are shown by the 60th section, which imposes a penalty on any person who, on a market-day or any other day, shall sell or expose to sale any corn, &c., within the borough, or in any other place than that part of the market situate under the Guildhall. (POLLOCK, C. B.: That must mean any public place.) The section preserves the rights of shopkeepers, which would be unnecessary if that were the construction. The owner of a market has by law a right to prevent persons from selling goods in their private houses situate within the limits of his franchise: Mosley v. Walker (1). (MARTIN, B.: That was an ancient market, and there was evidence from which the jury found that the right existed. In The Mayor, &c. of Macclesfield v. Pedley (2), LITTLEDALE, J., said that it has never been decided that the grantee of a newly created market could bring an action for the disturbance of his franchise against a person who did no more than sell in his own shop, not within the limits of the market-place, marketable articles on the market-days. BRAMWELL, B.: In Roll. Abridg. Market (C.), Fair, pl. 1, it is said: "If a man has a market in one part of the vill of D., the inhabitants of the other part of the vill cannot erect new houses and there in their houses and stalls sell merchandise; for this is to the damage of the market: 2 E. 2, admitted.") As to the notice required by the 59th section, that the new market has been opened, the Act having passed in the year 1838, and the market having been held in the appointed place ever since that time, the maxim "Omnia presumuntur rite esse acta" applies. Grove (Garth with him) for the defendant: This action is not founded on any common law right to an ancient market, but the right alleged is that all persons selling corn on market-days within the borough, ought to sell the same within the market, or at their dwelling-houses, shops, or premises, and not elsewhere within the borough. That right can only be supported by the statute, the preamble (3) *of which shows that the market was formerly held in the public streets. (1) 31 R. R. 146 (7 B. & C. 40). (2) 38 R. R. 264 (4 B. & Ad. 397). (3) The preamble of the Act is as follows: "Whereas the markets for supplying the inhabitants of the borough of Brecon, in the county of Brecon, and the neighbourhood thereof, with corn, grain, and are MAYOR OF BRECON v. EDWARDS. [ *58 ] [ *59] MAYOR OF v. EDWARDS. [*60] [ *61 ] (POLLOCK, C. B.: The 60th section uses the words "sell or expose to sale"; therefore the selling must be the result of an exposure to sale.) The statute was passed to remedy the danger and inconvenience * * I am of opinion that the defendant is entitled to judgment. The case is, in this respect, defectively stated, and probably evidence might have been given to clear up the point. If the defendant's son, who acted for him, went to Brecon on a marketday with a view of selling the corn on behalf of his father, and intended to expose it for sale in the market, or anywhere near where he could obtain the benefit of the market, that would have obstructed, and rendered dangerous place and buildings for the sale of (1) 11 R. R. 537 (2 Taunt. 120). (5) 75 R. R. 614 (11 Q. B. 731). been a case which, in point of law, would have entitled the plaintiff to a verdict. But I agree with Mr. Grove that no case has yet decided that a sale by sample out of a market *is an infringement of the right of market. Here the only facts are that the defendant's son went, on a market-day, to the shop of a person within the borough and near the market-place, and there sold him, by sample, some oats, which were delivered on the following market-day. That leaves the matter so uncertain that I think there is no evidence from which a jury ought to infer an infringement of the market. I forbear saying anything on the other points, some of which involve considerable doubt, since it appears to me that the facts do not warrant a judgment for the plaintiffs; and, as they have not established their case in point of fact, the defendant is entitled to our judgment. MARTIN, B.: I do not mean to dissent from the judgment of the LORD CHIEF BARON, and what I know is the opinion of my brothers BRAMWELL and WILDE, but I own that I entertain a strong impression that the facts are not stated as they existed, and that, if they had been, the plaintiffs would have been entitled to a verdict. In my opinion, the law is correctly laid down in Bridgland v. Shapter (1), where the defendant left his sheep on the premises of a public-house, in the immediate neighbourhood of a market, while he went into the market to find customers, whom he brought back to the public-house, and there sold them the sheep, and it was held that an action would lie against him; for he availed himself of the opportunity of a concourse of persons in the market to sell his cattle. I entirely concur with what was said by Lord ABINGER in delivering judgment in that case. I have no doubt the real facts of this case are, that the defendant, a farmer in the neighbourhood of Brecon, was in the habit of sending his corn for sale in the market at *Brecon; and if either he, or his son acting for him, went designedly there, that is, knowingly and intentionally, for the purpose of selling the corn in the market, or anywhere near, so as to obtain the benefit of the market without paying toll, that would be a disturbance of the market, for which the plaintiffs might maintain an action against him. The word "fraud," in its usual sense, is not applicable to this case. The right to hold a market is a right of property in the market, which the law protects. But the question here is whether, upon the facts now stated, there was evidence for the jury that the defendant had infringed the plain (1) 52 R. R. 755 (5 M. & W. 375). MAYOR OF v. EDWARDS. [ *62] [ *63 ] MAYOR OF v. tiff's right of market, and in my opinion there was not; because I agree that if a person merely comes to a town to sell a comEDWARDS. modity, and it happens to be a market-day there, that would not be a disturbance of the market, because the act must be done designedly, and with an intention to obtain the benefit of the market without payment of toll. [ *64] BRAMWELL, B. : I am also of opinion that the defendant is entitled to judgment. With respect to the law, there ought not to be any doubt. The owner of a market has a right to toll; and consequently, if people bring their commodities to the market and avail themselves of it, they are subject to the toll, and the owner has his remedy for it as such. If, however, persons leave their commodities without the limits of the market, in order that they may not subject themselves to toll, but at the same time obtain the benefit of the market, that is a disturbance of it for which an action on the case will lie. Such is the principle of the decision in Bridgland v. Shapter (1), in which I entirely concur. Therefore, in this case, the plaintiffs ought to establish that they were entitled to a market, and that the defendant *disturbed it by taking the benefit of it without paying toll. Then is there any evidence of that? I think not. The defendant's son, acting for him, came to Brecon on a market-day, very likely intending to sell his oats in the market, if he could not find a customer in the town. Although he came on a market-day, the sale had no more to do with the market than if a person, invited to stop at the house of a friend, in the course of conversation mentioned that he had some oats to sell, and thereupon a sale of them took place at the friend's house on a market-day. No doubt, if the defendant's son had met the purchaser in the market, and had said to him, "We had better go to your shop, and make the bargain there, otherwise I shall be liable to toll," a jury would have been warranted in finding that to be a disturbance, inasmuch as he took the benefit of the market without paying for it. So if he had said, "Let us go to a public-house, and settle the business there," the same observation would apply. But I think upon the case, as here stated, that all the defendant's son did was bonâ fide. He goes to a person in his shop (either because he intended to go there first, or because he had tried to find a customer in the market and had failed) and sells his oats in the shop. I cannot think that is a disturbance of the market. The principle may be tested by an extreme case. Suppose a commercial traveller from London, who had no knowledge of the market, happened (1) 52 R. R. 755 (5 M. & W. 375). BRECON EDWARDS. [ *65 ] to come on a market-day to Brecon for the purpose of calling MAYOR OF on a customer, and on going into the market found him there and sold him some goods: why should the owner of the market have a right of action for a disturbance of it? The seller has derived no benefit from the existence of the market. Ought he to say to the customer, "Step out of the market, because if I sell you the goods here I shall be subject to toll." That seems. to me *absurd. If that be so in the case of a commercial traveller coming from London, it would be equally true of a farmer coming from the neighbouring country. In this case, it seems to me that there is no evidence that the defendant got the benefit of the market, and no evidence of a disturbance by selling in the market. If, indeed, it had appeared that the defendant had in any way got the benefit of the market, I should have been of a different opinion; but, upon the facts stated, I see no reason for coming to any other conclusion than that the defendant is entitled to judgment. WILDE, B.: I am of the same opinion. The plaintiffs rest their claim upon a right of market, and the common law right which belongs to the owner of a market. The right, as stated in the declaration, is, that persons selling corn and grain on a market-day within. the borough "ought to sell the same within the market or at their own respective dwelling-houses, shops or premises, and not elsewhere within the borough;" and that right is traversed by a plea. There is no evidence of immemorial or prescriptive right to this market; but it is agreed that the right to some market shall not be disputed. The plaintiffs gave no evidence in support of this right but a local Act of Parliament, and they ask us to infer from that a right to the claim set up in the declaration. I should have thought there was great difficulty in coming to that conclusion. I gather from the Act of Parliament that the plaintiffs have some right of market, but whether or no they have the right claimed in the declaration does not appear by the Act. However, upon that point I give no opinion, because I am in favour of the defendant upon the question whether he has infringed the right, assuming it exists. Now, the action is for a disturbance of market; and whether or no there has been a disturbance is not a question of fact. It is perhaps difficult to lay down an absolute definition of what constitutes a disturbance of a market; though it is equally easy to suggest cases that would or would not be; but, in order to warrant a jury finding a disturbance, it must be shown that the defendant has taken the benefit of the market, or at least has deprived [66] |