this opinion will produce an uniformity of decision, according to the language of each act, whether it applies to an act where there has previously been no turnpike, or to one where a turnpike with its tolls and toll regulations have previously existed.

Postea to the plaintiff.

1826.

FEARNLEY

against MORLEY.

JACKSON against CURWEN.

DECLARATION stated that a certain toll-gate, situate in the county of Cumberland, standing upon and across a certain public highway in the county aforesaid, was a gate erected by virtue of a certain act of parliament passed in the 46th year of his late majesty King George the Third, intituled "An act for more effectually improving the roads leading to and from the port, harbour, and town of Whitehaven, in the county of Cumberland;" and that the plaintiff, after the making and passing of the act, to wit, on the 11th day of April 1825, in the county aforesaid, was lawfully possessed of four horses, which then and there drew a certain coach of the plaintiff in and along the said highway, and through the said toll-gate, and for the said horses passing through the said toll-gate as aforesaid, the plaintiff then and there paid to the defendant, being the tollgate keeper appointed to collect the tolls at the said gate, the toll by him demanded and due in that behalf, by force of the statute aforesaid, and then and there ob

so

tained and received from the defendant, so being such

or in respect of such horse, beast, or other cattle: Held, that a second toll was not payable in respect of the same horses passing once and repassing once in the same day, but drawing a different carriage belonging to the same proprietor.

toll

1826.

JACKSON against CURWEN.

toll-gate keeper, a proper and sufficient ticket, denoting the due payment of such toll; and that afterwards, and before 12 o'clock at night of the same day, in the year last aforesaid, in the county aforesaid, the same horses were lawfully drawing another and different coach of the plaintiff in and along the said highway, and near to the said toll-gate, for the purpose of passing through the same free of toll; and for that purpose the plaintiff then and there presented and shewed to the defendant the said ticket, and demanded permission of the defendant, as such toll-gate keeper as aforesaid, to pass through the said gate with the said horses and the said last-mentioned coach free from toll, according to the form and effect of the statute aforesaid, yet the defendant, well knowing the premises, but wrongfully and maliciously contriving and intending to injure and aggrieve the plaintiff in that respect, did not, nor would suffer or permit the said horses with the said last-mentioned coach so to pass through the said toll-gate free from toll, but wholly refused so to do; and, on the contrary thereof, wrongfully and falsely pretended that a toll of a certain sum of money, that is to say, a toll of 2s., was due and payable to the defendant under and by virtue of the statute aforesaid, and injuriously fastened the said gate, and kept the same fastened for a long space of time, to wit, for the space of one hour, and thereby wrongfully stopped and detained the said horses and the said last-mentioned coach, and hindered and prevented the same from passing through the said gate, along the said highway, until the plaintiff paid to the defendant the said sum of money so pretended to be due and payable as aforesaid, contrary to the form and effect

effect of the statute aforesaid. There was also a count in trover. Demurrer and joinder. (a)

1826.

JACKSON

against CURWEN..

This case was argued by F. Pollock for the plaintiff, and Patteson for the defendant.

BAYLEY J. It is an established rule that where the toll is imposed upon carriages drawn by horses, and there is a clause of exemption for all persons re-passing on the same day with the same horses and carriage, or with the same horses or carriage, and the same carriage returns the same day drawn by different horses, no second toll is payable, Williams v. Sangar (b), Water

(a) By sect. 17. of the act the following tolls were imposed:

« For every horse or other beast of draught drawing any coach, sociable, &c., the sum of sixpence :

“For every horse, mare, gelding, mule, or ass, laden or unladen, and not drawing, the sum of two-pence :

"For every drove of oxen, cows, or neat cattle, the sum of one shilling and sixpence per score, and so in proportion for any greater or less number: and

"For every drove of calves, swine, sheep, or lambs, the sum of tenpence per score, and so in proportion for any greater or less number."

Sect. 21. enacted, "That nothing therein contained should be construed to enable any collector of the said tolls to demand or take any more than one toll from any person for or in respect of the same carriage, horses, beast, or other cattle, passing once and repassing once in the same day (such day to be computed from twelve o'clock at night to twelve o'clock in the succeeding night), through the same or any other gate or gates on any of the said roads, all and every such person and persons producing a ticket denoting that such toll has been paid on that day for or in respect of such horse, beast, or other cattle on the said roads."

Sect. 28. enacted, "That it shall be lawful to the trustees from time to time to compound with any person or persons for any period of time, not exceeding one year, for any horses, beasts, or cattle passing on the said roads, or any part or parts thereof, for all or any of the tolls to be paid in respect of such horses, beasts, or other cattle."

(b) 10 East, 66.

Voi. V.

D

house

1826..

JACKSON against CURWEN.

house v. Keen (a). And where the toll is imposed upon the horses drawing the carriage, with a similar clause of exemption, no second toll is payable if the same horses return with a different carriage, Gray v. Shilling (b). In this case a toll of 6d. is imposed upon horses drawing, and upon horses not drawing 2d., and therefore, according to the above rule, in an ordinary case no second toll would be payable in respect of the same horses returning with a different carriage. Unless, therefore, it appears clearly from the exempting clause in this act of parliament to have been the intention of the legislature that it should apply to those cases only where the same horses returned drawing the same carriage, the general rule of construction applicable to these acts of parliament ought to prevail, and then a second toll would not be payable. The word carriage is introduced as a subject of toll for the first time in the exempting clause. It enacts, that the collector shall not take more than one toll for the same carriage, horses, beast, or other cattle passing once, and re-passing once in the same day. From that part of the clause, taken by itself, it would appear to have been the intention of the legislature that it should apply to cases only where the same horses re-passed: drawing the same carriage. The carriage, therefore, is contemplated as a subject matter of toll. But then the clause goes on to annex as a condition precedent to any exemption, that the party claiming it shall produce a ticket denoting that such toll has been paid on that. day for or in respect of such horse, beast, or other cattle. The ticket, therefore, which is to be produced

(a) 4 B. & C. 200..

(b) 2 Brod. & B. 30.

to

to the collector in order to exempt a party from the payment of a second toll, is to denote only that the

toll has been paid in respect of the horse, and not in respect of the carriage. But still if the former part of the clause be construed literally, the production of such ticket will not entitle a party to exemption from the toll unless he re-passes with the same horses drawing the same carriage. From the latter part of the clause it appears that the legislature contemplated a toll upon horses only. From the former part, that they contemplated a toll in respect of the carriage. Taking the whole of the clause together, it seems very doubtful whether it was intended to be confined to cases only where the same persons returned with the same horses drawing the same carriage. There is another clause which shews that the objects of the toll were the horses, beasts, and cattle, and not the carriage. By section 28. the trustees are enabled to compound with any person for any horses, beasts, or cattle passing on the roads, for any of the tolls to be paid in respect of the same. Considering, therefore, that the toll was originally imposed upon the horses drawing, and not upon the carriage, and that it does not appear clearly that the legislature meant to confine the operation of the exempting clause to cases only where the same horses returned with the same carriage, we think that the general rule of construction applicable to these acts of parliament ought to prevail, and, consequently, that no second toll was payable for and in respect of the same horses returning the same day with a different carriage, the property of the same person. But as it does not sufficiently appear upon the face of this declaration that

1826.

JACKSON

against CURWEN