1817. LOWDEN 2. HIERONS. more extraordinary, no precise toll had ever been demanded. It were to dispute almost the elements of law to bring forward a claim for tolls under such circumstances; a modern grant of market without tolls; and a variable, arbitrary usage in the demand and receipt of the tolls themselves. But the plaint ffs, it should seem, would rest on the act of Parliament of 53 Geo. III. But that act professed to give nothing. It was a mere act of regulation, It spoke only of the accustomed tolls; and transferred the payment of the tolls to the seller, which were due at common law from the buyer. The act, therefore, grounded itself upon a preconceived right, which it was for the Duke of Bedford to establish, of a previously existing grant of toll. It was not a declaratory act, or a grant of tolls eo nomine; but was specially confined to regulation. Best and Blossett, serjeants, contrà, tendered evidence, that the tolls demanded were such as were paid at other markets, and in all the markets of London. They proposed to give parole testimony of this kind, on account of the words in the charter of Charles II. "hujusmodi mercaturæ spectantibus." They relied, however, mainly upon the 53d Geo. III., and contended, that the defendant must, at all events, have a verdict against him for 8d., being the tolls for the two carts; which sum he had never disputed, but had offered to pay. PARK, J.-I am afraid, in the present stage of this enquiry, that the defendant must have a verdict against him for the toll of the carts. He has neglected to plead a tender, With respect to any evi 1817. LOWDEN บ. dence of the usage in the other markets in London, I shall certainly not receive it. The rights of individuals to demand and receive toll are not to be derived out of the franchises and privileges of HIERONS. other persons, in other markets; but must depend upon the terms of the grants and charters by which they themselves hold such markets. I am of opinion that there is no pretence for the toll of one penny per sack for beans and peas. The Jury will discharge that from their consideration. I am much inclined to think that no toll whatever can be demanded under the charter, whatever may be the construction of the Act of Parliament. But I will reserve this point for the Court, and give the defendant liberty to move to enter a nonsuit, if the Court should be of opinion that no toll of any kind whatever is due in point of law. The Jury found a verdict for 8d. for the two carts, and negatived the rest of the demand. Best and Blossett, serjeants, and Espinasse, for plaintiffs. Lens, Onslow, and Copley, serjeants, for defendant. Lord Coke treats very fully upon the subject of tolls in the 2 Inst. 220. Toll to the fair or market, says he, is a reasonable sum of money due to the owner of the fair or markets, upon the sale of 1817. LOWDEN v. HIERONS. privy or secret contracts were forbidden. Again, says his lordship, every one that has a fair or market, ought to have it by grant or prescription. If the king grant to a man a fair or market, and grant no toll, the patentee shall have no toll; for toll being a matter of private emolument for the benefit of the lord, is not incident to a fair or market so granted, without a special grant, as was adjudged in the case of Northampton; for such a fair or market is accounted a free fair or market. And there it was also resolved, that after such a grant made, the king cannot grant a toll to such a free fair or market without quid pro quo; some proportionable benefit to the subject. 2 Inst. 220. 1 In conformity with these principles thus laid down by Lord Coke are all the modern cases. Thus, in Holloway v. Smith, 2 Strange, 1171, it was adjudged by the Court of K.B. that toll was not incident of common right to a fair; that it would not pass under general words in the grant of a new fair, nor would custom extend to support a toll in such a fair. The reason, indeed, is evident. Trade is free by the law of England in all customary and lawful branches; and monopolies, except in some particular instances, where they are limited and partial, and granted upon good consideration, (as by the 21st Jac. I. c. 3), are in derogation of the liberty the subject, and of natural rights. By St.West. 1. 3d Edw. 1. 31. if the lord take an outrageous toll, the king shall take the franchise. Lord Coke thus comments upon these words: An outrageous toll, he says, is taking toll when there is none due; or, if more be exacted than is due, or the party be discharged from toll, 2 Inst. 220. That the grantee of a fair or market shall not have toll without a special grant, has been determined in many cases. See Com. Dig. tit. Market, f. 1. where the cases are collected. So it has been resolved, that, if the king grant a market, &c. cum omnibus libertatibus pertinentibus, the grantee shall have no toll, Palm. 78. It is considered, indeed, by Lord Ch. B. Comyn, as a constitutional restriction upon the prerogative of the crown itself, that, after a fair or market has been granted, the king himself cannot grant a toll without a quid pro quo, tit. Prerogative, D. 48. And, therefore, it is not sufficient to allege the grant of a market with all tolls belonging to it; but there must be alleged an express grant, or a prescription for toll, Lut. 1380. If the grantee of a market un, der letters patent from the crown, suffer another to erect a market in his neighbourhood, and use it for the space of 23 years without interruption, he is by such use barred of his action on the case for the disturbance of his market. Holcroft v. Heel, 1 Bos. and Pull. 400. In that case a question was raised, but not determined,whether, if no specific toll be granted in the letters patent, by which the market was erected, the grantee would be entitled to any toll, and whether in such case he could support an action for an injury to his market. For cases on the subject of tolls, see Moseley v. Pearson, 4 T. R. 104. The Bailiffs, &c. of Tewkesbury v. Diston, 6 East. 438. Hill v. Smith, 10 East. 476. 4 Taunton, 520. 1817. LOWDEN 2. HIERONS. 1817. SITTINGS AFTER MICHAELMAS TERM, AT GUILD- An attorney, whose prin⚫ipal business is in the transaction of annuities, for which he charges a commission, and who, in the course of ob A HURD V. BRYDGES and Another, CTION against the sheriff of Middlesex for a false return. The case was this:-One George Diggles was declared a bankrupt, and described in the commission as a money scrivener, &c. An assignment was made of his effects, and this action was virtually defended by his assignees, those who The point turned upon the trading. taining them employ him, own name, is within the bankrupt Jaws. Diggles was an attorney; but his principal business was in negotiating annuities and loans of money. Many persons, who were not his clients not a scrivener in other respects, deposited considerable sums with him to lay out in annuities; and the sums, so deposited, were mostly paid into his banker's hands in his own name. His profit was principally derived from these transactions. He did not charge commission eo nomine; but he charged for the annuity, deeds, which were sometimes prepared in his office, and sometimes in the office of a professional person whom he employed. Being occasionally desired to receive the annuity for the grantee, he was accustomed to charge commission upon such receipts. His common professional business bore no proportion to the business in which he was engaged in negotiating annuities. He made out bills, how |
