Mosley v Walker
| Jurisdiction | England & Wales |
| Judgment Date | 23 June 1827 |
| Date | 23 June 1827 |
| Court | Court of the King's Bench |
English Reports Citation: 108 E.R. 640
IN THE COURT OF KING'S BENCH.
S. C. 9 D. & R. 863; 5 L. J. K. B. O. S. 358. Observations adopted, Pope v. Whalley, 1865, 6 B. & S. 311. Referred to, Fearon v. Mitchell, 1872, L. R. 7 Q. B. 696; Penryn Corporation v. Best, 1878, 3 Ex. D. 295. Considered and explained, Great Eastern Railway v. Goldsmid, 1884, 9 App. Cas. 960. Considered, Wilcox v. Steel, [1904] 1 Ch. 212. For Moscley v. Chadwick, 7 B. & C. 47 (n.), see S. C. 1 Dougl. 117; 99 E. R. 568 (with note).
640 MOSLEY V.WALKER 7B.&C.41. sik oswald mosley, bart., against john walker. Saturday, June 23d, 1827. The lord of an ancient market may, by law, have a right to prevent other persons from selling goods in their private houses situated within the limits of his franchise. Where such a market had been from ancient times held in a public street, but in consequence of the increased population and traffic, persons frequenting the market-place were subjected to inconvenience and danger, and the lord had permitted part of the market-place to be used for other purposes than for the sale of articles usually sold there; in an action brought by the lord against the owner of a house adjoining to the market-place for there opening a shop and selling goods, but who, at the time when he sold the goods, had a stall in the market-place, which he might have occupied; it was held, that it was properly submitted to the jury to find whether, from the state of the marketplace, the defendant had a reasonable cause for selling in his private house; and a verdict having been found for the plaintiff, the Court refused to grant a new trial. [S. C. 9 D. & E. 863; 5 L. J. K. B. 0. S. 358. Observations adopted, Pope v. Whalley, 1865, 6 B. &.S. 311. Referred to, fearon v. Mitchell, 1872, L. E. 7 Q. B. 696; Penryn Corporation v. Best, 1878, 3 Ex. D. 295. Considered and explained, Great Eastern Railway v. Goldsmid, 1884, 9 App. Cas. 960. Adopted, Attorney-General v. Earner, 1884-85, 14 Q. B. D. 254 ; 11 App. Cas. 66. Considered, Wilcox v. Steel, [1904] 1 Ch. 212. For Moseley v. Ghadwick, 7 B. & C. 47 (n.), see S. C. 1 Dougl. 117 ; 99 E. E. 568 (with note).] Declaration stated, that the plaintiff, on the first of January 1824, and long before was and from thenceforth had been, and still was lawfully pos-[41]-sessed of a certain market holden in the town of Manchester, in the county of Lancaster, on Tuesday, Thursday, and Saturday in every week throughout the year, except on Christmas-Day and New Year's Day, when they respectively happened on Tuesday, Thursday, or Saturday; for the buying and selling, amongst other things, of all manner of fish of such kinds as are usually bought and sold in markets; and of all liberties, customs, privileges, tolls, stallages, and all other emoluments belonging thereto; and had during all that time provided proper and sufficient stalls in the market for such persons who needed and required the same for the sale of their fish on Tuesdays, Thursdays, and Saturdays, being such market days as aforesaid; and also had, and of right ought to have, the correction of the market; and whereas all fishmongers and other persons selling their fish of such kinds as are usually sold in markets on Tuesdays, Thursdays, or Saturdays, or on any of those days, being market days in the town of Manchester, ought to sell the same in the open public market there, and not in any private houses, shops, or buildings in the said town, out of the open public market there, and without the licence and authority of the plaintiff; and such fishmongers and other persons selling such fish on those days in the same town upon any stalls placed there, ought to sell the same, and until, &c. had sold the same, upon the stalls of the plaintiff there, or upon stalls placed there by his permission, paying, therefore, a reasonable sum of money for every stall placed there for that purpose by the plaintiff, or by his permission, and made use of by such persons for the sale of their fish on the market days aforesaid; and thereby the plaintiff had and enjoyed, and ought to have continued to have and enjoy, great profit, &c. Yet the defendant, maliciously contriving [42] and intending to prevent the plaintiff from enjoying the benefit of his market, to wit, on the 1st of January 1824, and on divers other Tuesdays, Thursdays, and Saturdays, each of the said Tuesdays, Thursdays, and Saturdays being market days in the town of Manchester, wrongfully and injuriously exposed to sale, and sold divers large quantities of his fish of such kinds as are usually sold and exposed to sale in markets, and- as were on the same 1st day of January 1824,' and on the said other Tuesdays, Thursdays, and Saturdays, being market days, exposed to sale and sold in the market of the plaintiff so holden on Tuesdays, Thursdays, and Saturdays, as aforesaid, and being of the value of 5001., in certain private houses, shops, and buildings in the same town, out of the open public market there, and not upon any of the stalls of the plaintiff, or any stalls erected by the plaintiff or by his permission, without the licence and against the will of the plaintiff, and without any lawful authority whatsoever, to the manifest injury of the plaintiff, 7B. &q.43. MOSLEY ,V, WALKER 641 and to the great nuisance of the said market, whereby he was deprived of and lost great part of the profits of his stalls and stallage, tolls, &c. which he otherwise would have had. Plea, not guilty. At the trial before Hullock B., at the Summer Assizes for the county of Lancaster, 1826, the following documentary evidence, coming out of the plaintiff's muniment room, was produced by his steward, in order to prove the title of the plaintiff to the market; first, an inquisition post mortem in the time of Edward I. A.D. 1282, and it was thereby found that the tolls of the market and fair of Manchester were worth 61.13s. 4d., and that Robert Gresley was seised at his death of the manor of Manchester, with its appurtenances, and therein of fairs, markets, tollage, stallage, and profits of fairs and markets [43] in his demesne as of fee, as part of the Duchy of Lancaster. Secondly, an indenture, A.D. 1597, 38th of Elizabeth, whereby John Lacy, in consideration of 35001., granted, bargained, and sold to Nicholas Mosley, alderman of London, and Robert Mosley, his heir apparent, the said manor of Manchester, and all manner of courts, markets, tolls, &c. in fee. Thirdly, the books of the court-leet from 1582 to 1687, and from 1734 to the time of the trial: the intervening book was lost. It appeared by entries in these books, that inspectors for fish and flesh had been appointed at every Michaelmas session. The number varied from time to time; there never having been Jess than twelve in any one year. In 1825 there were twenty-one. In the court book for Michaelmas 1663 there were amercements for...
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