King's patents, which concern lands, privilege, or other thing granted to a subject, corporation, or any other (a).

Sixthly, The mode of vacating the patent by scire facias will be considered hereafter. Besides which its defects may be exposed and established by the verdict of the jury against the patentee, in an action for infringing his right: or in answer to his suit in equity for an account and injunction to prevent the further use of it. The statute of monopolies, 21 Jac. 1. c. 3. s. 2.. declares that monopolies, letters patent, &c. and their force and validity," ought to be and shall be examined, heard, tried, and determined by and according to the common laws of this realm, and not otherwise."

2. Marts and Fairs were originally instituted for the benefit of the public, and the better regulation of trade. As protector of commerce, the King alone possesses the power of creating markets and fairs; nor can any one claim them but by grant from the Crown or by prescription, which supposes such grant (b); though they may exist by way of royal ordinance, without being granted to any one in particular (c). It was observed by Lord Mansfield (d), that the reason why a fair or market cannot be holden without a grant, is not merely for the sake of promoting traffic and commerce, but also for the like reason, as in the Roman law, for the preservation of order and prevention of irregular behaviour; "ubi est multitudo ibi debet esse Rector."

The King is also the sole judge where markets and fairs should be kept; and therefore it has been laid down, that if he grant a market, to be holden in any particular place, which happens to be inconvenient for the public, yet it must be holden in the place appointed by the King (e). If no place be specified in the grant on which the market or fair is to be holden, the grantee may keep it where he pleases, so that he do not prejudice the rights of other grantees or create a nuisance to the public. Where the grant states that the fair or market shall be holden in any particular town, &c. it may be held in any part of it; and though the grantee hold it for up

wards of twenty years in one spot, he may remove to another within the precinct of the grant. And where a market is granted generally to a corporation, they may remove it to any place within the limits of their jurisdiction, though immemorially holden in a certain place (a). By the statute 13 Edw. I. c. 5. no fairs or markets shall be kept in churchyards.

It is most important to remember that the King does not grant a market or fair without a writ of ad quod damnum being previously executed (b). Even if that be done (c), the Crown cannot enable a subject to erect a market or fair so near that of another person as to affect his interests therein, though the new market or fair be holden on a different day, or which occasions a damage in any respect to the public (d). Nor can the King grant that a shop shall be a market overt (e). The mode of avoiding grants from the Crown will be considered hereafter (f). It may not be irrelevant to remark, that if the grantee of a market under letters patent from the Crown, suffer another person to erect a market in his neighbourhood, and use it for the space of twenty-three years without interruption, he is by such user barred of his action on the case, for disturbance of his market; but this presumptive bar does not it seems apply against the King (g).

By the general grant of a market or fair, the grantee is authorized to hold, without any express words to that effect, a court of record, called the court of pie powders, as incident to the market or fair, and for the advancement of justice therein (h). But toll is not incident of common right to a fair or market; therefore, if the King do not expressly authorize the grantee to take it, he cannot legally do so, though the grant contain the words with all its appurtenances,' and in such case the market or fair is free (i). Where, however, an old market or fair, in respect whereof toll was due by prescription, comes

(a) 3 Mod. 108. 3 East, 538. 1 Selw. and B. 67.

(b) Bac. Ab. Fairs, A. Burr. 1818. (e) 2 Ventr. 344.

(d) 2 Saund. 174, n. 2. 2 Inst. 406. Com. Dig. Market, C.

(e) Mo. 625. See 4 Taunt. 524. (f) See post. ch. 12. s. 3; ch. 16. s. 5. See also Burr. 1812, as to a 2uo Varranto for setting up a market without authority.

(g) 1 Bos. and P. 400. 2 Saund. 175, note. 3 East, 298. 6 Ibid. 456. See post. ch. 14. as to the Crown being barred.

(h) 2 Inst. 220. 4 Ibid. 272. Bac. Ab. Fairs, C. 4 Taunt. 533. Nature of it, Com. Dig. Market, G.

(i) 2 Inst. 220. 2 Lutw. 1336. Palmer's R. 78. Wood's Inst. 222. 6 East, 438, note. Stra. 1171.

to

to the King, and he grants the market cum partimentiis, the toll passes (a). The King may clearly enable the grantee to take a reasonable toll; and, it seems, the exact toll to be taken need not be specified in the patent (b), and that usage may fix the identical charges (c). However, apt and certain words must be used in the grant, if it profess to point out what toll is to be taken; and, therefore, a grant of such toll to be taken at two bridges, as is used to be taken, ibi et alibi infra regnum Anglia, has been held uncertain and void (d). The King may, after he has granted the fair or market, grant to the patentee the right to take toll in respect thereof; but in such case there must be a quid pro quo, some proportionable benefit to the public (e).

If an unreasonable toll be granted, the patent is void as to the toll, in toto, and the market or fair becomes free (f). So, if the patentee of a market or fair take outrageous toll, (the reasonableness of which, under all the circumstances, is a question determinable at law (g)), he forfeits the whole toll in futuro ; and the King may, on office found (h), seize the market or fair into his own hands till it be redeemed (i). But the market or fair itself is not forfeited in such case (k). Toll cannot be taken for goods not brought to a market, or sold therein by sample only (2).

The King is not liable to pay toll (m), nor is he bound by a sale in market overt (n). He may grant an exemption from tolls due to himself, or which may thereafter become due in respect of a subsequently granted fair or market, but not from toll due on account of an old fair or market (0).

As just observed, a market or fair is not absolutely forfeited

(a) Palmer's R. 78.

(b) See Ibid. 86. This was the opinion of three judges. See also the Register, p. 103. But Montague, C. J. held the contrary; and in Palm. 79, said that it was agreed by Popham in Heddy's Case, (see Heddy v. Wheelhouse, Cro. El. 558, and 591.) that the King ought to determine the quantum of toll, Moore, 474, S. C. In Osbuston v. James and others, 2 Lutw. 1377, the same objection was taken; but judgment was given on another point. (c) 5 East, 2.

by the grant of unreasonable toll, or by the owner taking such toll. It seems also, that it is not forfeited by the owner holding it longer than the time allowed by the patent, the statute 2 Edw. 3. c. 15. merely providing, that the King may in such case (on office bound (a))," seize the fair into his own hands, there to remain till the owner pay a fine, &c." which implies, a seizure and not a forfeiture (b). It appears, however, that if a market or fair be holden on a different day, and not at all on the day allowed, or if there be any abuse in a matter by law, incident to a market or fair, as in the court of pie powders, an absolute forfeiture is incurred (c).

3. The regulation of weights and measures, is ranked by Sir William Blackstone among the rights of the Crown (d); but, (as observed by Mr. Christian,) with some degree of impropriety; for, from Magna Charta to the present time, there are above twenty Acts of Parliament to fix and establish the standard and uniformity of weights and measures (e).

4. As to Money, Coin, &c.-As the regulator and protector of commerce, of which money is the medium, the King alone is entrusted with the right to coin money, to fix its denomination or value, and to render it current (f). His Majesty may legitimate foreign coin, and make it current here, declaring at what value it shall be taken in payment (g), and may, at any time, decry any coin of the kingdom, and make it no longer

current.

This prerogative may be considered with reference—1st, to the materials; 2dly, the impression; and, 3dly, the denomination or value of coin.

1. Sir Edward Coke asserts (h) that the money of England must consist either of gold or silver, and none other was ever

(a) 2 Inst. 222.

(b) Ibid. See Com. Dig. Market, I. 2 Rol. Ab. 124. A similar construction has been also applied to the statute Westminster 1. c. 31. as to taking excessive toll. Ante, 195.

(c) Ibid. Palmer's R. 82. (d) 1 Bla. Com. 274.

(e) Ibid. 276, note 16. See Magna

Charta, ch. 25, and the statutes cited 3 Bac. Ab. 113, title Fairs, C.

(f) 5 Co. 114. Dav. 19. 2 Rol. Ab. 166. Plowd. Com. 316. 1 Bla.. Com. 276. Hal. Hist. P. C. 188.

(g) 1 Hal. P. C. 197. 1 Bla. Com. 278, see 1 March 6. 5 El. c. 11. 18 El. c. 1. 43 Geo. 3. c. 139. s. 3. (h) 2 Inst. 577.

issued till 1672, when copper farthings and halfpence were coined by Charles 2. and ordered by proclamation to be current in all payments under the value of sixpence, and not otherwise. But this copper coin is not upon the same footing with the other in many respects, particularly with regard to the offence of counterfeiting it (a). It seems therefore that the King may make money of other materials than gold, silver or copper, though such money would not in various respects be protected by laws which relate to other coin.

2. As to the impression, the stamping thereof is the unquestionable prerogative of the Crown; for though divers bishops and monasteries had formerly the privilege of coining money, yet, as Sir Matthew Hale observes (b), this was usually done by special grant from the King, or by prescription, which supposes one; and therefore was derived from and not in derogation of the royal prerogative. Besides that, they had only the profit of the coinage, and not the power of instituting either the impression or denomination; but had usually the stamp sent from the Exchequer.

3. The denomination or value for which the coin is to pass current, is likewise in the breast of the King; and if any unusual pieces are coined, that value must be ascertained by proclamation. In order to fix the value, the weight and the fineness of the metal are to be taken into consideration together. When a given weight of gold or silver is of a given fineness, it is then of the true standard, and called esterling or sterling metal (c).

Whether the King can legally change the established weight or alloy of money, without an Act of Parliament, seems not to be quite clear. By the statute 25 Ed. 3. st. 5. c. 13. it is "accorded and established that the money of gold and silver which now runneth, shall not be impaired in weight nor in alloy; but as soon as a good way may be found that the same be put in the antient state as in the sterling." Lord Coke (d), in his comment of articuli super cartas, ch. 20, 21. cites, among other acts and records, this statute of the 25 Edw. 3. and the Mirror of Justices, ch. 1. s. 3. (" Ordein fuit que nul roy de ce

(a) 1 Bla. Com. 277.

(b) 1 Hist. P. C. 191. 1 Bla. Com. 277.

(c) Ibid. 278, and see Ibid. note 10. Folkes on English Coins.

(d) 2 Inst. 575, 577.

realme