References from an Expedited Hearing pursuant to R. S. C Order 28 r. 5.. July 23rd , 1982 Russell J. at Chester

Pease & Chitty who were the leading Authors on the Law of Markets and Fairs .

It is always a difficult question to decide whether franchise markets have been superseded by statutory markets as
Pease & Chitty states Parliament

" can either leave the old franchise standing , and place a new Parliamentary right beside it, or it may leave the old franchise standing in incorporate certain statutory incidents into the old franchise , provided it makes its intention clear , or it may extinguish the old franchise , either expressly or by implication , and substitute in its place , not a franchise properly so called but Parliamentary rights and obligations as distinct from a franchise It is necessary in each case to look at the Act itself to ascertain what the legislator has chosen to do , and it is a question to be determined by a consideration of the whole of the Act whether the rights there by given are intended to supersede the rights which previously existed. "

Herbert Chitty February 5th 1907

" So far as the instructions enable me to form an opinion upon the point , I am of opinion that such franchise market and fair rights as the Corporation had were merged in and extinguished by the statutory rights given by the Act of 1845 . (See Windsor Corporation V Taylor (1898) (AC41) (1898) ( 1 QB 186 ) Manchester Corporation V Lyons 22 CH. 287 Same V Pebberly Ibed 294 N. It is not entirely satisfactory to advise upon this point without first knowing definitely what the franchise rights were, but upon comparing the provisions of the Chester Act of 1845 with those of the Manchester Act of 1844 upon which the decision in Lyons case ( 22Ch. D ) went , I find so much similarity between them that I think that case must govern this, whatever were the franchise rights formerly enjoyed by the Chester Corporation "

In Pease & Chitty page 14 the following passage appears

" Whenever an uninterrupted modern usage to hold a market or fair be proved the property direction to a jury is they ought to infer that the market has existed from time immemorial unless there is evidence that it has not done so and a usage for twenty years if inferring an immemorial right . If however , it is shown that the usage arose since 1189 , then , however long the modern usage may have lasted , a claim to a title by prescription necessarily fails .But , if the usage has continued for any considerable length of time , the right to hold a market or fair may , never the less , be established . It is always possible that a franchise was granted within the time of legal memory , and that the instrument of grant has been lost ; and this law fully recognises this possibility . "
Later at page 15

" Accordingly , although it is shown that there was a time within legal memory at which the market or fair did not exist , yet the fact that for a long time past it has been held , openly , uninterruptedly , and as of right , is always evidence from which a jury may infer that it had a lawful origin in a lost grant . "

the following passage appears ;

" When a market has been created by a special Act, the question may arise whether the whole law of the market must be sought for in that Act and such Acts as are incorporated there with , or wether the statutory market can have any incidents of a common law market , in addition to the rights expressly attached to it by such Acts , The better opinion seems to be that are incidents of a common law market are incidents of a statutory market , except in so far as they are expressly or impliedly varied or taken away by the statue . "

Loc Cit At page 62 where the following passage appears

" If a new market or fair is established within the common law distance ( i.e. seven miles ) of an old market or fair , and be held on the same day , the new market or fair is to be a nuisance to the old . " Again , at page 72, of the above work , the following passage appears ; " Acts which would amount to a disturbance of a market established by Royal grant may also constitute a disturbance of a market established by statue , and persons disturbing a statutory market may be liable to an action for damages or an injunction . The law with regard to a disturbance not altered ,in the case of any particular market , by the mere fact that the Charters of the market were granted with the consent of Parliament or that the market was originally established under an Act of Parliament or has subsequently become merely statutory ."