Benjamin v Andrews
| Jurisdiction | England & Wales |
| Judgment Date | 22 June 1858 |
| Date | 22 June 1858 |
| Court | Court of Common Pleas |
English Reports Citation: 141 E.R. 119
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 27 L. J. M. C. 310; 4 Jur. N. S. 976; 6 W. R. 692. Referred to, Newcastle v. Worksop Urban Council, [1902] 2 Ch. 159.
[299] benjamin v. andrews. June 22nd, 1858. [S. C. 27 L. J. M. C. 310; 4 Jur. N. S. 976; 6 W. R. 692. Referred to, Newcastle v. Worksop Urban Council, [1902] 2 Ch. 159.] To entitle a party to exemption from penalties for au offence against the Hawkers' Act, 50 G. 3, c. 41, on the ground that the place where he exposed his wares for sale was a public market, it must be shewn that it was a legally established market, -by grant from the Crown, -and not merely a market de facto. This was au action for assaulting and imprisioning the plaintiff under1 pretence of his ha?ing been guilty of an offence punishable by law. Plea, "not guilty, by statute," -the statute mentioned in the margin being the 50 G. 3, c. 41, ss. '20, 24. Issue thereon. The causa waa tried before Williams, J., at the first sitting in London in Easter Term last. The facts were as follows:-The plaintiff was an unlicensed hawker and was iiLthe habit of attending fairs and markets for the sale of goods. On Saturday, the 16th of January last, he was following his occupation in the market-place in Woolwich, when the defendant, a shop-keeper in the town, gave him into custody for trading without a hawker's licence, and caused him to be carried before a magistrate. He claimed to be within the exemption of the 5th section of the 50 (i. :}, c. 41 (a)2, on the ground that the place where he was selling his wares was a legally established market. The magistrate thereupon discharged him. (.)1 See Ekm v. Flay, 1 New Sessions Cases, 561. By a local turnpike-act (4 Viet, c, xx., s. 8), tolls are made payable on horses. By s. 11, it is provided, that, " except as hereinafter provided to the contrary," only one full toll shall be payable for horses passing and re-passing once in the same day. By s. 12, "all horses, &c., except horses or cattle drawing any stage-coach, waggon, or other stage-carriage," returning the same day, shall, on the production of a ticket denoting payment, pass toll-free. By s. 13, no horse which shall have paid the toll once, shall be permitted to return toll-free when drawing "another or different waggon, wain, cart, or other such carriage." By sect. 14, horses drawing any post-chaise or other carriage travelling for hire shall pay as often aa ariiew hiring takes place. S. 15 provides that no additional toll shall be payable in respect of any stage-coach which shall he freed by such ticket on account only of their conveying other passengers, or of the horses or cattle drawing the same having been changed. It was held, that, in respect of the same horses passing through the toll-gate with a stage-coach, and returning the samn day with a different stagecoach and passengers, only a single toll for each horse was payable, the horses and both coachea belonging to the same proprietor. (of Which eiiacts " that nothing herein contained shall extend, or lie construed to extend, to hinder any person or persons from selling or exposing to sale any sorts of f iodg or merchandize in any public mart, market or fair legally established within the ingdom of England, dominion of Wales, and town of Berwick-upon-Tweed, but such person or persons may do therein as they lawfully might have done before the making of this act; anything herein contained to the contrary notwithstanding." 120 BENJAMIN V. ANUKEWS S C. B. (N. S.) 300. On the part of the defendant, it was insisted that the WooLwioh market-day was Friday, and not Saturday : and letters-patent of James the First, were produced, whereby a market was granted to those under [300] whom Sir Thomas Wilson held, to be holden on Friday in every week; and it was shewn by the evidence of Sir Thomas Wilson's Steward, that, upon the spot where the market had formerly been held, and which was changed in the year 1843, a board had stood for many years, upon which the tolls for standings were painted, and which stated the market-clay to be Friday. On the part of the plaintiff, evidence was given shewing that for the last twenty...
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