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1817.

SMITH

HORNE

fendants into a false security ; for they would probably have taken more care, if they had known the value of the parcel. The question is, whether, considering the trust the plaintiff reposed in the

. defendants, and the risk to which, in a degree, he and Others. may be presumed to submit, (from the circumstance of his not insuring,) they have been guilty of gross negligence.

The Jury found a verdict for the plaintiff for the value of the gloves.

Vaughan, serjeant, and Richardson, for plaintiff.

Best, serjeant, and Curwood, for defendants.

See Gonger v. Jolly, ante, evidence, either that he did. 317; and the note in which see it, or that he was aware of the cases

are collected, to the existence of such a notice. which the following may be At the trial, a verdict was added :

found for the defendant; and

in Easter Term following, the KERR v. WILLAN.

Attorney General, (Sir WWSittings after Hilary Term, liam Garrow,) moved for a 1817, at Guildhall, and in

new trial. K. B. Easter Term.

Lord Ellenborough.--Much Action against a carrier, for inconvenience in this the loss of a parcel. Notice would be removed from carin the common terms of res riers, if they distributed handtrictive liability was placed in bills. A messenger may come a conspicuous situation in the with a parcel to an office who defendant's office. The porter cannot read. But, surely, who delivered the parcel at the any deviation from the usual office, might have seen it in contract which the law implies, the office; but it was not in ought to be announced to him.

case

1817.

SMITH

d. HORNE and Others.

I admit that a special contract Guildhall, Michaelmas Term,
between the parties will super 1817.--A notice was affixed in
sede the law: but, then, that the office, and a printed paper
contract must be proved ; and put into the servant's hand who
whether it be proved or not delivered the parcel. It was
is a fact for the Jury; that doubtful if the servant saw the
is to say, whether there be a board in the office ; and in the
sufficient notice given, with printed paper, by accident, as
reference to place, time, and it was alleged, the terms of
person, to create a special con restriction were omitted.
tract between the parties. All Lord Ellenborough held the
the difficulties arise by a de notice to be insufficient. And
parture from the old law, at the same sittings, in Davies
which was acted upon for ages; v. Willan, where the person
and there is no doubt but it who carried the parcel could
will require many struggles to not read. In this case, neither
get clear of the wisdom of our the board in the office, nor the
ancestors. But the difficulty is printed paper of conditions,
not insurmountable. Let car were of any service. Mr. Jus-
riers, when they receive par tice Abbott held notwithstand.
cels at their offices, furnish re ing that the carrier was liable
ceipts containing the conditions upon his ordinary liability.--
upon which they contract, and Semble, that the question should
deliver one for each parcel re be put, whether the party can
ceived. This may help them. read or not. If he cannot

Rule refused. read, the notice should be read
So in Munn v. Baker, K. B.

to him.

1817.

WESTMINSTER.

Lowden and Another ». HIERONS.

A

SSUMPSIT.-The plaintiffs were lessees of

Q.-If tolls

can be claimed Covent Garden market under the Duke of under a mo

dern grant Bedford ; and the action was brought to recover of a liberty to

hold a market, some tolls which they claimed to be due to them. &c', and to The lease under which they derived title was by customed dues

receive the acdeed; and they paid an annual rent to the Duke of and toils, &c.;

but to which Bedford of 2,9001. To this lease was annexed a grant no spe

cific tolls are schedule of the tolls which the plaintiffs were em- annexed. powered to demand. It appeared, that the defendant had offered to pay 4d. for every waggon, and 2d. for every cart, which he brought loaded to the market; but he had pleaded no tender of the sum of eight-pence, which was part of the demand claimed in respect to two waggons. The plaintiffs, in addition, demanded, by virtue of the schedule of tolis annexed to their lease, and, (as they alleged,) by an uniform custom and usage, ld. per sack for beans, and ld. per sack for peas. The real contest between the parties was for the sum of 3s, 10d., being the aggregate of the tolls claimed for 30 sacks of beans, and 11 sacks of peas.

It was in evidence, that the tolls had varied much in amount, and that the rent paid by the lessees

1817.

LOWDEN

HIERONS.

had fluctuated in proportion. There appeared to be no uniform practice or usage to regulate the tolls; but the counsel for the plaintiffs relied on a modern statute, 53 G. 3. c. 71, which was an act passed to remove nuisances, and to regulate the tolls in Covent Garden Market. The fifth section in this act empowered the Duke of Bedford, as owner of the market, to claim and receive such tolls as were usually taken.

Upon the part of the defendant, a great mass of documentary evidence was produced, the object of which was to shew that Covent Garden was a market of recent origin, and that no grant of tolls was annexed in the original grant of the market to the ancestors of the Duke of Bedford. In the 6th of Edward VI., there was a grant to John, Earl of Bedford, of all the lands of Covent Garden, &c. then described as pasture land, paying rent to the crown of 51. 6s. 8d. In the 3d of Eliz. was a bargain and sale between the Earl of Bedford and Sir William Cecil of all that piece of pasture ground, being parcel of one great pasture ground, called Covent Garden." Several other ancient deeds were produced; but the charter which bore chiefly on the case, was a charter or grant from the crown, in the 22nd of Charles II., to the Earl of Bedford, of liberty “to have, and hold, and keep a market in Covent Garden, &c.” The charter then proceeded to enumerate some subordinate regulations; and concluded with a grant “ of all tolls and customary fees belonging to the said markets, and usually had and enjoyed with markets of the

like kind.” The original words in the charter were, tolnetis, &c. hujusmodi mercaturæ aliquatenus spectantibus."

1817.

LOWDEN

HIERONS.

Lens, Onslow, and Copley, serjeants, for the defendant, contended, that the present action could not be maintained ; tolls were not due except by grant, prescription, or for some just consideration. The plaintiffs were bound to establish their demand upon some legal foundation. There could be no such thing as an arbitrary, variable toll, raised or diminished at the caprice of the proprietor of the market. Courts of law looked jealously upon these exactions, which were an incumbrance upon that freedom of trade which the subject enjoyed as his birthright. Covent Garden was a market of modern origin. It might, perhaps, be contended, that the charter of Charles II. could not create a toll. But this consideration of the case was not necessary, inasmuch as the charter did not grant any specific tolls whatever. The market was, in its origin, a free market; and it is an undoubted legal proposition, that if the king grant a market without any tolls, the royal authority could not afterwards annex tolls by subsequent grant. The words in the charter of Charles II., which gave the ancestors of the Duke of Bedford liberty to demand and receive the due and accustomed tolls, were idle and void. For no tolls whatever were shewn to be annexed to the grant: there was no evidence of any ancient or accustomed toll. Besides, their necessary and natural uncertainty, when so vaguely expressed, was a death-wound to the demand. Here was no precise toll given ; and, what was Vol. I.

2 U

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