Downshire v O'Brien

LAW REPORTS (IRELAND). [L. R. 1. BARRY, L. J. :- I concur, basing my opinion on a single point, namely, that in my whole experience a clearer case of the creation of a new tenancy never was proved than in this case. Solicitor for the appellant : Mr. P. C. M'Gough. Solicitor for the respondent : Messrs. Barlee 8j Greer. THE MARQUIS OF DOWNSHIRE v. O'BRIEN AND ANOTHER (1885. No. 7473.) Fairs and markets-Limits of-Disturbance-Market on different day from that prescribed by Patent-Sale at illegal fair, with knowledge of patentee's rights-Injunction-Damages- Costs. Under a grant of the right of holding markets and fairs " in or at" a town, the limits of the franchise include all the town, and the grantee has the right, in the absence of anything in the grant to the contrary, to appoint the place in which the market is to be held. Where there is a franchise right of holding fairs and markets, and of takÂing tolls in respect thereof, and an unauthorized fair or market is held within a reasonable distance of the prescribed place, and within the ambit of the grant, and such fair or market is held on the same day as is prescribed by the grant for holding a fair or market, there is an actual intendment of law that there has been a disturbance. If, however, the injury arises from acts done outside the prescribed limit, or done on different days from those specified, a question of fact arises, and proof must be adduced of actual disturbance by the persons sought to be made liable, and of injury to the rights of the patentee. Every person who takes part in an illegal combination to disturb a franÂchise right of holding fairs, or who knowingly takes advantage of it, is guilty of disturbance. There is no public right of holding fairs or markets. The right to set up a market or fair is a prerogative right, which can only be granted by the Crown, after a preliminary inquiry under a writ of ad quod damnum. In an action for disturbance of the plaintiffs' fairs and markets, it appeared VOL. XIX.] CHANCERY DIVISION. 381 that a combination had been formed to set up rival fairs within the ambit of V.- C. the plaintiffs' grant, and in such a way as to disturb their franchise rights ; 1887. that the defendants were not parties to such combination, but that they sold at DOWNSHIRE one of the rival fairs, with a knowledge that they were infringing the plain- V. tiffs' rights. The defendants, by their pleading and evidence in the action, 0'BRIEN. denied the plaintiffs' rights as claimed, and attempted to justify the holding of such rival fairs and the conduct of the originators of the combination :- Held, that they had contributed to the disturbance ; that they should be restrained by injunction ; that they should not be held liable in damages ; but that, having regard to the case made by them, they should pay the costs of the action. Disuser of the fair-ground, in consequence of the illegal holding of rival fairs, held, not to constitute a discontinuance, amounting to an abandonment of the patentees' right. Semble, if the defendants had, by their pleading, admitted the plaintiffs' rights, and shown that they were mere casual vendors, and that the part ley took in the rival fairs was due to inadvertence, they would not have been. condemned in costs. ACTION by the Marquis of Downshire and his trustees for. damages for the disturbance of their markets, and for infringing their rights as owners of certain fairs and markets, and for an injunction. The statement of claim alleged that by Letters Patent of the, 31st January, in the 25th year of King Charles II., his said Majesty granted unto Sir George Blundell, his heirs, and assigns, full and absolute power and authority to hold one free market in or at the town of Edenderry, in the King's County, every Saturday, weekly, for ever ; and also three fairs or marts, to be held in or near the said town of Edenderry, every 24th October and day next ensuing, every Hilary (Shrove Tuesday) and day next ensuing, and every Thursday next after Pentecost and day next ensuing, and also granted unto the said Sir George Blundell, his heirs, and assigns, that he and they should for ever have and hold, receive and take, all and singular issues, tolls, customs, profits, stallages of chattels and goods to be sold, emoluments, and amerciaments whatsoever, from the aforesaid markets, fairs, or marts arising, to hold the same to the use of the said Sir George...