prevent (at the special request of the board of directors as thereinbefore mentioned) any person or persons selling or exposing for sale articles out of the aforesaid markets, or by reason or on account of any compensation or damages or which might be payable in respect of the matters connected with the said markets or the holding thereof, or any claim for such compensation, or by reason or on account of any act, matter, or thing whatsoever which they the local board should do under or by virtue of the said lease or the powers of the Local Government Act, 1858, or for the purpose of carrying into effect any of the powers or provisions of the said lease or the said act, or any matter or thing connected therewith: And it was thereby further agreed and declared, that, in case the said local board should at any time after the expiration of seven years from the date thereof, and during the continuance of the said [*63 demise, be desirous of purchasing the whole of the said buildings and markets for the time being belonging to the said company, they should be at liberty to do so at a price to be fixed by arbitration; and that no act or omission by or on the part of the said J. H. Cooper as a director of the said company, should prejudice or in any wise affect his right or remedies as a mortgagee. The said lease was executed by Cooper as a deputy-chairman of the said board of directors, and by J. L. Whatmore, mayor of the said borough, as chairman of the local board of health, under their respective official seals.

16. The legal estate in the new market-buildings had been, previously to the execution of the said lease, vested in the said J. H. Cooper, to whom the company had conveyed them by way of mortgage to secure a sum of 25001. and interest; and there is now due to him upwards of 28007. on such security; and the legal estate has continued vested in him from the time of the mortgage.

17. The local board having possession of the new buildings under the lease, the same were inspected by two justices; and on the 12th of January, 1861, a certificate was signed by them verifying that such new buildings so leased as aforesaid were completed and fit for public use as a market-place for the said town of Bridgnorth.

18. The defendants prepared and issued a table of tolls to be taken in the new market; and the same was, on the 4th of January, 1861, approved by one of Her Majesty's principal secretaries of state.

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19. The defendants, pursuant to the acts in that behalf, had previously published in the Bridgnorth Journal a notice that the local board of health intended to apply after the end of one month to Her *Majesty's principal secretary of state for the allowance of certain by-laws for regulating the use of the market-place, which might be inspected at all reasonable times without fee or reward, and a copy thereof furnished to any person applying for the same upon the terms stated in the said act, and also a copy of the proposed table of tolls.

20. The plaintiff's attorney had previously, on behalf of certain persons whom he did not name, but who, he stated, were entitled to stalls in the market, given notice to the clerk of the board of his intention to oppose any such application, and that he should apply to the Court of Chancery for an injunction to restrain the removal of the market. Immediately after the publication of the notice in the local

paper, T. Whitefoot, J. M. Glasse, and C. J. Lewis delivered to the local board a written notice to the effect that, feeling themselves to be parties aggrieved by, and being desirous of objecting to, these by-laws, they intended to oppose their allowance by Her Majesty's principal secretary of state, and to request permission to attend before him, by themselves, their counsel, attorney, or agent, and that the nature and grounds of their objections to such by-laws were, amongst others, that the said by-laws, and particularly the first of them, appointing a new and different situation for the market to be held from the situation in which it had been held from time immemorial, thereby attempting to remove the said market into another street, in a different parish,-without having first obtained their consent and that of others having prescriptive rights of stallage in the street where the market had always been held, as well as the rights, powers, and privileges which they had hitherto enjoyed within the district,-were repugnant to the laws of England and the provisions of the Local Government Act, 1858, and the *Markets and Fairs Clauses Act, *65] 1847, and that the said local board had exceeded their jurisdiction in making such by-laws, as well for the above-stated reasons as for other reasons appearing on the face thereof.

21. The said T. Whitefoot, J. M. Glasse, and C. J. Lewis did then and still do occupy houses on the same side of the High Street as the house of the plaintiff; and all claimed rights in respect of their respective houses similar to those claimed by the plaintiff in respect of his house; and they afterwards were co-plaintiffs with him in the bill in Chancery after mentioned.

22. The board being advised, however, by their counsel, that it was unnecessary to lay the by-laws before the secretary of state, no application was made in pursuance of the notice for his sanction of the bylaws; and the proposed scale of tolls was alone laid before and sanctioned by him on the 4th of January, 1861: and the market was afterwards, as hereinafter mentioned, opened in the new buildings by the defendants, without the sanction of the secretary of state being obtained for the by-laws.

23. On the 15th of January, 1861, a bill in Chancery was filed by the plaintiff in this action, together with nine other occupiers of houses in the said High Street, against the defendants in this action, praying that the defendants, acting by their council, and their servants and agents, might be restrained by the order and injunction of that court from establishing or holding a market in the said new market-buildings, and from using the said buildings for the purposes of a market, and from taking any tolls in respect of market-stalls therein, and from otherwise interfering with the rights, powers, or privileges of the plain*66] tiffs in that suit as occupiers of the houses occupied by them in High Street aforesaid.

24. On the 31st of January, 1861, a motion was made before Wood, V. C.;, but his honour did not grant the injunction, because he considered there were disputed questions of law and fact which should be tried at law and he ordered the motion to stand over for the plaintiffs to bring such action as they might be advised.

25. On the 8th of February, 1861, the corporation of Bridgnorth, by the town-council, adopted the following resolution,-"Whereas, by

the records of the town, it appears that the corporation originally, by the title of The Mayor, Aldermen, and Burgesses, have exercised their privileges as lords of the manor within the town and liberties of Bridgnorth, and as owners of the soil of the public streets, frontages, and waste grounds and public buildings throughout the borough town of Bridgnorth, and by the award of the commissioners for the enclosure of the common of Morfe adjoining the town, dated in the year 1808, they were recognised as lords of the manor and the said borough, and that from time immemorial they have exercised control over the market and fairs of the said borough: And whereas buildings have been erected at the south end of High Street, about the centre of which street the prescriptive markets have from time immemorial been and are now held on Saturday, weekly, under the control and regulation of the corporation: And whereas such buildings have been erected by private individuals, and have been appropriated and adopted for a covered market and other public purposes at an estimated cost of upwards of 80007., and have been leased to the local board of health. under certain stipulations which will ultimately tend to the general advantage of the town and its inhabitants, by rendering *unne[*67 cessary the taking up loans on mortgage of the district-rates for such purpose; to which covered market the council, acting for the corporation, have been invited to remove the present market from the streets: Considering, therefore, the present heavy debt on the town, and the great convenience it would afford to the inhabitants and others frequenting the market, and the absence of any risk to the public funds of the town, the council, acting for the corporation, deem it expedient that the market already established in High Street, on the ground-floor of the town-hall there, should be removed from High Street and the east end of Listley Street: The mayor, aldermen, and burgesses, acting by the council, Resolved, that, in the exercise of all rights the corporation, as lords of the manor, owners of the soil in the public streets, and lords of the market in the borough of Bridgnorth by prescription, the prescription markets hitherto held on Saturdays at the town-hall and in High Street in Bridgnorth aforesaid, shall on Saturday the 23d of February instant be removed from thence to the covered market-place at the south end of High Street and east end of Listley Street: Also that the said market, when removed, shall be henceforth held at the said covered market-place on Saturdays, and so continued from time to time: Also that the public notice of the same now produced to the council, and read over, is approved on behalf of the corporation, and it is agreed shall be published twice in the Bridg north Journal, viz., on the 9th and 16th of the present month of February, and circulated largely by hand-bills in the town, and that the same be proclaimed by the town-crier on Saturday the 9th and 16th of February instant: Also that notice be given to the other occupiers of stalls on market-days for the sale of merchandise on the ground-floor of the town-hall, that the corporation withdraw [*68 their consent as owners of the same, and from and after the 16th of February instant the occupation of such ground-floor of the townhall on market-days for the purpose of sale of merchandise therein shall cease: Also that notice be given to the other occupiers of stalls

on market-days on the site of old buildings in High Street, for which they pay acknowledgments to the borough treasurer."

26. The local board of health afterwards, on the 8th of February, 1861, came to the following resolution,-"That, in pursuance of the provisions and powers vested in the local board of health by the Local Government Act, 1858, and the clauses of the acts incorporated therein, the covered market-place provided for the town by the local board of health, situate at the south end of High Street and east end of Listley Street be appropriated for holding the markets on Saturdays, subject to such regulations as are prescribed by the said Local Government Act and acts therein incorporated; nevertheless so as not to interfere with any rights or privileges within the said borough, which under the 50th section of the Local Government Act, 1858, ought not to be interfered with: Also that the local board of health do fully concur in and approve of the proposed form of public notice of removal of the market and the adoption of the covered market-place provided for that purpose, read over at this meeting, and agreed that the same be published twice in the borough journal and by hand-bills distributed at the discretion of the mayor, and that all other matters and things be done which are authorized by the Local Government Act, 1858, for the effectual regulation of the said market when removed as aforesaid." 27. Pursuant to these resolutions, on the 8th of February, 1861, the town council and local board issued the following notice:

*Removal of the market. Borough of Bridgnorth. *69] "Notice is hereby given, that the mayor, aldermen, and burgesses of the borough of Bridgnorth, acting by the council of the said borough in pursuance of all powers vested in them as owners of the markets of Bridgnorth, and lords of the manor, and as local board of health under the Local Government Act, 1858, and the acts incorporated. therewith, and of all other powers (if any) vested in them, have, for the purpose of holding the market established in the town and borough of Bridgnorth, and heretofore holden under the town-hall and in the High Street of the said town, provided a covered market-place situate at the south end of High Street and at the east end of Listley Street, in the said town and borough, and duly certified by two justices of the peace for the said town and borough as complete and fit for the use of the persons resorting thereto, and will on Saturday, the 23d instant, remove the market so established and holden as aforesaid to such covered market-place, and such market will be then opened, held, and established for the public use, and continued on that and every succeeding Saturday at such new market-place, but so as not to interfere with any rights, powers, or privileges within the said borough, which, under the 50th section of the Local Government Act, 1858, ought not to be interfered with; and that, after such opening of the said covered market-place for such use as aforesaid, every person other than a licensed hawker, or any person entitled to any such rights, powers, or privileges as aforesaid, who shall sell or expose for sale in any place within the said town and borough except in his or her own. dwelling-house or shop, any article in respect of which tolls are from time to time authorized to be taken in the said new market-place, will be liable for every offence to a penalty not exceeding *40s.: And further take notice, that, although it is not at present intended

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to prevent those occupiers of houses in the High Street of the said town and borough who have of late years been in the habit of erecting on market-days standings opposite their respective houses from erecting the same for the display and sale of their own merchandise, other persons cannot be allowed to display or sell their merchandise in such standings. JOHN SMITH, Town-clerk and

clerk to the local board of health." 28. After the said notice, the local board opened the new marketbuildings on the 23d of February, 1861, and have continued to keep them open on market-days, and have kept a market-clerk in attend ance, and have received through him tolls and rents from persons using the market, and have applied the same according to the terms of the lease.

29. The defendants, except as herein before appears, in no way interrupted or interfered with the plaintiff's stalls or standings in the High Street; and the persons to whom he let them continued to erect and occupy them without any hindrance or obstruction whatever, on market-days, down to the time of the commencement of the present action as theretofore they had done: but the effect of opening the new market was, to withdraw from the old market many of the public who would otherwise have attended it.

30. Neither the company nor the local board have purchased or taken on lease, or offered to purchase or take on lease, the supposed right of the plaintiff; nor have they or either of them obtained nor has the plaintiff given his consent to the establishing of the aforesaid new market.

The question for the opinion of the court was, whether the plaintiff had, under the circumstances *above stated, a right to maintain. this action against the defendants in respect of any one or more [*71 and which of the counts in the declaration, subject to amendment as aforesaid.

If in the opinion of the court the plaintiff was entitled to succeed in the action upon any one or more of the counts, judgment was to be entered for the plaintiff upon such count or counts for 51. 5s. damages, together with costs, and for the defendants upon the residue of such counts, with their costs in respect thereof: but, if in the opinion of the court the defendants were entitled to succeed, judgment was to be entered for the defendants, with costs.

Huddleston, Q. C. (with whom was Gray) for the plaintiff.-The corporation were not justified in removing the market and thus depriving the plaintiff of the privilege he was entitled to enjoy the franchise will be forfeited by disuse or by holding it otherwise than in the accustomed place: Dixon v. Robinson, 3 Mod. 107. The mar ket must be held within the precincts named in the grant: Curwen v. Salkeld, 3 East 538. In The King v. Starkey, 7 Ad. & E. 95 (E. C. L. R. vol. 34), 2 N. & P. 169, B., being entitled to a market in the borough of Keighley, which was held in the public street on B.'s soil, removed it to another site in Keighley, which site he had demised, without demising the franchise, for a term of years. Is was held by the whole Court of King's Bench that the removal was bad, unless the public had the same privilege in the new market as in the old; and therefore, it appearing that no toll had ever been taken in the