Rowntree v Jacob
| Jurisdiction | England & Wales |
| Judgment Date | 21 June 1809 |
| Date | 21 June 1809 |
| Court | Court of Common Pleas |
English Reports Citation: 127 E.R. 1030
Common Pleas Division
1030 ROWNTREE V. JACOB 2 TAM. 140# arisen on contracts of sale by sample, he would have brought a different kind of action an action for the fraud in not bringing the goods into the market :" he refers to no authority, but states it as a clear principle in his mind, that if a person sold by sample in the market, it would give an action, as for an injury to the market. Upon this ground then we are of opinion that the present action well lies, unless the Defendant brings himself within the exception. (Here the Chief Justice read that part of the cafe whieh states the charter of Gilbert de Clare, and observed that a great deal of evidence was stated there which might better have been omitted, and that facts to he thereupon found by the jury, might more properly have been substituted. The words "according to ancient usage," are certainly very important, and on the one side have been relied on as affording an argument that the exemption contended for, was preexisting by antient usage ; but they afford a very strong inference OH the other side also, that it may be a grant of no other exemptions than the burgesses antiently used, and so may be no grant of exemption at all : and it is very remarkable, that the charter speaks not of tolls in Tewkesbury, but in the honour of Gloucester, and throughout all England ; and further, it is not in respect of their burgage estates ; for in the first charter it is not granted to (140] the burgesses and their heirs, but to the burgesses and their successors. Then the later grant by Edward the Third, is to the burgesses their heirs and successors, to be free of all toll, pavage, murage, pontage, passage, with other general words. Now one of those words, heirs and successors, must be improper ; the first, if the grant be to a corporation, and the second, if the grant be to the burgage tenants. But it is observable that this last is not a grant of an exemption from toll in any particular market, and least of all in the market of Tewkesbury. Then comes the charter of Elizabeth, and the charter of Jac, 1, whereby Jac. I granted to the bailiffs and burgesses of Tewkesbury the manor and hundred of Tewkesbury, and all fairs, markets, stallage, toll, toll-custom, customs, piokage, &c., and the reversions and profits. The case then states, that for 40 years past a practice has gradually prevailed of selling in the market by sample, and that the corporation has received toll when the corn has been delivered in Tewkesbury : that the Defendant knowing the Plaintiff's claim of toll upon corn and grain sold in their market, whether by sample or in bulk, sold by sample to one Buckle 45 bushels of beans, to be delivered in Tewkesbury, which had not been pitched in the market or paid toll, and that the Defendant refused to pay toll ; that Buckle was at that time seised and possessed of a yearly burgage...
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