for toll is not of right incident to a fair or market, and can only be claimed by special grant from the Heddy v. Crown, or by prescription; and if the toll be unreasonable, the grant will be void. Waterhouse, 558. 80. By the statute of Westm. 1. c. 1., it is enacted, 2 Inst. 219. that where persons take outrageous toll, contrary to the common custom of the realm, in market towns, if they do so in a town belonging to the Crown, the King may seise the franchise into his own hands; and if it be in the town of a subject, and the same be done by the lord of the manor, the King shall do in like manner. 81. Where the King grants a fair generally, the grantee may hold it where he pleases, or rather where it can be most conveniently held; and if granted to be held in a town, he may hold it in any place in such town. Dixon v. 82. Queen Elizabeth granted by charter to Henry Curwen v. Curwen, lord of the vill and manor of Workington, 3 East, 588. Salkeld, that he and his heirs might hold, within the said vill, a market every Wednesday for ever. By another charter of the 2 Ja. II., reciting the former charter, and that the market thereby granted had not for many years been used, the King proceeded to grant, ratify, and confirm the same to Henry Curwen, Esq. and his heirs, in the same words, and in as ample a manner as before, infra villam de Workington. The question was, whether the lord of the manor had a right to remove the market-place from one situation to another, within the precincts of the vill of Workington. A ; Lord Ellenborough." If the lord have a grant of a market within a certain place, though he have at one time appointed it in one situation, he may certainly remove it afterwards to another situation, VOL. III. T How Fran claimed. within the place named in his grant. This was long ago settled in Dixon v. Robinson; and in modern times has been acted upon in the case of Manchester market. There is nothing in reason to prevent the lord from changing the place, within the precinct of his grant; taking care at the same time to accommodate the public. Neither is there any authority which says, that having once fixed it, he is compellable ever after to keep it in the same place. In many instances there may be great public convenience in the owner having liberty to remove it, for the buildings in a growing town may take a different direction, away from the old market-place. If the lord, in the exercise of his right, be guilty of any abuse of the franchise, there may be a remedy of another nature. The right of removal, however, is incident to his grant, if he be not tied down to a particular spot, by the terms of it. Till it be removed, the public have a right to go to the place appointed, without being deemed trespassers; but after the lord has removed it, of which public notice was given in this case, the public have no longer a right to go there upon his soil. If a private injury has been sustained by any individual, who has been deceived, by the lord having holden out to him a particular site for the market-place, in order to induce him to purchase or build there, for the convenience of it; that may be the subject of an action to recover damages for the particular injury sustained by that individual; but does not preclude the lord's general right to remove the market.' 83. The franchises which have been treated of in chises may be this title, are of two sorts: First, those which could have no existence till created by an actual grant; such as fairs, markets, a hundred, &c. As to these, a 1 Inst. 114 a. 9 Rep. 27 b. c. 1. claim to them must be supported by showing the grant thereof from the Crown, if within time of memory. But if before that period, then they must Vide Tit. 31. have the aid of some other matter of record, within time of memory, to make them available; as allowances thereof in Eyre, or some judgement of record in the King's courts, in support and affirmance thereof, or some confirmation by the Crown, by letters patent pleadable as a record. 84. The other kind of franchises are those which were originally parcel of the royal prerogative, and do not owe their existence to a grant; such as free chace, park, and warren, &c. To these a title may be claimed from immemorial usage, without the aid of any record for such usage induces a presumption of a royal grant, made before time of memory. And 85. Franchises may be destroyed or lost by a re- How they union in the Crown; by surrender of the person may be lost. entitled to them; by mis-user or by non-user. where franchises are annexed to manors, they are Dissert. c. 3. not lost, though the court baron be lost. $49. 86. It was laid down in the abbot of Strata Mar- Re-union in cella's case, that when the King grants any franchises which are in his own hands, as parcel of the flowers of his Crown, within certain possessions; there, if they come again to the King, they become merged in the Crown, and he has them again jure corona and if they were before appendant, the appendancy is extinct. But when franchises are erected and created by the King de novo; there, by the accession of them again, they are not merged. As if a fair, market, park, warren, &c. are appendant to manors, or in gross, and come back to the King, they remain as they were before, in esse, not merged in the Crown: for they were at first the Crown. 9 Rep. 25 b created and newly erected by the King, and were not in esse before; and time and usage has made them appendant. 1 Inst. 121 b. 87. If A. be seised of a manor, whereunto the franchise of waif, estray, and such like, are appendant, and the King purchases the manor with the appurtenances; now are the royal franchises re-united to the Crown, and not appendant to the manor: but if he grant the manor in as large and ample a manner as A. had it, the franchises shall be appendant, or rather appurtenant, to the manor. Surrender. Mis-user. 88. Franchises may also be destroyed by a surrender of them to the Crown, of which there are several instances. 89. Where the object of a franchise is perverted, and there is either a mis user or an abuser of it, the 12 Mod. 271. franchise is lost. And it is said by Lord Holt, that all franchises are granted on condition that they shall be duly executed, according to the grant. So that if the grantees of such franchises neglect to perform the terms, the patents may be repealed by writs of scire facias. Bro. Ab. Franchise, pl. 14. Idem, pl. 22. 90. Where a person has a franchise to hold a market every week, on the Friday; and he holds it on the Friday and the Monday; in this case nothing shall be forfeited but that which he hath purprised. But he who has a fair to hold two days, and holds it three days, forfeits the whole. So where a man has a market to hold on the Saturday, and he holds it on another day, the market shall be forfeited, and he shall be fined for the misusing. 91. If the King grants to a person a fair, for one day in the year, and the grantee holds a fair two days, and claims this upon process in the Exchequer, he shall forfeit his franchise. But if he claims one day by the patent, and another by prescription, which is found false in the prescription, he shall not forfeit his patent. 92. If a person has several franchises, and the one Idem, pl.. 14. does not depend on the other; there, if he misuses any, he shall not forfeit all, but only those which have been misused. But if one depends on the other, there, if he misuses one, all shall be seised and forfeited. 93. Non-user is also a cause of forfeiture of a fran- Non-user. chise. Therefore, if a vill be incorporated by the King Franchise, Bro. Ab... before time of memory, and the franchise never was pl. 10. & 26. used within time of memory, it is lost. Tit. 31. c. 1. 94. The franchise of holding a court leet will be 2 Hawk. P.C.. forfeited, not only by acts of gross injustice, but c.11. § 5. also by bare omissions and neglects; especially if often repeated and without excuse. Case, W. 283. 95. George Tottersall claimed, at the justice seat Tottersall's of the forest of Windsor, a court leet within his manor w. Jones, of F. The Attorney General desired that it might be inquired, 1. If he had used it. 2. If he had an able steward to discharge the office; for the want of that was also a cause of seisure. 3. If he had officers, and those things which are for the execution of justice, as constables, ale-tasters, &c., and pillory, stocks, and cucking stool, &c. 4. If he punished bakers more than three times, and did not set them in the pillory. All these were causes of seisure, till he paid a fine for the abuse, and replevied his franchise. Mr. Tottersall himself being called and asked concerning his court leet, confessed that he had not used it a great while, nor were there proper officers, or other things for the execution of justice; but he said it appeared by ancient rolls that there had been a leet there. Being asked to what leet his tenants went, he said they |