FRAUD ON LESSEE OF MARKET. 519 



waggon loaded with greens was drawn up before his door, and he sold 

 them tliere. There was evidence to show that during some part of 

 the time he was selling there was room in the market for his cart ; but 

 the plaintiffs did not apprise him of the fact, when they demanded toll. 

 It appeared that part of the space in the market was let out to yearly 

 tenants for the sale of different articles, not being fruits, flowers, or 

 vegetables, and that in fact there were china shops, old iron shops, and 

 some public-houses — in short, two-thirds of the market was occupied 

 with covered buildings. Tolls had frequently been collected in James- 

 street ; and in consequence of so much of the market-place being 

 appropriated to otber purposes, the remaining space was on ordinary 

 occasions fully occupied. Ahhofi C.J. (without adverting to the fact 

 that during part of the time while the defendant was selling his vege- 

 tables there was room for his cart in the market) was of opinion that 

 the lessees of the market were not entitled to maintain this action 

 unless they gave up the whole space for the use of those who attended 

 the market from day to day to sell those commodities to the sale of 

 which the market was devoted. The i^laintiffs were non-suited, with 

 liberty reserved to move to enter a verdict ; but the Court of Queen's 

 Bench discharged the rule. As it was proved that the market was 

 generally occupied, they held that it lay upon the plaintiffs to show 

 that the defendant knew that on the morning in question there was 

 space for his cart in it, and that they had given notice to him to that 

 effect. 



A marlcet ivJikh had existed de facto for more than twenty years, and 

 for which tolls had been taken as for a legal market, but which the 

 jury found had no legal origin, is not a market " legally established " 

 within the 50 Geo. Til. c. 41, s. 5, and a hawker trading therein with- 

 out a licence may be arrested and taken before a magistrate {Benjamin 

 V. Andrews). To avoid the penalty the market must be one created by 

 grant, and not merely a market de facto (ib.). 



The circumstances ivhirh constitute a fraud on the lessee of a market 

 were illustrated in Bridyland v. Shaiitcr. Here the plaintiffs were 

 the lessees of Sir John St. Aubyn, of a market called Devonport 

 Market, within the borough of Devonport, under a written agreement 

 not under seal. The defendant, a cattle-jobber at Ugborough, had on 

 several market-days brought sheep to the premises of a public-house 

 40 yards beyond the limits of the market, where he left them while he 

 went into the market in search of customers, whom he brought back 

 to the public-house, and there bargained with them for the Sale of the 

 sheep, and refused to pay any tolls in respect of such sales. By a 

 private act the market was enlarged into one for cattle, &c, ; and Sir 



