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able to have some manner of recompence even for a charitable act(a). But where in trover for an anchor and cable, the defendant pleaded a custom in the manor of Miching, in Sussex, that if any ship or boat sailing on the sea, strikes on the land held of the manor and perishes, though it is not wreck, yet the best anchor and cable, &c. belong to the lord of the manor, the plea was adjudged ill, no custom of salvage being found, and the alleged custom being void for want of any manner of consideration to support it (6).
The lord of a manor has been held not to be intitled to salvage for taking charge of wreck against the owner's consent, and therefore not in the instance of parts of a ship being thrown on the land within the manor, when the servants of the owner are there to take care of them for him (c).
TREASURE TROVE.-It would appear by several ancient authors (d), that treasure trove, at some far distant period, belonged to the finder ; but even before the Conquest (with perhaps some exceptions) (e), it was a rule of common law, that treasure trove belonged to the king by his prerogative (f), or to some lord of a manor or liberty, by special grant (8), or by prescription (h).
The term treasure is restricted to gold and silver (i), but it may be either in bullion (k), coin, or plate; and the right of
(a) Simpson v. Bithwood, 3 Lev. 307. See the pleadings in this case in Appx. to Lex. Man. pl. 41, p. 126.
(6) Geere v. Burkensham, 3 Lev. 85.
(c) Sutton v. Buck, 2 Taunt. 302.
(d) Staunf. f. 39. Glanv. 1. 1. c. 1. 1. 14. c. 2. Britt. 7, 26, 85. Bract. 1. 3. f. 120. 2 Inst. 168. 3 Inst. 132.
(e) 3 Inst. 133,
(f) Kitch. 78. 3 Inst. 132–3.
(g) Ib. Fitz. Abr. tit Corone, pl. 241, 436, cites 22 E. 3. 8 E. 2. Kitch. 78.
(h) Co. Lit. 114 b. 3 Inst. 132-3, cites 21 H. 6. tit. Prescription 4. 22 E. 3. cor. 241. 1 H. 7. 33. 9 H. 7, 20. 46 E. 3. 16. Stamf. pl. cor. 39. b. lib. fo. 109 b.
(0) 3 Inst. 132.
(k) “ Veins of gold and silver in the ground of subjects, also belong to
the king or the lord presupposes the impossibility of an identification of the property of the person who concealed it (a); but it is immaterial whether it be found hidden in the ground, or in the walls or roof, or ruins of any house, or other building, or elsewhere (6); though treasure found in the sea still belongs to the finder (c).
We are told by Glanvill and Bracton, that the fraudulent concealment of treasure trove, was an offence punishable by death ; but it was long since adjudged that the punishment should be by fine and imprisonment only (d).
FAIRS, MARKETS, Tolls, &c.—These franchises are annexed to many manors, but are to be claimed only by grant from the crown (e), or by prescription (f); and even if the grant of a fair or market be preceded by a writ of ad quod damnum, or the usual words quod non sit ad nocumentum, &c. be omitted in the grant, yet the patent shall be repealed by scire facias,
the king by his prerogative, for they (d) Stath. tit. Coron. Fitz. Abr. are royal mines." 3 Inst. 132. But Coron. 265, cites 22 E. 3. 3 Inst. this has been doubted, unless the 133. Kitch. 49. Treasure trove as quantity of gold or silver was of well as wreck shall be inquired of by greater value than the quantity of the coroner. 3 Inst. 133. Ante, pp. base metal. Plowd. 336. 1 Bl. Com. 773-4. (tit. • Deodand'). 294. And now by 1 W. & M. st. 1. (e) As an evil rather than a good c. 30. and 5 W & M. c. 6, mines of might result from the establishing copper, &c. shall not be looked upon of additional fairs or markets, it is as royal mines, though gold or silver usual, previous to a grant by the king, may be extracted from them in any to have a writ of ad quod damnum quantities, but the king may have issued and returned.
The King v. the ore (other than tin in Devon and Butler, 3 Lev. 222. 2 Vent. 344. Cornwall) paying the price stated in And see 3 Burr. 1818, in Rer v. the act.
Marsden ; 7 Barn. & Cress. 49. (a) Stath. tit. Coron. Kitch. 78. (f) Co. Lit. 114. b. 2 Inst. 220. Or by his executors, Fitz. Abr. Co- And see Hill v. Smith, 10 East ron. 446, cites 22 H. 6.
476. 1 Wils. 112. Tenants in ancient (6) Bract. 1. 2. f. 10. 3 Inst. 132. demesne have a qualified exemption
(c) Britt. f. 26. Kitch. 78. 2 Inst. from toll, ante, pp. 692-3.
if it be to the nuisance of the king or others (a). But it has been held, that an uninterrupted user for twenty years, gives a prima facie right to a fair or market, and affords a sufficient answer to an indictment for a nuisance to a highway, although the party is liable to be proceeded against for the usurpation of the franchise (b).
The grantee or owner for the time being of the franchise of a market, may have an action on the case against a person who erects a stall upon his own ground near to the market, for selling meat, &c. though he should not take toll, or usurp a franchise (c). And by grant or prescription the owner of such a market may prevent persons, being inhabitants of the place, from selling in private houses (d). In the case of Dorking Market, tried before Heath, J. (e), a man had fitted up an inner room in a public house, and corn was pitched and sold there; and the plaintiff recovered against him in an action on the case, on the same ground as in the prior of Dunstable's case, because it was done secretly.
And in the case of the bailiffs of Tewkesbury v. Brick
(a) 2 Inst. 406. Rex v. Butler, Burr. 1812. S.C. 1 Sir W. Bl. 579. ubi sup. 2 Roll. Abr. 140. pl. 2. Com. And it seems doubtful whether an Dig. Market (C. 2). And notwith- information in nature of a quo warstanding the issuing of the writ, an ranto, for a usurpation upon the action would lie by the private owner crown by holding a fair or market, of a market that was injured. 1 Sir can be granted on the application of W. Bl. 581. If a fair or market be a private person. Ib. set up without patent, to the nui- (c) Mosley v. Chadwick & others, sance of another, the party aggrieved 7 Barn. & Cress. 47, n. (a). may have an assise of nuisance, re- (d) Sir Oswald Mosley v. Walker, turnable into the King's Bench. F. 7 Barn. & Cress. 40. 9 Dow. & N. B. 184. A.
Ry. 863. And see Prior of Dun(6) Rex v. Smith et al. 4 Esp. stable's case, 11 H. 6, 13. Br. lll. And see Yard v. Ford, 2 Saund. Abr. • Prescription', pl. 98.7 172. Ib. 175, n. 2.
Barn. & Cress. 47. n. Com. Dig. A quo warranto will not lie merely tit. Market,' (F. 2.) Vin. Abr. tit. for encouraging and promoting the Market (B). 2 Roll. Abr. tit. “Marholding of a market, it being at most ket,' B. pl. 1. a misdemeanour, and no usurpation
(e) 2 Taunt. 133. of a franchise. Rex v. Marsden, 3
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 (6).
It has been adjudged that if a grantee of a market suffer 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 ($).
(a) 2 Taunt. 120. And see Mose- (e) Curwen v. Salkeld, 3 East 538. ley v. Pierson, 4 T. R. 104.
(f) 2 Inst. 221. 4 ib. 271. The (6) The Mayor, &c. of Maccles- court of pipowders is incident to a field v. Pedley, 4 Barn & Adolp. fair or market, as a court baron is to 397. And see Prince v. Lewis, 2
It is, however, a court of Car. & Pay. 66.
record, to be holden before the stew. (c) Holcroft v. Heel, 1 Bos. & ard, and its jurisdiction consisteth in Pul. 400.
these four essentials: 1. The cause of When equity will interfere to en- action must arise in the time of the force the lord's right to tolls, see particular fair or market. 2. It must Mayor, &c. of Reading v. Winkworth, relate to things which concern the 5 Pri. 473. Duke of Norfolk v. My- market, therefore, if one slander parers, 4 Madd. 83. Ante pt. 1. p. 633. ticular wares to the injury of an
(d) Dixon v. Robinson, 3 Mod. other, previous to the market, the 107. Rex v. Cotterill, 1 Barn. & Ald. court has no jurisdiction. 3. It must 67.
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 Dig. Market F. 1. 7 Barn. & Cress. attorney must take an oath according 50, in Mosley & Walker. to the stat. 17 Edw. 4. c. 2. and ) R. (c) 2 Inst. 219. 1 Wils. 114. 2. c. 6; but this does not conclude (d) 10 Barn. & Cress. 508. S. C. 1 the defendant. Hall f. Jones's case,
Moody & Malk. 416. cited 4 Inst. 272. And see Hall v. (e) 2 Wils. 296. A special conPyndar, Dy. 133 a, and the several sideration need not be shown to supcases there referred to.
port a claim to toll-traverse. Rick(a) 4 Inst. 273. c. 61.
ards v. Bennett, 1 Barn. & Cress. (6) M. 39 & 40 Eliz. cor. rege. 223; 2 Dow. & Ry. 389. See as to 2 Inst. 220. S. C. (Heddy v. Wheel- the evidence requisite to support tollhouse), Cro. Eliz. 558. And see The traverse, Vines v. Reading CorporaMayor, fc. of Northampton v. Ward, tion, 1 You. & Jerv. 4. 4 Bing. 8. 2 Str. 1239. S.C. 1 Wils. 115. Da- Persons interested in the result
may, tentry case, (Holloway v. Smith,) 2 from necessity, be competent witnesses Str. 1171.
Lowden v. Hieron, 1 in an action for toll-traverse. Lancum Holt, N. P. 547. 6 East 438. Com. v. Lovell, 9 Bing. 465.