Yard v Ford
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 922
COURT OF KING'S BENCH
See Bryant v. Foot, 1867, 68 L. R. 2 Q. B. 174; L. R. 3 Q. B. 497; Dorchester Corporation v. Ensor, 1869, L. R. 4 Ex. 343; Elwes v. Payne, 1879, 12 Ch. D. 471; Dalton v. Angus, 1881, 6 App. Cas. 812; Great Eastern Railway Company v. Goldsmid, 1884, 9 App. Cas. 948; Wilcox v. Steel [1904], 1 Ch. 220.
^72j 31- yard wtsms ford. Mich. 22 Car. II. Regis. [See Bryant v. Foot, 1867, 68 L. R. 2 Q. B. 174 ; L. R. 3 Q. B. 497 ; Dorchester Corporation v. Ensor, 1869, L. R. 4 Ex. 343; Elwes v. Payne, 1879, 12 Ch. U. 471 ; Dalton v. Angus, 1881, 6 App. Cas. 812 ; Great Eastern Railway Company v. Goldsmid, 1884, 9 App. Cas. 948 ; Wilcax v. Steel [1904], 1 Ch. 220.] S. C. 1 Lev. 296. Sir T. Rayru. 195. 1 Mod. 69. 1 Vent. 98. 2 Keb. 689, 706. If a new market be erected without patent in a town near to an ancient market, it may be a nusance, though holden on different days ; and therefore in an action on the case for erecting such new market to the nusance of an ancient market, if the jury find for the plaintiff, the Court will not doubt of the nusance, though it appears they are holden on different days. Action on the case : the plaintiff declares that whereas he, on the 20th October in the 15th year of the reign of the now King, and long before, was, and yet is, seised of and in the town of Newton Abbot with the appurtenances in the county of Devon in his demesne as of fee, and of a certain ancient market holden and to be holden within the said town every Wednesday in every week as of fee and right, and that the plaintiff had and ought to have the said market within the said town for all goods and merchandises then and there bought and sold, together with toll, stallage, piccage, and all other profits, advantages and emoluments whatsoever incident, belonging or appertaining to the said market ;(1) yet the said defendant contriving and intending, (1) It is not necessary in this action, any more than it is in an action for not grinding at the plaintiff's mill (see ante, 113, Coryton v. Lithebye, note (1)), to state, that the plaintiff was seised in fee of the place where the market is held, or that he was seised of an ancient market as of fee and right, but the present mode of declaring is to say, " For that whereas the (plaintiff) on &c. in such a year of our Lord, and before, was, and from thence hitherto has been and still is lawfully possessed of a certain, &c. (the place where the plaintiff's market is kept) in, &c. in the county of B. and of a market holden, and to be holden there, in or upon every Wednesday for the buying and selling (stating the nature of the market) together with toll, stallage, 2 WMS. SAUTO. 173. MICH. 22 CAR. II. REGIS 923 &c. on the said 20th day of October in the 15th year aforesaid, without any lawful warrant, or authority, at the parish of Ashburton in the county aforesaid, to wit, within the town of Ashburton there, near adjoining to the said town of Newton Abbot, that ig to say, within seven miles of the said town of Newton Abbot, levied a certain new market held every Tuesday in every week throughout the year, and continued the market so newly levied from the said 20th of October in the 15th year aforesaid until the day of exhibiting the plaintiff's bill, whereby a great quantity of yarn, and of other goods and merchandises, was during all the time aforesaid sold in the said market so newly erected, which otherwise would have been brought to the said market of the plaintiff, holden during all the time aforesaid every Wednesday in every week in the year, to be there sold, to the great damage of the said plaintiff, and the great nusance of the said market of the plaintiff, and by reason thereof, he the said plaintiff has lost and been deprived of the toll, stallage, and other profits, commodities and advantages, which he might otherwise have had, to the damage of the plaintiff, &c. Upon not guilty pleaded, it was found for the plaintiff at the Assizes, and 601. assessed for damages. And now Jones for the defendant moved in arrest of judgment, that here could be no damage to the plaintiff by law, because it appears that the plaintiff's market is holden on Wednesday in every week, and the defendant's market is holden on Tuesday in every week ; therefore the defendant's market, being holden on a different day from the plaintiff's market, cannot injure the plaintiff's market. For he said it was impossible that the defendant's market on Tuesday should [173] do any damage to the plaintiff's market on Wednesday, because those who have occasion to go to market on Wednesday will come to the plaintiff's market, and they cannot go elsewhere ; for the defendant does not then hold any market, and so no damage to the plaintiff's market. But it would have been otherwise if the defendant had held a market on the same day with the plaintiff; for then the plaintiff's market would be diminished, and the chapmen who have occasion to go to market might go to the defendant's market; but they cannot do so here, wherefore the plaintiff is not damnified iti judgment of law. Arid to prove that it was no damage to the plaintiff, and that a market holden upon one clay cannot be a nusance to a market holden on another day, he cited 2 Roll. Abr. 140 (G-.), pi. 2, where it is said, that if a man levies a market or fair to be holdan on the same day that my market or fair is holden, in a town which is near to my fair or market, whereby my fair or market is impaired, it is a nusance to my market or fair, &c.; wherefore it appeared to him that it may well be collected from the book, that if the fair or market is not holden on the same day with my market or fair, but holden on another day, it is not any nusance to my market or fair. Wherefore he concluded that in the case at Bar, the levying of the defendant's market holden on one day, could not be any nusance to the plaintiff's market holden on another day, and so prayed that judgment should be arrested. Afterwards at another day, Saunders for tho plaintiff moved for judgment, and said that it appears here that the defendant's market is a nusance to the plaintiff's market, although it be holden on another day; for the plaintiffs market is holden on a Wednesday, and the defendant holds his market on every Tuesday before, so that the defendant by his market forestalls the plaintiffs market; and when persons have furnished themselves with commodities on Tuesday, they have no occasion to go to the plaintiffs market on Wednesday, being the next day after the defendant's market And it is worse for the plaintiff, and more to his damage, than if the defendant had holden his market on the same day with the plaintiff; for then the plaintiff piccage, and other commodities to such markets appertaining or belonging, whereby great gains, profits and advantages during all the time aforesaid, until the committing of the grievance hereafter mentioned, accrued to and were received by, and still ought to accrue to, and be received by, the said Richard, to wit, &c." Where the plaintiff's market is erected by charter, it is the safest way not to state in the declaration all the words used in the charter respecting toll, stallage, and the like; but only to state those about which there is no doubt. The words used above in this precedent " toll, stallage, piccage," or without "piccage," seem to be the material words applicable to this action. 924 YARD V. fORD 2 WHS. SAOTTD. 174. might have some chapmen to come to his market as well as the defendant; but now the defendant by holding his market the day before prevents all chapmen from coming to the plaintiff's market the next day after. And here the plaintiff has averred hia damage, and on issue joined, the jury have found that the plaintiff is damnified in his market by the levying of the defendant's market, and have assessed the plaintiff's damages accordingly on their oaths. And if they have assessed damages where the plaintiff was not [174] damnified, the defendant may help himself by a writ of attaint on the false verdict; but now when the jury have found upon their oaths that the defendant's market is a nusance, and damage to the plaintiff's market, the Court cannot entertain any doubt of it. And the objection made by the counsel on the other side might have been evidence to the jury that the defendant's market was no nusance or damage to the plaintiff's market; but it was only evidence; for it may be possible that it will be a nusance, and it may be possible that it will not be a nusance, of which the jury are Judges : and they have found here that it is a nusance and damage to the plaintiff, wherefore they have assessed his damages; and consequently the defendant cannot now say that his market is not a nusance, or damage to the plaintiff, when the jury have found the contrary on their oath. And as to 2 Roll. Abr. 140, he answered, that nothing can be collected out of that book one way, or other; for the book says no more than that if a market be levied on the same day with my market, it is a nusance to me. And so it is without doubt: and so also it may be, if it be levied on another day, as in the case at Bar, for any thing that may be inferred from the said book, or from the book of 22 H. 6, 14 b. where Paston says the same words arguendo as are in the said case in Rolle. But no book warrants such a distinction as has been now made at the Bar; for there is no such diversity in the books of | 41 Edw. 3, 24 b. J 11 H. 4, 47 b. F. N. B. 184 a. Reg. 200 a.; but they say generally that if a new market be erected too near my ancient market it is a nusance : and whether it be on the same day with my market, or on another day, is not made any question in those books. But the book of 11 H. 4, 5, & 6 || is expressly in point, for there issue is joined whether a new market holden on Saturday is a nusance to an ancient market holden on Tuesday, and it is held a good issue on...
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