tunity of taking him afterwards, a person might be justified in acting on slighter information than in a less urgent case.]

D. Seymour, Q. C. with him Brandt, for the respondent. Reasonable and probable cause depends very much on the circumstances of each individual case. What would be a reasonable and probable cause for taking out a summons would not be reasonable and probable cause for giving a person into custody. [BLACKBURN, J.-The two cases stand on a wholly different footing.] It is clear that a bona file belief is not sufficient unless it is also a reasonable belief. It was not reasonable in this case to act upon the mere hearsay statement of Hinton. It cannot be always sufficient to act upon a statement of facts which, if true, would constitute reasonable and probable cause. Through how many mouths may the statement come? [LUSH, J.-Was it not necessary under the old system of pleading to allege the existence of facts constituting reasonable and probable cause ?] It may be a question whether anything but actual facts can justify. There is a distinction in this respect between false imprisonment and malicious prosecution; if a man takes the law into his own hands he acts at his peril. [BLACKBURN, J.-I think it was always sufficient to aver a felony to have been committed, and then to show reasonable grounds for suspecting that the defendant had committed it. A constable must often act on the evidence of others, which may be false and erroneous. I am not aware that there is any distinction between the case of a constable and a private person except that in the case of the latter a felony must have been committed in order to afford a justification. It must no doubt depend upon the circumstances of the case whether it is reasonable to act upon a hearsay statement. It cannot always be 80. A policeman has often to act in haste. But here the plaintiff was a person who lived in the neighbourhood, and was well known. There was no reason for giving him immediately in charge; Robinson could easily have been applied to. He

cited

Broad v. Ham, 5 Bing. N. C. 725.

BYLES, J. delivered the judgment of the court.We are all of opinion that the judgment must be affirmed. Where there is a ready and obvious mode of ascertaining the truth by inquiry, the absence of such inquiry is an element in determining the presence or absence of reasonable and probable cause. What will amount to such reasonable and probable cause depends upon the circumstances of each particular case, and we cannot say that the Lord Chief Baron was wrong in holding in this case that the failure to make inquiry of Robinson amounted to absence of reasonable and probable cause for giving the plaintiff into custody.

Judgment affirmed.

EXCHEQUER CHAMBER. Reported by T. W. SAUNDERS, and J. SHORTT, Esqrs.

Barristers-at-Law.

ERRORS FROM THE QUEEN'S BENCH.

Feb. 1 and May 11, 1868.

[Ex. CH.

of vegetables exposed for sale in a street within the town and manor of Cheltenham. The manor of Cheltenham was granted by Henry III. to the inhabitants, together with a market and fair there for a term of years, and Charles I., in the third year of his reign, by letters patent, granted to C. Herbert and others, their heirs and assigns, the said manor, with all and all manner of tolls, and all and singular tolls by reason of all and singular markets, fairs, and marts within the said lordship. From time immemorial until 1786 there was a market-house in the High-street, Cheltenham, belonging to the lord of the manor, and various tolls, as well of the market as for articles hawked about the town, and for stalls and standings for the sale of articles, had been immemorially paid. It was in evidence that the toll in question had been received as long back as living witnesses could remember, and that such toll was publicly exhibited in a conspicuous part of the market. The Court having power to draw inferences of fact:

Held, that supposing the toll by reason of its amount, or upon any other ground, could not be held to have been payable and paid as early as the reign of Richard I., yet that, if it could have had a lawful origin within time of memory, such lawful origin ought to be presumed; and that in the present case, from the facts stated, the court was justified in presuming a lawful origin of the toll by means of a contemporaneous dedicution of the streets to the public, and a reservation of this toll on the part of the Crown, such dedication and reservation having been made within time of legal

memory.

A toll reasonable in amount, but varying from time to time according to the value of money, is valid in point of law.

In this case, which was argued in the court below, by Mellish, Q. C. (Sawyer and Harrington with him) and Macnamara, the court, upon the authority of Bryant v. Foot, 16 L. T Rep. N. S. 55, then recently decided by them, held, that the claim of a customary toll of 1s. per load of vegetables brought into the town of Cheltenham and exposed there for sale, could not be supported.

Harrington now appeared for the plaintiff in error, and

Macnamara for the defendant.

Cur, adv. vult. The facts and arguments sufficiently appear from the following judgment:

which was argued before this court on appeal from KELLY, C. B.-In the case of Lawrence v. Hitch, the Court of Queen's Bench, at the last sittings in error, I have now to deliver the judgment of the Court. The plaintiff in this case claims a toll, vegetables, exposed for sale in a street within the called a street toll, of 1s. in respect of a cartload of town and manor of Cheltenham, and for which no toll had been before paid in the market. The plaintiff is the lessee, under a lease, of tolls commonly called the street tolls, and also of the markets of the town of Cheltenham, granted to him on the 2nd Sept. 1863 by Robert Sole Lingwood, lord of the manor, and who holds the manor under a conveyance from Lord Sherborne, of the 7th Jan. 1863. Lord Sherborne had been lord of the manor from 1813, until the making of the above

(Before KELLY, C. B., WILLES, J., CHANNELL, B., conveyance to the plaintiff. The manor of Chelten

KEATING and M. SMITH, JJ.)

LAWRENCE v. HITCH.

Toll-Amount of-Immemorially taken-Legality of
Varying in amount.

The plaintiff claimed as lessee of the street tolls and of
the market of the town of Cheltenham a toll, called a
street toll of one shilling, in respect of each cartload

ham was granted by Henry III. to the inhabitants, together with a market and fair there, for a term of four years from the year 1220. King Charles I., in the third year of his reign, by letters patent under the great seal granted to C. Herbert and others, their heirs and assigns, the manor of Cheltenham, with all rents of assize, free and customary lands within the lordship or manor,

Ex. CH.]

LAWRENCE v. HITCH.

[Ex. CH.

and, inter alia, all and all manner of tolls within the | payment, and so put an end to the objection of lordship, manor, and hundred of Cheltenham, and rankness. But even if this, or any other objection all and singular tolls by reason of all and singular could prevail, treating the claim as immemorial, it markets, fairs, and marts within the lordship, is clear that we may dispense with the claim by manor, and hundred of Cheltenham, with all customs prescription, and presume a lawful origin of the toll and tolls within them, and the tolls of markets, by means of a cotemporaneons dedication of the fairs, and marts so granted by the said letters street to the public, and a reservation of this toll on patent became vested in 1806 in the then Lord the part of the Crown; such dedication and reserSherborne, and passed from him through his suc- vation having been made within time of memory. cessor in the title, as before mentioned, to Lingwood, Whether, therefore, the toll be claimed by prescripthe lessor of the plaintiff. The case finds that from tion, or to have been granted or reserved within time immemorial until the year 1786 there was a time of memory, we think that the claim is sustainmarket-house in the High-street of Cheltenham able, unless the doctrine of rankness apply, and the belonging to the lord of the manor, and that various amount of the toll (1s. per cartload) he considered tolls, as well of the market as for articles hawked rank, in which case the claim can be maintained about the town, and for stalls and standings for the only upon a grant or reservation within time of sale of articles erected in the street, has been memory. It has been doubted whether a sum immemorially paid. In 1786 the public local Act certain is not necessary upon a grant or reservation (26 Geo. 3, c. 116) was passed for paving and light- of toll; but the contrary was held by three judges ing the town of Cheltenham, under which the against one in the case of The Corporation of Maidenmarket-house was pulled down, and a new market-head (Palmer's Reports, p. 86), and in the case of house erected. By the 43rd section of this Act it Wright v. Brewster (King's Bench, Nov. 5, 1832), is enacted that nothing in this Act shall extend to Gunning on Tolls, pp. 62, 63, where upon a motion prejudice the lord of the manor of Cheltenham, or to enter the verdict for the defendant after a trial the lord of the fairs and markets, of any power, at Hertford, before Lord Tenterden, a toll was privilege, franchise, or authority, but that all such claimed of a penny on the sale of a pig in a market shall be exercised and enjoyed in as full and ample and it appeared that the amount of toll had not been a manner as if that Act had never been passed. A uniform during the period of sixty years, to which similar provision is contained in the 125th section of the evidence extended; but at one time 6d. per the 46 Geo. 3, c. 117, passed in the year 1806, and again score, at another 4d., and latterly 1d. each had been section 40 of the 1 & 2 Geo. 4, c. 121 (1821), and taken on the sale of pigs. Taunton, J. during the the 133rd section of the 15 Vict. c. 50 (1852), are argument expressed an opinion that under a grant to the same effect. In 1807 the Cheltenham Com- of reasonable toll, or under a prescription which missioners, appointed under the Act of 1806, became supposes such a grant, the amount might vary from the lessees under Lord Sherborne of the tolls of the time to time according to the varying value of market and town; and the commissioners under that money, and the court sustained the verdict, estabAct and the subsequent Acts had taken the tolls of the lishing the claim to toll, on the ground that the town and markets, which had also been subsequently court could not take upon itself to say that the let by auction. The tolls had been thus taken of amount of the toll was unreasonable. This case dean amount appearing by printed handbills, and upon termines that a toll reasonable in amount, but painted boards set up for the purpose from 1806 varying from time to time according to the value of until the present time. Upon one of the boards money, is valid in point of law. So in Shepherd v. exhibited in 1841, it appears that a toll was taken Payne, 31 L. J. 297, C. P., where a fee was claimed payable by all persons hawking about the town, by the registrar of the Court of the Archdeacon fish, fruit, vegetables, or any other article for which which had been immemorially taken, but had varied no toll had been before paid in the market, of 1s. considerably from time to time in amount, it was for, inter alia, every cartload; and the case expressly held by the Court of Common Pleas that the claim finds that for many years previous to 1841, as long to the fee might be sustained, if of reasonable as living witnesses can remember, and continuously amount; Willes, J., in delivering the judgment of down to the present time, a similar board with the court, observing, "A fee need not necessarily similar words and figures has always been fixed in be of a fixed and ascertained, but may be of a reasona conspicuous part of the market-house at Chelten- able amount." And this doctrine is affirmed by ham for the time being. We think, having power the same court in the case of Mills v. The Mayor of to draw inferences of fact, that upon this evidence Colchester, 36 L. J. C. P., pp. 210 to 216; and the we ought to find, as indeed in substance the arbi- decision in Shepherd v. Payne, approved and held to trator has found, that this toll has been taken from be supported by many authorities: Blackstone's time immemorial; and further, supposing that by Commentaries, p. 78, Com. Dig., Toll E.; Drake reason of its amount, or upon any other ground it v. Wiglesworth, Willes, 654; Gard v. Callard, 6 cannot be held to have been payable and paid as M. & S. 69; Ballard v. Gerard, Holt, p. 596, and early as the reign of Richard I., we are of opinion Fuller v. Say, Willes, p. 629. If, therefore, this toll that if it can have had a lawful origin within time be claimed as immemorial, and the objection of memory, such lawful origin ought to be presumed. of rankness could be held to apply by reaIf, however, it is to be considered as a toll claimed son of the amount of 1s. it is an to have been taken from time immemorial, and the to that objection that the claim is to be objection of rankness be made on the authority of a reasonable toll only, and that the amount Bryant v. Foot, and supposing that objection to apply may vary from time to time with the value of to a toll at all, we must take the finding altogether; money. But the claim may also be sustained as to and it appears as part of that finding, and of the a toll granted or reserved within time of memory presumption so found, that no less than 2s. 6d. was on the ground that upon the facts stated we may pretaken as a toll or payment for the use of the ground sume a dedication by the Crown between the time by placing upon it a stall for the sale of provisions, of Henry III. and Charles I. of the streets and ways and payable to the occupier of the house opposite to within the town to the public, which would constiwhich the stall was placed. If then we are bound tute a good consideration for a grant or reservation by these findings, and must take the streets and of the tolls now claimed. It has also been argued markets to be immemorial, so we must admit the that this toll is bad as being a toll for the mere use payment of 2s. 6d. for a stall, which, if really paid of a public way; but my brother Willes has justly in the time of Richard I. would make a toll of 1s. observed that this is not a toll for passing and for a cartload of provisions a perfectly reasonable repassing, but that it imports a licence to rest and

answer

Ex. CH.]

BRYANT v. FOOT.

[Ex. CH.

ment of the Court of Queen's Bench. The defen- I think necessarily applies to every case of a fixed dant, the rector of Horton, in the county of Buck- money payment claimed as immemorial, and which inghamshire, claims, by prescription, the fee of 10s., must have existed before the time of memory; and as payable to the rector, and 3s. to the clerk, upon looking to the difference in the value of money, we every marriage celebrated in the parish, and the hold it to be impossible that such a sum as 13s. question is whether this claim can be maintained. should have been payable as of right upon every The evidence is that from 1808 until 1854 these marriage in a small rural parish in England in the fees of 10s. and 3s. have been received and paid time of Richard I. But it is contended, on the part (with some slight variations, which may be dis- of the defendant, first, that this test of the value missed from the case as immaterial), upon all mar- of money applies only to cases of modus. We find, riages solemnised in the parish, and the question is however, no authority whatever for this proposition. whether the court (who have the power of a jury in In reason, and upon principle, it is impossible to dealing with the facts) should hold upon this evi- distinguish between the payment of a fixed sum dence that the claim upon the prescription is sus- upon a composition for tithes, and as a fee upon the tained. The majority of the judges of the Queen's solemnization of a marriage, or upon any other conBench have determined that it is not, and we are sideration or occasion of the like nature. And of opinion that this judgment should be affirmed. Lord Campbell appears to have taken this for The true principle of the law, as applicable to this granted when he applied this test to the fee payable question, is, that where a fee has been received for upon admission to a copyhold, held in the case of a great length of time, the right to which could Treherne v. Gardiner, 5 E. & B.913, 940. Here, then, have had a legal origin, it may, and ought to be, the fact, not indeed expressly proved in evidence, presumed that it was received of right during the but of which, as observed, the court will take whole period of legal memory; that is, from the judicial notice, that the difference in the value of reign of Richard I. until the present time, unless money is so great as to render it certain that this the contrary is proved. In this case, the right to payment cannot have been made in the time of these fees may have had a legal origin before the Richard I., is proved, and, as we think, proved contime of memory, and the evidence that they have clusively, to rebut the presumption arising from been taken in modern times, during a period of the modern usage during fifty years of an immenearly fifty years, leads to the presumption that morial payment. Jenkins v. Harvey (ubi supra) is they were lawfully taken in the time of Richard I., cited as an authority for the defendant upon this unless the payment at that time be disproved. point, but the court there held, and we think rightly But we are of opinion that, considering the held, upon the evidence in that case, that 4d. per difference of the value of money in 1189 and chaldron for the metage of coal, and which inthe present time, of which the court will take cluded, or may have included, the use of a port, judicial notice, it is impossible that the pay- might well have been received in the time of ment of such an amount upon every marriage in Richard I., and was therefore not open to the objection this parish can have been made at that period, that of rankness. Besides, it was possible in that case, the objection of rankness therefore applies, that the that the port might have been granted with the claim is negatived, and that the plaintiff, who seeks metage of 4d. as a port due within the time of to recover back this fee which he has paid, is entitled legal memory, and so that the sum was recoverable to the judgment which he has obtained. From the although not immemorially taken. Shepherd v. Payne importance of the question, however, and the diffi- is also relied upon by the defendant, but there the culties with which it is surrounded from the pecu- fee claimed by the registrar of the archdeacon for liar and anomalous state of the law, and from the services performed upon a visitation was not a fixed high respect due to the judicial opinion delivered by sum, but a reasonable sum varying from time to Blackburn, J., who dissented from the judgment, it time though taken immemorially in respect of those becomes necessary that we should carefully consider services. And we must distinguish between a fixed and observe upon the objections to the judgment fee and a reasonable fee. Either may be claimed by adverted to by Blackburn, J., and which have been prescription, and if a reasonable fee be prescribed urged with great ability at the bar upon the argu- for, the amount may vary; indeed, to be reasonable, ment before the court. It must be admitted, upon it should seem that it must vary; for that which is the part of the plaintiff, that the receipt of this fee reasonable now can scarcely be said to have been for nearly fifty years, is evidence that the pay- reasonable in the twelfth century. Upon a careful ment is immemorial if it can have had a legal consideration, therefore, of the whole of the authoriorigin, and the contrary be not proved. Then a legal ties bearing upon this case, we are unable to find origin may be presumed. The payment of these any one instance of the right to a fixed payment fees was originally voluntary, but where they have being sustained as immemorial where the amount been paid before the time of legal memory, the title was so large as to render it impossible, or incredible to them as a customary payment is established. But that it should have been payable as of right in the the payment must be immemorial, that is, they reign of Richard I. The numerous decisions cited must have been paid in the time of Richard I., and as authorities to the contrary will be found to be it is clear, upon all the authorities, that they can be cases either of a lost grant or charter, or a convey. deemed immemorial only if the payment at that ance which may have been made within time of period be not disproved. In Jenkins v. Harvey, 1 C. memory, or of a claim as in Shepherd v. Payne, of a M. & R. 877, 894, the language of Parke, B. is this: reasonable sum varying in amount according to the "From uninterrupted modern user a jury should find value of money, or other circumstances. If we the immemorial existence of the payment, unless assume, as insisted by Mr. Coleridge, that in all or some evidence is given to the contrary." And the the greater number of these causes, neither judges same case in 2 C. M. & R. 393, to the same nor juries have in reality believed that a grant or a effect. In Shepherd v. Payne (12 C. B., N. S., 414, charter, or a conveyance, had ever, in fact, been and upon appeal 16 C. B., N. S., 132, 135) Black- made (or in another class of presumptions that burn, J., in delivering the judgment of the Court of customs found to be immemorial had actually Exchequer Chamber, observes, "Where there has existed in the time of Richard I.), still, if this been long continued, modern user of a right state of the law created by the judges to quiet capable of a legal origin, the existence of that legal titles, to protect rights derived from long user origin would be presumed, unless the contrary be or enjoyment, and, if so, to supply the want of proved." This qualification, "that the contrary a just and enlightened Legislature, be established be not proved," pervades the authorities, and we by these decisions, we must accept it as we

Ex. CH.]

BRYANT v. FOOT.

[Ex. CH.

find it, and hold that long user or enjoyment | and it is not reasonable that such a sum should be where a legal beginning is possible, shall be demanded as of right from such a person for a duty equivalent to a legal right, and that the belief or which properly should be performed gratuitously. disbelief in the actual existence of the origin If this is a reasonable amount it is unreasonably presumed, is not an element in the question. But low for the adjoining parish. Further, I do not the law thus explained and defined is perfectly con- believe it has been demanded as of right, and paid sistent with the proposition contended for by the at any time. It may have been asked for and plaintiff here, that where to establish the right insisted upon in certain cases, but I feel convinced claimed a state of things must actually have that in many it has not. Evidence was given of existed in the time of Richard I. which the court thirty marriages from 1808 to 1854, but it is not or jury are satisfied cannot, by any possibility, said there were no other marriages in that period. have existed at that time, no length of user or en- The only conclusion I draw is, that the case is a joyment will support the claim. Where a lost common case of persons holding an office assumed grant or charter or conveyance is presumed in sup- by those who deal with them to know the rights of port of a claim to ancient rights or any other ease- the office, always ready to encroach, and to turn a ment, or to give effect to the possession or enjoy- gratuity into a duty; and whenever the customary ment of land for twenty years or more, or to the gratuity was raised in any particular instance by the long receipt of a port due, or of a fee or any other liberality or piety of the party, ready to treat that as a payment, and which instrument or payment may due in the next case, and obtain it by mixture of rehave been made or originated within time of quest, demand, and appeal to the then payer that he memory, it is at least possible that it may have would not be less liberal than the last. It must not be actually existed, and the law, while it gives effect supposed I apply this remark to the defendant, or to claims resting merely upon long possession or any in particular of his predecessors. I have no user, is at least free from the absurdity of sup- doubt the fee has not been pressed when it could posing an impossibility. But where, as in the case not well be paid, and that it is only demanded as of of a modus or marriage fee, the law is that the right now to determine a question of right. Besides, payment claimed must have begun before the time the person who receives is, I believe, the clerk, who of legal memory, and the amount is so large that probably would have no knowledge whether anyit cannot have been possibly made at so early a thing was due in point of law or not, but would period; to presume that it was made wou'd be to have a strong interest in claiming that there was. fly in the face of the law, and to presume an im- But suppose that I got over this difficulty, and that possibility. We have thought it right to deliver the fee was of such an amount that it might well our opinion upon the important question raised, be paid now, the question would still remain whether and alone determined in the Court of Queen's Bench, I could find as a juryman, that it was due as of but if it were necessary to consider the other points right in the reign of Richard I. Now I am perfectly presented to us in the argument at the bar, we satisfied it was not, and I adopt my brother should be prepared to hold that the marriage fee Mellor's language: "Common sense revolts at must be a fixed fee, and cannot be of a varying the idea. I cannot merely say that I am not amount, and that were it otherwise the evidence in satisfied it existed, but I am compelled to say this particular case would not support the claim to that it did not and could not have existed." a merely reasonable or varying fee; and further, body believes it did, nor in the reign of Edward we should pause before we could determine that the VI., when we bear in mind the price of articles sum of 13s. is a reasonable fee to be demanded and mentioned in the statutes of that reign. The quesenforced upon every marriage in a country parish, tion, then, is whether, under these circumstances, we even at the present day. I believe I may state that are called upon to do violence to our conscience by the whole of the judges who have heard the argu- finding that this custom dated back to the time of ment, with the exception of my brother Keating, legal memory. When we are convinced that such concur in the judgment which I have now de- cannot be the case, why am I to find the contrary livered, My brother Bramwell, and, I believe, of what I am satisfied is the truth? I would, if the my brother Byles, may not adopt the reasons which law ordered me, leaving the responsibility to the law. are here assigned for the opinion delivered, and I If an Act of Parliament said that in certain cases a believe my brother Bramwell desires to state his jury should find black to be white, though one own opinion, and that of my brother Byles. In would regret such trifling with an oath and the this case the judgment of the Court of Queen's administration of justice, the jury ought so to find; Bench will be affirmed. but that is not the law-I am not told I am bound, but advised so to find. Then I regret this advice. It seems to me no technical question of rankness properly arises here. I believe this fee was not paid two centuries ago. I am satisfied it was not four centuries back, from the value of money at that time. How can I shut my eyes to this consideration, or, if I receive it, decline to be influenced by it? The doctrine of rankness is not a rule of law, it is a question of evidence. It arises as much with respect to one question as to another. If the defendant covenanted to pay all fees lawfully payable in the reign of Edward VI., rankness, or a question analogous, might well arise. I wish to add, I consider this decision quite consistent with the case of Shepherd v. Payne. I think, therefore, the judgment should be affirmed. It is said this will cause a deal of mischief, and deprive persons of property supposed to be perfectly safe; it is obvious that it will only affect usurped claims. If that is objectionable, the Legislature must set it right. I say, with my Lord Chief Justice, "such is the law," and while it so continues I consider myself, in administering it, as bound to administer it as I find it; nor do I feel

BRAMWELL, B.-Not dissenting from anything that my Lord Chief Baron has said, I desire to deliver my own opinion in this matter. My brother Byles has desired me to say that he agrees with my conclusion, and substantially for the same reasons that I am about to give. In this case the question is, whether 13s. is a legal fee or accustomed duty payable on the celebration of a marriage in the parish of Horton, and if not, whether there is any and what fee? The latter part of the question may be disregarded, it not being suggested that any fee can be demanded as of right if the fee of 13s. We are to perform the duties of judge and jury. In the former capacity it is agreed that we are to say that no fee or due is of common right, but that it may be due if immemorially paid, namely, from the time of Richard I., and if a reasonable fee, this is the law we are to pronounce, and to entitle the defendant to a verdict, those are the facts we are to find. That being so, I say, unhesitatingly, that I cannot find this is a reasonable fee. It is a week's wages of an agricultural labourer; MAG. CAS.-VOL. V.

cannot.

I

No