[*636

action it was one that was fit to be brought in the superior Court. The question here was certainly one of great importance to the plaintiff, viz., whether the defendant was to get rid of the liability under a building agreement which was to enure for ninety years. I do not know any case which would require more knowledge of the law to determine rightly than the question raised here. It seems to me that the case was one which was eminently fit for the judgment of a superior Court.

The rest of the Court concurred.

Clark. As he was sent to the Court by the learned Judge, the defendant ought not to be charged with the costs of this rule.

ERLE, C. J.-The ordinary rule is that the costs of such a motion. should be costs in the cause; and I see nothing to make this case an exception. Rule accordingly.

*HENRY CASWELL, Appellant; SAMUEL COOK, Re

spondent. Jan. 27.

[*637

The 13th section of the Markets and Fairs Clauses Act, 1847 (10 & 11 Vict. c. 14), enacts that "after the market place is open for public use, every person other than a licensed hawker who shall sell or expose for sale in any place within the prescribed limits except in his own dwelling-place or shop, any articles in respect of which tolls are by the special Act authorized to be taken in the market," shall forfeit 408.

The 38th section of the Wolverhampton Improvement Act, 1853 (16 & 17 Vict. c. xxviii.), enacts that "the local board and their lessees may from time to time demand and take from any person occupying or using any shop, stall, stand, bench, or ground space in any marketplace for the time being under the management of the local board, and used as a general market, such tolls as the local board or their lessees from time to time appoint, not exceeding the several tolls specified in the schedule A. to the Act annexed:" and the schedule in terms imposed the "toll" on the occupier of "every shop, stall, or ground space" in the market, and not upon the commodities sold or exposed for sale there:

Held, that a person who sold fruit and fish (which are marketable articles) from door to door within the prescribed limits, did not thereby become liable to the penalty imposed by the 13th section of the general Act:

And that the "prescribed limits" meant the limits to which the local Act applied, viz. the boundaries of the borough.

THE following case was stated for the opinion of this Court, pursuant to the 20 & 21 Vict. c. 43:

At a petty sessions of the peace holden in and for the borough of Wolverhampton, on the 20th of August, 1861, before us, the undersigned, two of her Majesty's justices of the peace in and for the said borough, Samuel Cook (the above-named respondent) was charged on two informations laid by Henry Caswell (the above-named appellant), as the lessee of the markets and market-hall in the said borough, the first of which was in substance as follows:-That, on the 31st of July, 1861, at the said borough, after the market-place was opened for public use in the said borough, he the said Samuel Cook (not being a licensed hawker) did sell or expose for sale in a street in the said borough, and not in his own dwelling-place or shop, certain articles, to wit, fruit and shrimps, in respect of which tolls are authorized to be taken in the said market, contrary to the statute in such case made and provided. And the second information was, that, on the 1st of August, 1861, at the said borough, after the market-place was open

for public use in the said borough, he the said Samuel Cook (not being a licensed hawker) did sell or expose for sale in *Pount*638] ney Street, in the said borough, and not in his own dwellingplace or shop, certain articles, to wit, herrings, in respect of which tolls are authorized to be taken in the said market, contrary to the statute in such case made and provided.

The complainant relied upon the provisions of the following stat utes.-"The Wolverhampton Improvement Act, 1853 (16 & 17 Viet. c. xxviii.)," and Schedule A. referred to in the Act.

Section 3 enacts that this Act shall for all purposes be in force and have effect within the municipal borough of Wolverhampton. Section 5, that the local board shall mean, the mayor, aldermen, and burgesses of the borough of Wolverhampton, in their capacity of the local board of health for the borough. Section 28, that the Markets and Fairs Clauses Act, 1847 (10 & 11 Vict. c. 14), shall be incorporated with this Act. And section 29, that, whereas the local board were then in the possession of the new market-house under an agreement with the proprietors thereof, the said new market-house, with the franchises, rights, members, and appurtenances thereof, should be, after the execution of the deed thereinafter referred to (which deed has since been duly executed, as admitted by both parties to this case), transferred to and vested in the local board of health. Section 38, that, from and after the commencement of this Act, the local board and their lessees may from time to time demand and take from any person occupying or using any shop, stall, bench, or ground-space in any market-place for the time being under the management of the local board and used as a general market, such tolls as the local board or their lessees from time to time appoint, not exceeding the several tolls specified in Schedule A. to this Act. The 50th section authorizes the local board to demise and let the market and market-places. The "General Market" consists of the market-hall, where *639] articles are sold by retail, and of the wholesale market held, during certain hours on Wednesdays and Saturdays, in streets immediately adjoining the market-hall.

The schedule A referred to in the foregoing Act is headed "General Market Tolls." From the occupier of every stall raised above the ground for the sale of vegetables, fruit, fish, game, poultry, china, glass, earthenware, baskets, hardware, or other commodities, articles, or things, according to the size or dimensions of such stall, namely, for each lineal foot of frontage thereof,

If let by the year, a yearly sum not exceeding 17. 15s.

If let by the week, any weekly sum not exceeding 97.

If otherwise taken, for every market-day or other day, any daily sum not exceeding 44d.

Stands or Benches.

From the occupier of every stand or bench, according to the size or dimensions of the same, namely, for each superficial square foot or fractional part of a superficial square foot thereof,—

If taken by the year, any yearly sum not exceeding 5s.

By the week, any weekly sum not exceeding 6d.

If otherwise taken, for each market-day or other day in the week, any daily sum not exceeding 2d.

Ground Space.

From the occupier of each compartment or space on the surface of the ground, according to the size and dimensions of the same, namely, for each superficial square foot thereof,—

If taken by the year, any yearly sum not exceeding 3s.

By the week, any weekly sum not exceeding 3d.

*If otherwise taken, for each market-day or other day in the [*640

week, any daily sum not exceeding 1d.

The appellant produced the appointed table of tolls dated 25th July, 1860, a copy of which accompanied and was to be read as part of the case.

He also relied upon the Markets and Fairs Clauses Act, 1847, s. 13, which enacts, "That, after the market-place is opened for public use, every person other than a licensed hawker who shall sell or expose for sale in any place within the prescribed limits, except in his own dwelling-place or shop, any articles in respect of which tolls are by the special Act authorized to be taken in the market, shall for every such offence be liable to a penalty not exceeding 40s."

The facts as laid in the respective informations were to the following extent admitted by the respondent, viz., that on the 31st of July, and the 1st of August, 1861, at the borough of Wolverhampton, after the market place was opened for public use, he, not being a licensed hawker, did sell or expose for sale in Pountney Street, within the prescribed limits of the Wolverhampton Improvement Act, 1853, and not in his own dwelling-place or shop, certain articles, to wit, fruit, shrimps, and herrings. It was also admitted by him that the 12th section of the Markets and Fairs Clauses Act, 1847, had been complied with; that tolls had been appointed and published in accordance with the 38th section of the Wolverhampton Improvement Act, 1853; that the appellant was the lessee of the market-place and tolls under the local board; and that he had issued notice to the public, notifying that every person selling goods on which toll was payable, except in his own dwelling-house or shop, would be liable to a penalty of 40s., which the respondent admitted he had seen.

Upon the above state of facts, it was contended by the appellant that the respondent had incurred two *penalties of 40s. each,

for selling in the street articles, to wit, fruit and fish, in respect [*641 of which toll is authorized to be taken in the market; and, although parties pay toll in the form of an occupation payment for a stall, stand, bench, or so many superficial square feet of land, that this ought to be looked upon as a toll upon the articles sold; and that, as a matter of convenience and simplicity, it is the best and fairest mode of assessing such toll. In support of his view of the case, he quoted The Llandaff and Canton District Market Company, app., Lyndon, resp., 8 C. B. N. S. 515 (E. C. L. R. vol. 98). He further contended that all fruit and fish sold or exposed for sale within the borough was liable to toll, unless the same was sold in the seller's dwelling-place or shop, and that the respondent might easily have avoided any penalty by selling his commodities in the market, where there is sufficient space unoccupied, and not in the street: and one of the appellant's witnesses stated that the respondent might also have avoided a penalty

by first going to the market lessee and paying a small toll before going from house to house, or selling in the street.

On the part of the respondent, it was alleged, that, from time immemorial, the inhabitants of Wolverhampton had been used to sell and deliver from house to house vegetables, fruit, and fish, to persons residing within the limits of the borough, although prior to the Wolverhampton Improvement Act, 1853, there had been a weekly market held under a charter granted by King Henry the 3d, at which payments were demanded and taken from parties for stallages in the market-place when using or selling at such stalls fruit, fish, or vegetables, but no toll had ever been imposed in respect of each article sold; that the appellant was now attempting to create a monopoly, and compel all parties to come to his market, whether it suited their *642] *convenience or not; and that a great hardship would be inflicted upon the poorer classes, who he conceived had a right to buy or sell articles of food without going to the appellant's market. The respondent also contended that not one single article which had been sold or offered for sale by him was subject to a toll under the schedule or list of tolls, as the clause did not impose tolls upon either fruit, fish, or vegetables, but was simply a stallage or rental for the use of any stall, bench, or land occupied by parties resorting to the market: and he quoted the 38th, 46th, 47th, and 48th sections of The Wolverhampton Improvement Act, 1853, as carrying out the intention that there should be a stallage payment, and not a payment upon any particular article.

The case being one of great importance so far as respects the rights and freedom of traders and the public on the one part, and the rights and privileges of the local board and the market lessee on the other part, we gave the same a full and careful consideration, and adjudicated against the appellant on the following grounds,

First. We find, and it was proved before us, that, from time immemorial, prior to the Wolverhampton Improvement Act, 1853, parties had been in the constant habit of selling fruit, vegetables, and fish in the streets within the limits of the said Act, without being interfered with by the owners of the market-tolls; but, whether they had a legal right so to act or not, we had no evidence before us, and we cannot determine:

Secondly. We find, on reference to the Hawkers' Act, 50 G. 3, c. 41, s. 23, that persons selling fruit and fish are exempted from taking out a hawker's license; and therefore it was unnecessary for the respondent to take out such license on the supposition that it might *bring him within the exemption mentioned in the 13th section of The Markets and Fairs Clauses Act, 1847:

*643]

Thirdly. We were of opinion that toll and stallages are different things; and that, unless a person occupies a shop, stall, bench, compartment, or space of ground in the appellant's market, he is not liable to pay any toll:

Fourthly. We do not find there is any fixed sum for a basket, parcel, or quantity of fruit, fish, or vegetables, named in the schedule to the Wolverhampton Improvement Act, 1853, or the appointed printed table of tolls produced to us, which we find is different from tables in other markets established under the provisions of The

Markets and Fairs Clauses Act, 1847, as they generally name a toll upon each basket, parcel, or quantity, or exempt fruit and fish from toll:

Fifthly. We do not find that there is any clause in the Wolverhampton Improvement Act, to prohibit parties from crying or exposing fish or fruit for sale, or from selling the same from door to door within the limits of the Act, without first going to the market and paying a toll or stallage thereon; or, supposing a trader should require a stall, bench, or space of ground, he can insist upon the local board or lessee of the market finding him this accommodation.

Whereupon the complainant (the appellant in this case) being dissatisfied with our decision, he has, pursuant to the provisions of the statute in that behalf, given us notice that our determination is erroneous in point of law, and required us to state a case setting forth the facts and the grounds of our determination for the opinion of this Court; and he has also entered into a recognisance within the prescribed time and on the usual terms, before us, conditioned to prosecute his appeal.

And hereupon the judgment of the Court of *Common Pleas [*644 is respectfully required whether we the said justices were correct in point of law in our adjudication as aforesaid, and what shall be done in the premises.

Welshy, for the appellant.(a)-Two questions substantially are reserved for the opinion of the Court,-first, whether, as the articles sold by the respondent did not require the seller to possess a hawker's license, he was exempted from the operation of the Markets and Fairs Clauses Act, 1847,-secondly, what is the meaning of the word "toll" in the local Act.

1. The 13th section of the general Act is express: "After the market-place is opened for public use, every person other than a licensed hawker who shall sell or expose for sale in any place within the prescribed limits, except in his own dwelling-place or shop, any articles in respect of which tolls are by the special Act authorized to be taken in the market, shall for every such offence be liable to a penalty not exceeding 40s." The respondent is a person [*645 "other than a licensed hawker." It is true that the articles he sold, fruit and fish,-are such as do not require a hawker's license: but still the party comes within the very words of the section.

2. Then, what is meant by the word "toll." Is it to be confined to toll strictissimi juris, or does it extend to "toll" in the larger sense in which the word is constantly used in these Acts of Parliament? The whole purview of the Act shows that the word is used in its largest (a) The points marked for argument on the part of the appellant were as follows:"1. That the general market-tolls' which by schedule A. annexed to The Wolverhampton Improvement Act, 1853,' and by the table of tolls framed under that Act are authorized to be taken, are 'tolls' within the meaning of the 13th section of the Markets and Fairs Clauses Act, 1847,' 10 & 11 Vict. c. 14:

"2. That therefore the respondent having, on the occasions mentioned in the case, sold articles mentioned in the said schedule A., viz. fruit and fish, within the limits of the Wolverhampton Improvement Act, and not in his own dwelling-place or shop, he, not being a licensed hawker, was liable to the penalties imposed by the said 13th section of the Markets and Fairs Clauses Act, 1847; and that it is no answer to the information, that a license is not required by law for the hawking of fruit or fish:

"3, That the first finding of the magistrates is immaterial."