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Summary of the legal case made in 1833 on behalf of T.G.B. Estcourt Background Case The Parish of Dursley consists of the Town and Manor of Dursley and of the Tithing and Manor of Woodmancote - the Manor of Dursley extending itself over about one half of the Parish and the Manor of Woodmancote over the other half. The Manor of Dursley and the Tolls were purchased by one of the Estcourt Family in the reign of Queen Elizabeth and have since continued in that family. Mr Estcourt is now Lord of the Manor of Dursley and holds a Court Leet yearly under a grant from the Crown. The Manor of Woodmancote has also a Leet which is held annually and belongs to another person. In the year 1758 the Tolls of the above Market and Fairs and also the Manor of Dursley became vested in the late Thos. Estcourt Esqre. as Tenant for life under the Will of a distant relative and upon his death in 1818 the same became vested in the present proprietor T.G.B. Estcourt Esqre. as tenant in tail who has since suffered a Recovery and settled the same to his own use. Besides the Market held under the grant on Thursday, another is now held on the Saturday in every week and has continued about 40 years. This latter market is generally confined to Butchers who pay a weekly sum for the use of their stalls but if other persons attend with articles on which the toll has customarily exacted the same is paid as on the Thursday. A Market House was built in the reign of Queen Anne by one of the Estcourt family, the then owner of the Tolls and of the Manor and the Market and Fairs are held therein and on the ground adjoining which is called the Market place and being about the centre of the Town there are several Shops fronting it. One of the Houses is a Public House and close to the Market House and for some years Shambles were put on the outside and let to persons on Fair and Market days for exposure and sale of Meat, the owners of the House receiving the profits and no Market Toll being paid. In December 1830 the House was let to a Butcher who had previously rented stalls in the Market House and the Shambles were removed and a Butchers Shop opened by him in part of the House. This has continued to the present time and he has ceased to hold his Stalls. Many of the frequenters of the Market and particularly persons in the Butchery who formed an important article for sale from the Town being situate in the rich Vale and Hundred of Berkeley are in the habit of carrying their Goods to Public Houses for sale as well as to private houses in different parts of the Town without bringing them to the Market place but in all parts excepting in Woodmancote. When the toll is demanded it is paid. In circumstance however causes great trouble and evasion. Upon Fair days the Horsefair is always held in Woodmancote and appears to have been considered by the tenants of the Tolls as on that account free from Toll and never to have been demanded. The place provided for the Pig and Sheep Market is at the extremity of the Town and suffers from its inconvenient distance; the owner of a large Yard near the Market House was permitted many years since to put up pens therein and let them out on Fair and on Market days for pigs, which he still continues to do. The Market Toll however on the sale of the animals is always paid, the loss to Mr Estcourt being on the Stallage or piccage toll which is considerable. The Butter is supplied from the numerous different dairies in the neighbourhood and in many instances one person is employed to bring to market the produce of several Farms some supplying six or eight pounds and others twenty, thirty or forty pounds. From the best enquiries that can be made the following practice may be said to have prevailed in Dursley relative to the payment of Toll since the year 1813 or 1814 when the tolls were raised as noticed hereafter - tho' from the circumstance of the tolls having been always let to Tenants and their natural reluctance to litigate any disputed question and consequently yielding in many instances their just claims from a fear of the consequences of enforcing any right upon Custom or Immemorial usage.
These are the commodities that may be said to be commonly brought to
the Market and Fairs but if any other were introduced, toll would be demanded. That about the third year he asked and generally enforced the following sums and so continued as long as his employer continued Tenant: Poultry 2d; Eggs 1d; Butter 2d; Butchers Stalls 1d a week; the other articles remaining the same; that he never asked toll in Wooodmancote; and never had toll of Butchers on sale of meat but only for Stalls and never received rent for the Shambles. This may be an important fact shewing a variation in the tolls. In some of the cases referred to in the questions hereafter submitted for consideration, the words "Marketable Articles" or those of a like import and referring to the place involved in the question at issue frequently occur, implying as it should seem a local or particular custom as to the articles tollable. This is so indefinite that a difficulty might arise as to what should be exacted in Dursley. With regard to the Butter it should be observed that those persons who do not bring that article into the Market House, pay when discovered the same sum as if they did, viz. 2d each, and this may raise a doubt whether the sum be the marketable or the Stallage or piccage toll, or both. It should be observed that however unjust, it appears in the Markets held in the City of Gloucester a similar Custom prevails with regard to the toll for butter, each person paying 4d a day but at Cirencester Market (which is one of the largest in the County) a graduated scale of payments similar but higher than those now claimed in Dursley is drawn out and the sum paid; that for butter is 1 & ½d per every dozen lbs. Until the present year commencing at Lady Day 1833 it is not known that anyone of the Estcourt family ever had the tolls in hand but always let them to a tenant, neither was it known until now what were the articles for which toll was demanded or the sum paid. Considering those accustomarily exacted to be unfair both towards himself and the frequenters of the Market and fearing lest his acquiescence, as now being in possession, in those paid might prejudice his right to higher sums, Mr Estcourt in the Month of November last [1833] caused a table to be prepared, upon a graduated scale, of the Tolls and Dues to be paid from the 1st day of January following. This Table was then printed as a Handbill circulated in the Market and throughout the neighbourhood and two large boards were printed and affixed in conspicuous places in the Market House. The sums here are lower than those paid at Gloucester or Cirencester. A copy of the handbill is attached. On the first Market day after the 1st of January the new Tolls were demanded of Butter Sellers and payment was refused and this is still persevered in. They then offered the usual sums which have been received as on account only and nothing yet arisen upon the other Tolls. No Clerk of the Market or other Officer has ever been appointed by Mr
Estcourt as collector of the Tolls, the entire management of their collection
etc. having been left to his Tenant. At the Court Leet held annually for
the Manor of Dursley, two Officers called Inspectors or Cardinals are
regularly appointed whose duty is to inspect all meat brought for sale
but it is seldom perhaps discharged. Questions [the questions and answers are summarised] Q1. What evidence of title Mr Estcourt must produce….? Q2. Is Mr Estcourt entitled to a toll on every article for sale
at Market or Fair?…. and to vary or increase the toll….? Q3. Can parties be compelled to use the Market Place and be prohibited
from using public and private houses? Q4. Whether the whole Town is the Market and on Fair and Market
days all articles are tollable? Q5. Should the toll be before or after sale?…. by owner or
seller?…. depend on the number of owners? Q6. Whether the recently opened butchers shop in a house near
the Market House is liable to pay toll? Q7. What redress Mr Estcourt has to enforce the several tolls….? Q8. Should action be against owner or servant? Q9. What about the use of private land for stalls and cribs for
pigs and sheep….? Q10. If tolls are not paid, can Mr Estcourt exclude persons?….
and can he rail off the Market House and exclude the public (except for
his benefit)? Q12. How far is Mr Estcourt prejudiced by acts and omissions of
his Tenants? Q13. If expedient to adopt proceedings, what is it best to do?
Note: this summary (including the tolls leaflet) is also available
for download
in PDF format. |
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