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Markets and

market, toll, act, held, disturbance, sheep, sale, fair, action and authority

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MARKETS AND FAIRS.—No one can establish a market or fair unless he has an authority so to do derived from a charter or an Act of Parliament. It is now usual to obtain a special Act ; and such an Act generally has incorporated with it the provisions of the Markets and Fairs Clauses Act, 1847. As a rule, all markets established since the enactment of the statute of 1847 are regulated by the latter statute and also by their special Act. Urban and Rural District Councils have power to establish markets in certain cases. The old established markets gained their right to existence either by immemorial enjoyment, prescription, charter, or special Act of Parliament. Apart from statutory authority, they could only be set up by virtue of the King's grant or charter, or by long and immemorial usage and prescription which presupposes such a grant. Originally they depended for their authority upon the royal pleasure. A fair is a greater sort of market, usually held once or twice a year ; it may be abolished under the provisions of the Fairs Act, 1871. A market is less than a fair, and is usually held once or twice a week. Every fair is a market, according to Coke, but every market is not a fair. Once a man has acquired and exercises a right to hold a market, no one will be allowed to set up another market or to do any act which may prejudice it as a market. No one can " disturb" a lawful market, and the courts will restrain any one who attempts to do so. Such a disturbance is a nuisance to the freehold which the owner of the market has therein. In order to make out such a nuisance it is necessary that the market disturbed should be the older, and that the disturbing market be erected within a third part of twenty miles from the original one. This latter condition is a part of the old law which considered it "reasonable that every man should have a market within one-third of a day's journey from his own home ; that the day may be divided into three parts, lie may spend one part in going, another in returning, and the third in transacting his necessary business there." A reasonable day's journey was taken as being twenty miles. Holding a new market on the same day as the old was considered to be a prima facie disturbance of the old market. In a ease where a man brought a number of sheep to a public-house within forty yards of a market and then went into the market to search for ctr,tomers whom he took out to the public-house, it was held that he had disturbed the market. And the principle of the thing was maintained in Elwes v. Payne. There the plaintiffs were owners of the tolls of an ancient cattle market held weekly on Thursdays. The defendants, who were auctioneers, fitted up with stalls and pens a neighbouring piece of ground, and issued circulars stating that weekly sales of cattle by auction would be held there on Mondays. The plaintiffs thereupon commenced an action for an injunction restraining the auctioneers from so doing business, and applied to the Court for an inter locutory injunction until the trial of the action. The auctioneers, on appeal, were ordered to keep an account until the trial, and the interlocutory injunction was refused on the general question of convenience and necessity. But it had been held, by the Master of the Rolls from whom the defendants had appealed, that, having regard to modern facilities for traffic, a market on Monday was prima facie an injury to a market on Thursday, and that what the auctioneers were doing was in fact the establishment of a rival market. On the appeal Lord-Justice James said that "by the law of England every one who has a close near a railway station has prima facie a right to have sheep and beasts, and to sell those sheep and beasts on that close. Every one has a right to carry on the trade of an auctioneer if lie pleases, and in carrying on that trade of an auctioneer lie would have also a perfect right to sell sheep and animals on that close in the same way as a man has a right to erect a furnace on his own land if he does not interfere with his neighbour's rights. It may be that in selling the sheep and beasts he will be doing sonic

thing which amounts to an invasion of another man's legal monopoly or franchise. The question to be determined at the hearing is whether what the defendants are doing amounts is point of law to such an invasion." It would seem that this action never did come to a hearing, and it may there fore be fairly assumed that the defendants, recognising the soundness of the law of the Master of the Rolls, deemed it wise to withdraw their disturbance and not proceed with their defence. There is no disturbance in the case of a sale by sample, on a market day, near to but without the limits of the market, provided the sale is not done designedly and with the intention to evade the payment of toll. It sometimes happens, however, that there is attached to a market a custom that no marketable articles shall be sold it local shops without market dues being paid thereon. But such a custom will not be implied in the grant of the market. 'rhe Manchester Corporation once brought an action to restrain a tradesman who sold eggs and dried fish in his shop on market clays. 'Die shop was in the same street as the corporation statutory market which it adjoined. The action failed, however, for as the tradesman only sold his own goods in his shop in the ordinary course of his business, there was no disturbance of the right of market. Where a right to hold a market is granted together with a right to toll, the latter must be a reasonable one if no specific amount is mentioned. And where a specific toll has been granted so far back in antiquity as to make it unreasonable at some particular modern period, then its amount should, as a rule, be varied to meet the altered value of money. Tolls are not necessarily incident to a right to hold a market, they are not usually payable until sale, and then, as a rule, only by the purchaser. A sale in a market by sample does not generally carry a toll as would a sale in bulk. As a rule a re-sale is subject to a toll. And it often happens that a corporation, as owners of a borough market, are entitled to toll from persons who hawk or sell goods in the streets of the borough. In such cases the goods, in order to be subject to the toll, must be of precisely the same chs.racter as those provided for in the authority prescribing the toll. By taking a toll the owners of a niarket assume an obligation to keep the place in a condition proper for its purposes. If, for example, they invite dealers to come into a market with cattle, and exact a toll, then if the cattle are injured as a result of the market not being in a safe condition, they are liable to the dealers for any loss sustained bv those injuries. Slidloge is the payment made to the owner of the soil, when he is a difibrent person from the owner of the market, for the exclusive occupation of some portion of his land. The owner of the market gives the licence to erect the stall and the tn‘ner of the land takes the stallage. Should any person have an occupation of anv part of the land then he becomes liable for stallasre; if he makes holes in the ground for the posts of his stall he niay also rie liable to a payment called piccai,se. What constitutes a stall is a question of fact for a jury, ; but merely temporarily occupying some part of the ground for exposing goods or depositing baskets does not constitute a stall. Stallage can be recovered from an occupier even though the owner of hind is unable to show any contract in fact between him and the person in occupation. It mar be, however, that a local custom exempts certain persons, such as the inhabitants of a particular town, from payment of any stallage in their local market.

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