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Markets and the common law

Published online by Cambridge University Press:  02 January 2018

Jonathan Hill*
University of Bristol


The law relating to markets illustrates the extent to which the English legal system bears the indelible stamp of its historical origins. Despite a mass of legislation during the last one hundred and fifty years, the common law of markets has retained much of its significance. Although aspects of the common law dating from the Middle Ages are singularly ill-adapted to contemporary social and economic conditions pressure on parliamentary time and the rigid application of the doctrine ofstare decisis combine to preserve this distinctly anachronistic area of the law.

Research Article
Copyright © Society of Legal Scholars 1985

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1. Blackstone, Commentaries on the Laws of England (15th edn, 1809), Vol II, p 37. A franchise is an incorporeal hereditament: Megarry & Wade, The Law of Real Property (5th edn, 1985), p 816. As a market may exist in gross ‘right of market and right of soil are totally distinct’: Norwich Corporation v Swan (1776) 2 Wm Bla 1116 at 1117 per De Grey CJ.

2. Holdsworth, A History of English Law (7th edn, 1956), Vol I, p 535, Vol V, pp 103–4.

3. Not all franchises depend on royal grant. Those which form part of the royal prerogative may be exercised by the Crown jure coronae; for example, the right to wrecks, tresure-trove, waifs and estrays, royal fish and swans: Case of the Abbot of strata Mercella (1591) 9 Co Rep 24a.

The correct procedure for creating a market in a manor which was held directly by the king was by ordinance: see Brandon v Barnes [1966] 3 All ER 296, and infra at n 41.

4. Pollock& Maitland, The History of English Law before the time of Edward K (2nd edn, 1898), P 44.

5. The First Part of the institutes of the Laws of England, or a Commentary upon Littleton (9th edn, 1684) p 114a (hereinafter cited as Littleton).

6. (1275) 3 Edw 1 c 39.

7. Coke, Littleton, p 115a.

8. Benjamin v Andrews (1858) 5 CBNS 299.

9. Volume I folio 351 b of the 1783 edition: Brackenborough v Spalding UDC [1942] AC 310 at 313 per Viscount Simon LC.

10. A charter of Richard I dated 1189 refers to the market of Colchester as already existing at that date: Att-Gen v Colchester Corporation [1952] Ch 586.

11. (1978) 77 LGR 238.

12. Lewis v Price (1761) 2 Saund 175.

13. In Sevenoaks DC v Patullo & Vinson Ltd [1984] 2 WLR 479 counsel for both sides invited the court to proceed on the basis that the market was lawfully established by virtue of a presumed lost grant. Sevenoaks market could not be established by user from time immemorial, as there was no evidence indicating that the market had existed prior to 1292. See also Winsford Entertainments Ltd v Winsford UDC (1924) 23 LGR 254.

14. [1913] 2Ch 140 at 170 per Cozens-Hardy MR.

15. The Second Part of the Institutes of the Laws of England (5th edn, 1671), p 220 (hereinafter cited as 2 Institutes.)

16. The right to hold a market on two days a week on the lands of Dunally and the town of Clonmany in Donegal was granted by Queen Victoria on 6 December 1856: Lougherty v Doherty [1928] IR 103.

17. Local Government Act 1858, s 50.

18. See the Food Act 1984, s 50(2), and discussion infra especially at n 66.

19. Heddy v Wheelhouse (1597) Cro Eliz 588, also reported under the name of Heddey v Whelhouse Moore KB 474.

20. 2 Institutes, p 220.

21. 3 Edw 1 c 31: Statutes of the Realm (1810) Volume I, p 34.

22. Heddy v Wheelhouse (1597) Cro Eliz 588.

23. Coke, 2 Institutes, p 222.

24. Agar V Lisle (1613) Hob 187.

25. Heddey v Whelhouse (1597) Moore KB 474; cited by Lord Denman CJ in Lockwood v Wood (1841) 6 QB 31 at 45.

26. Lord Denman CJ at 45.

27. Hickman's case (1599) Noy 37; Hill v Hawker (1614) Moore KB 1124; Specot v Carpenter (1682) Jones T 207. In Cheltenham market until at least 1786 the lord of the manor took a toll of Id for each basket of butter sold in the market: Lawrence v Hitch (1868) LR 3 QB 521.

28. Stallage includes piccage and pennage. Payment due for the erection of a stall in the market place is stallage unless in the process of setting up the stall the ground is broken in which case the payment is piccage; the payment due for the liberty of erecting a pen is known as pennage: Northampton Corporation v Ward (1745) 2 Stra 1238.

29. Northampton Corporation v Ward (1745) 2 Stra 1238.

30. Bennington v Taylor (1700) 2 Lut 1517.

31. Lockwood v Wood (1841) 6 QB 31.

32. Duke of Bedford v Emmett (1820) 3 B & Ald 366.

33. [1952] Ch 586.

34. 2 Institutes, p 220.

35. See Heddy v Wheelhouse (1597) Moore KB 474.

36. At 601.

37. R v Burdett (1697) 1 Raym Ld 148.

38. Food Act 1984, s 50(1) (b) (or corresponding provisions in earlier enactments, notably the Food and Drugs Act 1955, s 49(1)(b), the Food and Drugs Act 1938, s 44, and the relevant provisions of the Public Health Acts 1848 and 1875 and the Local Government Act 1858).

39. Food Act 1984, s 61.

40. Food Act 1984, ss 53(1) and 61 (replacing the Food and Drugs Act 1955, s 52(1) as amended by the Local Government Act 1972, s 199).

41. (1980) 79 LGR 146; West, ‘Market Rights’ (1980) 125 Sol Jo 438. This case was in fact decided under the Food and Drugs Act 1955, s 52(1), but the 1984 Act has not changed the law.

42. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 per Lord Greene MR.

43. Among the cases reported this century in only one instance was the market owned by a private individual. At the beginning of the century, Southall Market was owned by the Earl of Jersey: Wilcox v Steel [1904] 1 Ch 212.

44. Abbot of Denesham's case (1355) YB 29 Edw 3 fo 18.

45. Dent v Oliver (1608) Cro Jac 122.

46. In Re Islington Market Bill (1835) 3 C1 & Fin 513 the relevant distance was said to be seven miles, but see discussion infra.

47. Coke, 2 Institutes, p 406; R v Butler (1685) 3 Lev 220.

48. Halton BC v Cawley [1985] 1 WLR 15.

49. ‘A market may be called neighbouring, and a wrongful nuisance, because it is harmful wherever it is held within six leagues and a half and a third part of a half [of the first]. The reason, according to the sayings of the elders is because every reasonable day's journey consists of twenty miles. A day's journey is divided into three parts. The first part, in the morning, is given to those going to the market; the second to buying and selling …; the third part is left for those returning from the market to their homes. All these must be done by day, not at night, because of ambushes, and the attack of robbers, that everything may be safe’: Bracton, On the Laws and Customs of England, translated with revisions and notes by S. E. Thorne (1968). pp. 198–9. Note that the words league (leuca) and mile (milarium) refer to the Roman or London mile of 5,000 feet not the statute mile of 1,760 yards which was only introduced in 1593: Pease, ‘Some Early Cases of Disturbances of Market’ (1916) 32 LQR 199 at 204. It has been suggested that strictly speaking the common law distance is five old English miles (of 6,600 ft.): Pease, op cit at 205.

50. Sevenoaks DC v Pattullo & Vinson Ltd [1984] 2 WLR 479; Kingston-upon-Hull CC v Greenwood (1984) 82 LGR 566: Halton BC v Cawley [1985] 1 WLR 15.

51. [1916] 1 AC 57 at 88. Lord Parker was referring to Yard v Ford (1670) 2 Saund 170. Cf the confusion in Blackstone, op cit, n 1, above Vol III p 218. In Elwes v Payne (1879) 12 Ch D 468 at 475 counsel, expressly citing Bracton, argued that ‘[a] market beyond the third part of twenty miles from the old one is cot a nuisance to the old market.’

52. See Winsford Entertainments Limited v Winsford UDC (1924) 23 LGR 254; Leicester Corporation v Maby (1971) 70 LGR 209; Tamworth BC v Fazeley TC (1977) 76 LGR 608 (interlocutory proceedings).

51. Great Eastern Railway Co v Goldsmid (1884) 9 App Cas 927.

54. Op cit n 49 above, p 199.

55. (1339) YB 12 & 13 Edw III, p 208 (Pike's edition).

56. For recent authority supporting Hale see Leicester Corporation v Maby (1972) 70 LGR 209.

57. ‘If the market be on the same day it shall be intended a nuisance, but if it be on another day it shall be put to issue whether it be a nuisance or not’: Hale, Fitzherbert's Natura Brevium (7th edn, 1730), p 428.

58. [1916] 1 AC 57 at 71.

59. At 90.

60. For example, Morpeth Corporation v Northumberland Farmers' Auction Mart Co Ltd [1921] 2 Ch 154; cf Tamworth BC v Fazeley TC (1977) 76 LGR 608 (interlocutory proceedings).

61. (1978) 77 LGR 238 at 266.

62. See Holgate, ‘Severance of Market Rights and Consequential Disturbance’ [1985] Conv 120.

63. [1984] 2 WLR 479 at 489.

64. The distinction between markets and shops is a question of fact. A part of a department store, converted into a considerable number of small units, occupied by individual traders under licence agreements, was held to constitute a market for the purposes of the law of disturbance, notwithstanding the fact that trade was carried out in a permanent indoor structure: Kingston-upon-Hull CC v Greenwood (1984) 82 LGR 586. See also Manchester CC v Walsh, (1985) Times 6 April.

65. See Anon (before 1612) cited in the Gravesend case (1612) 2 Brown 1 177 by Doderidge Serjt at 178–9: ‘[T]he abbot of Westminster prescribed to have a fair in Westminster on Saint Edward's day, and for ten days after: and that no citizen nor other in London, during that time should sell anything in London; but in this fair and after the abbot remitted the priviledge and had of the citizens of London for that, one thousand five hundred pound.’

66. See Owen, ‘Temporary Markets’ [1983] JPL 210 at 211.