market or fair, 
 and the works connected therewith, be it enacted as follows : 
 
 Clauses 6-ll are not incorporated with the Public Health Act, 1875. 
 Clauses 6-9 are not incorporated with the Diseases of Animals Act, 1894, 
 s. 32, but clauses IO and 1 1 are. 
 
 As to the acquisition of lands for markets to be established under the 
 Public Health Act, 1875, see ss - X 66, 175-178 of that Act, and as to the 
 acquisition of lands for markets to be provided under the Diseases of 
 Animals Act. 1894, see s. 33 of that Act. 
 
 For a case in which a special Act provided that this Act should be 
 read as if the words ' enlarging the market ' had been inserted, instead of 
 ' constructing the market,' see A. -G. v. Mayor of Cambridge. (a) 
 
 S. 6. Where l by the special Act the undertakers shall be em- Construc- 
 powered, for the purpose of constructing the market or fair, to tion of 
 take or use any lands - otherwise than with the consent of the j? 1 ^ 615 or 
 owners and occupiers thereof, they shall, in exercising the power SUD ject to 
 so given to them, be subject to the provisions and restrictions the pro- 
 contained in this Act and in the Lands Clauses Consolidation Act, visions of 
 i845, 3 when the special Act relates to England ; . . . and the ^j ^' 
 undertakers shall make to the owners and occupiers of and all Lands 
 other parties interested in any lands taken or used for the pur- Clauses 
 poses of the special Act, or injuriously affected by the construction Consolida- 
 of the works thereby authorised, full compensation for the value "" ' 
 of the lands so taken or used, and for all damage sustained by 
 such owners, occupiers, and other persons by reason of the 
 exercise, as to such lands, of the powers vested in the under- 
 takers by this or the special Act, or any Act incorporated therewith ; 
 and, except where otherwise provided by this or the special Act, 
 the amount of such compensation shall be determined in the 
 manner provided by the said Lands Clauses Consolidation Act . . . 
 for determining questions of compensation with regard to lands 
 purchased or taken under the provisions thereof ; and all the pro- 
 visions of the said last-mentioned Act . . . shall be applicable to 
 determine the amount of any such compensation, and to enforce 
 payment or other satisfaction thereof. 
 
 1 Compare with the provisions in ss. 6 and 1 1 of this Act the like 
 provisions in ss. 6 and 16 (proviso ad fin.} of the Railways Clauses Act, 
 1845 (8 & 9 Viet. c. 20), and in ss. 6 and 12 (proviso ad fin.) of the 
 Waterworks Clauses Act, 1847 (10 & n Viet. c. 17). 
 
 It is not intended to insert here a review of all the provisions of the 
 Lands Clauses Acts or the numerous decisions thereon. For that the 
 reader is referred to some standard work on the law of compensation. 
 It has been thought, however, that it might be useful to mention certain 
 established propositions, which appear to be applicable to ss. 6 and n of 
 this Act : 
 
 (a) (i8 73 )L.R. 6H.L. 303.
 
 146 Markets and Fairs Clauses Act, 1847 S. 6 
 
 1. There is no remedy, unless a remedy is given by statute, for damage 
 arising from the lawful exercise, without negligence, of statutory powers, (a) 
 
 2. The compensation provided by ss. 6 and 1 1 is compensation for 
 damage done in the lawful exercise, in a lawful manner, of the statutory 
 powers therein referred to ; and not compensation for injury done by the 
 undertakers while exceeding their powers or while exercising them in an 
 unlawful or negligent manner ; but for such injury the ordinary remedy 
 by action for damages or an injunction remains unimpaired.(<$) 
 
 3. S. 1 1 does not curtail the right of the undertakers to exercise their 
 statutory powers therein referred to, but controls the manner in which 
 such powers may be lawfully exercised. Undertakers who, in exercising 
 such powers, do unnecessary damage, are liable to an action, (r) 
 
 4. If the undertakers, in 'pursuance of their powers, take lands com- 
 pulsorily from a person who holds other lands besides the lands so taken, 
 such person is entitled to compensation for any diminution in the value of 
 such other lands, whether arising from the construction on the lands so taken 
 of the works authorised to be constructed thereon, or arif.ing, after the con- 
 struction of such works, from the authorised use of such works and lands, (d) 
 
 5. A person who neither owns nor has any interest in the lands which 
 the undertakers take compulsorily is only entitled to compensation for 
 damage arising from the exercise by the undertakers of their statutory 
 powers if it arises under the following circumstances : 
 
 (i. ) The damage must arise from an act done in the lawful exercise by 
 the undertakers of their statutory powers ; see propositions 2 and 3, sup-, a. 
 
 (ii.) The damage must be such damage as would have rendered the 
 undertakers liable to an action therefor if they had not obtained their 
 statutory powers, (e) 
 
 (iii.) The damage must be an injury to lands, or to a right incident 
 thereto ; and not merely a personal injury or injury to trade. (/) 
 
 (iv. ) The damage must arise from the construction of the authorised 
 works, and not from their user after construction. But construction may 
 include works made after the market is opened. The scope of s. II of 
 this Act is limited by the words introductory to the group of sections to 
 which it belongs, (f) 
 
 Consequently the owner of a common law market or fair has no 
 
 (a) R. v. Pease (1832)4 B. & Ad. 30; Vaiighan v. Taff Vale Rly Co. 
 <i86o) 5 H. & N. 679 ; Hammersmith Rly. Co. v. Brand (1868) L.R. 4 H.L. 
 171 ; L. B. & S. C. Rly. Co. v. Truman (1885) n App. Cas. 45. 
 
 (b) Broadbent v. Imperial Gaslight Co. (1857) 7 De G. M. & G. 436. 
 7 H.L.C. 600; Lawrence v, G. N. R. Co. (1851) 16 Q.B. 643: Clowes v. 
 Staffordshire Potteries Waterworks Co. (1872) L.R. 8 Ch. 125; Biscoe v. G. 
 E. R. Co. (1873) L.R. 16 Eq. 636. 
 
 (c) Per Lord Campbell, R. v. E. & W. India Docks Co. (1853) 2 E. & B. 
 466, 474; Fenwickv. East London Rly. Co. (1875) L.R. 20 Eq. 544; A.-G. 
 v. Metr. Rly. Co. [1894] i Q.B. 384, 391. 
 
 (</) Re Stockport, Timperley and Altrincham Rly. Co. (1869) 33 L.J.Q.B. 
 251 Cowper Essex v. Local Board for Acton (1889) 14 App. Cas. 153. 
 
 (e) Re Pennv (1857) 7 E. & B. 660; Ricket v. Metr. Rly. Co. (1867) L.R. 
 2 H.L. 175; Hammersmith Rly. Co. v. Brand (1868) L.R. 4 H.L. 171; 
 Caledonian Rly. Co. v. Walker's Trustees (1882) 7 App. Cas. 259. 
 
 (/) Ricket v. Metr. Rly. Co. (1867) L.R. 2 H.L. 175; Beckett v. Mid- 
 land Rly. Co. (1868) L.R. 3 C.P. 82; Metr. B. of W. v. McCarthy (1874) 
 L.R. 7 H.L. 243; Caledonian Rly. Co. v. Walker's Trustees (1882) 7 App. 
 
 ^('^Hammersmith Rly. Co. v. Brand (1869) L.R. 4 H.L. 171 ; Caledonian 
 Rly.' Co. v. Walker's Trustees (1882) 7 App. Cas. 259; A.-G. v. Metr. Rly. Co. 
 [1894] i Q.B. 384.
 
 S. 6 Construction of Market or Fair 147 
 
 right, under s. II, to compensation for any damage to his franchise caused 
 by the undertakers holding their statutory market, (a) 
 
 2 See s. 3. The definition of lands there given is the same as that 
 in the Lands Clauses Act, 1845, s - 3> and includes incorporeal heredita- 
 ments ;(/>) but in the absence of a special provision in the special Act, the 
 undertakers will have no power to compel landowners to grant easements 
 in their favour, (c) 
 
 3 8 & 9 Viet. c. 1 8, amended by 23 & 24 Viet. c. 106, 32 & 33 Viet, 
 c. 1 8, and 46 & 47 Viet. c. 15. 
 
 S. 7. If 1 any omission, mis-statement, or wrong description Errors and 
 shall have been made of any lands, or of the owners, lessees, or omissions 
 occupiers of any lands, described or purporting to be described in T t^o^ 
 the special Act, or in the schedule thereto, the undertakers, after schedules 
 giving ten days' notice to the owners, lessees, and occupiers of thereto, 
 the lands affected by such proposed correction, may apply in nmybecor- 
 England ... to two justices 2 . . . for the correction thereof ; ; ust ; ces 
 and if it appear to such justices . . . that such omission, mis- who shall 
 statement, or wrong description arose from mistake, they . . . certify the 
 shall certify the same accordingly, and shall in such certificate sa 
 state the particulars of any such omission, mis-statement, or 
 wrong description ; and such certificate shall be deposited in Certificate 
 England . . . with the clerk of the peace ... of the county 3 in to be 
 which the lands affected thereby shall be situated ; . . . and such de P oslted 
 certificate shall be kept by such clerk of the peace . . . with 
 the other documents to which they relate, 4 and thereupon the 
 special Act or schedule shall be deemed to be corrected according 
 to such certificate ; and the undertakers may make the works in 
 accordance with such certificate as if such omission, mis-state- 
 ment, or wrong description had not been made. 
 
 1 Cf. the corresponding provisions in s. 7 of the Railways Clauses 
 Act, 1845, and s. 7 of the Waterworks Clauses Act, 1847. The object of 
 the section is to provide for cases in which it may be difficult to identify 
 the lands described in the special Act or the schedule thereto, owing to 
 some omission or mis-statement by mistake in the description there given 
 of the lands or the persons having interests therein. (d) 
 
 2 See ss. 3, 55. ' See s. 3. 
 
 4 The documents referred to include the copy of the special Act, which 
 must be deposited with the clerk of the peace, under s. 58. 
 
 S. 8. Copies of any such alteration or correction thereof, or Copies of 
 extracts therefrom, certified by any such clerk of the peace, . . . alterations 
 
 (a) See Hopkins v. G. N. Rly. Co. (1877) 2 Q.B.D. 224. 
 
 (&) See G. W. R. Co. v. Swindon and Cheltenham Rly. Co. (1884) q App 
 Cas. 787. 
 
 (r) Pinchin v. L. & Blackwall Rly. Co. (1855) 5 De G. M. & G. 851 Hill 
 v. Mid. Rly. Co. (1882) 21 Ch.D. 143; G. W. R. Co. v. Swindon, etc., Co. 
 
 SU (d) Kemp v. W. End of London Rly. Co. (1855) iK.&J. 681.
 
 148 Markets and Fairs Clauses Act, 1847 S. S 
 
 to be in whose custody the same may be, which certificate ' such clerk 
 
 evidence shall give to all parties interested when required, shall be received 
 
 in all courts of justice and elsewhere as evidence of the contents 
 
 thereof.- 
 
 1 I.e. the clerk's certificate that the copy is a true copy of the justices' 
 certificate. It is not expressly provided that interested parties may 
 inspect the justices' certificate, and make extracts or copies therefrom, but 
 the clerk is bound to give them his certificate when required, and is not 
 expressly empowered to charge any fee. It might perhaps be held that an 
 inspection or copy of the justices' certificate may only be had on the same 
 terms as an inspection or copy of the special Act under s. 58 (q.v. ). 
 
 - A copy of the justices' certificate, purporting to be certified as a true 
 copy, and to be signed as such, by a clerk of the peace having the custody 
 of the original, is admissible in evidence without proof of the signature or 
 official character of the clerk; see the Evidence Act, 1845. (a) 
 
 Additional S. 9. The undertakers, in addition to the lands authorised to 
 
 land may be taken compulsorily, or to be appropriated by them for the pur- 
 
 iken poses of the market or fair under the powers of this and the 
 
 ordinary special Act, may appropriate any lands vested in them, or may 
 
 purposes contract with any person willing to sell the same, for the purchase 
 
 of any land within the limits of the special Act, 1 not exceeding in 
 
 the whole the prescribed 2 number of acres, for extraordinary 
 
 purposes ; (that is to say,) 
 
 [i] For providing slaughter-houses, (if the undertakers shall be 
 authorised by the special Act to provide slaughter-houses,) 
 and houses and places for weighing carts : 
 [2] For making convenient roads and approaches to the market 
 
 or fair : 
 
 [3] For any other purpose which may be necessary 3 for the 
 formation or convenient use of the market or fair. 
 
 1 See s. 12, and note (2) thereon, infra. 2 Sees. 2. 
 
 * A purpose does not become ' necessary ' within the meaning of this 
 clause because it is convenient to the undertakers on the score of 
 economy, (b) 
 
 Under- S. 10. Subject to the provisions in this and the special Act, and 
 
 takers,sul> any Act incorporated therewith, the undertakers, for the purpose 
 
 ject to pro- O f constructing a place for holding the market or fair, may execute 
 
 th1sand any ^ t * ie f llowm wor ks ; (that is to say,) 
 
 the special [i] They may enter J upon any lands described in the special 
 
 Act, may Act, or the schedule thereto, and other lands purchased 
 
 execute by them or belonging to them, and set out such parts as 
 
 berem^ ^ ey tnm ^ necessary for the purposes of the market or 
 
 name d fair, and thereupon from time to time build and maintain 
 such market-places or places for fairs, and such stalls, 
 
 (a) 8 & 9 Viet. c. 113, s. i. 
 
 (6) See Fenwick v. E. London Rly. Co. (1875) 20 Eq. 544.
 
 S. 10 Construction of Market or Fair 149 
 
 sheds, pens, and other buildings or conveniences for the 
 use of the persons frequenting the market or fair, and 
 for weighing and measuring goods sold in the market or 
 fair, and for weighing carts, as they may think necessary.- 
 [2] They may from time to time on such lands as aforesaid 
 make and maintain all such roads and approaches as 
 they may think necessary for the convenient use of the 
 persons resorting to the market or fair. 
 
 1 With regard to lands to be taken or used compulsorily, the under- 
 takers' right of entry is subject to the Lands Clauses Act, 1845, ss. 84-92 ; 
 see also ss. 124-126. 
 
 2 Unless the special Act otherwise provides, the words ' lands purchased 
 by them,' as used in this section, will, it seems, include all lands from time 
 to time purchased by the undertakers, whether purchased before or after 
 the passing of the special Act, provided that they have power to purchase 
 such lands and devote them to the purposes mentioned in the section. 
 But the special Act usually limits the scope of this section either to specified 
 lands or to lands within a specified district. 
 
 This Act does not expressly confer upon the undertakers any right to 
 remove a market from one place to another. The provisions of s. 14, 
 infra, seem to be imperative, and if they be so, then, subject to the provi- 
 sions of the special Act, the undertakers, when once they have opened a 
 market-place for public use, must continue to hold markets therein. 
 Under s. 9, however, it seems that they may have power from time to 
 time to extend the market-place. 
 
 If powers of removal are desired, it seems advisable to make express 
 provision for them in the special Act. 
 
 S. ii. Provided' always, that in the exercise of the powers by Under - 
 
 this or the special Act granted the undertakers shall do as little takers to 
 
 damage as can be, and shall make full satisfaction in manner ^tionlror" 
 
 herein ~ and by the special Act and any Act incorporated there- damage 
 
 with provided to all parties interested for all damages sustained done 
 by them by reason of the exercise of such powers. 
 
 1 See s. 6, supra, and note ( i ) thereon. 
 
 2 The reference seems to be to s. 6, and not to s. 52, of this Act ; even 
 in cases where compensation for lands injuriously affected is claimed by 
 persons having no interest in lands taken, (a) 
 
 And with respect to the holding of the market or fair, and the 
 protection thereof, be it enacted as follows : 
 
 Clauses 12-16 are incorporated with the Public Health Act, 1875, see 
 s. 167, post, p. 184 ; and also with the Diseases of Animals Act, 1894, see 
 s. 32., post, p. 190. 
 
 S. 12. Before the market or fair shall be opened for public Before the 
 use the undertakers shall give not less than ten days' notice of market or 
 
 (a) See R. v. Edwards (1884) 13 Q.B.D. 586.
 
 1 50 Markets and Fairs Clauses Act, \ 847 
 
 S. 12 
 
 fair shall 
 be opened, 
 notice to 
 be given 
 by under- 
 takers 
 
 Sales else- 
 where than 
 in markets 
 prohibited 
 under a 
 penalty not 
 exceeding 
 40.'-. 
 
 
 the time when the same will be opened, 1 and such notice shall 
 be given by the publication thereof in some newspaper circulating 
 within the limits of the special Act,' 2 and by printed handbills 
 posted on some conspicuous place within those limits. 3 
 
 1 I.e. ' the time when it will for the first time be opened for public 
 use ' ; but it is advisable to state in the notice the days and hours on 
 and during which the market or fair will be held. 
 
 2 The phrase ' within the limits of the special Act ' occurs also in 
 ss. 9, 17, 19, and 42. It is not defined by this Act, and its meaning 
 must be sought for in the special Act. It is therefore advisable, in drafting 
 a special Act, to insert therein a definition of the phrase as used in the 
 incorporated sections. For markets under the Public Health Act, 1875, 
 the phrase is defined by s. 316 of that Act ; see/^/, p. 188. 
 
 3 No penalty is imposed by this Act upon undertakers who open their 
 market or fair without giving the notice prescribed by this section ; but 
 (assuming that s. 12 is incorporated by the special Act) it is doubtful 
 whether the undertakers of a market can take the benefit of s. 13 of this 
 Act if they have not complied with s. 12, or whether a market or fair 
 is a legal market or fair for any purpose until s. 12 has been complied with. 
 In a prosecution under s. 13 it is advisable to prove that s. 12 has been v . 
 complied with, as was apparently done in Hooper v. Kenshole.(a) /,'-''>-'" 
 
 S. 13. After 1 the market-place is opened for public, use- every " 
 person other than a licensed hawker 3 who shall sejl or expose for 
 sale in any place within the prescribed limits, 4 except 5 in his own 
 dwelling-place or^shop^ any articles 7 in respect of which tolls * 
 are by the special Aat authorised to be taken in the market, shall 
 for every such offencp be liable to a penalty ", not exceeding forty 
 shillings. 10 
 
 1 The effect of this section on the undertakers' right of action for dis- 
 turbance of their market is discussed ante, p. 87. 
 
 2 See s 12 and note (3) thereon, supra. This section (unlike ss. 12 
 and 14-16) applies only to a market, and not to a fair. It seems that it 
 would not apply to a fair regulated by a special Act merely because such 
 Act incorporated this Act. 
 
 This section comes into force as soon as the market-place has been 
 opened for public use ; and its operation appears not to be confined to the 
 days on which, or the hours during which, the market is held. 
 
 3 A licensed hawker here means a hawker trading as such, who holds 
 a licence under the Hawkers Act, i888,() or a pedlar trading as such, 
 who holds a certificate under the Pedlars Acts, 1871 and 1 88 !.(<:) 
 
 For the purposes of the Hawkers Act, 1 888, a ' hawker' means 'any 
 person who travels with a horse or other beast bearing or drawing 
 burden, and goes from place to place or to other men's houses carrying to 
 sell or exposing for sale any goods, wares, or merchandise, or exposing 
 samples or patterns of any goods, wares, or merchandise to l?e afterwards 
 delivered, and includes any person who travels by any means of locomotion 
 to any place in which he does not usually reside or carry on business, and 
 there sells or exposes for sale any goods, wares, or merchandise, in or at 
 any house, shop, room, booth, stall, or other place whatever hired or used 
 by him for that purpose ' (s. 2). The Act requires every hawker annually 
 
 (a) (i8 77 )2Q.B.D. 127. 
 
 (c) 34 & 35 Viet. c. 96 ; 44 & 45 Viet. c. 45. 
 
 (t) 51 & 52 Viet. c. 33.
 
 S. 13 Holding of Market, etc. \ 5 1 
 
 to take out a licence (s. 3 (i) ), which, whenever issued, expires on the 
 3 1st March in each year (s. 3 (2) ) ; but exempts from this requirement 
 certain persons, including persons who sell fish, fruit, victuals, or coal. 
 But a person so exempted, who does not take out a licence, is not ' a 
 licensed hawker' within the meaning of the above section i$.(a) S. 5 of 
 the Act of 1888 requires a hawker to keep his name and the words 
 ' licensed hawker ' on every box, package, and vehicle used for the carriage 
 of his goods. If a local Act which incorporates the above section 13 
 prohibits the sale of tollable articles in the street unless sold by a licensed 
 hawker in the ' lawful exercise of his calling,' the prohibition extends to a 
 licensed hawker who does not comply with s. 5 of the Act of l888.() 
 
 For the pui poses of the Pedlars Acts, a ' pedlar ' means ' any hawker, 
 pedlar, petty chapman, tinker, caster of metals, mender of chairs, or 
 other person who, without any horse or other beast bearing or drawing 
 burden, travels and trades on foot and goes from town to town or to other 
 men's nouses, carrying to sell or exposing for sale any goods, wares, or 
 merchandise, or procuring orders for goods, wares, or merchandise imme- 
 diately to be delivered, or selling or offering for sale his skill in handicraft ' 
 (Act of 1871, s. 3). The Acts prohibit any person from acting as a pedlar 
 without the prescribed certificate, which lasts for one year from the date of 
 its issue, but provide that it shall not be necessary for a certificate to be 
 obtained by certain persons, including commercial travellers and sellers of 
 vegetables, fish, fruit, or victuals, (c) The Act of 1871, s. 6, provides 
 that a certificate under that Act shall, for the purpose of the Markets and 
 Fairs Clauses Act, 1847, an d any Act incorporating the same, have the 
 same effect as a hawker's licence, and that the term ' licensed hawker ' in 
 the Markets and Fairs Clauses Act shall be construed to include a 
 pedlar holding such a certificate. A person, however, who holds only a 
 pedlar's certificate is exempted from the provisions of the above s. 13 
 only while trading as^a pedlar ; and he is not exempted therefrom if he 
 trade as a hawker with a horse and cart without a hawker's licence ;(d) 
 nor is a person without a pedlar's certificate exempted therefrom by reason 
 that the Act of 1871, s. 23, renders it unnecessary for him to take out a 
 pedlar's certificate, (a) Where a special Act prohibited persons from 
 selling tollable articles in the streets without a licence from the undertakers, 
 and made no exception in favour of licensed hawkers or certificated 
 pedlars, it was held that such hawkers and pedlars were subject to the 
 prohibition|;(a) but such prohibition does not prevent them from selling 
 non-tollable articles, (e) 
 
 4 ' The prescribed limits ' mean ' the limits prescribed for that purpose 
 in the special Act ' ; see s. 2, supra. If the special Act provides that such 
 Act shall for all purposes be in force within a specified district, the 
 boundaries of that district are the prescribed limits, (f) In the case of a 
 market under the Public Health Act, 1875, the limits of the district of the 
 urban authority are the prescribed limits, (g) In the case of a market under 
 the Diseases of Animals Act, 1894, the limits of the land acquired or appro- 
 priated for the purposes of the market are the prescribed limits. (A) 
 
 There have been several decisions upon the question what constitutes 
 
 (a) Openshaw v. Oakeley (1889) 60 L.T. 929. 
 (6) Hooper v. Kenshole (1877) 2 Q.B.D. 127. 
 (c) Act of 1871, ss. 4, 5, 23 ; Act of 1881, s. 2. 
 
 (c) Act of 1871, ss. 4, 5, 23 ; Act of 1881, s. 2. 
 
 (d) Woolwich L.B. of Health v. Gardiner [1895] 2 Q.B. 497. 
 
 (e ) Loftos v. Cleave (1890) 55 J.P. 149 ; Loftos v. Kiggins (1890) Id. 151. 
 (/) Caswellv. Cook (1862) n C.B.N.S. 637; and see Kilminster v. Fitton 
 (1886) 53 L.T. 959 ; Collier v. North (1876) 35 L.T. 345. 
 
 (e) Spurting v. Bantoft [1891] 2 Q.B. 384. 
 (A) 57 & 58 Viet. c. 57. s. 32 (3).
 
 152 Markets and Fairs Clauses Act, 1847 S. 13 
 
 a sale within the prescribed limits. The effect of these decisions, with 
 regard to contracts for the sale and delivery of tollable articles, seems to 
 be as follows : 
 
 1. The section does not affect a delivery within the limits under a 
 contract made outside the limits, provided that the goods were outside the 
 limits at the time when the contract was made, and were appropriated to 
 the contract before they were brought within the limits, (a) According to 
 the Irish case of Newtownards Town Commissioners v. Woods, (t>) the 
 section does not affect a delivery within the limits, under a contract of sale 
 made by sample within the limits, if the bulk of the goods was outside 
 the limits at the time when the contract was made ; but this case seems to 
 be at variance with the cases next to be mentioned. 
 
 2. The section applies to cases in which the goods are delivered within 
 the limits without having been appropriated to the contract before being 
 brought within the limits ; and it seems to be immaterial in these cases 
 whether the contract was made within the limits or outside them, (c) A 
 fortiori, the section applies where the contract was made within the limits 
 and the goods appropriated to the contract were within the limits at the 
 time when the contract was made.(rf) It applies notwithstanding that 
 the seller previously bought the goods in the market, (e) 
 
 A baker does not ' expose for sale ' bread which he brings to a customer's 
 house merely for the purpose of making a delivery under a previous con- 
 tract^/) 
 
 5 The only place expressly excepted is the seller's own dwelling-place 
 or shop, but the section can scarcely be construed as prohibiting sales in the 
 market-place while the market is in progress. 
 
 6 It is a question of fact whether a place is a man's own dwelling-place 
 or shop ; but in determining that question regard must be had to the object 
 of the section, which is, on the one hand, that the market should be pro- 
 tected from the establishment, within the district, of a rival market, but, 
 on the other hand, that the established traders of the district who carry on 
 their business in their own dwelling-places or shops should not be interfered 
 with. (?) 
 
 1 Dwelling-//a<- ' has been said by Earle, C.J., to be a wider expres- 
 sion than ' dwelling-house,' which occurs in some local Acts, and to be 
 capable" of including a yard attached to a dwelling-house ;(k) but in Fearon 
 a. Mitchell,(z) Cockburn, C.J., thought that no distinction was to be 
 drawn between the two expressions ; and in that case, and in McHole v. 
 Davies, (/) it was held that a large yard adjoining a man's dwelling-house, 
 
 (a) Bourne v. Lowndes (1858) 22 J. P. 354; Stretch v. White (i 86 1) 25 
 Id. 485; see Pletts z>. Campbell [1895] 2 Q.B. 229; Pletts v. Beattie [1896] 
 i Q.B. 519. 
 
 (b) (1877) ii Ir.Rep.C.L. 506. 
 
 (c) Mayor of Exeter v. Heaman (1877) 37 L.T. 534; Torquay Market 
 Co. v. Burridge (1884) 483. P. 71; see Pletts v. Campbell, Pletts v. Beattie, 
 supra. 
 
 (d) Mayor of Londonderry v. M'Elhinney (1875) 9 Ir.Rep.C.L. 61. 
 
 (e) Black v. Sackett (1869) 10 B. & 8. 639. 
 
 (/) White v. Mayor of Yeovil (1892) 61 L.J.M.C. 213. Cf. Luke v. 
 Charles (1861)25). P. 148. 
 
 (g) Llandaff Market Co. v. Lyndon (1860) 8 C.B.N.S. 5x5, 524 ; Pope v. 
 Whalley (1865) 6 B. & S. 303; Ashworth v. Heyworth (1869) L.R. 4 Q.B. 
 316; Fearon v. Mitchell (1872) L.R. 7 Q.B. 690; McHole v. Davies (1875) 
 i Q.B.D. 59. 
 
 (k) Llandaff Market Co. v. Lyndon, supra ; and per Cockburn, C.J., in 
 McHole v. Davies, supra. 
 
 (i) Supra. (j ) Supra.
 
 S. 13 Holding of Markets > etc, 153 
 
 and used by him for extensive sales of cattle and sheep, was neither his 
 dwelling-place nor his shop. 
 
 In considering whether a place is a shop, ' it is necessary to have regard 
 to the nature, character, and extent of the trade ' which is carried on 
 therein, (a) In Fearon v. Mitchell it was held that a large hall, used for 
 sales of cattle by public auction, was not a shop, but a rival market. An 
 auction-room may be a shop, and if a place be a shop ' the mode of 
 selling therein cannot deprive it of the ordinary privilege attached to a 
 shop ' \(b) \>\&prima facie auctioneers' premises are not shops, (c) 
 
 A distinction is drawn not only between 'shop' and 'rival market,' 
 but also between ' shop ' and ' stall. ' ' Shop ' imports something more 
 than a mere place for sale : it imports a place for storing also, so far as the 
 nature of the commodities admit of storing ;(d) and it means a man's ' real 
 permanent private shop,' as distinguished from a mere temporary stall, (e) 
 In determining whether a particular structure is a shop or a stall, it is 
 proper to consider whether the building is of a substantial character, cr a 
 mere alteration of what was formerly a stall : whether it admits of the 
 entrance of buyers : whether it protects the goods from the weather, and 
 admits of their being left therein at night with reasonable safety : and also 
 what is the nature and duration of the tenant's holding thereof ; but no 
 one of these considerations is conclusive of itself, (e) Thus it was held 
 in Ashworth v. Heyworth (/) that a wooden shed which was affixed to a 
 house and stood upon premises held therewith, and which had for many 
 years been used for exposing goods for sale, was a shop ; and in Hooper v. 
 Kenshole,(-) that a covered and enclosed skittle-alley was not the shop of 
 a hawker who hired it for two days to sell his goods therein. A ship 
 moored to a wharf in a canal is not a shop.(/i) 
 
 In Spurling v. Bantoft (*') a cattle market was established in a borough 
 by the corporation, acting as sanitary authority. Prior to the establishment 
 of such market, they had granted to a cattle salesman a lease of a yard, 
 with a covenant for quiet enjoyment. It was held that the lease and 
 covenant did not exempt the tenant from the operation of this section. 
 
 7 ' Article ' is the word usually employed to cover all marketable com- 
 modities, and a horse may be an article within the meaning of the sec- 
 tion. (/) 
 
 8 ' Toll ' here means a market toll payable in respect of articles sold or 
 exposed for sale in the market, and does not include a toll in the nature of 
 stallage or rent payable for the occupation of a stall in the market- 
 place.^) 
 
 9 For the recovery of penalties, see s. 52. The offence cannot be con- 
 doned by payment of toll, nor toll claimed in lieu of penalty. (/) 
 
 10 The effect of this section may be considerably altered by the provisions 
 of the special Act, with which it must be read.(w) 
 
 (a) Per Mellor, J., Fearon v. Mitchell (1872) L.R. 7 Q.B. 690. 
 
 (b) Per Byles, J., Wiltshire v. Willett (1861) n C.B.N.S. 240. 
 
 (c) Per Blackburn, J., and Cockburn, C.J., in Fearon v. Mitchell, supra. 
 
 (d) Per Mellor, J., Pope v. Whalley (1865) 6 B. & S. 303. 
 
 (e) Per Blackburn, J., Id. (/) (1869) L.R. 4 Q.B. 316. 
 fif) ( l8 77) 2 Q.B.D. 127. See also Perkins v. Arber (1873) 37 J-P- 406. 
 (A) Wiltshire v. Baker (1861) n C.B.N.S. 237. 
 
 (i) [1891] 2 Q.B. 
 (/) Llandaff 
 
 larket Co. v. Lyndon (1860) 8 C.B.N.S. 515. See also 
 Shepherd v. Folland (1884) 49 J. P. 165 ; Morgan v. Kingdon ( 1875) 39 Id. 471. 
 
 () Caswell v. Cook (1862) n C.B.N.S. 637. 
 
 (/) Carter v. Parkhouse (1870) 22 L.T.N.S. 788; Quilligan v. Limerick 
 (1883) 14 L.R. Ir. 265. 
 
 (m) See Rutherford v. Straker (1887) 42 Ch.D. 85 n.
 
 154 Markets and Fairs Clauses Act, 1847 S. 14 
 
 Market S. 14. After the market-place or place for fairs is opened for 
 
 days public use ' the undertakers shall 2 hold markets and fairs 
 
 therein on the prescribed 3 days (if any;, and on such other days 
 as the undertakers shall - appoint from time to time by any by- 
 law 4 to be made in pursuance of this or the special Act. 
 
 1 See s. 12, and note (3) thereon, supra. 
 
 2 The section provides no remedy for non-compliance with its pro- 
 visions, which seem to be imperative ; and if they are imperative, then 
 (subject to the provisions of the special Act) mandamus is the proper legal 
 remedy. 
 
 3 I.e. prescribed for that purpose in the special Act ; see s. 2. 
 
 4 See ss. 42-49, infra. 
 
 Penalty for S. 15. Every person who shall sell or expose for sale any un- 
 selling or wholesome meat or provisions L in the market or fair shall be 
 r X ^ S i ing liable to a penalty- not exceeding five pounds for every such 
 wholesome o ff ence '> an d any inspector of provisions appointed by the 
 meat, etc. undertakers may seize such unwholesome meat or provisions, 
 and carry the same before a justice, and thereupon such proceed- 
 ings shall be had as are herein-after 3 directed to be had in the 
 case of any cattle or carcase seized in any slaughter-house and 
 carried before a justice. 
 
 Penalty on And every person who shall obstruct or hinder the inspector 
 obstructing o f provisions from seizing or carrying away such unwholesome 
 inspector meat Qr p rov i s i ons s h a ii be liable to a penalty* not exceeding 
 five pounds for every such offence. 
 
 1 As to selling unwholesome meat and provisions, see further, ante, 
 p. 104. As to making by-laws for preventing the sale or exposure for sale 
 of unwholesome provisions in the market or fair, see s. 42, infra ; and see 
 also, post, p. 208. 
 
 2 As to the recovery of penalties, see s. 52, infra. 
 9 See s. 2O, infra. 
 
 Penalty for S. 16. Every person who shall assault or obstruct any person 
 
 obstructing appointed by the undertakers to superintend the market or fair, 
 
 market or or to k eep order therein, whilst in the execution of his duty, shall 
 
 eeper ^ every suc h offence be liable to a penalty l not exceeding forty 
 
 shillings. 
 
 1 As to the recovery of penalties, see s. 52, infra. 
 
 And with respect to slaughter-houses, be it enacted as follows : 
 
 Clauses 17-20 relate to slaughter-houses, a subject which does not 
 fall within the scope of this book. It seems sufficient, therefore, to point 
 out that Clauses 17-20 are incorporated with the Diseases of Animals Act, 
 1894, but are not incorporated with the Public Health Act, 1875. Cl. 15, 
 however, of this Act, which is incorporated with the Public Health Act, 
 1875, refers to cl. 20 of this Act for the proceedings to be taken upon the 
 seizure of unwholesome meat or provisions exposed for sale.
 
 S. 17 Slaughter-houses 155 
 
 S. 17. Where by the special Act the undertakers shall be em- Power to 
 powered to provide slaughter-houses they may from time to time erect 
 erect, on any land purchased by them under the provisions of this ^oufes^f 
 or the special Act, or any Act incorporated therewith, any build- authorised 
 ings, or set apart and improve any buildings belonging to them, by the 
 for the slaughtering of cattle, 1 and so soon as the same shall be special 
 ready for public use the undertakers shall give notice to that 
 effect by the publication thereof in some newspaper circulating 
 within the limits of the special Act,'- and by printed handbills 
 posted on some conspicuous place within the said limits. 
 
 1 See s. 3. 2 See s. 12 and note (2) thereon, supra. 
 
 S. 18. Provided that nothing in this or the special Act, or any Nothing to 
 
 Act incorporated therewith, shall protect the undertakers from an P r tect 
 
 indictment for nuisance, 1 or from any other legal proceeding, in ta k ers f rom 
 
 respect of any such slaughter-house as aforesaid. an indict - 
 
 1 The keeper of a slaughter-house which is a public nuisance is liable ni 
 to be indicted, (a) and is also liable to an action for damages or an injunc- n 
 tion at the suit of a person who sustains particular damage therefrom 
 beyond that suffered by the general public. (6) 
 
 S. 19. After the expiration of ten days from the publication Penalty on 
 and posting of such notice no person shall slaughter any cattle s lau S hter - 
 or dress any carcase, for sale as human food or food of man, ^ "dse- 
 in any place within the limits of the special Act other than a where than 
 slaughter-house which was in use as such before and at the time in an 
 of the passing of the special Act, and has so continued ever since, J^ 1 ^ 1 
 or the slaughter-houses made in pursuance of this and the special nou se 
 Act ; and every person who shall, after such notice as aforesaid, 
 slaughter any such cattle 2 or dress for sale any such carcase 
 within the limits of the special Act in any place other than one of 
 such slaughter-houses, shall be liable to a penalty 3 not exceeding 
 five pounds for every such offence. 
 
 1 See s. 17. 
 
 It is not an offence under this section to slaughter cattle on private 
 premises for any purpose other than that of their being sold as human food 
 or food of man. (c) 
 
 3 As to the recovery of penalties, see s. 52, infra. 
 
 S. 20. The inspector of provisions, or any officer appointed Inspector 
 
 by the undertakers for that purpose, may at all times of the day, may enter 
 
 with or without assistants, enter into and inspect all buildings ^ 
 
 erected or set apart by the undertakers for slaughtering cattle, houseT 
 and examine whether any cattle or the carcase of any cattle 
 
 (a) R. v. Cross (1826) 2 C. & P. 483 ; R. v. Watts, Id. 486. 
 (6) 3 Blac. Comm. 220 ; Benjamin v. Storr ( 1874) L. R. 9 C. P. 400 ; Crump 
 v. Lambert (1867) L.R. 3 Eq. 409 ; see i Sm. L.C. (loth ed.), pp. 274, 828. 
 (c) Elias v. Nightingale (1858) 8 E. & B. 698.
 
 Under- 
 takers to 
 provide 
 proper 
 weights 
 and meas- 
 ures for 
 weighing 
 commodi- 
 ties sold at 
 markets 
 and fairs 
 
 156 Markets and Fairs Clauses Act, 1847 S. 20 
 
 is deposited there ; and in case such officer shall find any cattle, 
 or the carcase or part of the carcase of any such cattle, which 
 shall appear unfit for the food of man, he may seize and carry the 
 same before a justice, and such justice shall forthwith order the 
 same to be further inspected and examined by competent persons ; 
 and in case upon such inspection and examination such cattle, 
 carcase, or part of a carcase, shall be found unfit for the food of 
 man, such justice shall order the same to be immediately destroyed 
 or otherwise disposed of in such way as to prevent the same being 
 exposed for sale or used for the food of man ; and every person 
 who shall obstruct or hinder such inspector or other officer in the 
 discharge of any of the duties aforesaid shall be liable to a 
 penalty ' not exceeding five pounds for every such offence. 
 1 As to the recovery of penalties, see s. 52, infra. 
 
 And with respect to weighing goods and carts, be it enacted 
 as follows : 
 
 Clauses 21-30 are incorporated with the Public Health Act, 1875, see 
 s. 167, post, p. 184 ; and also with the Diseases of Animals Act, 1894, see 
 s. 32 (2), post, p. 190. 
 
 In these clauses, the legislature speaks sometimes of 'commodities' 
 (see s. 21, and cf. s. 34), sometimes of ' articles~ T ~(see ssT~Zz;"Tj; and cf. 
 ss. 13, 38, 42), and sometimes of 'goods,' as above (see ss. 24, 25, 28, and 
 cf. s. 34). The words ' articles ' and ' commodities ' appear to be synony- 
 mous, and to be capable of including all things for the buying and selling 
 of which the market or fair is held, (a) ' Articles ' may sometimes include 
 horses, (a) and also, it seems, cattle; see s. 38, infra, where the 
 legislature speaks of 'cattle or other articles.' Apart from the above 
 heading, the legislature uses the word goods ' in this group of clauses 
 only when referring to goods brought in carts ; and the word ' goods ' as 
 here used seems not to be applicable to cattle ; see the preamble and pro- 
 visions of 50 & 51 Viet. c. 27, post, p. 196. If that is so, it may perhaps 
 be contended that the meaning of the words ' commodities' and 'articles,' 
 whenever they occur in this group of clauses, is cut down by the word 
 ' goods,' as used in the heading, so as not to include cattle ; and there 
 seems to be nothing in this group of clauses which is inconsistent with such 
 contention. 
 
 As to weighing and measuring, see further, ante, pp. 98-104. 
 
 S. 21. The undertakers shall * provide sufficient and proper 
 weighing houses or places for weighing or measuring the com- 
 modities sold in the market or fair, and shall keep therein proper 
 weights, scales, and measures, according to the standard weights 
 and measures for the time being, for weighing such commodities 
 as aforesaid, and shall appoint proper persons to attend to the 
 weighing or measuring such commodities at all times during which 
 the market or fair is holden. 
 
 1 See s. 14, supra, and note (2) thereon. 
 
 (a) See per Byles, J., Llandaff Market Co. v. Lyndon (1860) 8 C.B.N.S. 
 515. 521-
 
 S. 22 Weighing of Goods and Carts 157 
 
 S. 22. Every person selling or offering for sale any articles in Articles to- 
 the market or fair shall, if required so to do by the buyer, 1 cause '' be weighed 
 the same to be weighed or measured by the weights and scales JgJjJJ^g 
 or measures provided by the undertakers ; and any such person buyer 
 who shall refuse, on demand, to cause such articles to be weighed p ena j ty f or 
 or measured in manner aforesaid, shall be liable to a penalty 3 not refusal 
 exceeding forty shillings. 
 
 1 Including, perhaps, any person to whom the articles are offered for . 
 sale. The request, it is submitted, must be made before the articles are 
 delivered to, and accepted by, the buyer. 
 
 - The section is silent upon the question whether the buyer or seller is 
 to bear the expense of weighing or measuring ; but as the section imposes 
 upon the seller the duty of causing the articles to be weighed or measured, 
 it seems that generally he must pay the necessary tolls ; see s. 34, infra. 
 
 3 As to the recovery of penalties, see s-. 52, infra. 
 
 S. 23. Every person appointed by the undertakers to weigh or Penalty on 
 measure any articles sold 1 in the market or fair who shall refuse persons 
 or neglect to weigh or measure the same when required shall be r 
 liable to a penalty 2 not exceeding forty shillings. weigh 
 
 1 Including, possibly, ' articles offered for sale ' ; see s. 22, supra. 
 Perhaps ' any articles sold in the market ' means ' any articles of a kind 
 which may be sold in the market,' and not merely the particular articles 
 which are actually sold therein. 
 
 - As to the recovery of penalties, see s. 52, infra. 
 
 S. 24. The undertakers shall provide sufficient and proper Under- 
 
 buildings or places for weighing carts in which goods are brought takers 
 
 for sale within the market or fair or the prescribed limits, 1 and ^j^,^. 
 
 shall keep therein machines and weights proper for that purpose, chines for 
 
 and shall from time to time appoint a person in every such weighing 
 
 building or place to afford the use of such machines to the ca . r * s la< ^. n 
 
 public by weighing such carts, with or without their loading, as H 
 may be required. 
 
 1 See s. 13, and note (4) thereon, supra. 
 
 S. 25. The driver ' of every such cart ' shall, at the request of Carts to be 
 the buyer or seller of such goods, or his agent, take such cart, weighed at 
 with or without the loading thereof, to the nearest of the said ^^hines & 
 weighing machines, and shall permit '- the same to be weighed ; erected by 
 and if such cart be weighed with its load thereupon the driver the under- 
 shall, if required, take such cart after its load has been discharged ta ^ ers 
 to the weighing machine nearest to such place of discharge, and 
 permit 2 it to be re-weighed without such load ; and if any such 
 driver shall for the purposes aforesaid be required to take such 
 cart a greater distance than half a mile, including the going to 
 and returning from such machines respectively, the owner of the 
 cart shall be paid for every horse which shall be used in drawing 
 such cart twopence for the first half mile, and a like sum for
 
 158 Markets and Fairs Clauses Act, 1847 S. 2 
 
 every additional half mile ; and such payment shall be made 3 by 
 the person requiring such cart to be weighed as aforesaid before 
 the driver thereof shall be obliged to take it as aforesaid for the 
 purpose of having it weighed. 
 
 1 See s. 3. 
 
 2 The driver's duty under this section is to ' permit,' not to cause,' 
 the weighing. As between the driver and the person who requires him to 
 permit the weighing, the toll for weighing must be paid, it is submitted, by 
 the latter, as he seems to be the person who ' brings ' the cart to be 
 weighed, within the meaning of s. 34, infra. Under s. 26 it is the driver's 
 duty to assist in weighing the cart if requested. 
 
 3 Or tendered ; see s. 26, infra. The section says that the owner of 
 the cart is to be paid for the cartage ; but it is submitted that, in the 
 absence of the owner, the driver has an irrebuttable authority to accept 
 payment ; otherwise the provisions of the section could be readily defeated. 
 
 Penalty on S. 26. The driver of any such cart who shall not, upon being 
 
 drivers for so requested as aforesaid, and having such payment 1 made or 
 
 take S1 carts tencierec l as aforesaid, take the same to such weighing machine 
 
 to be as herein-before directed, or who shall refuse to assist in the 
 
 weighed, weighing of the same, shall forfeit to the person requiring such 
 
 etc - cart to be weighed a sum not exceeding twenty shillings.* 
 
 1 I. e. the payment for cartage mentioned in s. 25. 
 
 z Recoverable in the manner provided by s. 5 2 > infra. 
 
 Penalties S. 27. Every driver of any such cart weighed at any weighing 
 
 on drivers machine to be provided in pursuance of this or the special Act 
 el ^"o' who sha11 comm ' t an y f the following offences shall be liable to a 
 mitt'ing penalty ' not exceeding five pounds for each offence ; (that is to 
 frauds in say,) 
 
 weighing j] jf h e at the time of weighing any such cart knowingly' 2 
 
 have anything in or about the same other than the proper 
 loading thereof : 
 [2] If he alter any ticket denoting the weight of any such 
 
 cart or the loading of the same : 
 
 [3] If he make or use, or be privy to making or using, any 
 ticket falsely stating the weight of any such cart or the 
 loading thereof : 
 
 [4] If he, after the weighing of any such cart with the loading 
 thereof, remove any part of such loading, and afterwards 
 dispose of or attempt to dispose of or represent the residue 
 of such loading as being the full loading denoted by such 
 ticket : 
 
 [5] If he, between the time when the cart and the loading 
 thereof have been so weighed and the time when such 
 cart is weighed without such loading, change the wheels 
 of such cart, or make any other change upon it after being
 
 S. 27 Weighing of Goods and Carts 159 
 
 required to allow such cart to be weighed without the 
 loading thereof : 
 
 [6] If he be guilty of any other fraudulent contrivance to mis- 
 represent the weight of any such cart or of the loading 
 thereof. 
 
 1 As to recovery of penalties, see s. 52, infra. 
 
 2 The word ' knowingly ' is not used in the description of the other 
 offences described by the section, but from the use of the word ' other ' in 
 the description of the last offence thereby described, it seems that a driver 
 does not commit any offence against the section unless he be guilty of 
 some fraudulent contrivance to misrepresent the weight of a cart or its 
 loading. 
 
 S. 28. If the buyer or seller of any goods brought in any cart Penalty on 
 
 for sale within the market or fair, 1 and which shall be required buyers or 
 
 to be weighed as aforesaid, 2 shall do 3 anything to such cart or its comm jt. 
 
 loading whereby the true weight thereof respectively shall be ting frauds 
 
 altered before 4 such weighing, he shall for every such offence be | n weigh- 
 liable to a penalty'' not exceeding five pounds. 
 
 1 The words ' or the prescribed limits,' which occur in s. 24, are here 
 omitted. 
 
 2 I.e. it seems, as provided by either s. 22 or s. 25 ; for the expression 
 ' articles,' as used in s. 22, includes ' goods brought in any cart for sale.' 
 
 3 Notwithstanding the marginal note to this section, it seems doubtful 
 whether the word ' knowingly ' or ' fraudulently ' can be read into the sec- 
 tion before the word ' do ' ; for if the scope of the section be limited by 
 reading such word into it, the section seems unnecessary, having regard to 
 s. 30, infra. 
 
 4 I.e. it seems, ' after the cart or its loading has been required to be 
 weighed and before the weighing thereof.' 
 
 5 As to the recovery of penalties, see s. 52, infra. 
 
 S. 29. The person for the time being appointed to keep any Penalties 
 weighing machine provided in pursuance of this or the special frauds 
 Act shall be liable to a penalty * not exceeding five pounds in by^he 1 * 
 any of the following cases ; (that is to say,) machine 
 
 [i] If he wilfully neglect, on application, duly to weigh any keeper 
 cart, with or without its loading, as the case may be, 
 that is brought to the machine kept by him to be weighed : 2 
 [2] If he do not fairly weigh every such cart, with or without 
 
 loading, as the case may be : 2 
 
 [3] If he do not deliver to the buyer or seller of any such 
 loading, or to any person interested therein, on applica- 
 tion, a ticket or account specifying the true weight of such 
 cart, with or without such loading, as may be required : 2 
 [4] If he give to the driver of any such cart a false ticket or 
 account of the weight of such cart, with or without the 
 loading thereof : 2 
 [5] If he weigh any cart, with or without its loading, knowing
 
 160 Markets and Fairs Clauses Act, 1847 S. 
 
 Penalty on 
 other par- 
 ties com- 
 mitting 
 frauds as 
 to weigh- 
 ing 
 
 that anything had been done to such cart or to the load- 
 ing thereof to alter the true weight thereof respectively : 
 [6] If he knowingly assist in or connive at any fraud concerning 
 the weighing of any cart or the loading thereof, or make 
 or connive at making any false representation of the 
 weight of the same respectively. 
 
 1 As to the recover}- of penalties, see s. 52, infra. 
 
 Notwithstanding the marginal note to the section, the machine-keeper 
 is probably liable for a breach of this clause, whether committed with 
 fraudulent intent or not. The Act seems to cast certain duties on him, 
 and to render him liable to a penalty if he fails to perform these duties. 
 
 S. 30. Every person l who shall knowingly act or assist in 
 committing any fraud respecting the weighing or weight of any 
 cart, or the loading thereof, 2 in pursuance of this or the special 
 Act, shall for every such offence be liable to a penalty 3 not 
 exceeding five pounds. 
 
 1 Notwithstanding the marginal note, the words ' every person ' pro- 
 bably includes buyers, sellers, drivers, and machine-keepers. 
 
 - It seems strange that no provision is here made for the punishment 
 of frauds in respect of the weighing or measuring of articles under s. 22. 
 Ss. 27-30 are limited to the weighing of carts and their loads. 
 
 3 As to recovery of penalties, see s. 52, infra. 
 
 And with respect to the stallages, rents, and tolls to be taken 
 by the undertakers, be it enacted as follows : 
 
 Clauses 31-41 are incorporated with the Public Health Act, 1875 >( a ) 
 but with regard to tolls, as distinct from stallages and rents, s. 167 of that 
 Act prohibits an urban authority from levying in a market established 
 by them under that Act any toll which has not been approved by the Local 
 Government Board. 
 
 Clauses 31-41 were incorporated with the repealed Local Government 
 Act, 1858 ;(b) but with regard to tolls, as distinct from stallages and rents, 
 s. 50 (2) prohibited the local board from levying any toll which had not been 
 approved by a Secretary of State. Upon the establishment of the Local 
 Government Board the approval of that Board was substituted for that 
 of a Secretary of State, by the Local Government Board Act, 1871. (c) 
 
 Clauses 31-41 are incorporated with the Diseases of Animal? Act, 
 1894, but the tolls require the approval of the Board of Agriculture, (d) 
 
 Clauses 36-41 apply to tolls in respect of the weighing of. cattle levied 
 by a market authority under the Market and Fairs (Weighing of Cattle) 
 Act, 1887, s. 8 ; see post, p. 198. 
 
 For the distinction between tolls and stallages or rents, see ante, 
 pp. 55 and 63. 
 
 Tolls, etc., S. 31. Unless it be otherwise provided by the special Act, the 
 not to be undertakers shall not demand or receive any stallage, rent, or 
 
 () S. 167, post. p. 184. (t) 21 & 22 Viet. c. 98. 
 (d) 57 & 58 Viet. c. 57, s. 32, post, p. 190. 
 
 (' ) 34 & 35 Viet. c. 70.
 
 S. 31 Stallages, Rents and Tolls 161 
 
 toll until the market-place or place for a fair or slaughter-house demanded 
 
 in respect of the use of which the same shall be demanded shall unt ^ mar ; 
 
 be completed and fit for the use of the persons resorting there- completed" 
 unto. 
 
 S. 32. A certificate under the hand of any two justices 1 shall Certificate 
 
 be conclusive evidence that the same is completed and fit for ^^J^ e 
 
 public use as aforesaid ; and any such justices shall sign such evidence 
 
 certificate on proof being adduced to them that the market-place that mar- 
 
 or place for a fair or slaughter-house is so completed and fit for ket or ^ r 
 
 1 See ss. 3, 55. The certificate may be proved by producing the 
 original document, purporting to be signed by two justices, without proof 
 of their signature or official character ;(<z) or by producing a copy, provided 
 (i) that it be proved to be an examined copy, or (2) that it purport to be 
 signed and certified as a true copy by the officer to whose custody the 
 original is entrusted, (b) The certificate is made conclusive evidence, but it 
 is not the only admissible evidence of the completion and fitness of the 
 place. 
 
 S. 33. The several stallages, rents, or tolls payable in respect Stallages, 
 of the market or fair or slaughter-house shall be paid from time etc -> when 
 to time, on demand, to the undertakers or the collector, 1 or other tc 
 person authorised by the undertakers to receive the same. 
 
 1 See s. 3. 
 
 S. 34. The tolls payable in respect of weighing or measuring Tolls for 
 
 marketable commodities, or carts with or without goods, shall be weighing, 
 
 paid to the person authorised by the undertakers to weigh or p^jd before 
 
 measure the same by the persons bringing 1 such marketable com- goods are 
 
 modities or carts to be weighed or measured before the same are weighed, 
 weighed or measured. 
 
 1 Sees. 22, supra, and note (2) thereon; ands. 25, supra, and note (2) 
 thereon. 
 
 S. 35. The tolls J in respect of cattle 2 brought to the market 3 Tolls in 
 for sale shall become due as soon as the cattle in respect whereof respect of 
 they are demandable are brought into the market-place, and catt ' e 
 before the cattle are put into any pen, or tied up in such market- 
 place ; and if the cattle be not removed within one hour after the 
 close of the market, another toll 4 shall become due in respect of 
 the cattle so omitted to be removed. 5 
 
 1 This section applies, it seems, only to tolls, and not to stallages or 
 rents ; and it depends upon the terms of the special Act whether any 
 tolls are payable ' in respect of cattle brought to the market for sale.' 
 
 * See s. 3. 
 
 (a) 8 & 9 Viet. c. 113, s. i. (6) 14 & 15 Viet. c. 99, s. 14. 
 
 M
 
 i62 Markets and Fairs Clauses Act, 1847 S. 35 
 
 3 The wordb ' or fair ' are omitted, and consequently it seems that the 
 section cannot apply to a fair, unless the special Act by apt words renders 
 it applicable thereto. 
 
 4 I.e., it seems, a second toll of the same amount, unless the author- 
 ised scale of tolls provides otherwise. 
 
 5 This clause, it is submitted, does not entitle persons to keep their 
 cattle in the market-place after the close of the market, but merely fixes, 
 in a somewhat unsatisfactory manner, the compensation to be paid for non- 
 removal. 
 
 Stallages, S. 36. The undertakers may from time to time change the 
 
 tolls, etc., stallages, rents, and tolls to be taken in respect of the market 
 
 may be or f a j r> or f or t ^ e slaughter-houses, or for weighing and measuring, 
 
 from time P rov ided that the stallages, rents, and tolls in no case exceed the 
 
 to time amounts authorised by the special Act. 1 
 
 1 Tolls taken in respect of a market established under the Public 
 Health Act, 1875, must be authorised by the Local Government Board, (a) 
 Tolls taken in respect of a market provided under the Diseases of 
 Animals Act, 1894, must be approved by the Board of Agriculture. (6) 
 
 Penalty on S. 37. Every person who shall demand or receive a greater 
 
 taking a toll J than that authorised to be taken under the provisions of this 
 
 fhan tert011 or the s P ec ' a ^ Act 2 s ^ a ^ * r ever y suc h offence be liable to a 
 
 authorised penalty 3 not exceeding forty shillings. 
 
 by this or i < To iy pro b a bly, does not here include stallage or rent. 
 
 the special 2 See s ^6, supra, and note (i) thereon. 
 
 3 As to the recovery of penalties, see s. 52, infra, 
 
 Recovery S. 38. If any person liable to the payment of any stallage, 
 
 of tolls by rentj or to n authorised by this or the special Act to be taken do 
 is ress, not p a y t ^ e same w h en demanded, the undertakers or their lessee, 1 
 or any person authorised by the undertakers or their lessee to 
 collect the same, may levy the same in England ... by distress * 
 ... of all or any of the cattle or other articles in respect of which 
 such stallage, rent, or toll is payable, or of any other cattle or 
 other articles in the market, 3 belonging to the person liable to pay- 
 such stallage, rent, or toll, or under his charge, or 4 such tolls'' 
 may be recovered in any court having competent jurisdiction. 8 
 
 1 See s. 41, infra, and note (i) thereon. 
 
 * This section, in giving a right of distress, gives no right to sell the 
 articles distrained, sale not being incident to distress at common law ; but 
 if cattle be distrained under this section, it seems that the undertakers are 
 bound to provide them, while detained, with sufficient food, and have the 
 remedies for recovering the cost of so doing conferred by 1 7 & 18 Viet. c. 60, 
 s. I. S. 52 of this Act incorporates s. 148 of the Railways Clauses 
 Consolidation Act, l845,(c) but, having regard to the difference between the 
 last-mentioned section and this section with respect to the goods made 
 
 (a) See 38 & 39 Viet. c. 55, s. 167, post, p. 184. 
 it) See 57 & 58 Viet. c. 57, s. 32, post, p. 191. 
 (c) See/orf, pp. 171 and 177.
 
 S. 38 Stallages, Rents and Tolls 163 
 
 distrainable, and having regard also to the words introductory to the 
 group of sections to which s. 148 belongs, it seems doubtful whether a 
 distress under s. 38 of this Act is in any case affected by s. 148 of 
 the Railways Clauses Act. In the case of markets established or regulated 
 under the Public Health Act, 1875, s. 148 of the Railways Clauses Act has 
 no application, inasmuch as s. 52 of this Act is not incorporated with 
 the Public Health Act. 
 
 In the case, however, of a distress for any ' rent ' in respect whereof 
 the relation of landlord and tenant subsists between the undertakers and 
 their debtor, the undertakers are probably not prevented by the remedy 
 expressly given by this section from distraining as landlords and exercis- 
 ing a landlord's statutory powers of sale ; but it seems that they cannot 
 first distrain under this section, and then sell the distress as if they had 
 distrained as landlords. Under this section they can distrain the 
 debtor's articles wherever found in the market ; as landlords they can only 
 distrain upon the demised premises. 
 
 3 See s. 35, supra, and note (3) thereon. The section appears to be 
 so framed as to authorise a distress only in the market-place. It is sub- 
 mitted that toll payable in respect of cattle not removed within one hour 
 after the close of the market (see s. 35) may be levied by distress. 
 
 The remedies seem to be alternative, not concurrent. 
 
 ' Such tolls,' perhaps, here include stallage and rent 
 
 The effect of merely incorporating both s. 38 and s. 39 appears to 
 be hat in case a dispute arises concerning any stallage, rent or toll, the 
 
 tribunal competent to determine such dispute is that of a justice, as 
 ided by s. 39 ; but a mere refusal to pay appears not to be a dispute 
 within the meaning of s. 39, and in cases merely of non-payment without 
 any dispute the proper course seems to be to sue the defaulter either in the 
 County Court or the High Court, (a) It is doubtful whether a justice has 
 any jurisdiction if there be no 'dispute.' 
 
 S. 39. If any dispute ] arise concerning any such stallage, rent, Disputes 
 or toll, such dispute shall be determined in England ... by a respecting 
 justice,- . . . and such justice . . . shall, on application made to t0 ^ now 
 him, determine the same, and make such order therein, and award sett j e( ] 
 such costs to either party as to him shall seem proper ; and in 
 default of payment, on demand, of the money which shall be so 
 awarded, and of the costs, the same shall be forthwith levied in 
 England ... by distress, . . . and the justice . . . shall issue 
 his warrant accordingly. 
 
 1 See s. 38, supra, and note (6) thereon. The justice, probably, has 
 no jurisdiction where the dispute concerns, not the stallage, rent, or toll, 
 but the validity of a distress levied to recover the same under s. 38. 
 
 2 See s. 3. If the special Act incorporates s. 52 of this Act, the 
 method of procedure under this section, so far as it is not thereby specially 
 provided for, is regulated by s. 52, infra, and the clauses of the Railways 
 Clauses Consolidation Act, 1845, thereby incorporated. 
 
 S. 40. Every person who shall assault or obstruct any person Penalty for 
 
 authorised to collect any stallage, rent, or toll authorised by this pbstruct- 
 
 or the special Act shall for every such offence be liable to a ! n ^ co ~r 
 
 penalty * not exceeding forty shillings. rates, etc. 
 
 1 As to the recovery of penalties, see s. 52, infra. 
 
 (a) See the County Courts Act, 1888, 51 & 52 Viet. c. 43, s. 56. 
 
 M 2
 
 164 Markets and Fairs Clauses Act, 1847 S. 41 
 
 List of S. 41. The undertakers or their lessee ' shall from time to 
 
 tolls, etc., t i me ca use to be painted on boards, or to be printed and attached 
 
 u ^ncT to boards in lar & e and le & ible characters, a list of the several 
 
 placed in stallages, rents, and tolls from time to time payable under this 
 
 conspicu- and the special Act,' 2 and shall cause a board containing such list 
 
 ous places to be conspicuously set up and continued in the market or fair, 
 
 and in each weighing-house and slaughter-house provided by the 
 
 undertakers, to which each such list shall relate, and no stallage, 
 
 rent, or toll shall be payable during the time such list is not so 
 
 set up, or for anything not specified therein : Provided always, 
 
 that if such list shall be destroyed, injured, or obliterated, the 
 
 stallages, rents, and tolls shall continue to be payble during such 
 
 time as shall be reasonably required for the restoration of such 
 
 list, in the same manner as if such list had continued in the state 
 
 required by this Act. 
 
 1 The only references in this Act to the undertakers' lessee are those in 
 this section and s. 38, supra. The undertakers' right (if any) to lease their 
 undertaking must be sought for outside this Act. 
 
 2 The actual sums for the time being payable must be stated in the list, 
 and not merely the maximum sums which the undertakers have power to 
 charge, (a) 
 
 And with respect to the by-laws to be made by the under- 
 takers, be it enacted as follows : 
 
 Clauses 42-49 were incorporated with the Local Government Act, 1858, 
 s. 50, now repealed. But they are not incorporated with the Public 
 Health Act, 1875. S. 167 of the latter Act, however, provides that the 
 urban authority may with respect to any market belonging to them make 
 by-laws for any of the purposes mentioned in s. 42 of this Act. With 
 regard to the making, confirmation, publication, and proof of such by-laws, 
 see the Public Health Act, 1875, ss- '82, et seq. And as to by-laws 
 made before that Act was passed, see ss. 315, 326, and 4 ; see also, post, 
 p. 201. 
 
 Clauses 42-49 are incorporated with the Diseases of Animals Act, 1894; 
 see s. 32 (2), post, p. 190 ; buts. 32 (3) of that Act enacts that, as regards 
 markets provided under the Diseases of Animals Act, 1894, or under the 
 earlier Contagious Diseases (Animals) Acts, the by-laws shall be approved 
 by the Board of Agriculture, and that such approval ' shall be suffi- 
 cient without any other approval or allowance, notice of application for 
 approval being given, and proposed by-laws being published before appli- 
 cation, as required by ' ss. 45 and 46 of this Act. 
 
 Expressions used in any by-laws made since 1889 have, unless the con- 
 trary intention appears, the same respective meanings as in the Act 
 conferring the power to make them (52 & 53 Viet. c. 63, s. 31). 
 
 Model by-laws, applicable to markets under the Public Health Act, 
 are printed post, p. 208 ; and these may be adapted for use in other 
 statutory markets. 
 
 (a) Gregson v. Potter (1879) 4 Kx. D. 142.
 
 S. 42 By-laivs 165 
 
 S. 42. The undertakers may from time to time make such By-laws 
 
 by-laws as they think fit for all or any of the following purposes : ma y ' >e 
 ,',,_. made for 
 
 (that is to say), all or any 
 
 [i] For regulating the use of the market-place and fair, 1 and O f the 
 the buildings, stalls, pens, and standings therein, and for purposes 
 
 preventing nuisances or obstructions therein, or in the nerelr >- 
 f ,. 11 named 
 
 immediate approaches thereto : 
 
 [2] For fixing the days, and the hours during each day, on 
 
 which the market or fair shall be held : 
 
 [3] For inspection of the slaughter-houses, and for keeping the 
 same in a cleanly and proper state, and for removing 
 filth and refuse at least once in every twenty-four hours, 
 and for requiring that they be provided with a sufficient 
 supply of water, and preventing the exercise of cruelty 
 therein : 3 
 
 [4] For regulating the carriers resorting to the market or fair, 
 and fixing the rates for carrying articles carried therefrom 
 within the limits of the special Act : 4 
 
 [5] For regulating the use of the weighing machines provided 
 by the undertakers, and for preventing the use of false or 
 defective weights, scales, or measures : 
 
 [6] For preventing the sale or exposure for sale of unwhole- 
 some provisions in the market or fair : 
 
 And the undertakers may from time to time, as they shall By-laws 
 think fit, repeal or alter any such by-laws ; Provided always, that may be 
 such by-laws shall not be repugnant to the laws of that part of re P 2aIeJ 
 the United Kingdom where the same are to have effect, or to the 
 provisions of this or the special Act, or of any Act incorporated 
 therewith ; and such by-laws shall be reduced to writing under 
 the common seal of the undertakers if they be a body corporate, 
 or the hands and seals of two of the undertakers if they be not 
 a body corporate, and, if affecting other persons than the officers 
 and servants of the undertakers, shall be printed and published 
 as herein 5 provided. 
 
 1 A by-law providing that no auctioneer shall sell cattle by auction in 
 the market-place before noon on the market-day js^ valid, (a) So is a by- 
 law which reserves a part of the market-place for the sale only of particular 
 commodities, or for sale only by wholesale, and imposes a penalty foi 
 selling other commodities, or for selling by retail, in that part. (A) But a 
 by-law is void if its effect is to prohibit a marketable commodity from 
 being brought into the market at all without leave of the market 
 officials. (<r) / 
 
 tiS- (jUttf 
 
 (a) Collins v. Corporation of Wells (1885) i T.L.R. 328. < ~ * A/*** 
 
 (*) Savage v. Brook (1863) 15 C.B.N.S. 264; Strike w. Collins (1888) 55 ^ > 
 
 " (c) Wortley v. Nottingham L. B. (1870) 21 L.T.N.S. 582. 
 
 -^ '^^']
 
 1 66 Markets and Fairs Clauses Act, 1847 S. 42 
 
 2 As to the days on which markets and fairs may be lawfully held, see 
 ante, p. 50. 
 
 3 An urban authority appears to have no power under s. 167 of the 
 Public Health Act, 1875, to make by-laws for the purposes mentioned in 
 this clause. 
 
 4 As to the words ' within the limits of the special Act,' see s. 12, and 
 note (2) thereon, supra, 
 
 5 See s. 47, infra. 
 
 By-laws S. 43. The undertakers, by the by-laws so to be made by 
 
 may be en- them, 1 may impose such reasonable penalties as they shall think 
 imposition ^' not excee ^ing five pounds for each breach of such by-laws ; - 
 of penal- provided that every such by-law shall be so framed as to allow 
 ties the justices . . . before whom any penalty imposed thereby shall 
 
 be sought to be recovered to order the whole or part only of such 
 
 penalty to be paid. 3 
 
 1 Including, it seems, by-laws which relate solely to the officers and 
 servants of the undertakers, although such by-laws are not required by the 
 Act to be either confirmed (see s. 44) or published (see s. 42, ad fin.). 
 
 The undertakers are given some discretion (which they ought to 
 exercise) with respect to the amount of the penalty to be imposed by a 
 by-law for a breach thereof; but if the penalty imposed for a breach exceed 
 5 the by-law is void ; and since the penalty is required to be reasonable, 
 it seems that a by-law which imposes an unreasonable penalty is void, 
 although the penalty does not exceed 5. Subject to these observations, 
 it seems to be sufficient, in making a set of by-laws, to provide by one of 
 them that ' every person who is guilty of any breach of any of these 
 by-laws shall be liable for each such breach to a penalty of 5.' 
 
 3 Any by-law not so framed is void ; but in making a set of by-laws it 
 seems to be sufficient to provide by one of them that ' the justices before 
 whom any penalty imposed by any of these by-laws shall be sought to be 
 recovered may order the whole or part only of such penalty to be paid.' 
 
 No by- S. 44. No by-laws made under the authority of this or the 
 
 laws to special Act (except such as may relate solely to the officers or 
 ' servants of the undertakers) shall come into operation until the 
 umif 10 same shall be allowed in the manner prescribed by the special Act, 
 allowed in or, if no manner be prescribed, until the same shall be [' allowed 
 the manner by the justices at quarter sessions if the market or fair be in 
 1 England, . . . and . . . approved under the hand of one of her 
 Majesty's principal secretaries of state ; and it shall be incum- 
 bent on the justices at quarter sessions, ... on the request of the 
 undertakers, to examine into the by-laws which may be tendered 
 to them for that purpose, and to allow of or disallow the same as 
 to them may seem meet. 1 ] 
 
 1 ' Confirmed by the Local Government Board ' may now be read for 
 the words in brackets, as regards by-laws made on or after August 10, 
 1872. The Public Health Act, 1872, (a) substituted the consent, sanction, 
 
 () 35 & 3 6 Vict - c - 79. s. 34-
 
 S. 44 By-laws 167 
 
 or confirmation of the Local Government Board for that of a secretary of 
 state where required in any local Act to give effect to any by-law ; and this 
 enactment was preserved by the Public Health Act, 1875. (a) Questions 
 having arisen as to the effect of the enactment, (b) the Public Health (Con- 
 firmation of By-laws) Act, i884,(<r) was passed. The effect of that Act 
 is that a by-law made under s. 42 of the Markets and Fairs Clauses Act, 
 by reason of the incorporation thereof with any local Act, and confirmed 
 before August IO, 1872, by a secretary of state, or on or after that date by 
 the Local Government Board, is valid without any ether confirmation, 
 allowance or approval ; unless by the express provisions of the local 
 Act, and without reference to ss. 44-46 of the Markets and Fairs Clauses 
 Act, some other confirmation, allowance, or approval is required. 
 
 A by-law relating solely to the officers or servants of the undertakers is 
 not affected by the Public Health (Confirmation of By-laws) Act, 1884 
 (see s. 4), and comes into force without any confirmation, approval, or 
 allowance. 
 
 S. 45. Provided always, That no such by-law shall be allowed Notice of 
 in manner herein mentioned 1 unless notice of the intention to allowance 
 apply for an allowance of the same shall have been given in one to ^ 
 or more newspapers of the county " in which the market or fair given in 
 shall be situated, or, if there be no newspaper in such county, in one or 
 one or more newspapers of the adjoining county, one month 2 at m 
 least before the hearing of such application ; and any party 
 aggrieved by any such by-law, on giving notice of the nature 
 of his objection to the undertakers ten days before the hearing of 
 the application for the allowance thereof, may, by himself or his 
 counsel, attorney, or agent, be heard thereon, but not so as to allow 
 more than one party to be heard upon the same matter of objection. 
 
 1 ' Allowed in the manner herein mentioned ' seems to refer to an 
 allowance in the manner prescribed by the special Act, or if none be 
 prescribed thereby, to an allowance by justices (see s. 44). An allowance 
 by justices is no longer necessary, unless expressly required by the special 
 Act (see s. 44, supra, and note (i) thereon). If s. 45 be now incorporated 
 by a special Act which does not expressly require some ' allowance ' of 
 by-laws, there will be nothing upon which the section can operate, unless 
 it be construable as referring to a confirmation by the Local Government 
 Board ; but there will be difficulties in the way of such construction. The 
 Local Government Board, however, before confirming by-laws, can 
 probably require steps to be taken similar to those mentioned in the 
 section. 
 
 2 See s. 3. 
 
 S. 46. For one month : at least before any such application A copy of 
 for allowance 2 of any by-laws a copy of such proposed by-laws proposed 
 shall be kept at the principal office of the undertakers, and shall 
 be put up in some conspicuous place m the market-place or fair, 
 and all persons at all reasonable times may inspect such copy tion 
 
 (a) 38 & 39 Viet. c. 55, s. 343, and Sch. V. pt. 3 ; see 54 & 55 Viet. c. 76, 
 
 (b\ See Wallasey Tramway Co. v. Wallasey L. B. (1883) 47 J.P. 82r. 
 (c) 47 Viet. c. 12, ss. 3 and 4 ; seefosf, p. 200.
 
 1 68 Markets and Fairs Clauses Act, 1847 S. 46 
 
 without fee or reward, and the undertakers shall furnish every 
 person who shall apply for the same with a copy thereof or of any 
 part thereof on payment of sixpence for every one hundred words 
 so to be copied. 
 
 1 See s. 3. 2 See s. 45, supra, and note (i) thereon. 
 
 Publica- S. 47. The said by-laws ' shall be published in the prescribed " 
 
 don of manner, and when no manner of publication is prescribed they 
 by-laws sna u ^ printed, and the clerk of the undertakers shall give a 
 printed copy thereof to every person applying for the same without 
 charge, and a copy thereof shall be painted or placed on boards, 
 and put up in some conspicuous part of the principal office of the 
 undertakers, and also in some conspicuous place in the market- 
 place or fair, and such boards, with the by-laws thereon, shall 
 be renewed from time to time as occasion shall require, and 
 shall be open to inspection without fee or reward ; and in case 
 the said clerk shall not permit the same to be inspected at all 
 reasonable times he shall for every such offence be liable to a 
 penalty 3 not exceeding five pounds. 
 
 1 These words, ' the said by-laws,' do not, it seems, include by-laws 
 which relate solely to the officers or servants of the undertakers (see s. 42, 
 ad fin.). 
 
 2 See s. 2, supra. 
 
 3 As to recovery of penalties, see s. 52, infra. 
 
 By-laws to S. 48. All by-laws made ' and confirmed 2 according to the 
 be binding provisions of this and the special Act, when so published and put 
 up, 3 shall be binding upon and be observed by all parties, and shall 
 
 on all 
 parties 
 
 be a sufficient warrant for all persons acting under the same. 4 
 
 1 By-laws are not made ' according to the provisions of this Act ' if 
 they be repugnant to the laws of England, or to the provisions of this or 
 the special Act or any Act incorporated therewith (see s. 42, supra] ; and 
 they are repugnant to the laws of England if they be unreasonable. Such 
 repugnant by-laws are not rendered valid by the confirmation of any 
 confirming authority, (a) 
 
 2 As to confirmation, see s. 44, supra, and note (i) thereon. 
 
 3 See s. 47, supra. 
 
 4 Apparently, by-laws affecting only the officers and servants of the 
 undertakers do not require to be published in order to become operative ; 
 see s. 42, ad fin., supra. 
 
 Proof of S. 49. The production of a written or printed copy of the by- 
 
 publica- laws requiring confirmation by the court of quarter session . . . 
 
 authenticated by the signature of the judge or of the chairman of 
 
 the court . . . who shall have approved of the same, and requiring 
 
 (a) See Ellwood v. Bullock (1844) 6 Q.B. 383; R. v. Wood (1855) 5 E. & 
 B. 49 ; Saunders v. S. E. R. Co. (1880) 5 Q.B.D. 456 ; Dyson v. L. & N. W. 
 R. Co. (1881) 7 Q.B.D. 32 ; Kruse v. Johnson [1898] 2 Q.B. 91.
 
 S. 49 By-laws 169 
 
 approval under the hand of one of her Majesty's principal 
 secretaries of state, and a written or printed copy of the by- 
 laws not requiring such confirmation or approval, authenticated 
 by the common seal of the undertakers if they be a body 
 corporate, or under the hands of the undertakers if not in- 
 corporated, or any two of them, shall be evidence ' of the existence 
 .and making of such by-laws in all cases of prosecution under 
 the same, without proof of the signature of such judge, chairman 
 ... or such secretary of state, or the common seal or signature 
 of the undertakers ; " 
 
 And with respect to the proof of the publication of any such 
 by-laws, 3 it shall be sufficient to prove that a painted board 
 containing a copy thereof was put up and continued in manner by 
 this Act directed, and in case of its afterwards being displaced or 
 damaged, that such board was replaced or restored as soon as 
 conveniently might be, unless proof be adduced by the party 
 complained against that such painted board did not contain a 
 copy of such by-laws, or was not duly put up or continued as 
 directed by this Act. 
 
 1 I.e. prima facie, not conclusive, e/idence. 
 
 * The effect of the Public Health (Confirmation of By-laws) Act, 1884, 
 is that, unless the special Act expressly requires by-laws to be confirmed 
 by justices, such confirmation is now, and is deemed to have always been, 
 unnecessary ; and the only confirmation which need be proved is either 
 that of a secretary of state before August 10, 1872, or that of the Local 
 Government Board on or after that date ; see s. 44, and note (i) thereon. 
 
 S. 49 is somewhat obscurely worded, so far as it relates to by-laws 
 confirmed by a secretary of state ; but the meaning seems to be that 
 such by-laws may be proved by the production of a written or printed copy, 
 purporting to be authenticated by the signature of the judge or chairman 
 of the quarter sessions which approved them. Whether the copy must also 
 purport to be signed by a secretary of state is not clear. These by-laws 
 are now deemed not to have required approval by quarter sessions ; but it 
 is not clear that a copy purporting only to be signed by a secretary 
 of state would comply with this section. The safest course, if feasible, is 
 to produce a copy purporting to be signed by the chairman or judge of 
 quarter sessions and by the secretary of state. Such a copy would seem 
 to be sufficient evidence of the by-laws. The copy so signed seems to be 
 ' a document of such a public nature as to be admissible in evidence on its 
 mere production from the proper custody,' within the meaning of the Evi- 
 dence Act, 1851, (a) and therefore by reason of that Act, (unless the 
 special Act renders the document provable by a copy, in which case its 
 provisions must be followed), the by-laws may be proved by producing a 
 copy of such document, proved to be an examined copy, or purporting to 
 be signed and certified as a true copy by the officer of the undertakers to 
 whose custody the original is entrusted. 
 
 With regard to by-laws confirmed since August 9, 1872, by the Local 
 Government Board, s. 49 does not provide any means of giving secondary- 
 fa) [4 & 15 Viet. c. 99, s. 14 ; see Motteram v. Eastern Counties Rly. Co. 
 (i8 59 ) 7 C.B.N.S. 58.
 
 Annual ac- 
 count to be 
 made up by 
 
 takers and 
 trans- 
 mitted to 
 
 t} l e clerk 
 
 peace 6 , and 
 to be open 
 to inspec- 
 
 170 Markets and Fairs Clauses Act, 1847 S. 49 
 
 evidence thereof. It seems not unlikely, however, that such by-laws 
 might be proved by the production of the original copy, showing on its 
 face the confirmation by the Local Government Board. The courts would 
 perhaps take judicial notice of the seal of the Board and of the signatures 
 of the president or members of the Board or of the secretary or assist- 
 ant-secretary, (a) and presume therefrom that the by-laws had been 
 made by the undertakers and duly confirmed. If the production of the 
 original, purporting to show the confirmation by the Local Government 
 Board, would be evidence of the by-laws on its mere production from the 
 proper custody, so also would an examined copy thereof, or a copy or 
 extract purporting to be signed and certified as a true copy by the clerk or 
 other officer of the undertakers to whose custody the original is entrusted, (b) 
 
 Publication of these by-laws must be proved ; and may be proved in 
 accordance with the latter part of the above section, as this provision does 
 not seem to be affected by the Public Health (Confirmation of By-laws) 
 Act, 1884. 
 
 3 I.e. if they require publication (see s. 42, ad fin.}. 
 
 S. 50. And with respect to the receipts and expenditure of the 
 undertakers, be it enacted : ' 
 
 That the undertakers shall in every year cause an annual 
 account in abstract to be prepared, showing the whole receipt and 
 expenditure of all rents and other moneys levied by virtue of this 
 or t ^ ie s P ec ' a l Act for the year ending the thirty-first day of De- 
 cember, or some other convenient day in each year, under the several 
 distinct heads of receipt and expenditure, with a statement of the 
 balance of such account, duly audited or certified by the chairman 
 ^ the undertakers, and by the auditors, if any, and shall send a 
 copy of the said account, free of charge, to the clerk of the peace 
 in England ... of the county in which the market or fair is 
 situate, on or before the expiration of one month '* from the day on 
 which such accounts shall end, which account shall be open to the 
 inspection of the public at all seasonable hours, on payment of 
 the sum of one shilling for every such inspection ; and if the 
 undertakers omit to prepare or send such account as aforesaid they 
 shall forfeit for every such omission the sum of twenty pounds. 3 
 
 1 Clause 50 is not incorporated with the Public Health Act, 1875. 
 As to the accounts with regard to a market established or regulated under 
 that Act, see ante, p. 112. 
 
 Clause 50 is incorporated with the Diseases of Animals Act, i894.(<r) 
 S. 32 (6) of that Act requires a local authority, which has provided a 
 market under that Act, or the earlier Contagious Diseases (Animals) Acts, 
 to make such returns to the Board of Agriculture of their expenditure and 
 receipts in respect of the market as the Board require. 
 
 * See s. 3, supra. 
 
 3 Recoverable in the manner provided by s. 52, infra. 
 
 (a) See 34 & 35 Viet. c. 70, s. 5. 
 
 (6) 14 & 15 Viet. c. 99, s. 14 ; Motteram v. Eastern Counties Rly. Co. (1859) 
 7C.B.N.S. 58. 
 
 (c) 57 & 58 Viet. c. 57, s. 32 (2) post, p. 190.
 
 S. 51 Damages and Penalties 171 
 
 S. 51. With respect to the tender of amends. 
 
 Repealed by the S.L.R. Act, 1894. (a) The Public Authorities 
 Protection Act, i893,(^) now regulates actions against any person for any 
 act done ' in pursuance, or execution, or intended execution, of any Act of 
 Parliament,' or ' in respec lof any alleged neglect or default in the execu- 
 tion of any such Act,' and enables the defendant, if the action be for 
 damages, to plead tender of amends before action brought. 
 
 And with respect to the recovery of damages not specially 
 provided for, and of penalties, and to the determination of any 
 other matters referred to justices in England, ... be it enacted as 
 follows : 
 
 Clauses 52-57 are not incorporated with the Public Health Act, 1875. 
 With regard to markets established or regulated under s. 167 of that 
 Act, penalties under the incorporated provisions of this Act, or under by- 
 laws made with respect to such markets, are recoverable in the manner 
 directed by the Summary Jurisdiction Acts before a court of summary 
 jurisdiction, (c) 
 
 Clauses 52-57 are not incorporated with the Diseases of Animals Act, 
 1 894. S. 54 of that Act provides for the summary prosecution of offences 
 against that Act, but the Act contains no provision for the summary prose- 
 cution of offences against the incorporated clauses of this Act, or against 
 by-laws made thereunder, unless s. 54 can be construed as such. 
 
 One of the results of incorporating clause 52 is that no penalty im- 
 posed by this Act, or the special Act, or by s. 144 of the Railways Clauses 
 Consolidation Act, 1845, can be recovered unless such penalty has been 
 published and kept published, as required by s. 143 of the last-mentioned 
 Act. 
 
 S. 52. If the market or fair be in England . . . the clauses of Railways 
 the Railways Clauses Consolidation Act, I845, 1 w ith respect to the Clauses 
 
 recovery of damages not specially provided for, and penalties, ,."," . 
 
 . , , .** . r J r . ' sohdation 
 
 and to the determination of any other matter referred to justices, ^ cl> ig^r 
 
 shall be incorporated with this and the special Act ; . . . and such as to 
 
 clauses shall apply to the market or fair and the undertakers damages, 
 
 respectively, and shall be construed as if the word ' undertakers ' f^' r to l 
 
 had been inserted therein instead of the word ' company.' rated 
 
 1 8 & 9 Viet. c. 20, ss. 140-161 ; see/<w/, pp. 175 et seq. 
 
 S. 53. Applied only to Ireland ; and was repealed by S. L. R. Act, 1875. s P ecial 
 
 S. 54. And be it enacted, that nothing in this or the special j^othing in 
 
 Act shall be deemed to extend to or affect any Act of Parliament this or the 
 
 relating to her Majesty's duties of customs or excise, or any special Act 
 
 other revenue of the crown, or to extend to or affect any claim | &K ?? 
 
 of her Majesty in right of her crown, or otherwise howsoever, or f e t h e S 
 
 any proceedings at law or in equity by or on behalf of her crown 
 
 (<z) 57 & 58 Viet. c. 56, s. i, and first schedule. 
 & 57 Viet. c. 61.. 
 the Public Health Act, 1875, ss - 3 l6 . 251, 183.
 
 1/2 
 
 Markets and Fairs Clauses Act, 1847 S. 54 
 
 All things 
 required to 
 be done by 
 two jus- 
 tices may 
 in certain 
 cases be 
 done by 
 one 
 
 Penalties, 
 etc., im- 
 posed in 
 respect of 
 any offence 
 committed 
 within the 
 Metro- 
 politan 
 -Police 
 District 
 to be paid 
 to the 
 Receiver, 
 and 
 applied 
 under 
 2 & 3 Viet. 
 c. 71 
 
 Majesty, in any part of the United Kingdom of Great Britain and 
 Ireland. 
 
 S. 55. All things herein or in the special Act, or any Act incor- 
 porated therewith, authorised or required to be done by two 
 justices, may and shall be done in England ... by any one 
 magistrate having by law authority to act alone for any purpose 
 with the powers of two or more justices. . . . 
 
 S. 56. Every 1 penalty or forfeiture imposed by this or the 
 special Act, or any Act incorporated therewith, or by any by-law 
 in pursuance thereof, in respect of any offence which shall take 
 place within the Metropolitan Police District, shall be recovered, 
 enforced, accounted for, and, except where the application thereof 
 is otherwise specially provided for, shall be paid to the Receiver of 
 the Metropolitan Police District, and shall be applied in the same 
 manner as penalties or forfeitures other than fines upon drunken 
 persons, or upon constables for misconduct, or for assaults upon 
 police constables, are directed to be recovered, enforced, accounted 
 for, paid, and applied by an Act passed in the third year of the 
 reign of her present Majesty, intituled An Act for Regulating the 
 Police Courts in the Metropolis ;* and every order or conviction 
 of any of the police magistrates in respect of any such forfeiture 
 or penalty shall be subject to the like appeal and upon the same 
 terms as is provided in respect of any order or conviction of any 
 of the said police magistrates by the said last-mentioned Act ; 2 
 and every magistrate by whom any order or conviction shall have 
 been made shall have the same power of binding over the wit- 
 nesses who shall have been examined, and such witnesses shall 
 be entitled to the same allowance of expenses as they would have 
 had or been entitled to in case the order, .conviction, and appeal 
 had been made in pursuance of the provisions of the said last- 
 mentioned Act. 2 
 
 Ss. 159 and 160 of the Railways Clauses Consolidation Act, 1845, are 
 e same effect as ss. 56 and 57 of this Act, and are incoiporated 
 with this Act by s. 52 thereof. Ss. 56 and 57 of the Act were therefore, 
 
 2 The Metropolitan Police Courts Act, 1839, (a) which has been par- 
 tially repealed by various later Acts. S. 46 of the Act of 1839 directs 
 how the penalties and forfeitures are to be accounted for, and paid, to the 
 Receiver of the Metropolitan Police District, and applied by him. The 
 recovery and enforcement of the penalties and forfeitures are now regulated 
 by the Summary Jurisdiction Acts, the sections of 2 & 3 Viet. c. 71 
 dealing therewith having been repealed by 47 & 48 Viet. c. 43, ss. 4 and 5. 
 Appeals from orders and convictions also are now regulated by the Sum- 
 mary Jurisdiction Acts,(<5) subject, however, to s. 50 of the Metropolitan 
 Police Courts Act, 1839, which has not been repealed. 
 
 (a) 2 & 3 Viet. c. 71. 
 
 (6) See 47 & 48 Viet. c. 43, ss. 4 and 5.
 
 S. 57 Access to Special Act 173 
 
 S. 57. Every ' person who upon any examination upon oath 5 Penalty 
 
 under the provisions of this or the special Act, or any Act incor- j r S lvin S 
 
 porated therewith, shall wilfully and corruptly give false evidence, ev idence 
 shall be liable to the penalties of wilful and corrupt perjury. 3 
 
 1 See s. 56, supra, and note (i) thereon. z See s. 3, supra. 
 
 3 See The Perjury Act, 1728 (2 Geo. II. c. 25) s. 2. 
 
 And with respect to access to the special Act, be it enacted as 
 follows : 
 
 Clauses 58 and 59 are not incorporated either with the Public Health 
 Act, 1875, or ^h tne Diseases of Animals Act, 1894. In legal pro- 
 ceedings the special Act will be deemed to be a public Act, and will be 
 judicially noticed, if it contain a clause to that effect, or if it was passed 
 after 1850, and the contrary be not expressly provided by the Act (see 
 52 M 53 Viet. c. 63, s. 9). 
 
 S. 58. The undertakers shall at all times after the expiration Copies of 
 of six months * after the passing of the special Act keep in their special , 
 principal office of business a copy of the special Act, printed by kep^by 
 the printers to her Majesty, or some of them, and shall also within under- 
 the space of such six months l deposit in the office of the clerk takers at 
 of the peace of the county J in England ... in which the undertak- their office, 
 ing is situate, a copy of such special Act so printed as aforesaid ; po s i te d 
 and the said clerk of the peace . . . shall receive, and [he] and the with the 
 undertakers respectively shall keep the said copies of the special clerk of 
 Act, and shall allow all persons interested therein to inspect the ^ peace, 
 same, and make extracts or copies therefrom, in the like manner, op en to 
 and upon the like terms, and under the like penalty for default, inspection 
 as is provided in the case of certain plans and sections by an Act 
 passed in the first year of the reign of her Majesty, intituled An 
 Act to Compel Clerks of the Peace for Counties and other Persons 
 to take the Custody of such Documents as shall be directed to be 
 deposited with them under the Standing Orders of either House of 
 Parliament. 3 
 
 1 See s. 3. * See s. 2. 
 
 3 The Parliamentary Documents Deposit Act 1837 (7 Wm. IV. and I 
 Viet. c. 83). By that Act the undertakers, and the clerk of the peace, are 
 required, at all reasonable hours of the day, to allow all persons interested 
 to inspect during a reasonable time, and make extracts from or copies of, 
 the special Act, on payment by each person to the undertakers, or clerk of 
 the peace, as the case may be, ' of one shilling for every such inspec- 
 tion, and the further sum of one shilling for every hour during which 
 such inspection shall continue after the first hour, and after the rate of 
 sixpence for every one hundred words copied therefrom ' (s. 2). The 
 penalty for default is a sum not exceeding 5 for every offence, recoverable 
 summarily in the manner provided by the Act of 1837, s. 3.
 
 174 
 
 Markets and Fairs Clauses Act, 1847 
 
 8. 59 
 
 Penalty 
 on under- 
 takers 
 failing to 
 keep or 
 deposit 
 such 
 copies 
 
 8.59. If the undertakers 1 fail to keep or deposit, as herein- 
 before mentioned, 2 any of the said copies of the special Act, they 
 shall forfeit twenty pounds for every such offence, and also five 
 pounds for every day afterwards during which such copy shall be 
 not so kept or deposited. 3 
 
 1 If the clerk of the peace fails to keep the copy deposited with him, 
 he is liable under the Act of 1837 to a penalty not exceeding .5 for every 
 offence (see s. 58, supra, and note (3) thereon). 
 
 2 See s. 58, supra. 
 
 3 As to the recovery of the sums forfeited, see s. 52, supra.
 
 175 
 
 THE RAILWAYS CLAUSES CONSOLIDATION 
 ACT, 1845. 
 
 (8 & 9 Viet. c. 20.) 
 
 [Clauses 140-161 (inclusive) of this Act are incorporated by s. 52 of 
 the Markets and Fairs Clauses Act, 1847, with that Act, and any special Act 
 which incorporates that section. In printing these clauses below, the 
 word ' undertakers ' has been inserted therein, instead of the word 
 ' company,' pursuant to the directions in s. 52 of the Markets and Fairs 
 Clauses Act, see ante, p. 171.] 
 
 With respect to the recovery of damages not specially provided 
 for, and of penalties, and to the determination of any other matter 
 referred to justices, be it enacted as follows : 
 
 S. 140. In all cases where any damages, costs, or expenses Provision 
 are by this or the special Act, 1 or any Act incorporated therewith, for dam- 
 directed to be paid, and the method of ascertaining the amount *&* n 
 or enforcing the payment thereof is not provided for, 2 such amount, 
 in case of dispute, shall 3 be ascertained and determined by two 
 justices ; 4 and if the amount so ascertained be not paid by the 
 undertakers or other party liable to pay the same within seven 
 days after demand, the amount may be recovered by distress of 
 the goods of the undertakers or other party liable as aforesaid ; 
 and the justices by whom the same shall have been ordered to be 
 paid, or either of them, or any other justice, on application, shall 
 issue their or his warrant accordingly. 
 
 1 Throughout these clauses, the expression ' the special Act ' means 
 not only the Act authorising the construction or regulation of the market 
 or fair with which s. 52 of the Markets and Fairs Clauses Act, 1847, is 
 incorporated, but also the Markets and Fairs Clauses Act, 1847 ; for 
 s. 52 of the latter Act incorporates these clauses with both Acts. 
 
 * These clauses do not, it seems, apply to the recovery of damages 
 sustained by reason of the exercise by undertakers of the powers of con- 
 structing their undertaking. See the Markets and Fairs Clauses Act, 1847, 
 .11, ante, p. 149. 
 
 3 Damages, costs, and expenses to which this section applies can be 
 recovered only in the manner provided by this section, and cannot be 
 recovered by action, (a) 
 
 4 As to the expressions ' justices ' and ' justice ' in these clauses, see 
 ss. 3 and 55 of the Markets and Fairs Clauses Act, 1847, supra. 
 
 (a) Mayor of Blackburn v. Parkinson (1858) i E. & E. 71.
 
 Railways Clauses Act, 1845 
 
 S. 141 
 
 Distress S. 141. If sufficient goods of the undertakers cannot be found 
 
 against the whereon to levy any such damages, costs and expenses 1 payable 
 treasurer k y t h e undertakers, the same may, if the amount thereof do not 
 exceed twenty pounds, be recovered by distress of the goods of 
 the treasurer of the undertakers ; and the justices aforesaid or 
 either of them, on application, shall issue their or his warrant 
 accordingly ; but no such distress shall issue against the goods of 
 such treasurer unless seven days' previous notice in writing, 
 stating the amount so due, and demanding payment thereof, have 
 been given to such treasurer, or left at his residence ; and if such 
 treasurer pay any money under such distress as aforesaid he may 
 retain the amount so paid by him, and all cost and expenses 
 occasioned thereby, out of any money belonging to the undertakers 
 coming into his custody or control, or he may sue the undertakers 
 for the same. 
 
 1 See s. 140, supra. 
 
 Method of S. 142. Where in this or the special Act any question of corn- 
 proceeding pensation, expenses, charges, or damages, or other matter, is 
 referred to the determination of any one justice or more, it shall 
 be lawful for any justice, upon the application of either party, to 
 summon the other party to appear before one justice, or before 
 two justices, as the case may require, at a time and place to be 
 named in such summons ; and upon the appearance of such 
 parties, or in the absence of any of them, upon proof of due 
 service of the summons, it shall be lawful for such one justice, or 
 such two justices, as the case may be, to hear and determine such 
 question, and for that purpose to examine such parties or any of 
 them, and their witnesses, on oath ; and the cost of every such 
 inquiry shall be in the discretion of such justices, and they shall 
 determine the amount thereof. 
 
 before jus 
 tices in 
 questions 
 of dam- 
 ages, etc. 
 
 Publica- 
 tion of 
 penalties 
 
 S. 143. The undertakers shall publish the short particulars of 
 the several offences for which any penalty ' is imposed by this or 
 the special Act, or by any by-law of the undertakers affecting 
 other persons than the shareholders, officers, or servants of the 
 undertakers, and of the amount of every such penalty, and shall 
 cause such particulars to be painted on a board, or printed upon 
 paper and pasted thereon, and shall cause such board to be hung 
 up or affixed on some conspicuous part of the principal place of 
 business of the undertakers, and where any such penalties are of 
 local application shall cause such boards to be affixed in some 
 conspicuous place in the immediate neighbourhood to which such 
 penalties are applicable or have reference ; and such particulars 
 shall be renewed as often as the same or any part thereof is 
 obliterated or destroyed ; and no such penalty shall be recoverable *
 
 S. 143 Damages and Penalties 177 
 
 unless it shall have been published and kept published in the 
 manner herein-before required. 
 
 1 If a special Act relating to a market or fair incorporates all the 
 clauses of the Markets and Fairs Clauses Act, 1847, the undertakers ought 
 to publish particulars of the following offences : 
 
 1. The offences referred to in ss. 13, 15, 16, 19, 20, 22, 23, 27, 28, 
 29, 30, 37, 40 and 47, and probably also 26, 50, and 59, of the Markets 
 and Fairs Clauses Act, 1847, and ss. 144 and 153 of the Railways 
 Clauses Act. 
 
 2. Any offences for which a penalty is imposed by the special Act. 
 
 3. Any offences for which a penalty is imposed by any by-laws 
 made by the undertakers and affecting persons other than their officers and 
 servants. 
 
 2 Qiuere, whether, if the undertakers have not published particulars 
 of the offences referred to in ss. 50 and 59 of the Markets and Fairs 
 Clauses Act, 1847, they could take advantage of that default, if sued for 
 forfeitures under either of these sections. It should be noticed that 
 s. 143, supra, speaks of ' penalties,' not ' forfeitures.' 
 
 S. 144. If any person pull down or injure any board put up or Penalty for 
 affixed as required by this or the special Act for the purpose of |~ ' a cmg 
 publishing any by-law * or penalty, or shall obliterate any of the use( j f or 
 letters or figures thereon, he shall forfeit for every such offence a such pub- 
 sum not exceeding five pounds, and shall defray the expenses lication 
 attending the restoration of such board. 
 
 1 See the Markets and Fairs Clauses Act, 1847, s. 47, ante, p. 168. 
 
 S. 145. Every penalty or forfeiture imposed by this or the Penalties 
 
 special Act, or by any by-law made in pursuance thereof, the re- to b .^ sum " 
 
 covery of which is not otherwise provided for, may J be recovered recov ered 
 
 by summary proceeding before two justices 2 . . . before two 
 
 1 A penalty or forfeiture to which this section applies can be recovered J UStl 
 only in the manner provided by this section, and cannot be recovered by 
 action, (a) 
 
 2 The remainder of this section (which related to the procedure to ob- 
 tain the conviction of an offender, and an order against him to pay the 
 penalty or forfeiture incurred, and costs), and the whole of ss. 146 
 and 147 (which related to the enforcement of such order by distress or by 
 imprisonment in default of distress), were repealed by the Summary Juris- 
 diction Act, 1884.^) That Act substituted for the procedure provided by 
 the repealed enactments that provided by the Summary Jurisdiction Acts. 
 
 S. 148. Where * in this or the special Act, or any Act incorpo- Distress, 
 rated therewith, any sum of money, whether in the nature of now to be 
 penalty or otherwise, is directed to be levied by distress, such levied 
 sum of money shall be levied by distress and sale of the goods 
 and chattels of the party liable to pay the same ; and the overplus 
 arising from the sale of such goods and chattels, after satisfying 
 
 (a) L. & Brighton Rly. Co. v. Watson (1879) 4 C.P.D. 118. 
 (6) 47 & 48 Viet. c. 43. 
 
 N
 
 i/8 Railways Clauses Act, 1845 s - 148 
 
 such sum of money, and the expenses of the distress and sale, 
 shall be returned, on demand, 2 to the party whose goods shall 
 have been distrained. 
 
 1 It is doubtful whether the provisions of this section, or of s. 149, 
 infra, can be construed as applying to a distress for stallage, rent, or toll 
 under s. 38 of the Markets and Fairs Clauses Act, 1847, see ante, p. 162. 
 The words introductory to s. 52 of that Act, and to ss. 140-161 of this 
 Act, seem to limit the scope of these two clauses to distresses to enforce 
 orders or awards of justices. 
 
 2 No action lies for the surplus until the demand has been made, (a) 
 
 Distress S. 149. No distress levied by virtue of this or the special Act, 
 
 not unlaw- or any Act incorporated therewith, shall be deemed unlawful, nor 
 
 o" fornT' ll sha11 any P artv making the same be deemed a trespasser, on 
 
 account of any defect or want of form in the summons, conviction, 
 
 warrant of distress, or other proceeding relating thereto, nor shall 
 
 such party be deemed a trespasser ab initio on account of any 
 
 irregularity afterwards committed by him, but all persons aggrieved 
 
 by such defect or irregularity may recover full satisfaction for the 
 
 special damage in an action upon the case. 1 
 
 1 See s. 148, supra, and note (i) thereon. 
 
 Applica- S. 150. The justices by whom any such penalty or forfeiture 
 
 tion of shall be imposed may, where the application thereof is not other- 
 penalties w j se p rov ided for, 1 award not more than one half thereof to the 
 informer, and shall award the remainder to the overseers of the 
 poor of the parish in which the offence shall have been committed, 
 to be applied in aid of the poor's rate of such parish 3 . . . 
 
 1 S. 26 of the Markets and Fairs Clauses Act, 1847, makes express 
 provision for the application of any forfeiture under that section. As to 
 the application of penalties and forfeitures in respect of offences com- 
 mitted within the Metropolitan Police District, see s. 159, infra. 
 
 2 The remainder of this section (which related to extra-parochial places) 
 was repealed by the S.L.R. Act, 1875, having been rendered unnecessary 
 by 31 & 32 Viet. c. 122, s. 7. 
 
 [S. 151. This section, which limited the time for the recovery of a penalty 
 or forfeiture to within six months after the commission of the offence, was 
 repealed by the Summary Jurisdiction Act, 1884, which substituted for the 
 repealed enactment the provisions to the like effect of the Summary 
 Jurisdiction Acts. See the Summary Jurisdiction Act, i848.{)] 
 
 Damage to S. 152. If, through any act, neglect, or default on account 
 be made whereof any person shall have incurred any penalty imposed by 
 8^*^ - m ^is or the special Act, any damage to the property of the under- 
 penaUy" tO takers shall have been committed by such person, he shall be 
 liable to make good such damage as well as to pay such penalty ; 
 and the amount of such damages shall, in case of dispute, be de- 
 termined by the justices by whom the party incurring such penalty 
 
 ' (a) Simpson v. Routh (1824) 2 B. /4 C. 682. 
 (b) ii & 12 Viet. c. 43, s. n.
 
 S. 152 Damages and Penalties 179 
 
 shall have been convicted ; and on non-payment of such damages 
 on demand, the same shall be levied by distress, and such 
 justices, or one of them, shall issue their or his warrant 
 accordingly. 
 
 S. 153. It ' shall be lawful for any justice to summon any person Penalty on 
 to appear before him as a witness in any matter in which such witnesses 
 justice shall have jurisdiction under the provisions of this or the 
 special Act at a time and place mentioned in such summons, and 
 to administer to him an oath to testify the truth in such matter ; 
 and if any person so summoned shall, without reasonable excuse, 
 refuse or neglect to appear at the time and place appointed for 
 that purpose, having been paid or tendered a reasonable sum for 
 his expenses, or if any person appearing shall refuse to be examined 
 upon oath or to give evidence before such justice, every such 
 person shall forfeit - a sum not exceeding five pounds for every 
 such offence. 
 
 1 This section was repealed by the Summary Jurisdiction Act, 1884, 
 ' so far as relates to any matter to which the Summary Jurisdiction Acts 
 apply,' but for other matters remains in force. Thus it is still in 
 force for the matters mentioned in s. 142 of this Act and s. 39 of the 
 Markets and Fairs Clauses Act, 1847. 
 
 2 Recoverable in the manner provided by s. 145, siipra. 
 
 S. 154. It shall be lawful for any officer or agent of the under- Transient 
 takers, and all persons called by him to his assistance, to seize and offenders 
 detain any person who shall have committed any offence against 
 the provisions of this or the special Act, 1 and whose name and 
 residence shall be unknown to such officer or agent, and convey 
 him, with all convenient despatch, before some justice, without 
 any warrant or other authority than this or the special Act ; and 
 such justice shall proceed with all convenient despatch to the 
 hearing and determining of the complaint against such offender. 
 
 1 This section does not, it will be observed, authorise the seizure or 
 detention of a person who has committed an offence against a by-law 
 made under the Markets and Fairs Clauses Act, 1847. (a) 
 
 [S. 155. This section (which related to the form of convictions) was 
 repealed by the Summary Jurisdiction Act, 1884.] 
 
 S. 156. No proceeding in pursuance of this or the special Act, Proceed - 
 
 or any Act incorporated therewith, shall be quashed or vacated for j" gs no ^ 
 
 want of form, nor shall the same be removed by certiorari or for want 
 
 otherwise into any of the superior courts. 1 of form, 
 
 1 This section does not prevent the remov 
 certiorari where the justices have no jurisdiction. ( 
 
 This section does not prevent the removal of a proceeding by C " 
 
 (a) See Barry v. Midland Rly. Co. (1867) I.R. i C.L. 130. 
 (6) R. v. Wood (1855) 5 E. & B. 49 ; Colonial Bank of Australia v. Willan 
 (i8 74 )L.R. 5 P.C. 417.
 
 I So Railways Clauses Act, 1845 S. 157 
 
 Parties S. 157. If any party shall feel aggrieved by any determination 
 
 allowed to or adjudication of any justice with respect to any penalty or for- 
 appeal to feiture under the provisions of this or the special Act, or any Act 
 sessions incorporated therewith, such party may appeal to the general 
 quarter sessions ; * . . . 
 
 ' The remainder of this section (which related to the procedure on 
 appeal, was repealed by the Summary Jurisdiction Act, 1884, the effect of 
 which Act is that (subject tos. 158, infra) all appeals to quarter sessions 
 are now regulated by the Summary Jurisdiction Acts. 
 
 Courts to S. 158. At the quarter sessions for which such notice ' shall be 
 
 make such gj ven th e court shall proceed to hear and determine the appeal 
 
 they think ' n a surnmarv wa Y) or they may, if they think fit, adjourn it to the 
 
 reasonable following sessions ; and upon the hearing of such appeal the 
 
 court may, if they think fit, mitigate any penalty or forfeiture, or 
 
 they may confirm or quash the adjudication, and order any 
 
 money paid by the appellant or levied by distress upon his 
 
 goods to be returned to him, and may also order such further 
 
 satisfaction to be made to the party injured as they may judge 
 
 reasonable ; and they may make such order concerning the costs, 
 
 both of the adjudication and of the appeal, as they may think 
 
 reasonable. 
 
 1 ' Such notice ' originally referred to the notice of appeal provided for 
 in the repealed portion of s. 157. It must now be taken to refer to the 
 notice of appeal required by the Summary Jurisdiction Act, 1879, s. 31 (2). 
 
 [Ss. 159 and 160. These sections are in substance the same as ss. 56 
 and 57 of the Markets and Fairs Clauses Act, 1847, set out ante, p. 172. 
 8. 161 related only to Ireland, and was repealed by the S.L.R. Act, 1875.]
 
 THE PUBLIC HEALTH ACT, 1875. 
 (38 & 39 Viet. c. 55.) 
 
 [Only those sections of this Act are here set out which relate more 
 particularly to markets. Other sections, which bear indirectly on the 
 subject, such as s. 161, which relates to contracts for lighting markets, are 
 not set out, but many of these sections are referred to in the notes : it does 
 not fall within the scope of this work to comment at any length upon these 
 latter sections. The provisions of ss. 166 and 167 of this Act replaced the 
 similar provisions of s. 50 of the Local Government Act, 1858 (21 & 22 
 Viet. c. 98), which this Act repealed. It has been considered unnecessary 
 to set out the provisions of the repealed Act.] 
 
 S. 166. Where an urban authority ' are a local board or improve- Urban 
 ment commissioners they shall have power, 2 with the consent of ailtnont y 
 the owners and ratepayers of their district, expressed by resolution p r0 vj(j e 
 passe3"in manner provided by schedule III. to this Act, and markets 
 where the urban authority are a town council they shall have 
 power, 2 with the consent of two-thirds of their number, to do the 
 following things, or any of them, within their district : l 
 [i] To provide a market-place, and construct a market-house 
 and other conveniences for the purpose of holding markets : 
 [2] To provide houses and places for weighing carts : 
 [3] To make convenient approaches to such market : 
 \ [4] To provide all such matters and things as may be necessary 
 
 for the convenient use of such market : 
 
 [5] To purchase or take on lease land, 3 and public or private 
 rights in markets and tolls 4 for any of the foregoing 
 purposes : 
 [6] To take stallages, rents and tolls in respect of the use by any 
 
 person of such market : 5 
 
 But no market shall be established in pursuance of this section 
 so as toTrlterfeTe with" any rights, powers or privileges 7 cnjmed 
 within the district 8 by any person 9 without his consent. 10 
 
 1 Under the Public Health Act, 1875, there were tiuce classes of 
 urban authorities, viz. : (i) the local board, who were the authority in a 
 local government district ; (2) the improvement commissioners, who were 
 the authority in an Improvement Act district ; and (3) the borough or
 
 1 82 Public Health Act, 1875 S. 166 
 
 town council, who were, and still are, the authority in a municipal 
 borough. By the Local Government Act, 1894 (56 & 57 Viet. c. 73), ss. 21 
 and 23, local boards and improvement commissioners were superseded, as 
 urban authorities, by the urban district councils constituted by that Act. 
 The district subject to the jurisdiction of any urban district council (includ- 
 ing a borough council) is now called an urban district. ' Their district,' 
 and ' the district,' in the above section clearly refer to the urban district 
 subject to the jurisdiction of the urban district council (or town council 
 acting as district council) which establishes a market. 
 
 Rural district councils do not possess the powers which are given to 
 urban district councils by ss. 1 66-1 68 of the Public Health Act, unless 
 such powers be conferred upon them by an order of the Local Government / 1 
 Board under s. 276. It appears to have been the policy of the Board not . // 
 to confer such powers on rural authorities. 
 
 2 Urban district councils have no power to covenant or agree that they 
 will not exercise the powers, or any of the powers, entrusted to them by 
 this section, and such a covenant or agreement would be void, (a) 
 
 3 As to the powers of an urban district council to purchase lands or 
 take lands on lease, see ss. 175 and 176 of this Act. S. 176 incorporates 
 the Lands Clauses Acts, but prevents a council from enforcing the pro- 
 visions of those Acts with respect to purchasing lands compulsorily until 
 they have obtained a provisional order from the Local Government Board. 
 A district council has no power to take lands on lease compulsorily. 
 
 1 ' Public rights ' seems to mean rights vested in a public body : 
 ' private rights,' rights vested in a private person. The clause enables an 
 urban district council to purchase, or take on lease, market and toll rights 
 enjoyed within the urban district. But they can, it seems, only effect 
 such a purchase, or taking on lease, by agreement. Assuming that market 
 rights which an urban district council desire to acquire are franchises, and 
 therefore within the definition of ' lands ' in s. 3 of the Public Health Act, 
 and s. 3 of the Lands Clauses Consolidation Act, 1845, (*) y et ^ would 
 appear that the provisions of these Acts relating to the compulsory purchase 
 of lands do not extend to incorporeal hereditaments, (c) In the case of 
 market-rights vested in a public body, the urban district council cannot 
 acquire them by agreement unless the public body has power to sell them 
 or let them on lease. S. 168, infra, contains provisions with regard to 
 purchases by agreement from 'market companies.' A district council 
 appears to have no power, under s. 166 or s. 168, to purchase or take on 
 lease any rights in fairs. 
 
 One of the objects of clause [5] seems to be to enable a council to buy out 
 persons who enjoy within the district saleable rights in markets and tolls, 
 and who will not consent to the establishment of any market by the council 
 except on the terms of their rights being purchased. 
 
 As to the transfer to a municipal corporation of the rights, powers, and 
 property of trustees under a local Act for providing or maintaining a market 
 in a borough, see 45 & 46 Viet. c. 5> s - '36, and ante, p. 29. 
 
 * For the distinction between tolls and stallages, seea///d, p. 55- The 
 power here given to take tolls is expressed in very wide terms, and 
 apparently authorises the taking of tolls from any person who uses the 
 market in any manner, as by buying or selling articles or merely exposing 
 
 (a) Spurling v. Bantoft [1891] 2 Q.B. 384; cf. Ayr Harbour Trustees v. 
 Oswald (1883) 8 App. Gas. 623. 
 
 (b) See G. W. R. Co. v. Swindon. etc., Rly. Co. (1884) 9 App. Cas. 787. 
 
 (c) See Pinchin v. London and Blackwall Rly. Co. (1855) 5 De G. M. & 
 0.851; Hill*/. Midland Rly. Co. (1882) 21 Ch.D. 143; G. W. R. Co. v. 
 Swindon, etc., Rly. Co., supra.
 
 S. 166 Public Health Act, 1875 183 
 
 them for sale therein, or by using the weighing machines provided in the 
 market-place. But this power is limited by s. 167, infra, which requires 
 the approval of the Local Government Board for the tolls to be levied. | / 
 
 * The interference here referred to seems to be limited to interference 
 which would be actionable if its author were a person having no statutory / 
 powers. 
 
 7 ' Rights, powers, or privileges ' here means rights, powers or 
 privileges ' acquired adversely to the rest of the world and peculiar to ' the 
 person enjoying them ;(a) that is to say, rights, powers, or privileges ' in 
 the nature of a franchise. '(/>) 
 
 The repealed 2 1 & 22 Viet. c. 98, s. 50, contained the same provision 
 to protect persons enjoying rights, powers, and privileges within the 
 district. A municipal corporation owned a common law market, and this 
 market had always been held in a market-place in which the occupier of / 
 an adjoining house had a prescriptive right to erect a stall. The corpora- v 
 tion removed the market so as to interfere with his right. It was held *> 
 that the removal was bad at common law (see ante, p. 38), and that by \ 
 reason of the above provision the corporation could not justify the removal ' 
 as an establishment of a new market under the Act. (c ) 
 
 8 ' The district ' means the urban district (see note (l), supra). With 
 regard to the word 'enjoyed,' it is not clear whether a market franchise 
 can be said to be enjoyed, as that word is here used, unless there be some 
 actual exercise from time to time of the right. Assuming that the franchise 
 be exercised by duly holding markets, it is not clear, again, what is the 
 test whereby to decide whether or not the franchise is ' enjoyed within ' a 
 particular urban district. There seem to be three possible views, viz. 
 (i) that the franchise is enjoyed only in the actual market-place in which 
 the markets are held ; (2) that it is enjoyed in every part of the manor or 
 other area within which the markets might lawfully be held ; (3) that it is 
 enjoyed over the whole area within which the owner of the franchise can 
 at common law prevent the levying of any rival market. If either the first 
 or the second of these views be correct, cases can be suggested in which 
 an urban district council has power to establish a new market without the 
 consent of the owner of a neighbouring market, although the establishment 
 of such new market, if it were established without statutory authority, 
 would be an actionable disturbance of such neighbouring market for 
 instance, cases in which an old market is held outside, but within seven 
 miles of, an urban district. In such cases, if the damage sustained by the 
 owner of the neighbouring market be damage sustained by reason of the 
 lawful exercise by the district council of their powers, his only remedy 
 seems to be to seek compensation in the manner provided by s. 308 of the 
 Act. On the other hand, if the third of the above views be correct, and 
 the consent of each owner of a neighbouring market be necessary before 
 the council can establish any market which would be deemed at common 
 law to disturb the rights of such owner, then, assuming that a statutory 
 market is entitled to the same measure of protection from a rival market 
 as that to which a common law market is entitled (see ante, p. 87), it 
 seems to follow that, as soon as one urban district council has established 
 a market under this section, the consent of that council will be required 
 by this section before a neighbouring urban district council can establish 
 another market within seven miles. 
 
 9 ' Person ' here includes any body of persons, whether corporate or 
 incorporate ; see s. 4 of this Act. 
 
 lu If an urban district council establish a market without the consent of 
 
 a) Fearon v. Mitchell (1872) L.R. 7 Q.B. 690, 696. 
 
 b) Spurling v. Bantoft [1891] 2 Q.B. 384. 
 
 c) Ellis v. Mayor of Bndgenorth (1863) 15 C.B.N.S. 52.
 
 1 8 4 
 
 Public Health Act, 1875 
 
 8. 166 
 
 a person whose consent is required by this section, such person can main- 
 tain an action for an injunction or damages against the council. Such an 
 action, however, is subject to the provisions of the Public Authorities 
 Protection Act, 1893 (56 & 57 Viet. c. 6l). As to the protection from 
 personal liability given to members and officers of, and persons acting 
 under the authority of, an urban district council, see s. 265 of the Public 
 Health Act. 
 
 Incorpora 
 tion of 
 
 Viet. c. 14 
 
 as to 
 markets 
 
 S. 167. For the purpose of enabling any urban authority to 
 establish or to regulate markets, 1 there shall be incorporated with 
 ofToTTi this Act the Provisions of the Markets and Fairs Clauses Act, 
 1847, 2 in so far as the same relate to markets ; 3 that is to say, 
 
 With respect to the holding of the market or fair, and the 
 protection thereof ; 4 and 
 
 With respect to the weighing goods and carts ; 5 and 
 
 With respect to the stallages, rents and tolls : 6 
 Provided that all tolls leviable by an urban authority in pursuance 
 of this section ^ shall be approved by the Local Government Board. 11 
 
 An urban authority may with respect to any market belonging 
 to them 9 make by-laws for any of the purposes mentioned in 
 section forty-two of the Markets and Fairs Clauses Act, i847, 10 so 
 far as those purposes relate to markets, 11 and printed copies of any 
 by-laws so made shall be conspicuously exhibited in the market. 12 
 
 1 The section does not clearly direct whether or not a market purchased 
 or taken on lease by an urban district council is to be held subject to the 
 incorporated clauses of the Markets and Fairs Clauses Act, 1847, as 
 limited by the proviso with regard to tolls. Law officers of the crown 
 appear to have advised the Local Government Board that where a district 
 council have acquired a market with rights of taking tolls therein, the 
 council may continue to take the same tolls without the approval of the 
 Board, but that such approval is required for any alteration of the tolls, if 
 not justified by the rights acquired, (a) It seems that a district council 
 which has purchased a common law market with tolls may, so long as they 
 think fit to do so, levy the tolls previously leviable in such market, relying 
 upon the remedies and incidents of the common law ; but may at any time, 
 if they think fit, elect to regulate the market in accordance with s. 167, and 
 to take the benefit of the incorporated provisions of the Markets and Fairs 
 Clauses Act. If they elect to do that, it seems that their tolls require to 
 be approved by the Local Government Board. Assuming that they can 
 make such an election in the case of a common law market which they 
 have taken on lease, then, after the election, the franchise would be exer- 
 cised subject to restrictions, and with various modifications, which might 
 not affect the reversioner when the lease expired. 
 
 A municipal corporation which, as such, owns a common law market is 
 entitled to maintain such market as a common law market, and to rely 
 upon its common law rights ; and it is also entitled, as urban district 
 council, to establish and regulate a market under the powers conferred by 
 this Act. But it is not entitled to blow hot and cold with regard to any par- 
 ticular market, and to say that for one purpose it is a common law market, 
 but for another a market established under these statutory powers, (d) 
 
 (a) See First Report of the Royal Commission, vol. ii. p. 4 (1888). 
 (6) See Ellis v. Corporation of Bridgenorth (1861) 2 J. & H. 67.
 
 S. 167 Public Health Act, 1875 185 
 
 2 10 & II Viet. c. 14, set out ante, p. 141. 
 
 3 It is important to notice this limitation. A district council has no 
 power under this or the preceding section to establish a fair. 
 
 In reading the incorporated clauses regard must be had to s. 316 of the 
 Public Health Act, set out infra, p. 188. This Act does not expressly 
 incorporate the definition clauses (ss. 2 and 3) of the Markets and Fairs 
 Clauses Act, 1847, even for the limited purpose of construing the incor- 
 porated clauses. But it is submitted that, subject to s. 316 of this Act, the 
 incorporated clauses must be construed in accordance with the above- 
 mentioned definition clauses. 
 
 4 Sections 12-16, set out ante, p. 149. The reference to 'fair' is only 
 for the purpose of identifying the sections referred to ; see note (3), supra. 
 
 5 Ss. 21-30, set out ante, p. 156. The provisions of the Markets 
 and Fairs (Weighing of Cattle) Acts, 1887 and 1891 (see post, pp. 196, 
 et seq. ), apply to markets owned by an urban district council, if the council 
 are authorised to take, and actually take, tolls in respect of cattle. 
 
 * Sections 31-41, set out ante, p. 160. 
 
 7 This section (s. 167) reproduces sub-section (2) of s. 50 of. the repealed 
 Local Government Act, 1858, sub-section (i) thereof being reproduced by 
 s. 1 66, supra. The words ' in pursuance of this section ' occurred in sub- 
 section (2) of the repealed enactment, and related to the whole section, 
 including sub-section ( I ). The reproduction of the repealed enactment in 
 two sections instead of one does not seem to have altered materially the 
 effect of the words, except, perhaps, that it confirms the view that the 
 approval of the Local Government Board is required only for tolls taken 
 by a district council in markets established or regulated in accordance with 
 the Markets and Fairs Clauses Act, and not for tolls taken in a common 
 law market purchased under s. 166 and regulated as a common law 
 market. S. 166 enables the district council to take tolls 'in respect of 
 the use by any person of the market ' ; the earlier portion of s. 167, by 
 incorporating ss. 31-41 of the Markets and Fairs Clauses Act, provides for 
 the manner in which the tolls are to be levied ; the proviso limits the opera- 
 tion of these incorporated sections, so far as tolls are concerned, to tolls 
 approved by the Local Government Board. 
 
 8 The effect of the proviso appears to be that an urban district council 
 cannot levy a toll in any market regulated by them in accordance with the 
 incorporated clauses of the Markets and Fairs Clauses Act, 1847, unless 
 and until such toll has been approved by the Local Government Board 
 (see note (I), supra). As the Act does not provide for the manner in which 
 the approval is to be obtained, the district council must comply with the 
 
 Documentary Evidence Act, 1868 (31 & 32 " 
 
 The proviso applies only to tolls, and not to stallages and rents. The 
 latter are matters for contract^ between the council and any persons who 
 desire stalls. The council seem to be under no obligation to provide stalls. 
 If they ask for an unreasonable sum for stalls, perhaps the only remedy is 
 to abstain from hiring them : see, however, ante, pp. 59 and 64. 
 
 The Local Government Board, when they have once approved a toll 
 unconditionally, appear to have no power to compel a district council to 
 reduce it. Qucere, whether the Board could retain a control over tolls by 
 approving them only on the condition that such approval should not extend 
 to any toll sought to be levied after a specified date. 
 
 * I.e. belonging to them as urban district council. These words 
 seem to give to a district council the power to make by-laws with respect 
 to any market belonging to them, whether it be a new market established
 
 1 86 
 
 Public Health Act, 1875 
 
 S. 167 
 
 Power for 
 sale of un- 
 dertaking 
 of market 
 company 
 to urhan 
 authority 
 
 by them, or an old market acquired by them, in accordance with their 
 powers. 
 
 10 See s. 42 of the Act, set out ante, p. 165. S. 50 (2) of the repealed 
 Local Government Act, 1858, incorporated the provisions of ss. 42-49 of the 
 Markets and Fairs Clauses Act, 1847, with respect to by-laws. S. 167 of 
 the Public Health Act does not incorporate them. This distinction must be 
 borne in mind in considering Ellis v. Corporation of Bridgenorth (1861) 
 2 J. & H. 67. 
 
 " Purposes relating to a fair or slaughter-house are excluded by these 
 words ; see note (3), supra. 
 
 12 By-laws made under this section are subject to the provisions of 
 ss. 182-186 of this Act, with regard to the making, altering, and repealing 
 of by-laws, their validity, the penalties which may be imposed thereby, their 
 confirmation by the Local Government Board, and their publication and 
 proof. With regard to publication, the requirements both of this section 
 and s. 185 ought to be complied with. The Act contains no express pro- 
 visions rendering by-laws inoperative unless duly published, such as are 
 to be found in ss. 48 and 49 of the Markets and Fairs Clauses Act, 1847, 
 supra, p. 1 68. For the penalty imposed by this Act for destroying or 
 defacing any board on which the by-laws are inscribed, see s. 306. For 
 the recovery of penalties, see ss. 251 et seq., and the Summary Jurisdiction 
 Act, 1 884. (a) 
 
 As to by-laws made under the repealed Local Government Act, 1858, 
 s. 50 (2), see the saving clause in s. 326 of the Public Health Act ; and as 
 to by-laws made before the passing of the Local Government Act, 1894, 
 see the saving clause in s. 87 of that Act. As to the proof of by-laws 
 made by a borough council, see the Municipal Corporations Act, 1882, 
 s. 24. As to the effect of a variance between the provisions of a by-law 
 made under s. 167 of the Public Health Act and those of a local Act 
 applying to the same district, see Savage v. Brook.(^) 
 
 S. 168. Any 1 urban authority may purchase, 2 and the directors 
 of any market company, 3 in pursuance, in the case of a company 
 registered under the Companies Act, 1862, of a special resolution 
 of the members passed in manner provided by that Act, 4 and in 
 the case of any other company, 5 of a resolution passed by a 
 majority of three-fourths in number and value of the members 
 present, either personally or by proxy, at a meeting specially 
 convened with notice of the business to be transacted, may sell 
 and transfer to any urban authority, on such terms as may be 
 agreed on between the company and the urban authority, all the 
 rights, powers and privileges and all or any of the markets, premises 
 and things which at the time of such purchase are the property of 
 the company, but subject to all liabilities attached " to the same at 
 the time of such purchase. 
 
 1 Compare with this section ss. 51, 63, and 162 of this Act, under 
 which an urban district council can purchase the properties of water and 
 gas companies. Under those sections a purchase can be made only with 
 the sanction of the Local Government Board, which is not the case under 
 this section. But a district council cannot exercise their borrowing powers 
 
 (a) 47 & 48 Viet. c. 43. 
 
 (t) (i86 3 )i S C.B.N.S. 264.
 
 S. 168 Public Health Act, 1875 18; 
 
 for the purpose of making a purchase under this section, unless they have 
 obtained the sanction of the Local Government Board, (a) 
 
 The words of this section, if read without reference to s. 1 66, may be 
 thought to be wide enough to permit an urban district council to purchase 
 from a market company, and hold, a market situate outside the urban 
 district ; and moreover to purchase a market without first obtaining the 
 consent of the owners and ratepayers of the district, or two-thirds of the 
 council in the case of a borough. But probably this section must be read 
 as supplementary to s. 1 66, and as enabling the council to purchase only 
 for the purpose of providing a market within their district, and only 
 after obtaining the consent of the owners and ratepayers, or two-thirds of 
 the council, as provided by s. 166. 
 
 2 This section relates only to purchases, but an urban district council 
 has power, under s. 166, supra, to take market rights on lease from a 
 company which has power to lease them. 
 
 3 The Act gives no definition of ' market company,' and therefore, if a 
 question arises whether or not a particular company is a market company 
 within the meaning of this section, it must be decided upon the particular 
 facts of the case. 
 
 4 25 & 26 Viet. c. 89 ; see ss. 50-54, and schedule I. , table A, rules 
 29-51, of that Act. 
 
 5 The words ' any other company ' are very wide, and apparently 
 include a company established or regulated by a local Act. This section 
 seems to confer upon the directors of a company powers of sale, which, 
 apart from the section, the company may not possess. In the case of a 
 company which, apart from this section, can only sell its undertaking after 
 complying with formalities or conditions not covered by this section, it is 
 perhaps not clear that, upon the passing of the resolution required by this 
 section, the directors of such company become entitled to sell the under- 
 taking to an urban district council without such formalities or conditions 
 being complied with. But it is submitted that such is the case. Questions, 
 however, might sometimes arise between a company which desires to sell, 
 or sells, its undertaking to an urban district council, and members of such 
 company, or other persons, or between such persons and the council, 
 which cannot be discussed here. 
 
 H The object of these words seems to be to preserve, for persons having 
 at the date of the transfer mortgages or charges upon the property trans- 
 ferred, all their rights against such property. 
 
 The question arises whether an urban district council, when they have 
 purchased a market from a company under this section, may or must regu- 
 late it upon the terms upon which the company were bound to regulate it, 
 or whether they may or must apply to the market the provisions of the 
 Markets and Fairs Clauses Act, 1847, mentioned in s. 167, supra. May 
 the district council continue to exercise rights and powers enjoyed by the 
 company, though greater than such as would be enjoyed if the above pro- 
 visions of the Markets and Fairs Clauses Act applied thereto, for instance, 
 privileges giving a wider protection to the market or a better remedy for 
 the recovery of tolls ? If the powers of the company are narrower than 
 those contained in the Markets and Fairs Clauses Act, may the district 
 council apply the latter to the market after the transfer ? Probably the 
 district council may, so long as they think fit, regulate the market as the 
 company had power to regulate it, relying entirely on the rights and powers 
 which they have purchased, but may, whenever they think fit, elect to 
 apply to the market the above provisions of the Markets and Fairs Clauses 
 Act, provided that by so doing they do not impair any outstanding charges 
 
 (a) Seess. a^efsey..
 
 1 88 
 
 Public Health Act, 1875 
 
 S. 168 
 
 created before the purchase upon the undertaking or the tolls. It seems 
 that, upon applying these provisions, they must obtain for their tolls the 
 approval of the Local Government Board; see note (i) to s. 167, supra. 
 In some cases nice questions might arise out of the application of these 
 provisions to the rights and powers purchased, similar to those which arose 
 in Rutherford v. Straker.(a) 
 
 As to con- S. 316. In ' the construction of the provisions of any Act incor- 
 truction porated with this Act the term ' the special Act ' includes this Act ; 
 . . . the term ' the limits of the special Act ' means the limits of the 
 district ; and the urban or rural authority shall be deemed to be 
 . . . ' the undertakers.' . . . 
 
 All penalties incurred under the provisions of any Act incor- 
 porated with this Act shall be recovered and applied in the same 
 way as penalties incurred under this Act. 2 
 
 1 Immaterial portions of this section are omitted. 
 
 of incor- 
 porated 
 Acts 
 
 s. 13 of the Markets and Fairs Clauses Act, see Ross v. Taylerson.(c) 
 
 (a) (i88 9 ) 4 2Ch.D. 85 n. 
 <f)[i8 9 8J6 2 J.P. 181. 
 
 (*) 47 & 48 Viet. c. 43.
 
 8 9 
 
 DISEASES OF ANIMALS ACT, 1894. 
 (57 & 58 VICT. c. 57.) 
 
 [The Contagious Diseases (Animals) Act, 1867, (a) empowered any local 
 authority under that Act to provide proper places for the sale, lairage and 
 slaughter of foreign animals, but did not, in any way, constitute such 
 places markets. That Act was repealed, and its provisions re^ laced by 
 those of the Contagious Diseases (Animals) Act, 1869. (l>) By the Act of 
 1869, the local authority was empowered to provide 'wharves, lairs, 
 sheds, markets, houses, and places, for the landing, reception, sale, and 
 slaughter of foreign animals : ' the Markets and Fairs Clauses Act, 1847, 
 was incorporated : and the by-laws and charges for using the wharves and 
 other places were subjected to the approval of the Privy Council. The 
 Contagious Diseases (Animals) Act, 1878,^) repealed these provisions, and 
 substituted (by s. 39) provisions generally similar to those contained in 
 s. 32 of the Act of 1894, set out below, but differing in two respects, viz. 
 (i) the section related to ' foreign animals,' instead of 'foreign or other 
 animals,' and (2) the Privy Council was the controlling authority. Sub- 
 sequently the Contagious Diseases (Animals) Act, 1886, (d) extended the pro- 
 visions of s. 39 of the Act of 1878 to 'animals not being foreign,' and 
 to ' carcases, fodder, litter, dung, and other things of and relating to such 
 animals ' ; and under the Board of Agriculture Act, 1889,^) the Board of 
 Agriculture was substituted for the Privy Council as controlling autho- 
 rity. The Act of 1878 (except s. 34) was repealed by the Diseases of 
 Animals Act, 1894, s. 78.] 
 
 S. 32. (i.) A local authority 1 may provide, erect, and fit up 
 wharves, stations, lairs, sheds, and other places for the landing, 
 reception, keeping, sale, slaughter, or disposal of foreign - or other 
 animals, 3 carcases, fodder, litter, dung, and other things. 4 
 
 1 The local authorities under this Act are defined by ss. 3 and 38, and 
 are : 
 
 In the city of London, the common council : 
 
 In the county of London, for the purposes of the provisions of 
 the Act relating to foreign animals, the common council ; for other pur- 
 poses, the county council : 
 
 In the Improvement Act district of Hove, the Hove Improvement 
 Act Commissioners : 
 
 In any borough (except a borough which contained, according to 
 
 (a) 30 & 31 Viet. c. 125, s. 47. (6) 32 & 33 Viet. c. 70, ss. 23-25. 
 
 (*) 41 & 42 Viet. c. 74. (d) 49 & 50 Viet. c. 32, s. 10. 
 
 (e) 52 & 53 Viet. c. 30.
 
 190 Diseases of Animals Act, 1894 S. 32 
 
 the census of 1881, a population of less than 10,000), the borough coun- 
 cil : 
 
 Elsewhere in an administrative county, the county council. 
 
 2 I.e. 'brought to the United Kingdom from a country out of the 
 United Kingdom. '(a) 
 
 3 'Animals' here means cattle (i.e. bulls, cows, oxen, heifers, and 
 calves) and sheep and goats, and all other ruminating animals.and swine, (b) 
 The Board of Agriculture, however, have power, by order, to extend, for 
 all or any of the purposes of the Act, the above definition of animals, so 
 that the same shall for those purposes, or any of them, comprise any kind 
 of four-footed beasts, (c) 
 
 4 The words ' other things ' are probably to be construed as limited 
 to things ejusdem generis with the things previously mentioned, which all 
 bear some relation to animals, (d) 
 
 (2.) There shall be incorporated with this Act the Markets and 
 Fairs Clauses Act, 1847,' except sections six to nine 2 and fifty-one 
 to sixty 3 thereof. 
 
 1 10 & ii Viet. c. 14, set out ante, p. 141. 
 
 2 The incorporation of those sections, which relate to the acquisition 
 of lands, was rendered unnecessary by the provisions of s. 33 of this Act. 
 
 3 S. 5 2 relates to the recovery of damages and penalties. With 
 regard to the recovery of penalties for offences against the incorporated 
 clauses of the Markets and Fairs Clauses Act, 1847, or by-laws made 
 under s. 47 thereof, see the note ante, p. 171. 
 
 (3.) A wharf or other place provided by a local authority under 
 this section shall be a market within that Act j 1 and this Act shall 
 be the special Act ; 2 and the prescribed limits 2 shall be the limits 
 of lands acquired 3 or appropriated for purposes of this section ; 
 and by-laws 4 shall be approved by the Board of Agriculture, ' 
 which approval shall be sufficient without any other approval or 
 allowance, notice of application for approval being given, and pro- 
 posed by-laws being published before application, as required by 
 the Markets and Fairs Clauses Act, 1847." 
 
 1 It is not clear whether these words render the wharf or other place, 
 when provided, a market for all purposes : for instance, for the purposes 
 of the common law doctrine as to the protection of a market from rival 
 markets, or as to sales in market overt. 
 
 2 See the Markets and Fairs Clauses Act, s. 2, ante, p. 142. 
 
 3 The power to acquire lands for the purposes of this section is given 
 by s. 33 of the Act. Under that section the local authority may by agree- 
 ment purchase land or take it on lease or at a rent, or, after obtaining a 
 provisional order for the purpose from the Local Government Board, may 
 purchase land compulsorily. These powers with respect to acquiring land 
 may be exercised by the local authority within or without their district ; 
 see s. 33 (4). 
 
 4 The power to make by-laws is given by s. 42 of the Markets and 
 Fairs Clauses Act, 1847, ante, p. 165. 
 
 See s. 59 (i) of this Act. (6) See s. 59 (i). 
 
 c) See s. 22 (xxxvi.). 
 
 d) Cf. the repealed 49 & 50 Viet. c. 32. s. 10.
 
 S. 32 Diseases of Animals Act, 1894 191 
 
 5 I.e. shall not come into force unless and until approved by the Board 
 of Agriculture. 
 
 6 See ss. 46 and 47 of that Act, ante, p. 167. 
 
 (4.) A local authority may charge for the use of a wharf or other 
 place provided by them under this section such sums as may be 
 imposed by by-laws, 1 and the same shall be deemed tolls 2 autho- 
 rised by the Special Act. 
 
 1 The by-laws, and therefore the tolls, cannot be enforced unless and 
 until approved by the Board of Agriculture, (a) As to the powers of the Board 
 of Agriculture with regard to reducing the tolls, see sub-section 7, infra. 
 
 See ss. 31-41 of the Markets and Fairs Clauses Act, 1847. 
 
 (5.) All sums so received by the local authority shall be carried 
 to a separate account, and shall be applied in payment of interest 
 on money borrowed by them under the Contagious Diseases 
 (Animals) Act, 1869,' the Contagious Diseases (Animals) Acts, 1878 
 to i893, 2 or this Act, and in repayment of the principal thereof, and, 
 subject thereto, towards discharge of their expenses under this Act. 
 
 1 32 & 33 Viet. c. 70. 
 
 - 41 & 42 Viet. c. 74 ; 47 & 48 Viet. cc. 13 & 47 ; 49 & 50 Viet. c. 32 ; 
 53 & 54 Viet. c. 14 ; 55 & 56 Viet. c. 47 ; 56 & 57 Viet. c. 43. 
 
 (6.) The local authority shall make such periodical returns to 
 the Board of Agriculture of their expenditure and receipts in respect 
 of the wharf or other place as the Board require. 
 
 (7.) The Board, if satisfied on enquiry that the tolls taken by the 
 local authority for the wharf or other place may properly be 
 reduced, regard being had to the expenditure and receipts of the 
 local authority in respect thereof, and to any money secured on the 
 tolls, 1 and to the other circumstances of the case, may require the 
 local authority to submit to the Board, for their approval, a new 
 schedule of tolls, and, on failure of the local authority to do so to 
 the satisfaction of the Board, may, by order, prescribe such tolls as 
 the Board think fit, in lieu of those before approved by the 
 Board. 
 
 1 As to borrowing for the purposes of the Act on the security of the 
 tolls, sees. 42(5). With regard to markets in the metropolis, sees. 28 
 (2)-(4) of the Contagious Diseases (Animals) Act, 1869, which was not 
 repealed by the Act of 1878. 
 
 (8.) The provisions of this section shall apply to a wharf or 
 other place provided by a local authority under the Contagious 
 Diseases (Animals) Act, 1869,' or under the Contagious Diseases 
 (Animals) Acts, 1878 to 1 893.2 
 
 1 See 32 & 33 Viet. c. 70, ss. 23-35. 
 
 2 See 41 & 42 Viet. c. 74, s. 39 ; 49 & 50 Viet. c. 32, s. 10. 
 
 (a) See sub-section (3) supra.
 
 193 
 
 APPENDIX. 
 
 THE FAIRS ACT, 1871. 
 
 (34 VICT. c. 12.) 
 
 An Act to further amend the Law relating to Fairs in 
 England and Wales. [25th May 1871.] 
 
 WHEREAS certain of the fairs held in England and Wales are un- 
 necessary, are the cause of grievous immorality, and are very 
 injurious to the inhabitants of the towns in which such fairs are held, 
 and it is therefore expedient to make provision to facilitate the abo- 
 lition of such fairs : 
 
 1. This Act may be cited as 'The Fairs Act, 1871.' Title 
 
 2. In this Act the term 'owner' means any person or persons, Definition 
 or body of commissioners, or body corporate, entitled to hold any of ' owner 
 fair, whether in respect of the ownership of any lands or tenements, 
 
 or under any charter, letters patent, or Act of Parliament, or other- 
 wise howsoever. 
 
 3. In case it shall appear to the Secretary of State for the Home 
 Department, upon representation duly made to him by the magis- 
 
 of State 
 may, on 
 
 trates of any petty sessional district within which any fair is held, represen- 
 or by the owner of any fair in England or Wales, that it would be tation of 
 for the convenience and advantage of the public that any such fair ma gis- 
 shall be abolished, it shall be lawful for the said Secretary of State t ^^ S> 
 for the Home Department, with the previous consent in writing of consent 
 the owner for the time being of such fair, or of the tolls or dues of owner, 
 payable in respect thereof, to order that such fair shall be abolished order f a ' r 
 accordingly : Provided always, that notice of such representation, aoo ij s h ec i 
 and of the time when it shall please the Secretary of State for the ^ .- ,- 
 Home Department to take the same into consideration, shall be represen- 
 published once in the ' London Gazette,' and in three successive tation 
 weeks in some one and the same newspaper published in the 
 county, city, or borough in which such fair is held, or if there be 
 no newspaper published therein, then in the newspaper of some papers 
 
 O
 
 194 
 
 Appendix 
 
 Order of 
 Secretary 
 of State 
 to be 
 published 
 in news- 
 paper 
 
 county adjoining or near thereto, before such representation is so 
 considered. 
 
 4. When and so soon as any such order as aforesaid shall have 
 been made by the Secretary of State for the Home Department, 
 notice of the making of the same shall be published in the ' London 
 Gazette,' and in some one newspaper of the county, city, or borough 
 in which such fair is usually held, or if there be no newspaper 
 published therein, then in the newspaper of some county adjoining 
 or near thereto, and thereupon such fair shall be abolished. 
 
 Short title 
 Definition 
 of terms 
 
 Power to 
 secretary 
 of state to 
 alter days 
 of holding 
 fairs 
 
 THE FAIRS ACT, 1873. 
 (36 & 37 VICT. c. 37.) 
 
 An Act to amend the Law relating to Fairs in England 
 and Wales. [7th July 1873.] 
 
 I. This Act may be cited as ' The Fairs Act, 1873.' 
 3. In this Act the term ' owner ' means any person or persons, 
 or body of commissioners or body corporate, entitled to hold any 
 fair, whether in respect of the ownership of any lands or tenements 
 or under any charter, letters patent, or otherwise howsoever. 
 
 6. In case it shall appear to a secretary of state, upon repre- 
 sentation duly made to him by the justices acting in and for 
 the petty sessional division within which any fair is held, or by 
 the owner of any fair in England or Wales, that it would be for 
 the convenience and advantage of the public that any such fair 
 shall be held in each year on some day or days other than that or 
 those on which such fair is used to be held or on the day or days 
 on which such fair is used to be held and any preceding or subse- 
 quent day or days, or on or during a less number of days than 
 those on which such fair is used to be held, it shall be lawful for a 
 secretary of state to order that such fair shall be held on such 
 other day or days, or on the same day or days and any preceding 
 or subsequent day or days, or on or during any less number of days 
 as he shall think fit : Provided always, that notice of such repre- 
 sentation and of the time when it shall please a secretary of state 
 to take the same into consideration shall if such representation 
 shall have been made by justices be given to the owner of such fair, 
 and shall if such representation shall have been made by the owner 
 of such fair be given to the clerk to the justices acting in and for
 
 The Fairs Act, 1873 195 
 
 the petty sessional division within which such fair is held, and 
 shall also be published once in the ' London Gazette,' and in three 
 successive weeks in some one and the same newspaper, published 
 in the county, city, or borough in which such fair is held, or if 
 there be no newspaper published therein, then in the newspaper of 
 some county adjoining or near thereto, before such representation 
 is so considered. 
 
 7. When and so soon as any such order as aforesaid shall have Order of 
 been made by a secretary of state, notice of the making of the secretary 
 same shall be published in the ' London Gazette ' and in some one to ^ e 
 newspaper of the county, city, or borough in which such fair is published 
 usually held, or if there be no newspaper published therein, then in i' 1 certain 
 the newspaper of some county adjoining or near thereto, and there- r 
 upon such fair shall only be held on the day or days mentioned in 
 such order ; and it shall be lawful for the owner of such fair to take All rights, 
 all such toll or tolls, and to do all such act or acts, and to enjoy all etc -' f 
 and the same rights, powers, and privileges in respect thereof, and ^^jri 
 enforce the same by all and the like remedies, as if the same were good 
 held on the day or days upon which it was used to be held previous 
 to the making of such order. 
 
 THE WEIGHTS AND MEASURES ACT, 1878. 
 
 (41 & 42 VlCT. C. 49.) 
 
 SIXTH SCHEDULE. 
 SECOND PART. 
 
 [ The following Enactments are re-enacted by s. 86 of the above- 
 named Ac/, and are to have effect as if enacted in the body of the 
 Act.} 
 
 22 & 23 VlCT. C. 56, SS. 6, 8, 12. 
 
 THE owners or managers of any public market in Great Britain Owners of 
 
 where goods are exposed or kept for sale shall provide proper markets to 
 
 scales and balances and weights and measures or other machines, P rovlde 
 
 for the purpose of weighing or measuring all goods sold, offered, 
 
 or exposed for sale in any such market, and shall deposit the same 
 
 at the office of the clerk or toll collector of such market, or some 
 
 other convenient place, and shall have the accuracy of all such 
 
 scales and balances and weights and measures or other machines 
 
 tested at least twice in every year by the inspector of weights and 
 
 measures of and for the county, borough, or place where the 
 
 market is situate ; 
 
 o 2
 
 196 
 
 Appendix 
 
 Power to 
 clerks of 
 markets to 
 inspect 
 goods sold, 
 etc., and if 
 weight 
 found 
 deficient 
 to summon 
 the 
 offender 
 
 All expenses attending the purchase, adjusting, and testing 
 thereof shall be paid out of the moneys collected for tolls in the 
 market ; 
 
 Such clerk or toll collector shall at all reasonable times, when- 
 ever called upon so to do, weigh or measure all goods which have 
 been sold, offered, or exposed for sale in any such market, upon 
 payment of such reasonable sum as may from time to time be 
 decided upon by the said owners or managers, subject to the 
 approval and revision of the justices in general or quarter sessions 
 assembled if such market be in England 
 
 For every contravention of this section the offender shall be 
 liable, on summary conviction, to a fine not exceeding five pounds. 
 
 22 & 23 VlCT. c. 56, ss. 7, 8, 12. 
 
 Every clerk or toll collector of any public market in Great 
 Britain, at all reasonable times, may weigh or measure all goods 
 sold, offered, or exposed for sale in any such market ; and if upon 
 such weighing or measuring any such goods are found deficient in 
 weight or measure, or otherwise contrary to the provisions of this 
 Act, such clerk or toll collector shall take the necessary proceed- 
 ings for recovering any fine to which the person selling, offering, 
 or exposing for sale, or causing to be sold, offered, or exposed for 
 sale, such goods, is liable, and the court convicting the offender 
 may award out of the fine to such clerk or toll collector such 
 reasonable remuneration as to the court seems fit. 
 
 For every offence against or disobedience to this section the 
 offender shall be liable on summary conviction to a fine not 
 exceeding five pounds. 
 
 THE MARKETS AND FAIRS (WEIGHING OF 
 CATTLE) ACT, 1887. 
 
 (50 & 51 VlCT. C. 27.) 
 
 An Act to amend the Law with respect to Weighing 
 Cattle in Markets and Fairs. [8th August 1887.] 
 
 WHEREAS it is expedient to afford the like facilities for weighing 
 cattle in markets and fairs as are afforded for weighing goods and 
 carts under the Markets and Fairs Clauses Act, 1847, in markets 
 and fairs to which that Act applies : 
 Short title i. This Act may be cited as the Markets and Fairs (Weighing 
 
 of Cattle) Act, 1887. 
 
 Applica- 2 - This Act, save as is herein-after provided, shall apply to all 
 
 tion of Act markets and fairs in which tolls are for the time being authorised
 
 Markets and Fairs ( Weighing of Cattle] Act, 1887 197 
 
 to be taken and actually are taken in respect of cattle by any 
 company, corporation, or person ; and every such company, 
 corporation, or person is in this Act called ' the market authority.' 
 
 3. In this Act the word 'cattle' includes ram, ewe, wether, Interpre- 
 lamb, and swine. 
 
 4. In or near to every market or fair to which this Act applies, Accommo- 
 the market authority shall provide and maintain sufficient and Cation for 
 proper buildings or places for weighing cattle brought for sale cattle to be 
 within the market or fair, and shall keep therein or near thereto provided 
 weighing machines and weights for the purpose of weighing cattle, 
 
 and shall appoint proper persons to have charge of such machines 
 and weights, and to afford the use of such machines and weights 
 to the public for weighing cattle as may be from time to time 
 required. 
 
 The market authority shall have the accuracy of such weighing 
 machines and weights tested at least twice in every year by the 
 local inspector of weights and measures of and for the county, 
 borough, or place where the market is situate, and the cost of such 
 testing shall be borne by such market authority. 
 
 If the market authority fail to comply with the provisions of 
 this section, it shall not be lawful for them to demand, receive, or 
 recover any toll whatever in respect of any cattle brought to the 
 market or fair for sale so long as such failure continues, but this 
 enactment shall not apply till after the first day of January one 
 thousand eight hundred and eighty-eight. 
 
 Any person who demands or receives any toll in respect of 
 cattle in any market or fair to which for the time being this Act 
 applies, but in which the market authority have not complied with 
 the provisions of this Act, shall be liable on summary conviction 
 to a fine not exceeding five pounds. 
 
 5. Every person selling, offering for sale, or buying any cattle Cattle 
 in a market or fair provided with accommodation for weighing to }* 
 cattle may require such cattle to be weighed, and the tolls payable JJJJSfof* 
 in respect of the weighing shall be paid by the person requiring seller or 
 the cattle to be weighed to the person authorised by the market buyer 
 authority to receive the tolls. 
 
 6. Every person appointed by the market authority to weigh Penalty 
 cattle sold in the market or fair, who for refusal 
 
 (a) refuses or neglects to weigh the same when required ; or cattle'cr 
 () refuses or neglects to deliver to the seller or buyer a ticket to give 
 ' specifying the true weight of the cattle weighed ; or ticket, etc. 
 
 ^ (c) gives to any person a false ticket or account of any cattle 
 weighed ; 
 
 shall be liable on summary conviction to a fine not exceeding forty 
 
 shillings and not less than half a crown.
 
 198 
 
 Appendix 
 
 Penalty 
 for fraud 
 
 Tolls for 
 weighing 
 cattle 
 
 Power to 
 exempt 
 certain 
 markets 
 and fairs 
 from pro- 
 visions of 
 Act 
 
 7. Every person who knowingly acts or assists in committing 
 any fraud respecting the weighing of any cattle weighed in pur- 
 suance of this Act, shall for every such offence be liable on 
 summary conviction to a fine not exceeding five pounds. 
 
 8. The market authority may from time to time (unless other- 
 wise expressly provided by any Act) demand and receive in respect 
 of the weighing of cattle tolls not exceeding the amounts specified 
 in the schedule to this Act, or such other amounts as may be 
 authorised by the Local Government Board to be taken by the 
 market authority ; and ' sections thirty-six to forty-one (both in- 
 cluded) of the Markets and Fairs Clauses Act, 1847, shall apply 
 to the tolls mentioned in this section, as if this Act were the special 
 Act, and the market authority were the undertakers. 
 
 9. (i.) The market authority of any market or fair may at any 
 time apply to the Local Government Board to be exempted from 
 the provisions of this Act on the ground that the sale of cattle at 
 such market or fair is or is likely to be so small as to render it 
 inexpedient to enforce the provision and maintenance of a place 
 for weighing cattle and of a weighing machine under this Act ; 
 and thereupon the Local Government Board may by order declare 
 that this Act shall not apply to such market or fair until after the 
 expiration of a time not exceeding three years to be limited by 
 such order. Any order made under this section may at any time 
 be wholly or partially rescinded, altered, or extended by any sub- 
 sequent order of the Local Government Board. 
 
 (2.) This Act shall not apply to any market or fair to which any 
 order under this section applies so long as it is declared by such 
 order that this Act shall not apply thereto. 
 
 THE SCHEDULE. 
 
 For every head of cattle other than sheep or swine 
 For sheep or swine, every five or less number . 
 
 Not exceeding 
 Twopence. 
 One penny. 
 
 MARKETS AND FAIRS (WEIGHING OF 
 CATTLE) ACT, 1891. 
 
 (54 & 55 VICT. c. 70.) 
 
 An Act to amend the Markets and Fairs (Weighing of 
 Cattle) Act, 1887. [5th August 1891.] 
 
 WHEREAS it is expedient to amend the Markets and Fairs 
 (Weighing of Cattle) Act, 1887 (herein-after referred to as the 
 principal Act) :
 
 Markets and Fairs ( Weighing of Cattle) Act, 1891 1 99 
 
 I. As from the passing of this Act the powers under section Transfer 
 nine of the principal Act of the Local Government Board as to ^ r we ^ 
 England and Wales . . . shall be transferred to and vest in the ^ y[J c 
 Board of Agriculture. ... c. 27, s. 9 
 
 2. (i.) The market authority of every market and fair to Amend- 
 which the principal Act for the time being applies shall, unless ment of 
 exempted by order of the Board of Agriculture from the require- 5? & 5 1 
 ments of this section, provide and maintain to the satisfaction of ^ ' ag 
 the Board sufficient and suitable accommodation for weighing t o accom- 
 cattle. modation 
 
 (2.) Default in complying with the requirements of this section f r . 
 shall be deemed default in complying with the requirements of ^fg 1 " 8 
 section four of the principal Act. 
 
 3. (i.) The market authority of every market and fair held in Statistics 
 any of the places mentioned in the schedule to this Act shall send as to 
 to the Board of Agriculture returns, at such intervals, and in such ^^j^ 
 form and with such particulars as the Board of Agriculture by of cattle 
 order prescribe, showing, so far as the market authority can 
 ascertain the same, the number of cattle entering and the number 
 and weight of cattle weighed at the market or fair, and the price 
 of the cattle sold thereat. Such market authority may, for the 
 purpose of making a prescribed return, cause any cattle which 
 have been sold at the market to be weighed without fee. 
 
 (2.) The Board of Agriculture shall publish the returns so sent, 
 or abstracts thereof, or extracts therefrom, in such manner as they 
 think most expedient for the information of the public. 
 
 (3.) If a market authority wilfully makes default in complying 
 with the requirements of this section, it shall for each offence be 
 liable on summary conviction to a fine not exceeding twenty 
 pounds, or in case of a continuing offence to a fine not exceeding 
 ten pounds for every day during which the offence continues. 
 
 (4.) If any person makes any false or fraudulent statement in 
 any return made in pursuance of this section he shall be guilty of 
 a misdemeanour. 
 
 (5.) The Board of Agriculture may from time to time vary or 
 add to the list of places in the schedule to this Act. 
 
 4. (i.) An auctioneer shall not, unless exempted by order of Applica- 
 the Board of Agriculture from the requirements of this section, tlonof . Act 
 sell cattle at any mart where cattle are habitually or periodically marts 
 sold unless there are provided at that mart similar jacilities for 
 weighing cattle as are required by the principal Act and this AcT ~~> 
 in the 'case oTcattle sold at a market or fair to which the principal *^- /sf- ^ 
 Act applies. __ \- 
 
 (2.) Every auctioneer who in any place from which returns are 
 required to be made under this Act sells cattle at any such mart /* / ^
 
 2OO Appendix 
 
 as aforesaid shall, unless exempted as aforesaid, make the like 
 returns to the Board of Agriculture with respect to cattle entering, 
 weighed, and sold at that mart as are required by this Act to be 
 made by a market authority, and shall be subject to the like 
 penalty for making any false or fraudulent statement in any such 
 return. 
 
 (3.) If any such auctioneer makes default in complying with 
 the requirements of this section, the auctioneer, or, if he is in the 
 employment of any person, the person by whom he is employed, 
 shall for each offence be liable on summary conviction to a fine 
 not exceeding twenty pounds, or in case of a continuing offence to 
 a fine not exceeding ten pounds for every day during which the 
 offence continues. 
 
 (4.) This section shall not come into operation until the first 
 day of January one thousand eight hundred and ninety-two. 
 Construe- - This Act shall be construed as one with the principal Act, 
 
 tion and and may be cited as the Markets and Fairs (Weighing of Cattle) 
 short title Act, 1891, and the principal Act and this Act may be cited 
 together as the Markets and Fairs (Weighing of Cattle) Acts, 
 1887 and 1891. 
 
 SCHEDULE. 
 
 ENGLAND. 
 
 Ashford. London (Metrop. Cattle Market). 
 
 Birmingham. Newcastle-on-Tyne. 
 
 Bristol. Norwich. 
 
 Leicester. Salford. 
 
 Leeds. Shrewsbury. 
 
 Lincoln. Wakefield. 
 
 Liverpool (Stanley Market). York. 
 
 THE PUBLIC HEALTH (CONFIRMATION OF 
 BY-LAWS) ACT, 1884. 
 
 (47 VlCT. C. 12.) 
 
 An Act to amend the Public Health Act, 1875, so far 
 as relates to the Confirmation of By-laws. 
 
 [i9th May 1884.] 
 
 BE it enacted by the Queen's most Excellent Majesty, by and 
 with the advice and consent of the Lords Spiritual and Temporal,
 
 Public Health (Confirmation of By-lazvs) Act, 1884 201 
 
 and Commons, in this present Parliament assembled, and by the 
 authority of the same, as follows : 
 
 1. This Act may be cited as the Public Health (Confirmation Short title 
 of By-laws) Act, 1 884, and shall be construed as one with the Public and con- 
 Health Act, 1875. 
 
 2. In this Act, if not inconsistent with the context, the following Definitions 
 expressions have the meanings herein-after respectively assigned to 
 
 them : (that is to say,) 
 
 ' Incorporated enactments ' means section one hundred and 
 twenty-eight of the Towns Improvement Clauses Act, 1847, 
 sections sixty-eight and sixty-nine of the Town Police Clauses 
 Act, 1847, an d section forty-two of the Markets and Fairs Clauses 
 Act, 1847, which Acts are herein-after referred to as the incor- 
 porated Acts : 
 
 ' Confirming authority ' means, as regards by-laws, rules, and 
 regulations confirmed prior to the nineteenth day of August one 
 thousand eight hundred and seventy-one, or made under any of 
 the incorporated enactments by reason of the incorporation thereof 
 with any local Act and confirmed prior to the tenth day of August 
 one thousand eight hundred and seventy-two, one of Her Majesty's 
 principal secretaries of state ; and as regards other by-laws, rules, 
 and regulations, the Local Government Board. 
 
 3. Every by-law made or to be made under any of the incor- Confirma- 
 porated enactments by reason of the incorporation thereof with the tion of 
 Public Health Act, 1848, the Local Government Act, 1858, or the b y~ laws 
 Public Health Act, 1875, or any local Act, orany provisional order, 
 
 or any Act confirming such provisional order, and every rule and 
 regulation made or to be made by an urban authority under 
 section forty-eight of the Tramways Act, 1870, shall be deemed 
 to have required or to require the confirmation of the confirming 
 authority, and not to have required or to require any other con- 
 firmation, allowance, or approval. 
 
 4. This Act shall not invalidate the confirmation, allowance, or Saving 
 approval of any by-law, rule, or regulation confirmed, allowed, or c l ause 
 approved prior to the passing of this Act, nor shall this Act apply 
 
 to any by-law made or to be made under any of the incorporated 
 enactments by reason of the incorporation thereof with any local 
 Act, if such by-law has or will come into force without any con- 
 firmation, allowance, or approval, or if by the express provisions 
 of the local Act and without reference to the provisions with 
 respect to confirmation, allowance, or approval of by-laws in any 
 of the incorporated Acts, such by-law is required to be confirmed, 
 allowed, or approved otherwise than by the confirming authority.
 
 202 
 
 Appendix 
 
 Clerks of 
 bodies 
 empower- 
 ed to levy 
 rates, etc., 
 to make 
 annual 
 returns 
 
 Contents 
 of returns 
 
 Saving for 
 
 cases 
 
 where 
 
 returns 
 
 already 
 
 required 
 
 Abstracts 
 of returns 
 to be laid 
 l>efore 
 Parliament 
 Saving for 
 companies 
 and 
 private 
 rights of 
 toll, etc. 
 
 THE LOCAL TAXATION RETURNS 
 
 ACT, 1860. 
 
 (23 & 24 VICT. c. 51.) 
 
 An Act to provide for an annual Return of Rates, Taxes, 
 Tolls, and Dues levied for local Purposes in England. 
 
 [2 3 rd July 1860.] 
 
 1. The clerk to any corporation, justices, commissioners, 
 district or other board, vestry, inspectors, trustees, or other body 
 or persons authorised to levy or to order to be levied any of the 
 rates, taxes, tolls, or dues mentioned in the schedule to this 
 Act, or any other compulsory rates, taxes, tolls, or dues in 
 England, (other than such as are levied for the public revenue of 
 the United Kingdom,) shall make a return of the sums levied or 
 received by or in respect of such rates, taxes, tolls, and dues, 
 and of the expenditure thereof, to [the Local Government Boarc\ in 
 every year. 
 
 2. Such returns shall show the amounts levied and expended 
 respectively, with such other particulars and in such form as shall 
 from time to time be ordered by [the Local Government Board~\. 
 
 5. Where any annual return is now by law required to be 
 made to the secretary of state, or to any public department, 
 under any Act of Parliament, this Act shall not render necessary 
 any further or other return in respect of the same matters : 
 Provided always, that the {Local Government Board} may, by [their] 
 order published in the ' London Gazette,' direct that all or any of 
 such returns now required as aforesaid shall in future be made 
 under this Act, and shall be subject to the provisions and penalties 
 thereof. 
 
 6. The [Local Government Board~\ shall every year cause the 
 returns transmitted to [them] under this Act to be abstracted, and 
 the abstract thereof to be laid before both houses of parliament. 
 
 8. This Act shall not extend to any tolls or dues taken by 
 any railway, canal, or joint stock company as profits of their 
 undertaking, or to any tolls or dues taken by prescription or 
 otherwise as private property. 
 
 SCHEDULE. 
 
 Tolls and dues levied under the authority of parliament in 
 respect of markets. 
 
 [NOTE. Certain portions of the above Act, and the schedule thereto, 
 which do not affect market authorities, or have been repealed by the S.L.R. 
 Acts, 1875 and 1892, have been omitted. In ss. I, 2, 5, and 6, the name
 
 The Local Taxation Returns Act, 1860 203 
 
 of the Local Government Board has been inserted in the place of that of 
 a secretary of state, the authority originally named in this Act, the 
 powers and duties of a secretary of state under this Act having been 
 transferred to the Local Government Board by the Local Government 
 Board Act, 1871 (34 & 35 Viet. c. 70), s. 2, and schedule, part I. See 
 also the Local Taxation Returns Act, 1877, infra. 
 
 THE LOCAL TAXATION RETURNS 
 ACT, 1877. 
 
 (40 & 41 VICT. c. 66.) 
 
 An Act to amend the Law with respect to the Annual 
 Returns of Local Taxation in England, and for 
 other purposes relating to such Taxation. 
 
 [i4th August 1877.] 
 
 1. The annual return required by law to be made of any Date for 
 receipts or expenditure of a local authority, or of any rates, taxes, annual 
 tolls, or dues, shall be made for the financial year ending on the ^ 
 twenty-fifth day of March, or on such other day as the Local taxation 
 Government Board may from time to time prescribe, upon the 
 application of any particular authority in respect of their receipts 
 
 and expenditure, or of any rates, taxes, tolls, or dues levied by 
 them, or in respect of the receipts and expenditure, and of the 
 rates, taxes, tolls, or dues, levied by any class of authorities. 
 
 Every such return shall be sent to the Local Government 
 Board and not to one of Her Majesty's principal secretaries of 
 state, and shall be so sent within one month after the audit of the 
 receipts and expenditure to which the return relates is completed, 
 or if the audit is not completed within six months after the end of 
 the financial year for which the return is to be made, then on the 
 expiration of such six months, or if there is no audit, then within 
 one month after the end of the said financial year. 
 
 For the purpose of any such return the date to which the 
 accounts of any local authority are required by law to be made up, 
 and the date at which such accounts are required by law to be 
 audited, and the auditors are required to be elected or appointed, 
 may be altered by the local authority, with the approval of the 
 Local Government Board : Provided that nothing in this section 
 shall prevent any accounts being made up and audited at shorter 
 periods than twelve months, so that one of such shorter periods 
 ends on the last day of the financial year for which the return 
 of such accounts is to be made. 
 
 2. Every return to which this Act applies shall be made by the
 
 20 4 
 
 Appendix 
 
 Obligation 
 of clerk 
 of local 
 authority 
 to send 
 return 
 
 Definition 
 of local 
 authority ' 
 
 Short title 
 
 clerk of the local authority, or where no clerk is appointed or 
 acting, by the treasurer or other officer keeping the accounts of the 
 receipts and expenditure, rates, taxes, tolls, or dues, to which the 
 return relates, and any such clerk, treasurer, or other officer who 
 makes default in making any such return shall be liable to a 
 penalty not exceeding twenty pounds for each offence, to be recovered 
 by action on behalf of Her Majesty in the High Court of Justice. 
 
 3. The expression ' local authority ' in this Act means any 
 justices, municipal or other corporation, board, guardians, sanitary 
 authority, vestry, commissioners, inspectors, trustees, or other 
 body of persons required by law to make to one of Her Majesty's 
 principal secretaries of state, or to the Local Government Board, 
 a return of their receipts and expenditure, or of any rates, taxes, 
 tolls, or dues levied by them or under their direction. 
 
 4. The Local Government Board shall make such provision as 
 may seem to them necessary for any change of the date of the 
 accounts and audit of the accounts of any local authority which 
 may be rendered necessary by the provisions of this Act, so as to 
 cause as little inconvenience as possible to the local authority. 
 
 5. This Act may be cited as the Local Taxation Returns 
 Act, 1877. 
 
 The Local Taxation Returns Act, 1860, and this Act maybe 
 cited as the Local Taxation Returns Acts, 1860 and 1877. 
 
 [NOTE. The portions of this Act which have been repealed by the 
 S.L.R. Acts, 1883 and 1894, are omitted.] 
 
 fairs open 
 within for- 
 bidden 
 hours 
 
 THE METROPOLITAN POLICE ACT, 1839. 
 (2 & 3 VICT. c. 47.) 
 
 Penalty on 3^- The business and amusement of all fairs holden within the 
 keeping metropolitan police district shall cease at the hour of eleven in the 
 evening, and shall not begin earlier than the hour of six in the 
 morning ; and if any house, room, booth, standing, tent, cara- 
 van, waggon, or other place shall, during the continuance of any 
 such fair, be open within the hours of eleven in the evening and six 
 in the morning, for any purpose of business or amusement, in the 
 place where such fair shall be holden, it shall be lawful for any 
 constable to take into custody the person having the care or 
 management thereof, and also every person being therein who 
 shall not quit the same forthwith upon being bidden by such 
 constable so to do ; and the person so then having the care or 
 management of any such house, room, booth, standing, tent, cara- 
 van, waggon, or other place shall be liable to a penalty not more
 
 The Metropolitan Police Act, 1839 205 
 
 than five pounds, and every person convicted of having been 
 therein, and of not having quitted the same forthwith upon being 
 bidden by a constable so to do, shall be liable to a penalty not 
 more than forty shillings. 
 
 39. If it shall appear to the commissioners of police that any Fairs 
 fair holden within the metropolitan police district has been holden within the 
 
 without lawful authority, or that any fair lawfully holden within the metr P? u - 
 ..... , , ,,, r , , , tan police 
 
 said district has been holden for a longer period than is so district 
 
 warranted, it shall be competent to such commissioners to direct may be 
 one of the superintendents belonging to the metropolitan police inquired 
 force to summon the owner or occupier of the ground upon which into 
 such fair is holden to appear before a magistrate at a time and 
 place to be specified in the summons, not less than eight days after 
 the service of the summons, to show his right and title to hold such 
 fair, or to hold such fair beyond a given period (as the case may 
 be) ; and if such owner or occupier shall not attend in pursuance 
 of such summons, or shall not show to the magistrate who shall 
 hear the case sufficient cause to believe that such fair has been 
 lawfully holden for the whole period during which the same has 
 been holden, the magistrate shall declare in writing such fair to be 
 unlawful, either altogether or beyond a stated period (as the case 
 may be) ; and the commissioners shall give notice of such declara- 
 tion by causing copies thereof to be affixed on the parish church 
 and on other public places in and near the ground where such fair 
 has been holden ; and if, after such notices have been affixed for If declared 
 the space of six days, any attempt shall be made to hold such fair unlawful, 
 if it shall be declared altogether unlawful, or to hold it beyond the & ^ be 
 prescribed period if it shall be declared unlawful beyond a certain removed 
 period, the commissioners of police may direct any constable to 
 remove every booth, standing, and tent, and every carriage of 
 whatsoever kind conveyed to or being upon the ground for the 
 purpose of holding or continuing such fair, and to take into custody 
 every person erecting, pitching, or fixing, or assisting to erect, 
 pitch, or fix, any such booth, standing, or tent, and every person 
 driving, accompanying, or conveyed in every such carriage, and 
 every person resorting to such ground with any show or instrument 
 of gambling or amusement ; and every person convicted before a 
 magistrate of any of the offences last aforesaid shall be liable to a 
 penalty not more than ten pounds. 
 
 40. Provided nevertheless that if the owner or occupier of the On enter- 
 ground whereon any such fair has been holden shall, when sum- ing i nt p 
 moned before the magistrate, enter into a recognisance in the penal rec g ms- 
 sum of two hundred pounds (which recognisance such magistrate question as 
 is hereby authorised to take) with condition to appear in the Court to right of 
 of Queen's Bench on the first day of the then next term and to title to fair
 
 206 
 
 Appendix 
 
 Bench 
 
 may be answer to any information which Her Majesty's Attorney or Solicitor 
 tried in the General may exhibit against such owner or occupier touching his 
 ueen's right and title to such fair, and to abide the judgment of the 
 court thereon, and to pay such costs as may be awarded by the 
 court, which costs the said court is hereby authorised to award, 
 then, notwithstanding the magistrate may have declared such fair 
 to be unlawful, the commissioners of police shall forbear from 
 giving notice of such declaration, and from taking any further 
 measures thereon, until judgment shall be given by the said court 
 against the right and title to such fair ; and the magistrate taking 
 such recognisance shall forthwith transmit the same to one of Her 
 Majesty's principal secretaries of state, to the end that the same 
 may be filed in the said court, and such further directions may be 
 given thereon as to such secretary of state may seem fit. 
 
 [NOTE. The words in the above sections which were repealed by 30 & 
 31 Viet. c. 134, s. 21, and the S.L.R. Act, 1874 (No. 2), have been 
 omitted.] 
 
 THE METROPOLITAN FAIRS ACT, 1868. 
 (31 & 32 VICT. c. 106.) 
 
 Short title I- This Act ma y be cited for a11 P ur P oses as ' The Metropolitan 
 
 Fairs Act, 1868.' 
 
 Power to 2 - Where any fair is holden or notice is given of any fair pro- 
 
 summon posed to be holden on any ground within the metropolitan police 
 owner and distnct other than that on which a fair has been holden during 
 "rov^cToif eacl1 ^ t ^ ie seven Y ears immediately preceding, it shall be compe- 
 which fair tent for the commissioner of police to direct one of the superinten- 
 ds held dents of the metropolitan police force to summon the owner or 
 occupier of the ground upon which such fair is holden to appear 
 before a magistrate forthwith, or at a time to be specified in the 
 summons, to show his right and title to hold such fair ; and if such 
 owner or occupier do not attend in pursuance of such summons, or 
 does not show to the magistrate who hears the case sufficient cause 
 to believe that such fair is lawfully holden, the magistrate shall 
 declare in writing such fair to be unlawful, and the commissioner 
 shall give notice of such declaration by causing copies thereof to be 
 affixed on and near the ground where such fair is holden or proposed 
 to be holden ; and after such notice has been affixed for the space 
 of six hours the commissioner of police may direct any constable 
 to remove every booth, standing, and tent, and every carriage of 
 whatsoever kind, conveyed to or being upon the ground for the
 
 The Metropolitan Fairs Act, 1868 207 
 
 purpose of holding or continuing such fair, and to take into custody 
 every person erecting, pitching, or fixing, or assisting to erect, pitch, 
 or fix, any such booth, standing, or tent ; and every person hiring, 
 accompanying, or conveyed in every such carriage, and every per- 
 son resorting to such ground with any show or instrument of 
 gambling or amusement, and every person convicted before a 
 magistrate of any of the offences aforesaid shall be liable to a 
 penalty of not more than ten pounds. 
 
 3. A summons under this Act may be served on the owner or Service of 
 occupier of any ground personally or by leaving the same at his summons 
 usual or last known place of abode, or, if the name of such owner 
 
 or occupier or his place of abode is not known to the police, by 
 putting up such summons in a conspicuous place on the ground 
 where the fair is holden or proposed to be holden, and it shall not 
 be necessary to name the owner or occupier in the summons, but 
 he may be described as the owner or occupier of the ground. 
 
 4. All powers conferred by this Act shall be deemed to be in Act cumu- 
 addition to, and not in derogation of, any other powers conferred ^ at i ve 
 
 by any other Act of Parliament, and any such other powers may be 
 exercised as if this Act had not passed. 
 
 5. This Act, so far as is consistent with the tenor thereof, shall Construc- 
 be construed as one with the Acts relating to the metropolitan tlon ct 
 police.
 
 208 
 
 MODEL BY-LAWS. 
 
 Issued by the Local Government Board for the use of 
 Sanitary Authorities establishing or regulating a 
 Market under the .Public Health Act, 1875. 
 
 [Published 25th July 1877.] 
 
 [By a memorandum prefixed to these model by-laws, the Board sug- 
 gests that by-laws should not be made ' for regulating the use of the 
 weighing machines provided by the undertakers, and for preventing the 
 use of false and defective weights, scales, and measures,' on the ground 
 that clauses 21 to 30 of the Markets and Fairs Clauses Act, 1847 (10 
 Viet. c. 14) sufficiently provide for the regulation of the weighing machines 
 and also (in conjunction with other statutes) for the prevention of the use 
 of false or defective weights, scales, and measures, and do not require 
 to be supplemented by by-laws. Similarly, the Board thinks that it is 
 unnecessary that by-laws should be made ' for preventing the sale or 
 exposure of unwholesome provisions in the market.' The Board points 
 out that s. 167 of the Public Health Act, 1875, provides that all tolls 
 leviable by the sanitary authority must be approved by the Board, but 
 that such approval is not required in the case of stallages and rents. ] 
 
 For regulating the use of the market-place and the buildings, stalls, 
 pens, and standings therein, and for preventing nuisances or 
 obstructions therein, or in the immediate approaches thereto. 
 
 1. A person resorting to the market-place for the sale of any 
 cattle, goods, provisions, marketable commodities or articles shall 
 not, for the purpose of sale or of exposure for sale, place or cause 
 to be placed such cattle, goods, provisions, marketable commodities 
 or articles in any part or parts of the market-place other than such 
 as shall have been appropriated for the reception, deposit, or 
 exposure for sale of the same, and shall be defined or described in 
 a notice printed, painted, or marked in legible letters of such a 
 colour as to be clearly distinguishable from the colour of the 
 ground whereon such letters are printed, painted, or marked, and 
 affixed or set up and continued in some suitable and conspicuous 
 position at or near to such part or parts. 
 
 2. A person resorting to the market-place for the sale of any 
 cattle, goods, provisions, marketable commodities or articles shall 
 not, for the purpose of sale or of exposure for sale, bring the same 
 or cause the same to be brought into such market-place before the 
 
 hour of in the forenoon of any day appointed for the 
 
 holding of any market.
 
 Model By-laws 209 
 
 3. A person resorting to the market-place for the sale of any 
 goods, provisions, marketable commodities, or articles shall not 
 allow such goods, provisions, marketable commodities or articles , 
 or any part thereof, to remain in the market-place after the hour 
 
 of in the afternoon of any day appointed for the holding 
 
 of any market. 
 
 4. Every tenant or occupier, or servant of a tenant or occupier 
 of any building, stall, or standing in the market-place shall, before 
 
 the hour of in the afternoon of every day during which 
 
 such building, stall, or standing may have been used for the sale 
 or exposure for sale of any goods, provisions, marketable com- 
 modities, or articles, extinguish or cause to be extinguished ever}' 
 fire or light in, upon, or in connection with such building, stall, or 
 standing. 
 
 5. A tenant or occupier, or a servant of a tenant or occupier of 
 any building, stall, or standing in the market-place used for the 
 sale, or exposure or preparation for sale of any carcase or meat 
 intended for the food of man, shall not cleave such carcase or 
 meat elsewhere than upon a cleaving block, or chopping board, or 
 otherwise than when properly attached to or suspended from the 
 hooks provided for the purpose in, upon, or in connection with 
 such building, stall, or standing. 
 
 6. A person who shall use any pen for the reception of any 
 cattle brought into the market-place for the purpose of sale, or of 
 exposure for sale, shall not place or allow to be placed in such pen 
 a greater number of cattle than shall be compatible with the 
 allowance in respect of the several animals placed in such pen of 
 an extent of superficial space to be determined in accordance 
 with the following regulations : 
 
 //. in. ft. in 
 
 For every horse : 
 
 a space not less than by 
 
 For every ox or cow : 
 
 a space not less than by 
 
 For every mule or ass : 
 
 a space not less than by 
 
 For every calf : 
 
 a space not less than by 
 
 For every ram, ewe, wether, 
 lamb, goat, kid or pig : 
 
 a space not less than by 
 
 [77*<? following requirements have been suggested as generally 
 suitable -.For every horse, 8 feet by 2 feet. For every ox or 
 cow, 8 feet by ifeet. For every mule or ass, $feet by 15 inches. 
 For every calf, 5 feet by 1 5 inches, for every sheep, goat, or 
 pig (of medium size}, 4, feet (superficial)^ 
 
 p
 
 2io Appendix 
 
 7. A tenant or occupier of any building, stall, or standing in the 
 market-place shall not cause or allow any goods, provisions, 
 marketable commodities or articles to be deposited or exposed for 
 sale in or upon such building, stall, or standing, so that such 
 goods, provisions, marketable commodities or articles, or any part 
 thereof, shall project beyond the line of such building or 
 stall, or beyond the limits assigned to such standing, so as to 
 obstruct the passage of any person or vehicle or of any cattle, 
 goods, provisions, marketable commodities or articles in or through 
 the market-place or any part thereof. 
 
 8. A tenant or occupier of any building, stall, or standing in the 
 market-place, or a person resorting to such market-place for the 
 sale of any goods, provisions, marketable commodities or articles, 
 shall not for any longer time or in any other manner than shall be 
 reasonably necessary for the conveyance of such goods, provisions, 
 marketable commodities or articles, to or from such building, stall, 
 or standing, or any part of such market-place, deposit, or cause, or 
 allow to be deposited in any avenue or passage adjoining such 
 building, stall or standing, or elsewhere in such market-place, or in 
 any of the immediate approaches thereto, any hamper, crate, 
 basket, box, barrel, or other receptacle for any goods brought into 
 such market-place for the purpose of sale or of exposure for 
 sale. 
 
 9. Every tenant or occupier of any building, stall, or standing 
 in the market-place, shall cause such building, stall, or standing to 
 be properly cleansed immediately before the reception, deposit, or 
 exposure for sale therein or thereon and immediately after the 
 removal therefrom of any goods, provisions, marketable com- 
 modities or articles. 
 
 10. Every tenant or occupier of any building, stall, or standing in 
 the market-place shall, from time to time, as often as occasion may 
 require, during any day on which such building, stall, or standing 
 maybe used for the reception, deposit or exposure for sale therein 
 or thereon of any goods, provisions, marketable commodities or 
 articles, cause all filth, garbage, and refuse which may be pro- 
 duced or may accumulate in the course of the trade or business 
 carried on by such tenant or occupier to be placed in such 
 receptacle (if any) as may be provided by the sanitary authority, 
 or otherwise in a receptacle of suitable construction and of adequate 
 dimensions to be provided by such tenant or occupier, in, upon, or 
 in close connection with such building, stall, or standing. 
 
 He shall, from time to time, as often as may be necessary, 
 cause the contents of such receptacle to be promptly removed, in 
 such a manner and with such precautions as not to create a nuisance 
 in' the process of removal, to such place of deposit as shall, from
 
 Model By-laws 2 1 1 
 
 time to time, be appointed by the sanitary authority, and shall be 
 defined or described in a notice printed, painted, or marked in 
 legible letters of such a colour as to be clearly distinguishable from 
 the colour of the ground whereon such letters are printed, painted, 
 or marked, and affixed or set up and continued in some suitable 
 and conspicuous position at or near to such place of deposit. 
 
 11. A person resorting to the market-place and being in charge 
 of any waggon, cart, truck, barrow, or other vehicle or of any 
 beast of burden shall not cause or allow such vehicle or beast to 
 stand in any avenue or passage in such market-place, or in any of 
 the immediate approaches thereto, for any longer time than shall 
 be reasonably necessary for the loading or unloading of any goods, 
 provisions, marketable commodities or articles. 
 
 12. Every person resorting to the market-place for the sale of 
 any goods, provisions, marketable commodities, or articles, or in 
 charge of any waggon, cart, truck, barrow, or other vehicle, or of 
 any beast of burden used for the conveyance of any goods, pro- 
 visions, marketable commodities, or articles to or from such market- 
 place shall, from time to time as often as occasion may require, and 
 in such a manner as to prevent nuisance or obstruction, remove or 
 cause to be removed from every avenue or passage in such market- 
 place, or from the footway or roadway of any of the immediate 
 approaches thereto, all vegetable or animal refuse, filth, litter, or 
 rubbish which may have fallen or may have been thrown or 
 deposited therein or thereon during the loading or unloading or 
 the conveyance to or from such market-place of such goods, pro- 
 visions, marketable commodities or articles. 
 
 13. Every tenant or occupier of any building, stall, or standing 
 in the market-place shall cause every avenue or passage in con- 
 nection with such building, stall, or standing, whether used by him 
 alone or in conjunction with any other person, to be properly 
 swept and cleansed once at least during each day appointed for 
 the holding of any market. 
 
 14. A person resorting to the market-place for the sale of any 
 cattle, goods, provisions, marketable commodities or articles, shall 
 not cause or allow such cattle, goods, provisions, marketable com- 
 modities or articles to be brought or conveyed to or from such 
 market-place, or any building, stall, or standing therein, or to 
 stand, be placed, or exposed for sale in such a manner as to ob- 
 struct the passage of any person or vehicle, or of any other cattle, 
 goods, provisions, marketable commodities or articles in or through 
 such market-place or any part thereof or any of the immediate 
 approaches thereto.
 
 2 1 2 Appendix 
 
 For fixing the days and the hours during each day on which the 
 market shall be held. 
 
 1 5. A market [here specify the class or descrip- 
 tion of wares for which the market is intended] shall be held 
 
 on [here insert the day of the weeK\ in every 
 
 . [here insert week, fortnight, month, quarter, as 
 
 the case may require] throughout the year [or if 
 
 the markets are not held 'periodically throughout the year, substitute 
 the names of the months during which they are held] 
 
 On every day appointed for the holding of a market such market 
 
 shall be held between the hours of in the forenoon 
 
 and __ in the afternoon : 
 
 Provided that when any day herein-before appointed for the 
 holding of a market shall be a day duly appointed for a solemn 
 fast, or public thanksgiving, such market shall be held on the law- 
 ful day next following such first-mentioned day. 
 
 For regulating the carriers resorting to the market, and fixing the 
 rates for carrying articles carried therefrom within the limits 
 of the district. 
 
 1 6. A carrier resorting to the market-place shall not, at any 
 time, while plying for hire and not actually hired, occupy a station 
 in any part or parts of the market-place other than such as shall 
 be appropriated as a stand or stands for carriers and shall be 
 defined or described in a notice printed, painted, or marked in legible 
 letters of such a colour as to be clearly distinguishable from the 
 colour of the ground whereon such letters are printed, painted, or 
 marked, and affixed, or set up, and continued in some suitable and 
 conspicuous position at or near to the part or parts so appropriated. 
 
 17. A carrier resorting to the market-place shall not, while ply- 
 ing for hire, canvass for hire by calling out or otherwise to the 
 annoyance of any person. 
 
 1 8. Every carrier resorting to the market-place shall at all times, 
 while plying for hire, conduct himself with civility and propriety 
 towards every person hiring or seeking to hire such carrier, and 
 shall comply with every reasonable requirement of any person 
 hiring such carrier. 
 
 19. Every carrier resorting to the market-place shall be entitled 
 to demand and receive from every person hiring such carrier, a sum 
 to be determined in accordance with the following table as the rate 
 or charge for the carriage of any goods, provisions, marketable 
 commodities or articles, from such market-place to any place or 
 places within the limits of the district :
 
 Model By-laws 
 
 213 
 
 J^able of rates for the carriage of goods, provisions, marketable commodities, 
 or articles from the market-place. 
 
 Weight. 
 
 To any place within the distance^ I For a weight not c 
 of from the limits ' ceeding Ibs. 
 
 of the market-place 
 
 To any place beyond the distance 
 of and within the 
 
 distance of . from the 
 
 limits of the market-place 
 
 For every additional 
 
 of distance beyond such last-men- 
 tioned distance 
 
 For every additional 
 Ibs. 
 
 For a weight not ex- 
 ceeding Ibs. 
 For every additional 
 
 For a weight not ex- 
 ceeding Ibs. 
 For every additional 
 Ibs. 
 
 Penalties. 
 
 20. Every person who shall offend against any of the foregoing 
 by-laws shall be liable for every such offence to a penalty of : 
 
 Provided, nevertheless, that the justices or court before whom 
 any complaint may be made or any proceedings may be taken in 
 respect of any such offence may, if they think fit, adjudge the pay- 
 ment as a penalty of any sum less than the full amount of the 
 penalty imposed by this by-law.
 
 INDEX. 
 
 PAGE 
 
 ABOLITION of fair, order for . . . . . < 94, 193 
 
 ABUSE, loss of franchise by 90-92 
 
 loss of toll by 60 
 
 ACCOMMODATION, duty of lord to provide . . . 34-36,38 
 
 effect of not providing . . . 35.81,83 
 
 ACCOUNTS of market'revenue . .... 111-113,202-204 
 
 under M.F.C. Act 112, 170 
 
 Diseases of Animals Act . . . 112,113,191 
 
 ACQUISITION of market-rights . , 17-27 
 
 by ordinance . . . . . . 17, 19 
 
 grant . . .' . . . . 18, 19 
 
 prescription or usage 23 
 
 statute 25, 141 et seq. 
 
 under Public Health Act . . . .27, 181-188 
 Diseases of Animals Act . . .27, 189-191 
 
 ACTION for toll or stallage 66, 162 
 
 toll illegally levied 68 
 
 disturbance 74, 86, 89 
 
 AD QUOD DAMNUM, writ of . 21 
 
 ALIENATION of market-rights 27-30 
 
 ALTERATION of days xxxi., 50-52, 15*4, 194 
 
 AMUSEMENTS in fairs 1,54,109-111,204 
 
 ANCIENT DEMESNE, tenants in, when exempt from toll . . 69, 73 
 
 ANIMALS, diseases of, regulations for 106 
 
 APPROACHES to market, under M.F.C. Act .... 148,149 
 ARTICLE, meaning of . ..... . . . . . 153, 156 
 
 ASSIZE of bread and ale 8, 92 
 
 f AUCTION, may be a rival market . . . k . -78 
 
 AUCTION-MART for cattle . 199 
 
 ^AUCTION-ROOM, whether a shop 153 
 
 AUCTIONEER, causing crowd to collect . . . .. . -45 
 
 differential toll for . . . . . .66 
 
 by-laws as to . . . . . . 165 
 
 BOARD OF AGRICULTURE . . 100, 102, 106, 113, 190, 191, 199 
 BOOTHS, licence for plays in . . ... ..,''. .no 
 
 BOROUGH, provision of market by 181-189 
 
 transfer of market to 29,182 
 
 sale or lease of market by 29 
 
 ancient market in 18, 184 
 
 market accounts of in, 113, 191 
 
 exemptions from toll in 71-73 
 
 place for holding market in . . . 34, 37, 183 
 
 See also DISTRICT COUNCIL 
 
 -* BOROUGH ENGLISH, market on land that is 41
 
 216 Index 
 
 BRISTOL, Court of Pie Powder in . 6 
 
 BY-LAWS 96-98 
 
 for whirligigs and swings ill 
 
 under M.F.C. Act 164-170 
 
 L^-J 1 **' penalties for breach of 1 66, 171 
 
 penalty for defacing . . . . . . .177 
 
 confirmation of 1 66, 201 
 
 publication of 168 
 
 for markets under Public Health Act . . . 184, 186 
 model 208 
 
 CALENDAR, reformed . . . . . . xxxi., 51 
 
 CARRIERS, by-laws as to 165, 212 
 
 CARTS, weighing of, under M.F.C. Act 156-160 
 
 CATTLE, diseases of 106 
 
 weighing of 100, 196-200 
 
 under M.F.C. Act . . . . . .156 
 
 meaning of term in M.F.C. Act 143 
 
 tolls for, under M.F.C. Act 161 
 
 markets under Diseases of Animals Act . . . .189 
 statistics as to weight, etc., of . . . . 102,199 
 
 CERTIORARI 179 
 
 CHANGE of day of market or fair . . . xxxi., 50-52, 154, 194 
 
 of P^ce 37-39, 149 
 
 CHARTER 19-22 
 
 how proved . 134 
 
 effect of statute on 26, 87, 93 
 
 CHURCHYARDS, markets and fairs in 42 
 
 CLERK OF THE MARKET 10 
 
 CLERK of market authority 99,195,196,202 
 
 B in metropolitan hay-markets 128, 129 
 
 COLLECTOR of tolls, defined 143 
 
 penalty for obstructing 163 
 
 payment of tolls to 161 
 
 duty of, to weigh and measure . . . 99, 196 
 
 in horse-fairs 126 
 
 in metropolitan hay-markets . . . . .128,129 
 COMMISSIONERS 19, 29, 202 
 
 COMMON LAW DISTANCE 76 
 
 COMPANY, sale of undertaking by 186 
 
 COMPENSATION for lands taken, damage, &c. . . . 145, 149, 183 
 
 CONFIRMATION of by-laws 168,200 
 
 CONSTRUCTION of market under M.F.C. Act 145 
 
 CONTAGIOUS DISEASES (ANIMALS) ACTS. See DISEASES OF ANIMALS 
 
 ACT 
 
 COPIES of Special Act . .'.... . . 135, 173, 174 
 
 CORN, toll of . .. . . .65 
 
 CORRECTION of market 8, 40 
 
 - COSTERMONGERS in metropolis 
 COUNTY COUNCIL, 
 
 provision of cattle-market by 
 local authority as to weights 
 
 6,45 
 189-191 
 . 98 
 . 106 
 . no 
 
 67, 162 
 
 COURT OF THE CLERK OF THE MARKET 12 
 
 COURT OF PIE POWDER . 6-8 
 
 as to adulterated food 
 
 licensing authority for plays 
 COUNTY COURT, jurisdiction in action for tolls
 
 Index 217 
 
 COURTS in markets and fairs 3 
 
 CRIMINAL JURISDICTION in markets and fairs 8 
 
 CROWN, markets and fairs belonging to 17, 93 
 
 prerogative to grant charters .... 2-6, 17-22 
 escheat and forfeiture to .... . . . 28, 90 
 
 exempt from toll 69 
 
 not affected by M.F.C. Act 171 
 
 by sale in market overt 123 
 
 CUSTOM, evidence of 135 
 
 stallage regulated by . . . . .64 
 
 to erect stalls . . . 64 
 
 to prevent sales in shops ..... .... -79 
 
 CUSTOMARY TOLLS . . . , . . . . 56, 63, 65 
 
 DAMAGES for disturbance of market 74 
 
 when recoverable in addition to penalties . . 88, 178 
 
 by construction of market under M.F.C. Act . . 145, 149 
 recovery of, under M.F.C. Act .... 171,175 
 
 distress for . . . . . . . . .176 
 
 tender of amends for . . . . . . -171 
 
 DANGEROUS structures in market-place . ... . . 3~ 
 
 DAY, meaning of in grants . . . . .... -53 
 
 DAYS for holding markets a.nd fairs . .48 
 
 alteration of . . .50, 194 
 
 under M.F.C. Act 154,165 
 
 DEFINITION of market and fair i, 100 
 
 of toll, stallage, etc 55 
 
 DEFINITIONS in M.F.C. Act . . . . , . . . 142-144 
 
 DEVOLUTION of market-rights 27,41 
 
 DIFFERENTIAL TOLLS ... . 66 
 
 DISEASES OF ANIMALS ACT, closing, etc., of markets under . . 106 
 
 erection of cattle-markets under . 27, 189 
 
 DISPUTE as to tolls under M.F.C. Act . . . . < . . . 163 
 
 DISTRESS on goods in market ^ . 31 
 
 on cattle going to market . . ... . -33 
 
 for toll or stallage 67, 68 
 
 under M.F.C. Act 162 
 
 for penalties, etc. under M.F.C. Act . . . 175, 177 
 
 not unlawful for want of form 178 
 
 against treasurer of market authority . . . 1 76 
 
 DISTRICT COUNCIL, provision of market by . . . 27,181-188 
 
 purchase of market by . . . . 181, 186 
 
 leasing of market by 30 
 
 lease of market to 181 
 
 by-laws of ....'. . 97, in, 164, 184 
 
 accounts of 112, 113 
 
 powers of, relating to abolition of fairs . . 94 
 change of days . . .52 
 
 DISTURBANCE of fair or market 74-8o 
 
 by levying rival market 
 grant no defence 
 by evading toll 
 
 by assaulting lord, etc. . . . . . . 85/ 
 
 by preventing goods coming to market . . 85! 
 nature of action for . .86 
 
 limitation of actipn for
 
 2i8 Index 
 
 PAGE 
 
 DISTURBANCE of rights of stall-holder 86 
 
 of statutory market . 87, 1 50 
 
 under statutory powers 80, 183 
 
 DUCHY OF LANCASTER 11, 73 
 
 DWELLING-PLACE, meaning of 152 
 
 ECCLESIASTICAL PERSONS exempt from toll . . . . .69 
 
 ESCHEAT of franchise 28 
 
 EVIDENCE, of market rights 134-137 
 
 in action for toll or stallage 67 
 
 disturbance ..... 7S 7^ 87 
 of grants ... . . . , . . 134 
 
 of ancient usage 23, 135 
 
 of acts of ownership . . . . . . . 1 36 
 
 under M.F.C. Act: 
 
 penalty for giving false 173 
 
 of completion of market 161 
 
 of by-laws 168-170 
 
 of alteration of Special Act 147, 148 
 
 under Public Health Act : 
 
 of by-laws 164, 186 
 
 . of approval of tolls . . . . . 185 
 
 EXEMPTIONS from toll - i . 69-73 
 
 EXTINCTION of franchise 93 
 
 ,, f~}^7 *"-*- tt*lfa~*\>#f4 t "ntft-ti- < r s 
 
 FAIR, origin and nature of 1-6 
 
 distinguished from market i, 100 
 
 ff**) abolition of 94.193 
 
 ' when and how lon g to be held 4 8 -54 
 
 alteration of days for 50-53, 94, *94 
 
 proclamation of 49,126 
 
 FAIRS AcT l8 7 x 94, 191 
 
 1873 51, 194 
 
 FEAST DAYS, markets and fairs on . . . . * . 48 51 
 FOOD, sale of unwholesome . . . . . * , 8, 104 
 FOREIGN CATTLE, market for . . . . * . * .189 
 FORESTALLING . . ...'-. . . 33, I2 9 
 
 FORFEITURE of fair or market 28,90-93 
 
 for change of day 49 
 
 for taking outrageous toll 59 
 
 waiver of i -93 
 
 effect of . * . . . . -93 
 
 of toll . . r * . . -92 
 
 FRANCHISE of market or fair . J 7 
 
 parliamentary . . U 9 
 
 
 
 GOOD FRIDAY 5 
 
 GOODS, weighing of 99, 156-160, 184, 195-6 
 
 GRANT of market or fair N . . . . . . . I9- 22 
 
 necessity of . * * 3-5 
 
 validity of ' . . 20 
 
 form and contents of 2O 
 
 how obtained 2I 
 
 duration of ' 
 
 presumption of lost 22-24 
 
 repeal of . . - . - 90, I3
 
 Index 219 
 
 PAGE 
 
 GRANT, evidence of 134 
 
 of toll 56 
 
 to be exempt from toll . . . . . . -71 
 
 HAWKERS, in metropolis . 6, 45 
 
 exempt from penalties under M.F.C. Act, s. 13 . .150 
 HAWKER'S LICENCE not required for selling in market xxxi 
 
 HAY AND STRAW MARKETS in metropolis, sales . . . .128 
 
 weighing . . . .103 
 hours .... 53 
 
 HEREFORD FAIR . . . -.-'. . . . 9 79 
 
 HIGHWAY, markets and fairs in ." . . . 42-47 
 
 stalls in . . . . . . . 42, 63 
 
 weighing machine in . . . . . 102 
 
 HIGHWAY ACTS 44 
 
 HIRING FAIRS or MOPS 5 
 
 HOLDING market or fair, where 31-47 
 
 when 48-54, 126 
 
 HOME SECRETARY, order of, abolishing fair . . . .94, 193 
 
 changing days . . . . 51, 194 
 
 HORSES, sale of 126 
 
 IMMEMORIAL USER . .. . v ' .... 22,135 
 
 INCOME TAX 115 
 
 INCORPORATION OF M.F.C. Act 144 
 
 with Public Health Act . . . . 184, 188 
 Diseases of Animals Act . . . .190 
 M. and F. (Weighing of Cattle) Act . .198 
 of inhabitants to hold market . . . . IQ 
 
 INHABITANTS, grant of market to . 18 
 
 exemption from toll . 
 
 INJUNCTION against disturbance 
 INSPECTION of by-laws . 
 
 of Special Act . . . . 
 INSPECTOR OF PROVISIONS , . . . 
 
 OF MARKET . . . . , , . 
 
 OF WEIGHTS AND MEASURES 
 
 . 71, 72 
 
 74, 88, 184 
 . . 167 
 
 - 173 
 
 105, 154, 155 
 . 105 
 
 98, 195 
 
 JURISDICTION of lord of market . ... . . 6-10,96 
 
 JUSTICES, powers of under M.F.C. Act . ... 143, 147, 161, 172 
 
 to settle disputes as to tolls 163 
 
 recovery of penalties and damages before . . 171,175-180 
 
 licensing powers of 107- ill 
 
 approval of charges for weighing 99 
 
 KEEPER of market or fair, penalty for obstructing . . . .154 
 
 LAIRS, provision of 189 
 
 LAND-TAX 114 
 
 LAND, market may be held on whose 39 
 
 LANDS, meaning of in M. F. C. Act 142,144 
 
 compensation for taking or injuring 145 
 
 entry upon when taken 148 
 
 additional 148 
 
 LANDS CLAUSES ACTS 145 
 
 LASTAGE 56
 
 22O Index 
 
 * LEASE of market rights and tolls . ..... 27-30 
 
 lands, markets and tolls to District Council . . . 181 
 LETTERS patent) grants made by ... , . . . 19-22 
 evidence of . . . . . . . -134 
 
 LICENCES for sale of intoxicating drinks . . . . . .107 
 
 theatrical performances . . . . . .109 
 
 LICENSED HAWKERS ....... xxxi., 150 
 
 LICENSED PREMISES near markets exempt from closing . . . loS 
 LIMITATION of actions for disturbance ...... 86 
 
 of proceedings for penalties . . . . . .179 
 
 LOCAL GOVERNMENT BOARD, powers of, over weighing-tolls . . 101 
 
 market-tolls 184, 185, 188 
 by-laws 167-70, 186, 201 
 returns of accounts to , 113, 202-204 
 model by-laws of .... 208 
 
 LONDON, CITY OF, shops in, market overt . . . . .122 
 
 exemption from toll . . . . . 71, 73 
 
 market authority under Diseases of Animals Act . 189 
 clerk of the market in ..... 1 1 
 
 market charter of Edw. Ill ..... 77 
 
 See also METROPOLIS . 
 
 LORD OF THE MARKET ........ l8, 19 
 
 his jurisdiction . ..... 6-io 
 
 ' LORDS OF MANORS, grants to ....... 1 8 
 
 Loss OF TOLL. See DISTURBANCE and FORFEITURE 
 
 LOST GRANT, presumption of .... 23,37,48,58,59,135 
 
 MARKET, defined ......... i,"ioo 
 
 J*~" * early history of ........ 2-6 
 
 MARKET AUTHORITIES . .... . . 18,19,181,189 
 
 MARKET COMPANY, sale by ........ 186 
 
 MARKET COURTS ........ 3,6,8-13 
 
 ' - MARKET DAYS ....... 48-52, 154,165 
 
 change of ..... xxxi., 50, 154, 194 
 
 MARKET HOURS ........ 53, 126, 165 
 
 MARKET OVERT, sale in ...... 120-125,190 
 
 sale of horses in ....... 126 
 
 MARKET-PLACE ..... . . . . 31-47 
 
 failure to provide . . . ... .- . 35 
 
 extent of ...... . .36 
 
 removal of ...... > 37-39 
 
 nuisances in ..... . . .32 
 
 rights of public in ....... 31 
 
 upon what land . . . ... 39-42 
 
 on highways and in churchyards . . . .42 
 
 under M.F.C. Act . . . . 148, 161 
 
 by-laws regulating use of . . . .165, 208 
 
 MARKETS AND FAIRS CLAUSES ACT . ..... . . 141-174 
 
 why passed ..... ...... .25 
 
 nature of markets under . . . . 26, 88, 121 
 
 extent of ... .... . . .141 
 
 how cited . . ... . . . 144 
 
 construction of ..... . .142 
 
 how incorporated with special Act . . . .144 
 
 incorporation with Public Health Act . . . 184 
 incorporation with Diseases of Animals Act . .190 
 
 * A '
 
 Index 221 
 
 PAGE 
 
 MARKETS AND FAIRS CLAUSES ACT, incorporation with Weighing 
 
 of Cattle Act 198 
 
 MART i, 199 
 
 MEAT, sale of unwholesome 8, 104, 154 
 
 METES AND BOUNDS 34 
 
 METROPOLIS, street markets in 6,45 
 
 hay and straw markets in 53, 128 
 
 hours of fairs in 54, 204 
 
 suppression of unlawful fairs in .... 134,205 
 application of penalties under M.F.C. Act in . .172 
 
 METROPOLITAN FAIRS ACT, 1868 134, 206 
 
 MANAGEMENT ACT, 1855 46 
 
 POLICE ACT, 1839 .... 44, 54, 204 
 
 STREETS ACT, 1867 45 
 
 MONOPOLY of market-owners 2, 74 
 
 MORTGAGE of market-rights and tolls 27-30 
 
 MUNICIPAL CORPORATION. See BOROUGH. 
 
 NEGLECT TO TAKE TOLL 92 
 
 NEGLIGENCE of market-owner 32,146 
 
 NON USER of franchise 90 
 
 NUISANCE, rival market when a 44-46 
 
 in market-place 32 
 
 by steam organ in fair Ill 
 
 slaughter-house may be 155 
 
 by-laws against 165 
 
 ORDINANCE for a market 17, 19 
 
 OUTRAGEOUS TOLL 59 
 
 OWNERS of markets and fairs, who are .... 18,52,95 
 
 duty to provide a market-place . . 33 
 liable for negligence . . . .32 
 
 PEDLARS xxxi., 150 
 
 PENALTIES under M.F.C. Act, publication of . . . . 171, 176 
 
 application of . . . . 172, 178 
 
 recovery of . . . 171, 175-180 
 
 for slaughtering cattle . . . 155 
 
 for selling outside market . . 1 50 
 
 whether in substitution for damages . 89 
 
 for obstructing market-keeper . .154 
 
 toll-collector . -163 
 
 selling unwholesome meat, etc. . 154 
 
 fraud, etc. in weighing . 158-160 
 
 taking excessive toll . . .162 
 
 breach of by-laws . . .166 
 
 omitting to render accounts . 1 70 
 
 giving false evidence . . . 173 
 
 neglecting to deposit copies of Act 174 
 
 refusing inspection of Act . -173 
 
 Public Health Act 188 
 
 Diseases of Animals Act .... 106, 1 7 1 
 Weights and Measures Act, 1878 . . 99, 196 
 
 M. and F. (Weighing of Cattle) Acts . 101, 197, 199 
 Local Taxation Returns Acts .... 204 
 Hay and Straw Acts 103, 129
 
 222 Index 
 
 PAGf 
 
 PENALTIES under Horse Stealing Acts 126 
 
 Sale of Food and Drugs Act . . . .105 
 
 PENNAGE . . -55 
 
 PESAGE . . . .56 
 
 PICCAGE 55 
 
 PIE POWDER, Courts of 3, 6-8 
 
 PILLORY 9, 92, 96 
 
 PLACE for. holding market or fair. See MARKET-PLACE 
 PLEADINGS in action for tolls or stallage . -. ' .. . ' ... . 67 
 disturbance . . . . .86 
 POISAGE . . .... * . . . . .56 
 
 PRESCRIBED limits or area 142,150,183,190 
 
 PRESCRIPTION, acquisition of market by 22-24 
 
 exemption from toll by . . . . . -72 
 PRESCRIPTIVE rights in markets 38 
 
 toll 59 
 
 PRESUMPTION of lost grant 22-24 
 
 of disturbance ........ 74 
 
 PROCLAMATION of fair 49, 126 
 
 PROTECTION from disturbance 2, 74-89, 181 
 
 of statutory markets 87, 150, 183 
 
 PROVISIONS, sale of unwholesome 8, 104, 154 
 
 PUBLIC HEALTH ACT, acquisition of market-rights under . 27, 181-188 
 
 PUBLIC rights in market 3 I- 33> 38, 39 
 
 PUBLICITY of market 4, 121 
 
 QUARTER SESSIONS, allowance of by-laws by 166 
 
 appeals to 180 
 
 approval of weighing charges by . . .99 
 
 QUIT OF TOLL 69-73 
 
 Quo WARRANTO, information 132 
 
 Placita de 131 
 
 proceedings as evidence 137 
 
 , writ of 131 
 
 RAILWAYS CLAUSES CONSOLIDATION ACT . . . 171, 175-180 
 RANKNESS OF TOLLS ......... 60 
 
 RATEABILITY of markets and fairs and tolls 117 
 
 REASONABLENESS of toll and stallage .... 58-61,64 
 
 RECEIVER of profits and tolls 30 
 
 REGRATING -33, 129 
 
 ' REGULATING the market .96 
 
 REMOVAL of market or fair 37-39,149 
 
 RENT of market, recovery of 28 
 
 stall. See STALLAGE 
 
 RESTITUTION of stolen goods . .123 
 
 horses 127 
 
 RETURNS of tolls and profits. See ACCOUNTS 
 
 weight and sales of cattle 199 
 
 RIVAL market, disturbance by levying 74-89 
 
 what amounts to 78 
 
 RURAL DISTRICT COUNCIL. See also DISTRICT COUNCIL . . 182 
 
 SALE in market overt 120 
 
 of horses 123, 126 
 
 of hay, straw, .etc. in metropolis ... . 1 28
 
 Index 
 
 223 
 
 SALE by sample 
 
 toll payable on 
 rket-rights 
 
 62, 83, 152 
 
 ZSi-'SQ 
 . 55762- 
 27-30 
 . 1 86 
 
 " market-righ 
 
 by company 
 
 SAMPLE, sale by 62,83,152 
 
 SCAVAGE 5 6 
 
 SciRE FACIAS, for abuse or non-user . . . . . 9-93 
 
 grant improperly obtained 21 
 
 procedure on . . . . . . . .13 
 
 SECRETARY OF STATE. See HOME SECRETARY 
 
 SHEWAGE 56 
 
 SHOP, sales in, when a disturbance . . . . . 79, 83, 88 
 
 what is a, under M.F.C. Act, s. 13 152 
 
 in city of London^ market overt . __ _j. ._. . . _i_g2 
 
 SHOP HOURS ACTS . . . . . . . . I 54 
 
 SHOW, licence for no 
 
 SLAUGHTER-HOUSES 155, 189 
 
 SOIL of market place, ownership of 40-42 
 
 SPECIAL ACT, defined 142, 190 
 
 incorporation of M.F.C. Act with . . .144 
 
 custody and inspection of . . . 173-174 
 
 errors and omissions in ... 147 
 
 construction of ... 142 
 
 STALLAGE, defined .... . 55 
 
 when due .... ... 63 
 
 in kind .... ... 65 
 
 variable and differential . ... 66 
 
 recovery by action . ... 66 
 
 distress . ... 68 
 
 exemptions from ... . 69-73 
 
 under M.F.C. Act . . . 160-164 
 
 STALLS, rights of public as to . . . . 31, 32 
 
 what are ... 40 
 
 rateability of .... . . . 118 
 
 in highways .... . 42-45 
 
 customary right to ... ... 39 
 
 occupation of, may qualify for vote . . .119 
 
 STATISTICS as to weight and sale of cattle . . . 199 
 
 STATUTE, market-rights acquired by . . 25-27 
 
 common law market modified by . 26, 87, 93 
 
 STATUTE FAIRS, or STATUTE SESSIONS 5, 44 
 
 STOURBRIDGE FAIR 40 
 
 STRAW. See HAY AND STRAW 
 STREETS. See HIGHWAY 
 
 SUMAGE 56 
 
 SUNDAYS, markets and fairs on 50 
 
 SURRENDER of franchise 93 
 
 SWINGS, by-laws for in 
 
 TENDER of amends . . 171 
 
 THEATRICAL performances in fairs . . 109 
 
 TOLL, nature of 55 
 
 not incident to market or fair . . 4, 56 
 
 grant of ...'... . 56-58 
 
 prescriptive 57, 59
 
 224 Index 
 
 PAGE 
 
 > TOLL, must be reasonable 56-58 
 
 payable on what articles 61-63 
 
 , on sale by sample 62 
 
 payable bv whom . .___ . . . .62 
 
 exemptions from 69-73 
 
 recovery of, by action . . . . . . ^ . 66 
 
 ,, by distress 67 
 
 remedies for unlawful . .68 
 
 not lost by non-user .92 
 
 power of Commissioners of Woods to relinquish . . -93 
 
 lease of . . - ''.' 27, 28 
 
 receiver of . . . .'. ''' . . : -30 
 
 accounts of statutory . . . . . ' . . 113,202-204 
 taxes on . . . ' , ... . 114-116 
 
 not rateable . , ' . . .117 
 
 TOLLS under Public Health Act 181, 184 
 
 Diseases of Animals Act, ...-..'. .191 
 
 M. and F. (Weighing of Cattle) Acts . . . 196-198 
 
 TOLLS FOR WEIGHING .... 99, ioi, 104, 161/183, 198 
 
 TOLLS, STALLAGES AND RENTS, under M.F.C. Act . . 160-164 
 
 recovery of . . . . . 162 
 
 disputes concerning . . .163 
 
 list of 164 
 
 for weighing and measuring . .161 
 TOLL-COLLECTOR. See COLLECTOR OF TOLLS 
 TOLL-FREE market . . ......-; . . -58 
 
 TOLL-THROUGH ...... V 56 
 
 TOLL-TRAVERSE . 56 
 
 TOLL-TURN 56 
 
 TOWN POLICE CLAUSES ACT . . . ... . .44 
 
 TRANSIENT OFFENDERS, arrest of . . . . . .179 
 
 -TRONAGE . . . . . . . ' . _ . . .56 
 
 TRUSTEES OF MARKETS. . , . . . . . 18, 19, 29, 202-204 
 
 TUMBREL .'.'.. 9, 92, 96 
 
 UNDERTAKERS, defined 142 
 
 URBAN DISTRICT COUNCIL. See DISTRICT COUNCIL 
 USAGE, acquisition of market-rights by . . . . , 22-24 
 evidence of . . 135 
 
 VARIABLE TOLLS and stallages . . . . . .66 
 
 VIEW OF FRANKPLEDGE ........ 8 
 
 WAKES ... . . . _ 4 
 
 WEIGHTS AND MEASURES . . . 10,98-104,156-160,195-200 
 
 WEIGHING AND MEASURING, tolls for 161,198 
 
 offences concerning . . 158-160, 197 
 
 WHARFS, provision of . : 189 
 
 WHEAT, toll of, in kind 65 
 
 WHIRLIGIGS, by-laws fur in 
 
 WINCHESTER, St. Giles' Fair 9 
 
 WITNESSES, penalty for making default 179 
 
 WITNESSING of sales . 3 
 
 YORK FAIR 9 
 
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