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nell (a), it was held that an action on the case for toll lies, equally against the seller of corn by sample, as the seller of corn pitched in bulk.

But it is at least very doubtful whether the grantee of a newly created market, can maintain an action for the disturbance of his franchise, against a person selling marketable articles in his own shop within the limits of the market place, on the market day (b).

It has been adjudged that if a grantee of a market suf⚫fer another to erect a market in his neighbourhood, and to use it uninterruptedly for three and twenty years, he is barred of an action on the case for a disturbance of his franchise (c).

The lord of a manor having a grant of a fair or market generally, may hold it at any place where it can be most conveniently held (d); and if the grant prescribe a particular vill, the lord may remove the fair or market to any situation within the precinct of his grant; and, after notice, may have trespass against any person going upon his soil in the old marketplace (e).

Upon the grant of a fair or market, the lord shall have a court of Piepoudre (or Pipowders) as incident thereunto without any special words, it being for the advancement of justice, and not of a private interest (ƒ).

(a) 2 Taunt. 120. And see Moseley v. Pierson, 4 T. R. 104.

(b) The Mayor, &c. of Macclesfield v. Pedley, 4 Barn & Adolp. 397. And see Prince v. Lewis, 2 Car. & Pay. 66.

(e) Curwen v. Salkeld, 3 East 538.

(f) 2 Inst. 221. 4 ib. 271. The court of pipowders is incident to a fair or market, as a court baron is to a manor. It is, however, a court of record, to be holden before the stew

(c) Holcroft v. Heel, 1 Bos. & ard, and its jurisdiction consisteth in Pul. 400.

When equity will interfere to enforce the lord's right to tolls, see Mayor, &c. of Reading v. Winkworth, 5 Pri. 473. Duke of Norfolk v. Myers, 4 Madd. 83. Ante pt. 1. p. 633. (d) Dixon v. Robinson, 3 Mod. 107. Rex v. Cotterill, 1 Barn. & Ald.

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these four essentials: 1. The cause of action must arise in the time of the particular fair or market. 2. It must relate to things which concern the market, therefore, if one slander particular wares to the injury of another, previous to the market, the court has no jurisdiction. 3. It must arise within the precinct of the fair

And the right to appoint a clerk to the fair or market, is also incident to the franchise, and he will be intitled to his reasonable fees (a).

But as a toll is a matter of private benefit to the lord, it is not necessarily incident to a fair or market, as was adjudged in the case of Northampton (b), wherein it was resolved, that if the toll granted with a fair or market be unreasonable, the grant of the toll is void, and the fair or market shall be accounted a free fair or market:-And the exaction of an outrageous toll would intitle the king to seise the franchise into his own hands (c).

In the late case of Brett v. Beales (d), Lord Tenterden referred to Truman & Walgham (e) and other authorities establishing that one may have toll-traverse by prescription, so also toll-thorough for some reasonable cause to be shown, as to repair a way, &c., but the judgment of the court in the principal case was, that the repair by the corporation of Cambridge, of certain bridges over the Cam, and some of the streets, was not a sufficient consideration to support a claim of toll-thorough in all parts of the town.

It has been decided that, although every person has a right to go into a public market to buy and sell, without paying any

or market. 4. The plaintiff or his attorney must take an oath according to the stat. 17 Edw. 4. c. 2. and ] R. 2. c. 6; but this does not conclude the defendant. Hall & Jones's case, cited 4 Inst. 272. And see Hall v. Pyndar, Dy. 133 a, and the several cases there referred to.

(a) 4 Inst. 273. c. 61.

(b) M. 39 & 40 Eliz. cor. rege. 2 Inst. 220. S. C. (Heddy v. Wheelhouse), Cro. Eliz. 558. And see The Mayor, &c. of Northampton v. Ward, 2 Str. 1239. S. C. 1 Wils. 115. Daventry case, (Holloway v. Smith,) 2 Str. 1171. Lowden v. Hieron, 1 Holt, N. P. 547. 6 East 438. Com.

Dig. Market F. 1. 7 Barn. & Cress. 50, in Mosley & Walker.

(c) 2 Inst. 219. 1 Wils. 114. (d) 10 Barn. & Cress, 508. S. C. 1 Moody & Malk. 416.

(e) 2 Wils. 296. A special consideration need not be shown to support a claim to toll-traverse. Rickards v. Bennett, 1 Barn. & Cress. 223; 2 Dow. & Ry. 389. See as to the evidence requisite to support tolltraverse, Vines v. Reading Corporation, 1 You. & Jerv. 4. 4 Bing. 8. Persons interested in the result may, from necessity, be competent witnesses in an action for toll-traverse. Lancum v. Lovell, 9 Bing. 465.

toll, if none be due by prescription, yet the owner is intitled to Stallage and Piccage, that is, to a compensation for placing a stall, and for any breaking up of the ground; and the remedy for this is trespass (a).

These franchises may be forfeited by non-user (b), (which would naturally induce the presumption of a surrender of them to the crown (c);) or by mis-user, so that should the grantee neglect to perform the terms prescribed by the patent, it might be repealed by writ of scire facias (d).

FREE CHASE OR PARK (e). (Free Warren: Free Fishery, &c.) Although these subjects are in some degree connected with the preceding considerations on manorial franchises, I do not feel that they are of a nature to call for any lengthened commentary in the present treatise.

The reader, however, is reminded that Free Chases or Parks were tracts of land granted to a subject, under one or other of those names, or grounds converted by the owner into chases or parks, under a license from the crown, and were considered as smaller forests; but that they were not subject to the forest laws, the grantee having no power to appoint officers of the forest, or to hold courts (ƒ):—It is also to be recol

(a) The Mayor, &c. of Northampton v. Ward, ubi sup. And see Mo. 474. 1 Barn. & Ald. 71, in Rex v. Cotterill. A table placed in an open market is considered as a stall. The Mayor, &c. of Norwich v. Swan, 2 Sir W. Bl. 1116.

Both Stallage and Piccage are derived from the right to the soil. See as to both, Com. Dig. Market (F. 2). 2 Roll. Abr. 123. 15 Vin. 244-5.

And the party intitled to stallage may wave the tort and bring assumpsit. Mayor, &c. of Newport v. Saunders. 3 Barn. & Adolp. 411.

(b) Leicester Forest case, Cro.

Jac. 155.

(c) Br. Franchise 10, 26.
(d) Ib. 14, 22. 12 Mod. 271.

(e) A park consists of vert, venison, and inclosure, and a determination in either of these requisites amounts to a disparkment. Sir Charles Howard's case, Cro. Car. 60.

(f) 4 Inst. 314. But it appears that royal forests were sometimes granted by the crown to a subject, with express authority for the administration of justice there. Leicester Forest case, sup.

lected that these franchises can only be claimed by grant, or by prescription (a).

And I am induced to avail myself of this opportunity of referring the student to Lord Coke's 4 Inst. [p. 289, et seq.] and to Mr. Justice Blackstone's Commentaries [vol. 2. c. 27], for a clear and interesting exposition of the forest laws, as they existed in the Saxon æra, and as new modelled upon the Norman conquest; and the more so as it will be seen by the legal authorities adverted to, that the arbitrary and oppressive character of the forest laws, was maintained by the establishment of several courts (b), imitative of those ordained by our

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(a) See Co. Lit. 114 b. 11 Co. 87 b. Lord Coke, (4 Inst. 318) says, "And it is to be observed that a 66 man may have a free chase as belonging to his manor, in his own "woods, as well as a warren or park " in his own grounds; for the chase, 66 warren, and park, are collateral "inheritances, and not issuing out "of the soil, as the common doth; " and therefore if a man hath a chase "in other men's grounds, and after "purchase the grounds, the chase "remaineth."

As to commonable rights and other like privileges in chases or parks, (and which may also exist by prescription in forests,) see 4 Inst. 298-9, &c.

(b) The courts of the forest were, 1. The Woodmote court, or court of attachments kept before the verderors every forty days, for the presentment and inrolment only of attachments de viridi et venatione: 2. The court of survey or lawing of dogs, held every third year: 3. The Swainmote Court held thrice in the year by the steward (who acted ministerially only) before the verderors, (there being

VOL. II.

most commonly four in each forest,) as judges of the court; and at this court the attachments of the foresters were presented, and the freeholders within the forest were to appear and make inquests and juries; but the court did not follow up its conviction by judgment: and 4. The court of the justice seat, holden before the chief justice of the forest, called in the books justice in eyre, and which could not be kept oftener than every third year; and only on forty days' summons, one writ of summons being directed to the sheriff of the county. And at the sessions of this justice in eyre he was to proceed on the presentments made at the Swainmote courts, before a jury. It should seem that a presentment or indictment of this court, previously found in the swainmote, was not traversable, but that an indictment in the court of the justice seat, not found in the swainmote, might be traversed, it having been presented but by one jury. 4 Inst. 291, cites 8 E. 3. Itinere Pickering, 147 a. 21 E. 3. 48. See further as to these courts. Com. Dig. Chase (R).

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Saxon ancestors, for the more substantial and legitimate objects of maintaining the good order of society, and the relative rights of its component members, and of which I propose to take particular notice in the introductory part of the next and concluding chapter (a).

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FREE WARREN.-The franchise of free warren is to be claimed only by grant from the crown or by prescription, which supposes such a grant (b), and the effect of it is to vest in the grantee a property in such wild animals, or inferior species of game, as are deemed the beasts and fowls of warren (c).

If a person having a free warren alien the lands, the right of warren is extinct, nothing being reserved, and the land only being granted; but a reservation of the warren would be good (d).

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warmly contended for, and extorted 'from the King with as much diffi

culty, as those of magna carta itself,' 2 vol. Com. p. 416,) many forests were disafforested, and the penalties of the forest laws greatly relaxed, and that by many subsequent statutes and long disuser, this prerogative is ' now become no longer a grievance 'to the subject.'

(b) 11 Co. 87 b. Co. Lit. 114 b. Br. Warren. pl. 1, cites 3 H. 6. 12. Manw. Warren. Forest. pl. 43. And in trespass against the game-keeper of the lord of the manor, it lies upon the defendant to prove a royalty in justification of the entry upon the plain

tiff's land, by showing a grant of a free warren from the Crown. Pickering v. Noyes, 4 Barn. & Cress. 639.

(c) See F. N. B. 86-7, and the notes. Beasts and fowls of warren, are hares and rabbits, pheasants and partridges. Manw. 95. In Co. Lit. (233 a.) a roe is also named as a beast of warren, and quail, rail, woodcock, herne, mallard, &c. as fowls of warren. Grouse are not birds of warren. The Duke of Devonshire v. Lodge, 7 Barn. & Cress. 36. Beasts of park or chase are, buck, doe, fox, martron, and roe. Manw. 94. Co. Lit. 233 a. 8 Co. 138 b. Beasts of forest or venary are, hart, hind, hare, boar, and wolf. Manw. 91. 8 Co. 138 b.

(d) Br. Warren, pl. 3, cites 35 H. 6. 55.

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