CO ■ so > '^nmtmw^ '^ox&im^-^ ^ < o i I i S^ '^i'iUONYSOl^ %a3MNn3V\V^ .^V\EUNIVER% .wlOSAN'CEL' ^^sMllBRARYQ^ ^<^ AOfC v>>:U)SANC[lfX^ % ^U)SANCfUr> '^ "^AHJAINfl-aWV^ -3 Ct &Aiivijau iv^^ ^^^l•llBRARYQ<^ .^OFCAllFOftfe. .# ^.nM-UBRARYQ^. § 1 ii— ' ^ A^tUBRARYOc, ^OFCAUF0% 5j V— *<;,^g ^ .^WEUNIVERSyA ^^vlOS•ANCEl£r> Mlf=Yi iZPVi ?^l^l IMfYi 11 ^/, vr ^e AV\EUNIVER% v>:U ^1 Wj I i\wnmv ^6 L"'^^. j<^ ^ Cf ?• o ^ ?sy/, "^AOiilVJiu ^OfCAIIF0V< JJU'JhVVUl "^/jiiUU ji\^ iiiai Ki^ :=C' i\^^ >&iUivaaiuv^^ :IC . ,5MBNIVFRS'/A ^^ ^,^ ^!^EUNIVER% ^10SANCEL% ^ l^^lti r - PRACTICAL TREATISE AND, THEREIN, OF TOLLS THOROUGH TRAVERSE; FAIR AND MARKET TOLLS; CANAL. FERRY, PORT AND HARBOUR TOLLS; TURNPIKE TOLLS ; RATEABIMTY OF TOLLS ; EXEMPTION FROM TOLLS ; REMEDIES AND EVIDENCE IN ACTIONS FOR TOLLS. BY FREDERIC GUNNING, OF Lincoln's inn, esq., barrister at law. LONDON: HENRY BUTTERWORTH, Hail) ?3oofe^ellev ant» iSublidjev, 7, FLEET STREET. 1833. T '5)33-44-0 TABLE OF CONTENTS. CHAPTER THE FIRST. Page Introductory Observations 1 CHAPTER THE SECOND. Of Toll Thorough. Sect. 1. Of the General Nature and Incidents of Toll Tho- rough 2 Sect. 2. Of Toll Thorough for passing along the Common and Public Highway 4 Sect. 3. Of Toll Thorough for passing along the Sea or Pub- lic Navigable Rivers 18 CHAPTER THE THIRD. Of Toll Traverse 26 CHAPTER THE FOURTH. Of Fair and Market Tolls. Sect. 1. What are Fairs and Markets : where they ought to be holden ; and of the right to Toll therein, generally, 44 viii lAUI.K Ol" CON I l-.NTS. rage Sect. 2. Of the MaiuiLi in wliicli tlio Ki^,lit to a Fair or Mar- ket may be acqiiinMl ; and niidcr what Words a Uiglit to take Toll therein, passis •'><> Sfxt. 3. Of Sales in Fairs and Markets : First. Of Sales in Markets l)y Sample (»:i Secondly. Of evadint; tli(> Toll hy sellin); oiitof the Liniils of the Fair or Mark(;t 77 Sect. 4. Of Stallaoc; and Picdvi.fie W* Sect. 5. Of Kxcmiptions from Fair and Market Tolls BU (^IIAPTKK Till-: l'll"m. Sect. 1 . Of Cunal Tolls 101 Sect. 2. Of Ferries and Ferry Tolls 100 Sect. :i. Of Port and Harbour Dnes: Introdiietory Observations Ill First. Of the llreetion or Crcjation of a Port 1 14 Sfcoudhj. Of the Title to a I'ort Mr> Tlihilhj. Of the Ki^hts of the Owner of a Port 11(5 Sect 4. Of Wharfage, Cranage, and the like Vl'.\ Sect. 5. Of Doek Dues 121) CHAPTKH Till-: SIXTH. Of TuknimkI': Toi.i.s. Introductory Observations 138 Sect. 1 . Of the Letting of Turnpike Tolls 140 Sect. 2. Of the ('olleeting of Turnpike Tolls 143 Sect. 3. Of .Additional Tolls : First. For Overweight 141) Sevovdiy. To be taken for Wheels of less than a e<>rtairi Ureadlh 154 Thirdly. For Horses or Carriages tied or aflixed to other Carriages 1 5U Fourthly. For Watering the Roada Utd Fiflhly. Of Doiibh- Tolls 157 rAin,!'. oi coNTi'.NTs. ix Page Sect. 4. ()(' KtHlucing ami Advancing Turnpike Tolls 157 Sect. 6. Of Exemptions from Turnpike Tolls : 100 First. Uelatin{> to the Kiiip; and Royal Family l(>-2 Sev.ond. Materials for Koatis an . . . . , IJJO Sect. (>. <.)f Mortgaging Turnpike Tolls 1»1 CllAI>ri<:i{ THE SKVKNTH. Ov TiiK Ratlaiuhty of Tolls to tiik HiiLiiii- ok THE POOK. Skct. I. In what cases Tolls, or the Property out of which they issue, are Rateable m'j Skct. '2. Thert> must he a Henelieial Occupation in order to render tlu; Occupier liable t(» be rated for Tolls .... 1J>0 Sk( T. :J. Of the Parish in which Tolls are Rateable 201 X TABLE OF CONTENTS. Page Sect. 4. Of the Amount at which the Owner of Tolls, or the Occupier of the Land out of which they issue, is rateable 209 CHAPTER THE EIGHTH. Sect. 1. Of the Remedy for Tolls by Distress 216 Sect. 2. Of the Remedy for Tolls by Action I .... 217 Sect. 3. Of Evidence in Actions relating to Tolls : First. Of Reputation, or Hearsay Evidence 220 Second. Of Former Verdicts 222 Third. Of Corporation Books, SiC 223 Fourth. Of Private Acts of Parliament 227 Fifth. Of Contemporary Usage to explain Ancient Char- ters, &c 229 Sixth. Of the Competency of Witnesses in Toll Causes : 1. Of the Evidence of Members of a Corporation in support of a claim by the Corporation 230 2. Of Witnesses Admissible from Necessity, though interested 232 Seventh. Miscellaneous 235 TABLE OF CASES CITED. Page A. Alliuitt V. Inglis 123. 129 Amherst, Lord, v. Somers, Lord 199 Anguish v. Ebden. . . .110, 111 Anon 164 V. Armstrong 213 Archbishop of York's Case, 94 Ashby V. White 84 Atkins V. Davis 197 Attorney General v. Par- ker 98 V. the Town ot" Farnham .... 100 B. Bailitfs ot" Tewkesbury v. Bricknell, 71. 94. 99. 217. 229 Bailiffs of Tewkesbury v. Diston 65 Ball V. Herbert, 101. 115 Page Bedford, Duke of, v. Em- mett 57 Bell V. Nixon 142 Blackett v. Smith 133 Blakey v. Dinsdale . . 81. 217 Blankley v. Winstanley . . 98 Brett V. Beales, 4. 7. 10. 14. 26. 37. 224. 227 Brittain v. the Cromford Canal Company 104 Burton v. Hinde 230. 232 Bute, Earl of, v.Grindall.. 107 C. Carlisle, Mayor of, v. Wil- son 17 Chad V. Tilsed 98. 230 Chambers v. Eaves 150 V.Williams.... 177 Churchman v.Tunstall, 106, 107. 109 Cobham, Lord, v. Browne, 45 xu Page Colton V. Smith 7. 31. 33 Corporation of Exeter v Trinlett 24 of Stamford v. Pawlett 51.58.129 of Sutton Cold- field V. Wilson 231 Crispe v. Belwood, 7. 21. 20. 31. 118 Curwen V. Salkeld 46 D. Day V. Savage 128 Dixon V. Robinson 46 Doe, d. Banks v. Booth, 182.185 Doe, d. Gallop, v. Vowles, 226 Dunstable, Case of the Prior of, 73 E. Enfield V. Hill 232 Exeter, Corporation of, v. Trinlett 24 F. Fairtitle v. Gilbert ^ 185 Falmouth, Earl of, v. George 223. 233 Falmouth, Earl of, v. Pen- rose 218. 233 Fearnley v. Morley 177 G. Gard v. Callard, 61. 210. 236 Gildart v. Gladstone. . 135, 136 TABLE OF CASES CITED. Page Gladstone v. Gildart 130 Gray V. Shilling 171 H. Hamilton v. Stow 121. 169 Harden v. Smith, 131 Harrison v. Brough, .... 166 Haspurt v. Wills, 2. 21. 124. 166 Heddy v. Wheelhouse, 45. 51. 61. 88. 197. 216 Hickman's Case 89 Higginbotham v. Perkins, 161. 163 Hill V. Hanks 45 V. Prior 93 V. Smith 4. 10. 16. 74 Hodges V. Atkis 227 Hopkins v. Thorogood, 172. 179 Holcroft V. Heel 55. 84 Holloway v. Smith 54 Hull Dock Company v. Browne 112 Hull Dock Company v. La Marche 12G Hull, Mayor of, v. Horner, 224 Hunt V. Burn 90 Ipswich, Inhabitants of, v. Browne ^ 106 Jackson v. Curwen .. 172. 176 James v. Johnson .... 2. 4. 26 Jones V. Mansel 191 TABLE OF CASES CITED. Xlll K. Page Kcrby v. Wichelow 48 Kingston-upon-HuU Dock Company V. Browne .. 112 King V. Gough 1G4 L. Lancum v. Lovell. . . .234, 235 Lawnson's Case, Mayor of, 88 Lees V. the Manchester and Ashton Canal Company, 103 Leight V. Pym 45 Leicester, Case of the town of, 90. 93. 99 Lewis V. Hammond 1G7 Lightfoot V. Lcnet 60 Liverpool Docks, Trustees of, V. Gladstone 137 Loaring v. Stone .... 161. 175 London, Case of the City of, 231 City of, V. Clerke 223 Mayor of, v. Hunt 24. 33. 118 Mayor of, v. Mayor of Liverpool. . . . 93 Mayor of, V, Mayor of Lynn 93. 100. 224 Lowden v. Hierous, 55. 98. 129 Lyme Regis, Mayor of, v. Henley 108 Lynn, Mayor of, v. Turner, 18 M. Major V. Oxenham 170 Marriage v. Lawrence .... 224 Page Matson v. Scobell 121 Mayor of Carlisle V.Wilson, 17 of Hull V. Horner. . 224 of Lawnson's Case, 88 of London v. Hunt, 24. 33. 118 of London v. Mayor of Liverpool 93 of London v. Mayor of Lynn, 93. 1 00. 224 of Lyme Regis v. Henley 108 of Lynn v. Turner. . 18 of Newport V.Saun- ders 88.219 of Northampton v. Ward, 85. 197. 219 of Norwich v. Swann, 87. 197. 219 of Nottingham v. Lambert, 2. 4. 22. 25 of Reading v. Clarke 219 of Southampton v. Graves 227 of Truro V. Reynalds, 97. 229 of Yarmouth v. Ea- ton 23. 118 Miles v. Rose 18, 19 Mon mouthshire Canal Com- pany v. Kendall 105 Morewood v. Wood 220 Moseley v. Pierson, 64. 73. 236 Mosley v. Chadwick .... 83 v. Walker 82 xiv TABLK OF N. Page Newingtou's Case 83 Newport, Mayor of, v. Saunders 88. 219 Norman v. Bell 220 Norris v. Poate 161. 177 Northampton, case of, ... . 52 Mayor of, v. Ward 85. 197. 219 Norwich, Mayor of, v. Swann 87. 197. 219 Nottingham, Mayor of, v. Lambert 2,4.22. 25 O. Osbuston V. James 53 Osmond v. Widdicombe . . 162 Outram v. Morewood 221. 226 P. Pain V. Partridge 107, 108 Pawlett V. the Corporation of Stamford 51. 58 Pearse v. Morrice 142 Pelham V. Pickersgill, 4.26.27-33 Peter v. Kendall 106. 110 Phillips V. Harper 170 Pole V. Jonson 120 Prideaux v. Warne, . . . .20.118 (See Warren v. Prideaux) Prince v. Lewis 58. 78 Prior of Dunstable's Case 73 R Reading, Mayor of, v. Clarke 219 CASES CITKn. Page Rex V. Aire and Calder Navigation . . 191, 193, 205 V. Baptist Mill Com- pany 190. 196 V. Barnes 191. 203 V. Bath, Corporation of 195. 201. 215 V. Bell 197 V. Birmingham Gas- Light Company 195. 203. 214 V. Bradford 206 V. Brighton Gas-Light Company .... 195. 203. 215 V. Calder and Hebble Navigation Company . . 213 v.Cardiugton 189. 191. 204 V. Chaplin 210 V. Chelmer and Black- water Company .... 212 V.Chelsea Waterworks Company .. 193. 196. 215 V. Coke 191. 201. 203 V. Commissioners of Salter's Load Sluice 198, 199 V. Corporation of Bath 195. 201. 215 V. Corporation of Maidenhead 50 V. Corporation of Lon- don 51. 63 V. Cotterill 47 V. Eyre 190 V. Fowke 194 V. Governors of the Poor of St. Mary Magdalene, 213 TARLE OF CASKS CITED, XV Page Rex V. Grand Junction Company 212 V. Grout 99 V.Hull DockCompany, 198. 200. 211 V.Jones, 122. 169.198.204 V. Kingswinforcl. . 188. 208 V. Leeds and Liverpool Canal Company 213 V. Liverpool 199 V. London Corpora- tion 51. 63 V. Lord Mayor of Lon- don 204. 230 V. Lovv^er Mitton 208. 210 V. Macdonald 191 V. Maidenhead Cor- poration 50 V. Mersey and Irveell Navigation 191 V. Milton 207 V. Montague .... 18, 19 v. Nicholson 188. 206. 208 V. New River Com- pany 195.201 V. North Duffield 111 V. Osborne 229 V. Oxford Canal Com- pany 204. 208. 211 V. Page 205, 206 V. Palmer 207 V. Portmore, Earl of, 206, 207 V. Rebowe 194 Page Rex V. Regent's Canal Company 212 V. Rochdale Water- works Company, 195. 201. 215 V. St. Agnes 197 V. St. Austell 197 v.St.Mary's, Leicester 112 V. St. Nicholas, Glou- cester 206 V. St. Peter's, Wor- cester 212 V.Salter's Load Sluice, Commissioners of, 198, 199 V. Shepherd 198 V. Staffordshire and WorcestershireCanal Com- pany 189. 205 V. Terrott 199 V.Thomas 191 V. Tomlinson 210 V. Trent and Mersey Navigation 207 V. Trustees of the Bury and Stratton Roads 158 V. Trustees of the Duke of Bridgewater . . 209 V. Trustees of the RiverWeaver Navigation 199 V. Tynemouth 194 V. West Looe 98 Rickards v. Bennett .... 4. 12 Ridge V. Garlick 155 Roe, d. Beebee, v. Parker, 220 XVI TAULE OF CASES CITED. Pasfo S Schroeder v. Smith 131 Serjeant v. Read 123. 128 Seward V. Baker 217 Smith V. Shepherd, 3. 6. 9. 216 Somerset, Duke of, v. Fog- well Ill Southampton, Mayor of, v. Graves 227 Staffordshire and Worces- tershire Canal Company V. the Trent and Mersey Canal Company 102 Stamford, Corporation of, v.Pawlett ....51.58.129 Steinson v. Heath 32 Stephens v. Coster 124 Stevinson v. Nevinson . . 230 Sutton Coldfield, Corpo- ration of, V. Wilson .... 231 Tewkesbury, Bailiffs of, v. Diston 65 Bailiffs of, v. Bricknell,7l. 94. 99. 217. 229 Topsell V. Ferrers 24 Trinity House, Master, &c. of, V. Clarke 122.169 Tripp V. Frank 109 Truman v. Walgham, 4. 7. 15. 25. 27. 31. Truro, Mayor of, v. Rey- nalds , ..97. 229 Page V Vallejo V. Wheeler, . .122. 169 Vines v. the Mayor of Reading 76 Vinkerstone v. Ebden, 62. 119. 128. 216 Vooght V. Winch 19 W Ward V. Knight, 93 Warren v. Prideaux . i . .2. 220. (See Prideaux v. Warne) Warrington v. Moseley . . 5 Waterhouse v. Keen .... 174 Webb's case 106 Weeks v. Sparke .... 220. 222 Weld V. Hornby 229 Weller v. the Governors of the Foundling Hospital, 232 Wells V. Miles 48. 75 Wigley V. Peachey 87 Wilkes V. Kerby, 18.19 Williams v. Jones 190 V. Sangar 172 Withnell v. Gartham 98 Wright V. Brewster, 62. 129.236 Wycombe Case 189 Wyatt V. Thompson,.. 102. 126 Yarmouth, Mayor of, v. Eaton 23. 118 York's Case, Archbishop of. . 94 Younsv. 102 (Sfiapter tf)t ffiv^U INTRODUCTORY OBSERVATIONS. Toll, tolnetum, theolonium, or telonium, are all of the same import, and signify, in a general sense, a sum of money paid by the buyer for exporting or importing goods or merchan- dizes. Such is the definition of Toll in general, which is given by the learned author of the Institutes.^ In the Terms de la Ley, toll is said to be a payment used in cities, towns, markets, or fairs, for goods and cattle brought thither to be bought and sold ; and is always paid by the buyer and not by the seller, unless there is some custom otherwise. It must be obvious that these definitions, and others of a like nature, which are to be found in the books, are too general for practi- cal purposes : the reader is, therefore, referred to the particu- lar definitions which are to be found at the commencement of each chapter allotted to the consideration of the different kinds of toll, and which are all taken from legal authorities. It is proposed to consider in the following pages, the various kinds of toll taken in towns, fairs, and markets, on rivers, canals, roads, &c., — the modes by which the right to them may be acquired, the consideration which is necessary to their legal existence, by and to whom they are payable, and exemp- tions from the payment of them. To this will be added, a chapter on the rating of tolls to the relief of the poor, and one on the remedies for the recovery of tolls, and on evidence in actions respecting them. • 2 Inst. 58. B chapter t&e ^econti* OF TOLL THOROUGH: AND UF.REIN, OF ITS GENERAL NATURE AND INCIDENTS; OF TOLL THOROUGH FOR PASSING ALONG THE PUBLIC HIGHWAY; OF TOLL THOROUGH FOR PASSING ON THE SEA OR PUBLIC NAVIGABLE RIVERS; AND OF THE CON- SIDERATION NECESSARY TO SUPPORT IT. Section L — Of the General Nature and Incidents of Toll Thorough. Toll thorough is said, by a legal writer of authority, to be a sum demanded for a passage through an highway -^ and by another, a toll taken from men for passing through a vill in a high street -.^ and when highway and street are mentioned, it is to be understood that the definition and cases apply equally to a toll taken for passing along the sea or a public navigable river, or a 'public ferry or bridge.^ It has been said, in one of the*cases in the books,'* that when toll is claimed generally, it shall be intended a toll thorough. It must, I think, have al- ready struck the reader that it requires very satisfactory evi- dence to support a claim to a toll of this kind, being a pay- ment for passing along the highway, which is common and ■ Com. Dig. tit. Toll (C). ^ vin. Abr. tit. Toll (A). * See Haspurt V. Wills, post. 1 Vent. 71. 1 Sid. 454. 1 Mod. 47. Warren v. Prideaux, 1 Mod. 104. 2 Lev. 96. Mayor, &c. of Nottingham v, Lambert, Willes, 111. * James v. Johnson, 1 Mod. 231. Oj Toll Thorough. 3 open to all, — and we shall presently see that it cannot be claimed unless the party demanding it can shew that the pub- lic, whose common-law rio;ht to a free oassacre alonsr the hioh- way he seeks to abridge, receive from him a good consideration for the imposition. It differs in this respect from the species of toll called Toll Traverse, which forms the subject of the next chapter. In a case^ to which we shall probably have occa- sion to refer more than once in the course of our enquiries, the Court emphatically observed, that the inheritance of every man to pass along the king's highway was before all prescrip- tions. It will be a main object of this chapter to shew the consideration which is necessary to support a demand of this kind of toll ; and we shall find that in a number of cases in which a toll of this nature has been acquiesced in for a very long period, it has been found impossible to support it when tried by the test, " What consideration does the claimant shew for his demand ?" The high street, it has been observed, is common to all the king's subjects ; and, therefore, a man cannot presm/;e for a toll thorough for passing through a vill in the high street, because it is contrary to the common law and common right ;- and from the same authority we learn that the king cannot have such a toll from his subjects for passing on the highway : " neither can the king grant to a subject a right to take toll for passing through a highway, for it is an oppression of the people," says the same learned judge.^ How can a duty be imposed on all the subjects of England, asks the chief justice in another reported case,* only for enjoying that privilege which is their inherent birthright, and which every subject had a right to before ? And such a duty cannot be imposed without some beneficial consideration moving to the person of ' Smith V. Shepherd, Moore, 574. Cro. Eliz. 710. This case has been said by the Court to be much better reported in Moore than in Cro. : See Willes, 116. » Per Thorpe, J. 22 Ass. 58. 2 Roll. Abr. tit. Toll (B). pi. 1. 3 1 Leon. 232. ^ Mayor of Nottingham v. l.ambert, Willes, 111. B 2 4 Of Toll Thorough. whom it is claimed} The reason of this is, that there must be a quid pro quo, some benefit redounding to the public whose right is sought to be abridged. If the subjects ever had a right of way without paying a toll, there is no quid pro quo. To create a toll, therefore, in such a case, would be to deprive the subjects of their rights.- Having made these preliminary remarks, we will now pro- ceed to apply them to the several cases which have been de- cided on this branch of the subject of our enquiry. We will first consider those which relate to " street tolls," that is, tolls which are claimed for passing over the common public high- way ; and then proceed to the consideration of tolls in the nature of toll thorough, for passing along the sea or public navigable rivers. Section II. — Of Toll Thorough for passing along the Com- mon and Public Highioay. It seemed to have been the opinion of the judges in an early case,^ that if a prescription to take toll " for all beasts driven over a certain manor," be found by a jury (as in that case it was, on a special verdict) it should be presumed to have had a reasonable commencement and to be legal, al- though the true cause of its commencement cannot be shewn. But this opinion has, in a more recent case,^ been considered to be too general, and to have been formed without distin- guishing the nature of the case. For, although it may be sometimes true in the case of a private right, it is plainly otherwise in the case of a public right, to which all the king's subjects are by law entitled. For, if a reasonable commence- ment is to be presumed, observed the Court,^ it must be that ' Truman v. Walgham, 2 Wilson, 296. Hill v. Smith, (in Error), 4 Taunt. 520. Per Best, .T. Rickards v. Bennett, 1 B. & C. 223. Brett v. Beales, 10 B. & C. 508. 1 Moo. & Mai. 416. 2 Per BuUer, J., Pelham v. Pickersgill, 1 T. R. 660. 3 James v. Johnson, 1 Mod. 231 ; 2 Mod. 143. S.C. * Mayor of Nottingham v. Lambert, Willes, 111. * Willes, 116. Of Toll Thorough. 5 it began by agreement, and that such agreement, being so long ago, cannot now be proved ; which may be well enough in the case of a private right : but who could agree for all the sub- jects of England ? They cannot consent to part with their rights, nor can they be deprived of them otherwise than by an act of parliament, in which the consent of every one is implied. This distinction we shall find constantly recognized and acted upon. In the same case, the Court remarked that it was said in some of the earlier cases that a prescription may be good for toll thorough ; but that, when looked at, those cases either stood on some particular reason which plainly distin- guished them from the common case; or it was only said obiter that such tolls may be supported by prescription without any consideration, and the reasons given for them are such as make such dicta of no weight or authority.^ In one of the earlier cases," an action was brought for non- payment of toll, which the plaintiff claimed by prescription. The prescription alleged was, a certain reasonable toll for every pack of Manchester wares bought within a certain manor to be paid by the buyer, with an exception in favour of the burgesses of Manchester. The name of the manor does not appear, nor is the character or right in which the plaintiff claimed the toll mentioned. For the defendant, it was con- tended that this was a bad prescription, amounting as it did to a claim to toll thorough for which no consideration was alleged. The Court were of opinion with the defendant that the prescription was bad, and could not be supported, " as there was no recompense for it ;" and he had judgment. It was there said that a prescription that all the inhabitants of a manor should grind their corn at a particular mill, was good ; ' WiUes, 115. * Warrington v. Mosely, Comb. 295, S. C. much better reported, 4 Mod. 319. See James v. Johnson, 2 Mod. 143, where it is observed by the Court, " If the defendant had said that this was a toll for passing the public highway, he must shew some cause to entitle himself to the taking of it, as by doing somevUing of public advantage." The extent of the " cause" which he must shew, will be seen in the following pages. 6 Of Toll Thorough. as it imported a good consideration, viz. that the owner was obliged to keep tlie mill in repair, and if he did not he was liable to an action. So, also, in the case of Smith v. Shepherd/ which has been already cited, in mentioning the observation of the Court that the right of the public to pass freely along the highway was anterior to all prescription. That was an action of trespass for seizing sheep at Melton Mowbray, in the king's highway. The defendant pleaded that Lord Berkeley was seized of the manor of M. M. and that he and all those whose estate he had, from time immemorial, had been used and accustomed to take toll, viz. twopence for every score of sheep brought or driven by any strangers by and over the vill of M. M., and on refusal to pay, to distrain one sheep for the amount due. The plea then stated facts in order to charge the plaintiff with a liability to the toll, and so justified the seizing the sheep as a distress for the amount claimed. To this, the plaintiff de- murred generally, contending that such a toll could not be claimed without alleging some consideration moving from the defendant. Popham, J. in giving judgment for the plaintiff, observed- that a man might prescribe for toll traverse and for toll thorough, but in order to support the latter he must shew some reasonable cause, — as, that he is to maintain a cause- way, or to repair a way, a bridge, or the like. The observations of the learned judge, noticed above, are to be understood to refer to the maintaining of the causeway, and the repairing of the way or bridge, in respect of the passing along or over which the toll is claimed ; for it has been de- cided that the consideration for this species of toll must be co- extensive with the right asserted ; and indeed, the report of this case of Smith v. Shepherd in Moor is expressly to that effect. It is not enough that the person setting up a claim to such a toll repairs some street or streets in the town in which Cro. Eliz. 710. Moore 574. See post. 16, where the dictum of Popham, J. is commented on by the Court. Of Toll Thorough. 7 he alleges it to be payable ;^ he must be bound to repair the particular way or street along which the article in respect of which the toll is claimed, passes. Neither is the reparation of a bridge a sufficient consideration for such a toll : this we shall find established in a variety of cases, to some of which we now invite attention. The subject has recently undergone very ample discussion, and the fullest consideration, in a case which is reported ; but before referring more particularly to that case, it may be not unprofitable to glance at a few of the earlier ones on the same subject. If, indeed, it appear that the tollable article islanded upon or passes over tlie private soil of another, the toll may be de- manded, notwithstanding the claimant has alleged a consi- deration for it, which would be insufficient to support a toll thorough ; but this is rather in the nature of a toll traverse than a toll thorough, although some consideration is attempted to be shewn by the claimant. Colton v. Smith,- was an action for a toll for landing goods on a wharf at Gainsborough. The declaration stated, that the plaintiff was lord of the manor of Gainsborough, and that he and all those, &c. had used to keep and repair a wharf within the manor, and that in consider- ation thereof, they had been used to receive toll for all goods landed within the manor — not confining it to the wharf, which alone the declaration stated the plaintiff to have main- tained. The plaintiff having recovered, the defendant after- wards moved in arrest of judgment, on the ground that the prescription laid was too large for the consideration alleged ; but the court thought otherwise, Lord Mansfield, C.J. observ- ing, that every body that paid had a benefit, — if they went to the wharf, they had the benefit of it, and if they landed their goods elsewhere, " within the manor," they landed them on the ' Brett V. Beales, 1 Moo. & M. 416. 10 B. & C. 508. Truman v. Wal- gham, 2 Wils. 296. ' Cowp. 47. See also Crispe v. Behvood, 3 Lev. 424, post, where the same question arose on the same prescription in the same manor: the judgment of the Court was in favour of the lord of the manor in that case also. 8 Of Toll Thorough. private property of the plaintiff. Originally, indeed, the lord was owner of all the lands in the manor, and therefore the pre- scription was good, according to many cases which will be referred to in the next chapter, which treats of Toll Tra- verse. Truman v. Walgham ^ was an action of trespass for stop- ping a waggon in the town of Gainsborough, and seizing and detaining a portion of the harness of the horses drawing it. The defendant pleaded, that at the time of the supposed tres- pass, Sir N. G. H. was seised in fee of the manor of G. (the town of G., an ancient market-town and borough, being si- tuated within the manor) and that he and all those whose es- tate he had, had from time whereof the memory of man was not to the contrary, at their own proper costs and charges re- paired, cleansed, and maintained, and had been used and accustomed, and ought to repair, cleanse, and maintain di- vers AND MANY STREETS belonging to the said toton or bo- rough of G. as often as was necessary ; and that b^ reason thereof they had, during all the time aforesaid, of right en- joyed, received and taken, as belonging to the said manor, a certain toll of and from every cart and waggon coming from and out of any other lordship or manor, and passing over any PART of the said manor ofG., at all times of the year, (except at certain times mentioned in the plea) that is to say, for every cart or waggon of any person (except, &c.) one penny a wheel for every wheel of such cart or waggon, to be paid by the person driving such cart or waggon into the town of Gains- borough ; and that in default of payment they had been ac- customed to distrain, &lc. The plea then alleged, that at the time of the trespass a waggon was driven by the plaintiff into the toion of Gainsborough, — a demand of and refusal to pay the toll, — and justified the distress under the prescription pre- viously set forth in the plea. The plaintiff replied, denying the prescription, and on is- sue joined, the jury found in the affirmative, for the defend- ant. • 2 Wils. 296. Of Toll Thorough. 9 Afterwards, the plaintiff moved the court in arrest of judg- ment, on the ground that the prescription was bad in law, being for a toll thorough, and not supported by any sufficient consideration ; it not being alleged that the lord of the manor repaired all the streets of the town, but only divers and many of them, and it not appearing that the plaintiff's waggon pass- ed over any of those which the lord did in fact repair. It was argued on the other hand, that it was a sufficient consi- deration for a toll thorough if there were a charge on the party claiming it, and a benefit redounding to the public ; and that the reparation by the lord of certain of the streets of the town was a benefit to the inhabitants, to all persons whose business called them to the town, and to all who passed through the town, although they might not pass along the particular streets repaired by him. The Court of King's Bench, however, held the plea bad, for the reasons assigned by the plaintiff, and arrested the judgment after much debate and taking time for consideration. Their judgment is so clear, that (being short) I think it right to give it entire : " This is a prescription," said the Court, " for toll for passing through the king's highway, — the streets of Gainsborough, — which cannot be taken unless a good consideration be alleged : the reason is, because it is to deprive the subject of his common right and inheritance, to pass through the king's highway, which right of passage was before all prescriptions.^ Toll tra- verse, or for going through a man's private land, may be pre- scribed for without any consideration, and payment time out of mind is sufficient and will support the prescription. In the case at bar, toll is demanded of the subject in the king's highway for passing there 5 the subject ought to have a benefit for paying it : the consideration here is, for repairing, cleansing, and maintaining divers and many streets in Gainsborough, — not repairing, &c. all the streets there. How, therefore, can we say that the plaintiff's waggon was passing through any street repaired by the lord of this manor ? The waggon might ' See Smith v. Shepherd, Moore, 574, ante 3. See post, 16. 10 0/ Toll Thorough. be passing over some street not repaired by him when the dis- tress was taken, for anything that appears to the contrary, and we must take it that it was so. We cannot let the de- fendant have judgment upon this record. Courts are exceed- ing careful and jealous of these claims of right to levy money upon the subject ; these tolls began and were established by the power of great men. The defendant's plea is as bad as can be : the lord has artfully tried to make it doubtful whether this be a toll thoroush or a toll traverse, for he has confounded them together. The consideration he claims it for is for mend- ing the highway, and he would have us believe it is for passing through his own manor or land." — The judgment was there- fore arrested. This case has been very recently recognised and supported by the Court of King's Bench ,i and the principle which it establishes is certainly of the greatest importance. The benefit to the pubUc, in other words the consideration for the toll, must be co-extensive with the rio-ht claimed. It is not, as was con- tended by the defendant in Truman v. Walgham, sufficient to support such a claim that the lord has some duty imposed on him ; the particular individual sought to be charged must par- take of the benefit arising from the obligation on the part of the person claiming the toll. We come now to a strong case" in illustration of the neces- sity for a particular consideration (a consideration moving to- wards the particular individual sought to be charged with the toll) in order to justify the taking of a toll thorough. It un- derwent several arguments, and was ultimately decided on a writ of error. It was an action of trespass for seizing and detaining the plaintiff's wheat at the city of Worcester. The plea justified the taking : alleging that W. was an ancient city or borough, and that the citizens or burgesses had imme- morially been a body corporate, until they were incorporated by charter of the 19 James I. under the name of the mayor, &c. of W. ; and that the citizens or burgesses from time imme- ' Brett V. Beales, 10 B. & C. 508. « Hill V. Smith (in Error), 4 Taunt. 520, Of Toll Thorough. 11 morial until the granting of that charter, and the mayor, &c. ever since, had held a market within the city on Saturdays, for the buying and selling of wheat and grain there ; and that during all the time aforesaid they had at their own cost and charges repaired " the highvays and pavements of the said corn market, and other highways and streets in the said borouf^h or city, for the more convenient bringing of grain into the said borough or city to be sold there;" and that by reason of the premises, they had immemorially taken for their own use a certain reasonable toll (to be paid by the seller) viz. one pint of wheat for every three bushels of wheat (reckoning the same according to the quantity sold and delivered in the said city or borough), sold in the said market by sample, and afterwards brought into the said city or borough to be delivered to the buyer ; and that they had been accustomed to distrain for such toll on non-payment thereof. The plea then alleged that the plaintiff on a certain market-day sold to one T. H. thirty-one bags of wheat, as for three bushels in each, by sample, to be delivered within the said city or borough, which wheat (of which that seized by the defendant was parcel) was afterwards brought to be delivered to the said T. H. in the corn market in the said city ; that the defendant demanded the toll, and on refusal distrained, and so justified the seizure, as the ser- vant of the mayor, &c. We shall have occasion to consider this case when we treat of market tolls, and of the validity or invalidity of particular customs, in a subsequent part ^ of this work, for which reason the plea has been stated at length. It has, however, an im- portant bearing on the subject we are now discussing, as the defendant attempted to support his claim as one of toll tho- rough, as well as under a right to a market toll, in considera- tion of the repairs done by the corporation, as stated in the plea. The defendant had a verdict, which the Court of King's Bench, on motion for a new trial, refused to disturb," being of opinion that his plea was good, and that the evidence sup- ported it. The plaintiff then brought a writ of error, and re- ' See post. Chap. IV. sect. III. * 10 East, 476. 12 Of Toll Thorough. moved the record into the Exchequer Chamber, where, after argument, the Court reversed the judgment of the Court be- low, — that is, they decided against the right claimed by the corporation. " If the right," says Lord Mansfield, C.J., in delivering the judgment of the Court,^ " be claimed as a toll thorough, it cannot be supported, for it is not alleged that the plaintiff's corn passed over any street repaired by the corpora- tion: there was, therefore, no pretence for calling it a toll thorough." This is undoubtedly a case of importance on the subject of the consideration necessary to support a toll thorough, not only from its having been decided by a Court of Error, but also by reason of the kind of repairs which the corporation did to the streets of the city, as alleged in the plea, and sup- ported by the evidence. And it fully justifies the remark of the Court in Truman v. Walgham," that the Courts are ex- ceedingly careful and jealous of these claims of right to levy tolls on the subject. On a slight examination, the case of Rickards v. Bennett' may seem to militate against some of those which have already been cited ; but there is, in truth, no discrepancy be- tween that case and any of the earlier authorities, with all of which it is, indeed, quite consistent. It was an action of trespass for seizing a cheese at Farringdon, in the county of Berks. The defendant justified the taking, and his plea al- leged that he was seized in fee of the manor of P., with the appurtenances, of which the town of F. was at the time of the trespass, and from time immemorial had been, part and parcel; that the town had been from time immemorial divided into two tithings or townships ; and that the defendant and all those whose estate he had of and in the manor, with the ap- purtenances, had immemorially repaired and been used, &c. to repair at his and their proper cost and charge, a certain market-house, a lock-up house, a pound, and two pair of stocks, within the town of Farringdon, one half of a bridge and the pound and stocks v*'ithin the townships of Great and ' 4 Taunt. 520. « Ante, p. 10. M B. & C. 223. Of Toll Thorough. 13 Little Coxwell ; and to provide and keep in repair the stalls, &c. of the fairs and markets held within the town of Farring- don, and a bushel measure for the use of all persons residing in or resorting to that town ; and that he and all those whose estate he had, &c. of and in the manor, with the appurtenances, had iramemorially received and taken, &,c. for every ton of hard cheese brought into the town of Farringdon, for sale, and there sold and delivered within the town, or bought elsewhere than in the town, but brought into it for the purpose of being delivered, and there delivered, a reasonable toll, that is to say, sixpence for every ton of cheese (and so in proportion for a greater or smaller quantity,) to be paid by the seller of the cheese after the arrival thereof within the town of Farringdon, and where the same was ready to be delivered, but before the actual delivery to the purchaser. The plea then alleged a right to distrain upon non-payment of the toll, and so justified the taking, as lord of the manor, — stating the necessary facts to bring the plaintiff within the prescription set forth. The jury having found a verdict for the defendant, the plaintiff moved for judgment fwu obstante, on the ground that the plea did not allege a sufficient consideration for the toll, and likened the case to that of Truman v. Walgham. During the argument, Mr. Justice Bayley observed, that in that case the defendant was fettered by the words ''by reason whereof," introduced after the statement that divers streets were re- paired by him ; and intimated that in this case the whole of the consideration might be struck out of the plea, and the claim left as a claim generally by the lord of the manor to the toil by prescription. The Court took the same distinction be- tween the cases, intimating, however, that the plea would have been insufficient if it had stated that the toll was taken bi/ reason of the defendant's liability to the burthens men- tioned in it. Upon this distinction the defendant had judg- ment, the Court being of opinion that the toll was good as one of toll traverse, arising from the defendant's ownership of the soil: the particular reasons for this judgment will be given' 1 See Chap. II. 14 Of Toll Thorough. when wc treat of that species of toll. " It is not," Holroyd h observes, " a claim for toll for the privilege of going along a highway, but a claim by prescription by a lord of the manor for a toll upon goods sold and brought into the manor for de- livery. It is not a claim for passing through the manor, but for bringing goods into the manor, and delivering them there." We now come to the most recent case^ upon the subject under consideration. It underwent three trials, and was thrice moved in court. On the first and third trials, the ver- dict passed against the right to tiie toll claimed ; on the se- cond, the jury found in favour of the claim. The case con- tains a great many decisions on questions of evidence. Sec, which will be noticed in the proper place. It was an action of indebitatus assumpsit for tolls, brought by the lessee of the corporation of Cambridge against a mer- chant residing in the town, to try the right of that corporation to a toll (amongst others) of 2d. on every cart or waggon en- tering or leaving the town, having any goods in it. The plain- tiff rested his claim on two grounds, — both as a toll traverse and a toll thorough : the first of these grounds will be consi- dered by and bye ; at present our business is with the second. In order to prove the right of the corporation to the demand, as a toll thorough, the plaintiff gave in evidence that the cor- poration had always, as far back as living memory extended, (and also by proof of some old records,) repaired certain bridges in the town (viz. the small bridges, the great, now the iron, bridge, and the wooden bridge ; that they had on more than one occasion completely rebuilt some of them ; and that they re- paired the quay near the great bridge, and one of the streets of the town. The toll had been, in fact, taken, as far as Uving witnesses could remember, for all carts and waggons entering or leaving the town, by whatever street they entered or left, and whether they passed over any bridge or not. The Chief Justice, in summing up, told the jury" that there were two sorts of toll recognized by law,— toll thorough and toil tra- ' Brett V. beales, 1 Moo. 8c M. 41G. 10 B. & C. .508. M M. & M. 427. Of Toll Thorough. 15 verse, — and that the plaintiff would be entitled to a verdict on these pleadings, if he established his title to either. Where a party had the burden of repairing public highways, he might, though those were public ways at the time that the liability to repair commenced, be entitled to take toll in consi- deration of those repairs : and that was toll thorough. The public, however, having an antecedent right to the use of the ways, he could only be so entitled by virtue of such considera- tion, and for that purpose the plaintiff had attempted to prove that the corporation of Cambridge repaired the roads and streets there. He had only proved that they repaired a single road ; and having failed to prove that they repair all the roads and streets in Cambridge, where they claim the toll, the con- sideration failed, and they could not be entitled to toll thorough. His lordship having explained the nature of toll traverse, the jury found for the defendant, negativing the right of the plain- tiff to the toll altogether. A new trial was afterwards moved for,^ on the ground that the learned judge had misdirected the jury, inasmuch as, it was contended, the repairs proved to have been done by the corporation afforded a sufficient consideration to support the claim as a toll thorough. Mr. Justice Taunton, then at the bar, who moved the case, went at length into the several au- thorities upon the subject, and the Court took time to con- sider whether they should grant a rule to shew cause ; the Chief Justice observing that his present opinion was, that toll thorough could not be claimed except in respect of the passage over the particular road or street repaired. In the following term, the Court delivered the following judgment : — (after stating the facts of the case) '* At the trial of this case, 1 considered that the law was correctly laid down in Truman v. Walgham, and therefore I did not present the claim to the jury as one which could be supported as toll thorough, inasmuch as the corpo- ration of Cambridge claimed the toll over the whole town, although the repairs were done in some places only. I still continue of the same opinion ; and the decision in Truman v. ' 10 B. & C. 508. lU Of Toll Thorough. VValgham is confirmed by Hill v. Smith.^ That was a claim of toll by the corporation of Worcester: they repaired certain streets in the city, but not all ; and if repairing some of the streets had been a sufficient consideration, they would have established a right to the toll as toll thorough. But Mans- field, C. J. says, " If claimed as toll thorough, it cannot be supported, for it is not alleged that the corn passed over any street repaired by the corporation." In the present case, re- liance was placed on that which is reported in Cro. Eliz." to have been said by Popham J. in Smith v. Shepherd : " One may have toll traverse by prescription, and so he may have toll thorough, but it ought to be for some reasonable cause, which must be shewn, viz. that he is to maintain a causeway, or to repair a way, a bridge, or the like :" and it was observed that he does not state it to be necessary that the repair should be in the particular way in respect of which the toll is claimed. But the same case is reported in Moore, and by that report it appears to have been held that a man may have toll thorough in the king's highway if he is bound to repair the way or causeway, &,c. It is also laid down in 2 Roll Abr.^ that the king cannot charge his subjects by an imposition, unless it be for the benefit of the subjects charged, and where they have a quid pro quo. Now, it cannot be for the benefit of a person passing along a street in Cambridge that the corporation are bound to repair some other street ; such repair cannot, there- fore, be a sufficient consideration to support a claim to toll thorough. For these reasons, we are of opinion that there was not any misdirection, and that a rule for a new trial should not be granted." This case, as it is the most recent, is probably one of the most important on the subject we are now considering. It is in strict conformity with the previous decisions, and the judg- ment of the Court is so clear, that no one can fail to under- stand it. > In Error, 4 Tamit. 520. See S. C. 10 East, 476. =* 710. See ante, 6. » 172. Tit. Prerogative, (E.) pi. 20. Of Toll Thorough. 17 There is one case^ of toll thorough, existing by a grant which was explained by usage, that deserves to be noticed, as the point there raised and decided is one which may occur again in other places, and the decision would be of service. It was an action of assumpsit for tolls, and it appeared in evi- dence that the plaintiffs were entitled by their grant to " Thur- toll," which was explained, by evidence of usage, to be a toll for all commercial goods passing in or out of the city on horses or in carts or waggons. The toll taken was Id. for every horse-load, and 2d. for every cart-load drawn by one horse, and 2d. more for each additional horse. The Court of King's Bench held, that no alteration of the nature or kind of carriage by which the goods were conveyed in or out of the city (as by taking them in stage-coaches instead of ordinary carts and waggons, usually so called) could vary or affect the right of toll in the plaintiffs for each horse drawing the coach, although the number of horses was estimated by the weio-ht of passengers, rather than of goods. The plaintiffs gave evi- dence of the receipt by them of the toll on carts and waggons, but it appeared that they had collected the toll for sta(re- coaches only about fifteen years, although they had been esta- blished in the city for nearly fifty years. Lord Ellenborouo-h, C. J. observed, that the custom was, in substance, to pay a toll on goods conveyed in carriages, in proportion to the num- ber of horses. Whatever the form or denomination of the carriage might be, was immaterial ; whether it were a cart, waggon, or coach; if it were applied to the purpose of draw- ing goods for sale, the custom attached to it. The reason why the toll had not been in fact collected from the owners of public coaches, was because till of late years it had not been the general custom of that part of the country to convey goods in such carriages ; and therefore the collection of the toll might not have been worth attending to. As to the dispro- portion arising from the application of the toll to such car- riages, where the number of horses was adapted more to the carriage of passengers than of goods, that was the act of the ■ Mayor of Carlisle v. Wilson, 5 East, 2. 1 Smith, 297. C 18 Of TuH Thorough. defendant himself. The plaintiffs could not discriminate the proportion adapted to each, and might, therefore, charge for the whole number of horses which were actually used for the draught of the carriage in which tollable goods were con- veyed ; for the toll was payable in respect of the goods and not of the carriage. Le Blanc, J. observed, that if the coach proceeded ivith passengers onli/, without any commercial goods, no toll would be payable ; but if there were such goods in it, the toll was payable according to the number of horses by which the coach was drawn. TiiC plaintiffs, therefore, had judgment. Section III. — Of Toll Thorough for passing along the Sea or Public Navigable Rivers. We have hitherto considered this toll with reference only to its being claimed for passage along the ordinary public roads and highways ; but the cases we have already cited apply equally to the sea, and to public navigable rivers and brido-es. We are not here discussino- Port-dues, Harbour- dues, or the like, which are claims arising from the property in the soil, or some particular easement of which the party paying has the advantage ; but merely the right of a person to demand a toll or duty for the passage of the public with ships, &.C. along the high seas, or public navigable rivers. A navigable river is esteemed a highway.^ What consti- tutes a public navigable river has been very frequently the subject of dispute in courts of justice; but it seems to be clearly established, that the mere circumstance of the flux and reflux of the tide (though strong prima facie evide«ce) is not conclusive of its being so, — for there are many places to which the tide flows which are not public navigable rivers.'^ The public have, prima facie, a right to navigate • Com. Dig. tit. Chimin (A.l). 10 Mod. 382. See Wilkes v. Kiiby, 1 Lutw. 490. 2 Lutw. 1519. ' Mayor of Lynn v. Turner, Cowp. 86. R. v. Mountague, 4 B. & C. 598. Miles V. Rose, 5 Taunt. 705. Of Toll Thorough. 19 their vessels on such a river ; but an individual may have an exclusive right to it.^ The strength of the prima facie evi- dence arising from the circumstance of the flowing and ebbing of the tide, depends on the situation and nature of the chan- nel. If it is a broad and deep channel, calculated for the pur- poses of commerce, it would be natural to conclude, that it is a pubhc navigation ; but if it is a petty stream, navigable only at certain periods of the tide, and then only for a short time, and by small boats, it is difficult to suppose it has ever been a public navigable channel." And a stream which has once been a public navigation may, from neglect on the part of the public, and from an obstruction for a length of time, cease to be so, and the rights of the public may be presumed to have been lawfully determined. If the sea retreated, or the chan- nel silted up, so as to be no longer navigable, why should not the rights of the public cease? If they arose from natural causes, why should not natural causes also put an end to them 1^ It is, indeed, reported in one case,' that Holroyd, J. said, that a public right of this kind could only be extinguished by an act of parliament ; but his lordship, in a subsequent case,* observed, that he was bound to correct that opinion, as he was satisfied, upon looking into the authorities, that it might be done by a writ ad quod damnum, or by natural means. A public navigable river is in the nature of a highway ; and if the water alters its course, the way alters also.^ A highway may be changed by act of God ; and therefore, if a river, which has been an ancient highway, by degrees change its course, and go over different ground from that whereon it used to run, the highway continues in the new channel as it previously was in the old.*^ Of common right, it is said in a very early case,'^ the sub- ' Miles V. Rose, 5 Taunt. 705. "^ Per Bayley, J., R. v. Mountague, 4 B. & C. 602. 3 Vooght V. Winch, 2 B. & Aid. 670. " R. V. Mountague, 4 B. & C. 603. * Com. Dig. tit. Chimin (A. 1), citing Thorpe, J., 22 Ass. 93. « 1 Hawk. P. C. c. 76. s. 4. ' Wilkes V. Kirby, 1 Lutvv. 490. 2 Lutw. 1519. c2 20 Of Toll Thorough. jects of the king have the liberty of using the ancient ports of the reahn, and that they are as free to all as the king's highway ; and those who seek to restrain them of this free liberty ought to shew a meritorious consideration, a quid pro quo. That was an action of trespass for taking the plaintiff's goods, at King's Lynn, in the County of Norfolk. The de- fendant justified under a plea of a prescription for the owners of the port of King's Lynn to take a certain toll for merchan- dizes loaded there, to be exported from thence by foreigners not free of the borough ; and the plea alleged that this was " towards the necessary reparation of the port ;" and a right to distrain upon refusal to pay. On demurrer, it was objected that this was not a good plea, because it was stated only that the toll was towards the reparation of the port, and not that the owners of the port, in fact, repaired, or were bound to repair the port, and in consideration of such obligation took the toll : it was also objected, that the consideration itself was insufficient in law, even if well pleaded. The case seems not to have been decided ; but the reporter says " le Court fort- ment encline pur le defendant," because he might have been in- dicted for not repairing the port. In Prideaux v. Warne,^ which was an action of replevin for a sail belonging to the plaintiff's ship ; the defendant avowed that he was seized of the manor of Padstow, and that, be- tween a place called Wadesbridge in the parish of Brecock, and Slipper Point, in the parish of Padstow, there was and time out of mind had been a quay for the lading and unlading of merchandize, and that the lords of the manor of Padstow had time out of mind repaired the quay, and kept a bushel measure for the measuring of salt and other merchandize there; and that by reason thereof, they had time out of mind had a bushel of salt of every ship bringing salt between Wadesbridge and Slipper Point to sell, as belonging to the said manor ; the avowry then stated a prescriptive right to distrain, and that the plaintiff's ship came laden with salt ' 2 Lev. 96. Sir T. Raym. 233. Reported 1 Mod. 104, by the name of Warren v. Prideaux. Of Toll Thorough. 21 within the above limits, and so justified the seizure. The plaintiff, by his plea in bar (admitting that the defendant was lord of the manor, and that the quay had existed and had been repaired time out of mind) alleged that the river of Pad- stow was ten miles long, and the manor (within which the quay was) only half a mile long, and that his ship was brought to Nude, seven miles from the quay. To this the de- fendant demurred, and after argument the plaintiff had judg- ment. In giving judgment, Hale, C. J. said if a man will prescribe for a toll upon the sea, he must allege a good consideration, because, by Magna Charta and other sta- tutes, every one hath a liberty to go and come upon the sea without impediment. If the defendant had said that he had a port, and was bound to maintain that port, that might have been a good prescription. But in this case there must be a special inducement and compensation to the subject, by reason of those statutes by which all merchants and others have liberty to come in and go out. In the report of this case in T. Raym. the Court said the defendant might as well pre- scribe to the confines of France. This case was distinguished ^ from that of Crispe v. Bel- wood,2 where the Court supported the claim of the lord of a manor to a toll for all goods landed ivithin the manor, though not upon the wharf, which alone the lord repaired, as appeared by the plea ; observing that originally the lord was owner of all the soil in the manor, and that therefore the prescription was good in respect of the easement in landing goods on his soil, whereas in this case, the toll was in the nature of a toll for passing up the river, which is the king's highway. To the same effect is the case of Haspurt v. Wills,' which was a special action on the case on a custom of wharfage in the city of Norwich. The plaintiff in his declaration stated that he had and maintained a common wharf and a crane thereto attached, for the unloading of such goods as were ' See the report in 2 Lev. 97. ' 3 Lev. 424, ante, 7. ' In Error, 1 Ventr. 71. 1 Mod. 47. S. C. reported by the name of lleshord v. Wills, 1 Sid. 454. 22 Of Toll Thorough. brouc^ht up the river in vessels to the city ; and the cus- tom alleged was, that every vessel passing through the river by the wharf paid a certain duty ; for which the action was brought. The Court held the custom bad and void as to all vessels which did not unlade ** at the wharf or any other place within the city," there being no benefit redounding to them from the maintenance of the wharf, they only passing by, bound for another place, and could therefore have no imposition on them ; but if they had received their freight at the wharf it might extend to them. According: to the reason here given bv the Court for their judgment, it should seem that vessels which unloaded at any place in the city, though not upon the wharf, would be entitled to pass without paying any toll, — " no benefit redounding to them from the maintenance of the wharf;" but the words "or any other place in the city" are in the book, and are there- fore given in this place. I should, however, conceive that no vessel would be liable to the duty which did not unload at the wharf itself, as several of the cases already cited prove. In- deed, the report of this case in Mod. is somewhat different from that in Ventr. upon this point, the C. J. there observing that " if they had unloaded at the quay, they should have paid the duty : nay, if they had unloaded at any other place within the city, there would have been some reason for it:" by no means saying that it would have been a good prescription, as the report in Ventr. seems to imply. One of the last cases ^ which we shall have occasion to cite on this branch of our subject, was argued on a special verdict, and is therefore entitled to great consideration. In the margin of the report of the case it is said that, " a prescription to take toll for passing on an ancient navigable river through the plaintiff's manor, is bad in law :" but in order to see the ex- tent and reason of this doctrine, we must look into the case itself. The plaintiff in his declaration alleged, that Notting- ham was a town corporate by prescription, and incorporated by a charter of the 3rd and 4th William and Mary, and that ' Mayor of NoUingham v. Lambert, Willes, 111. Of Toll Thorough. 23 the manor of N. was an ancient manor, &c. It then stated that ** the river Trent in and throughout the manor is and time out of mind hath been an ancient and navioable river, and that the mayor and burgesses of N. and all their predecessors have time out of mind had, and received, and used and ought of right to have and receive, a certain duty or toll of every master or navigator of every boat, barge, or other vessel, laden with goods, wares, or merchandizes, navigated on the said river Trent through the said manor, viz. 2d. for every ton of goods loaded and being upon any vessel so navigated as afore- said." The declaration then stated facts to bring the defend- ant within this prescription. The special verdict found all the facts precisely as alleged in the declaration, with the additional one " that there was not any consideration proved to the jury at the trial, for the payment of the said duty or toll." On the argument, three points were made against the right of the plaintiffs to maintain the action, the second of which alone applies to the subject before us at present, which is thus stated in the report : " That the prescription itself, as declared upon and found in the special verdict, is not a legal prescrip- tion, but void in law." It is unnecessary to insert the judg- ment of the Court at length ; it is, however, full of argument, and examines all the previous cases minutely, and will well repay the task of perusing it. The result was, that in the language of the Court, '' the prescription, as laid and found, was not a good and legal prescription." — How can a duty be imposed on all the subjects of the realm, the Court asked, for only enjoying that privilege which is their inherent birthright, and which every subject had a right to before ? The defend- ant, therefore, had judgment. In the case of the Mayor of Great Yarmouth v. Eaton,' a question arose on the right of the corporation of Yarmouth, who were owners of the port there, to take a toll for all mer- chandizes exported from the port; and the point in the case was, whether the claim was in the nature of a Toll Thorough or not. The declaration consisted of several counts, but as ' 3 Burr. 1402. 24 Of Toll Thorough. the question was decided upon demurrer to the firstonly, it is only necessary in this place to state the allegations contained in that one. It alleged that the borough of Great Yarmouth then was, and from time whereof the memory of man was not to the contrary had been, an ancient borough ; that the mayor, See. of the borough on the 1st day of May, 1752, and long before and ever since, had and received, and had used and been accustomed to have and receive, and of right ought to have had and received, and still of rioht ouo-ht to have and receive, a certain duty or toll called measurage, of and from every merchant exporting corn or grain in any ship or vessel from the port of Great Yarmouth to parts beyond the seas, — to wit two-pence for every last of corn or grain measured and exported as aforesaid : the declaration then stated that the defendant had exported in ships from the port of Great Yar- mouth, divers large quantities of corn and grain, by reason of which he became liable to pay, 8cc. To this the defendant demurred specially, assigning for cause of demurrer that the plaintiffs had not shewn or alleged in the first count of their declaration any benefit which the corporation perform or are bound to perform to the public, or any cause or consideration whatsoever, upon which their supposed prescription was founded. The sole question therefore was, whether the count alleged a Toll Thorough, upon which it was necessary for the plain- tiffs to state any consideration for the duty claimed? The defendants' counsel likened the case to those which have been decided on questions of the Toll Thorough. They admitted that if it had appeared that the plaintiffs were owners of the port, that would have been sufficient, according to the case of Topsail V. Ferrers. ^ For the plaintiffs, it was answered that the port was granted to the plaintiffs and was made out of private property, and that the public had, therefore, a benefit to which they were not entitled at common law. They cited the Mayor of London v. Hunt, ^ and the Corporation of Exeter v. Trinlett. ' The Court held the declaration sufficient, ' if-^^- 1''^- ' 3 Lev. 37. ••' Trin, 32 Geo. 2. Of Toll Thorough. 25 and Lord Mansfield, C. J. in delivering his opinion, said, The plaintiffs set out that they have a right by prescription to the port-duties at Great Yarmouth, and the question is, whether they are obliged to set out a consideration ? The only cases like the present are port duties ; the rest are out of the question. The making a port is itself a consideration : it is a self-evident convenience to the merchant : it speaks for itself. It may never require repair : therefore, I do not know that it is necessary to shew repair. The ownership of the soil is out of the case. The plaintiffs, therefore, had judgment. It only remains to be added, that it lies on the person seeking to charge the public with this species of toll, which is against common right, ' and with respect to which the courts are exceedingly careful and jealous,^ to prove to the satisfaction of the Court and Jury, a good consideration for it; and a consideration will not be implied, even from a prescrip- tive taking of the toll.^ This of course applies to a toll thorough for passing along a common public highway, the sea, a public navigable river, and other places over which the public have a right to pass freely at common law. ' Ante, 3. ' Truman v. Walgham, 2 Wils. 96. See ante, 10. ' Mayor of Nottingham v. Lambert, VVilles, 111. 26 (gftapter tf)t CfiirD, OF TOLL TRAVERSE. We have now to consider the species of toll called Toll Traverse ; so called because it is a toll paid for "traversing" or going over the land of another. ^ In one of the books, it is defined to be a sura demanded for passing over the private soil of another: 2 and again, a duty which a man pays for passing over the soil of another in a way not a high street : ' but we shall see by and bye, that it may, under certain cir- cumstances, be payable for passing over the common public highway.^ It is also due in some cases for passage over the private ferry, bridge, &,c. of another.^ In one of the earlier cases in the books ^ it was said by the counsel in argument, that the terms Toll Thorough and Toll Traverse are used promiscuously ; and in Vin. Abr. 7 it was said that the Court in that case seemed to agree : but the case is one of ques- tionable authority, as appears from an observation of the Court in a subsequent one.^ I do not find any case of autho- rity in which the terms are used, or which says they may be used promiscuously, and in that last cited, the Court * Crispe v. Belwood, 3 Lev. 424. * q^^^ j^jg ^■^^^ r^^^ (j)) * Vin. Abr. tit. Toll (A). 22 Ass. 58. * Pelhara v. Pickersgill, 1 T. R. 660. Brett v. Beales, 10 B. &C. 508. See post. * 1 Sid. 454. * James v. .Johnson, 1 Mod. 232 ; but see S. C. 2 Mod. 143. 7 Tit. Toll (A). ' Mayor of Nottingham v. Lambert, Willes, 115. Of Toll Traverse. 27 observed^ that the distinction between the two kinds of toll was obvious and founded in good sense. Unlike toll thorough, a corporation or an individual may prescribe for toll traverse, without alleging any consideration," and the prescription will be good ; or we should perhaps say that the ownership of the soil in the person prescribing for such a toll is in itself a sufficient consideration for it, and the law supposes a reservation of the toll to have been made by the proprietor of the soil at the time when he first allowed the public the privilege of passing over it.^ This toll cannot be demanded, unless it has been used to be taken time out of mind ; * and the reservation of the toll must be contempo- raneous with the dedication of the way to the pubUc.^ An act^was framed and introduced by the late Lord Ten- terden, entitled " An act for shortening the time of prescription in certain cases," which has most materially altered the law upon this subject, and the evidence necessary to support a prescriptive claim to tolls and to various other rights ; but before referring particularly to the provisions of this statute, it may not be improper to enquire shortly into the nature and incidents of a prescription, as it existed before and at the time of the passing of that statute. " Prescription," " from time whereof the memory of man runneth not to the contrary," and " time out of mind," are all one in law ;7 and this, says Lord Coke,^ is to be under- stood, not only of the memory of any one living, but also of proof by any record, writing, or otherwise, to the contrary. And it was necessary, previously to the recent act, to shew that ' Willes, 116. ' Per Cur. Truman v. Walgham, 2 Wils. 296, ante, 9. » Crispe v. Belwood, 3 Lev. 424. See Keilway, 152, pi. 54. ■• Fitzh. tit. Toll, pi. 3. The meaning of, and the law applicable to " time out of mind," will be seen immediately, when we speak of Lord Tenterden's Act. * Pelham v. Pickersgill, 1 T. R. 660; post. ^ 2 & 3 Will. 4. c. 71, which came into operation on the 2d Nov. 1832. T Com. Dig. tit. Prescription (E. 1). » Co. Litt. 115 a. 28 Of Toll Traverse. the rifht prescribed for, existed in the time of the reign of Richard the First, which was done, either by positive proof of its existence at that remote period, or by the evidence of modern usage, from which its existence at that time was to be inferred. Where, therefore, there was proof of the commence- ment of a thing since the reign of Richard the First, it could not be claimed by prescription : " as if a vicarage were endow- ed de minutis decimis in the year 1300, and the parson ap- propriate were sued by the vicar for them, the parson could not prescribe against such demand ; for his prescription must begin after the endowment, which was itself within the time of me- mory."^ There are two inseparable incidents to a prescription, — time, and usage j and it is said that every prescription ought to have long, continued, and peaceable enjoyment; and there- fore if repeated usage cannot be proved, it fails.- As per- sons may prescribe to take toll of this kind, so a city, bo- rough, &c. may prescribe to be free of toll f but this belongs more properly to a subsequent portion of our work. Thus the law stood at the passing of Lord Tenterden's act ; * and claims of tolls, 8cc. depending on prescription were fre- quently defeated by its being shewn that they had their com- mencement since the reign of Richard the First, notwith- standing an uninterrupted exercise and enjoyment of them for a very long period. That statute recites that the expres- sion " time immemorial," or " time whereof the memory of man runneth not to the contrary," is by the law of England, in many cases, considered to include and denote the whole period of time from the reign of King Richard the First, whereby the title to matters that have been long enjoyed, is sometimes defeated by shewing the commencement of such enjoyment, which is in many cases productive of inconveni- ence and injustice. It then enacts^ that no claim which may * Com. Dig. tit. Prescription (E. 1); Roll. Abr. tit. Prescription, 269, 1.50. ' Co. Litt. 113 b. 3 Com. Dig. tit. Toll (G. 1). * 2 8c 3 Will. 4. c. 71. * Ibid. sect. 1 . As the provisions of this statute are not generally known, it has been deemed advisable to preserve the very words of the act itself. Of Toll Traverse. 29 be lawfully made at the common law by custom, prescrip- tion, or grant, to any right of common, or other profit or benefit to be taken or enjoyed from or upon any land of the king, his heirs or successors, or any land being parcel of the Duchy of Lancaster, or of the Duchy of Cornwall, or of any ecclesiastical or lay person, or body corporate (except such matters and things as are therein specially provided for, and except tithes, rents, and services) shall, — where such right, profit or benefit shall have been actually taken and enjoyed by any person claiming right thereto, without inter- ruption, for the full period of 30 years, — be defeated or de- stroyed, by shewing only that such right, profit or benefit, was first taken or enjoyed at any time prior to such period of 30 years ; but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated : and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid, for the full period of 60 years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement, expressly made or given for that pur- pose by deed or writing. The statute then contains provisions respecting ancient lights, ways, water-courses, &,c. which are not pertinent to our present enquiry; and then provides for the manner in which these periods of 30 and 60 years are to be calculated, by enacting^ that each of them shall be deemed and taken to be the period next before some suit or action, wherein the claim or matter to which such period may relate, shall have been or shall be brought into question. The same section likewise provides that no act or other matter shall be deemed to be an interruption within the meaning of the statute, unless it shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or autho- rising the same to be made. ' Ibid. sect. 4. 30 Of Toll Traverse. In all actions on the case and other pleadings in which the claimant, at the time of the passing of the act, might have alleged his right generally, without averring its existence from time immemorial, he may still do so ; and all the matters mentioned in the act, which may be applicable to the case, are admissible in evidence to sustain or rebut the allegation.^ In pleas to trespass. Sec. it is sufficient to allege the enjoyment of the right for the periods mentioned in the act, which may be applicable to the case; and if the other party intends to rely on any proviso, exception, incapa.city, &c., he will not be allowed to give it in evidence under a general denial of the defendant's allegation, but he must reply such matter specially.^ The statute also enacts- that, in the several cases men- tioned in and provided for by the act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the exercise or enjoyment of the right or matter claimed, for any less period of time or number of years than for such period or number mentioned in the act, as may be applicable to the case and to the nature of the claim. And lastly, it provides,^ that the time, during which any person, otherwise capable of resisting any claim to any of the matters before mentioned, — shall have been or shall be an infant, idiot, non compos mentis, feme covert, or tenant for life, — or during which any action or suit shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party or parties thereto, — shall be excluded in the computation of the periods thereinbefore mentioned, except only in cases where the right or claim is thereby declared to be absolute and indefeasible. Having said thus much, we may add that modern usage alone, continued as far back as the memory of living wit- nesses extended, was always considered as evidence from which, in the absence of any proof to the contrary, juries were warranted in presuming and finding a prescriptive right. ' Ibid. sect. 5. ' Ibid. sect. 6. ^ Ibid. sect. 7. Of Toll Traverse. 31 "As far as the memory of living witnesses goes," — said Lord Tenterden, C. J., in directing the jury in the Cambridge toll cause, — "taking it now from the evidence adduced on the part of the plaintiff, this toll has been paid ; and when we find that payment has been made for a very long period of years, or any other right exercised for a very long period of time, it behoves us to refer that payment or that right, whatever it may be, to a foundation on which it may lawfully stand, if we can do so ; — and if there be nothing to break in on it, or shew that it cannot have had its origin in the manner stated, to give support to it. Unless we do that, many rights, private as well as public, which depend on usage only, must be lost, because the precise origin of them (especially if we must go back to a most remote period of antiquity in order to obtain that precise origin) can in very few instances be shewn." So, in Truman v. Walgham,^ it is said by the Court in giving judg- ment, that toll traverse, or for going through a man's private land, may be prescribed for without any consideration ; and payment time out of mind is sufficient and will support the prescription. — It is now time that we should proceed to con- sider the cases which have been decided on this branch of our subject. In Crispe v. Belwood,* which was an action of trespass for taking some boards belonging to the plaintiff, the defendant, as the servant of the lord of the manor of G., pleaded in j ustification the same prescription that was stated in the declaration in the case of Colton v. Smith,' and farther alleged a custom on the part of the lord of the manor to distrain if the toll were not paid ; in all other respects, the plea in this case was to the same effect as the declaration in that. The plaintiff here, (as the de- fendant there had done) contended that the toll was in the nature of a toll thorough, as the goods were landed " within the manor," generally, and not upon the wharf, which alone the plea stated that the lord maintained. On the part of the defendant it was argued that this was not a case of toll ' 2 Wils. 296. See ante 8. ' 3 Lev. 424. ' Cowp. 47, ante 7. 32 Of Toll Travene. thorough, but of toll traverse for passing over the defendant's land, wliich ail the books agreed was good without any con- sideration or charge. And it might be intended that ail the lands within the manor were the demesnes of tlie manor, for so they at first were, until the lord divided them among his tenants: and supposing even that tiiose lands were not now parcel of the demesnes, but given to the tenants in fee, yet the prescription might have a reasonable commencement, viz., that when the lord divided those lands among his tenants, he reserved to himself the toll for landing goods in the manor. The Court took this view of the case, and gave judgment in favour of the defendant ; thus confirming the decision in Col- ton V. Smith. The plaintiffs declared that he was possessed of a toll tra- verse for passage on the bridge at Ware, and that the defendant carried a certain quantity of barley over the bridge, the toll whereof amounted to 40s., which he refused to pay. To this, the defendant demurred generally, and on the argument made two points ; the first, that the action did not lie at all for a toll for passing a bridge without shewing a consideration for it, be- cause, prima facie, such a toll was in the nature of a toll thorough, and the plaintiff should therefore have averred either that the bridge was his, or that he was accustomed to keep and maintain it. The other point went to the form of action. The question was adjourned, and I cannot find that any judgment was ever pronounced upon it. But it may be reasonably contended for the plaintiff that the declaration was good on general demurrer, as it might be well in- tended, by the plaintiff declaring on his possession of a toll traverse, that the bridge was his property, and that would be sufficient. It has been frequently decided that the owner of a port may have a right to a toll on goods entering the port, by prescrip- tion ; and in one case ^ a dutyof 3c?. a pound on all merchandize ' Steinson v. Heath, 3 Lev. 400. ' Roll. Abr. tit. Prescription, 265, 1. 30. Of Toll Traverse. 33 entering- the port, was supported by the Court. In another/ the plaintiffs declared on a custom that they and their predeces- sors had, time out of mind, had and received of every master of a shipSc^. a ton for every ton of cheese brought from any part of England east of London Bridge, in the name of weighage ; and that the defendant, being the master of the ship, had brought a certain quantity of cheese to the port of Lon- don, the toll for which this action was brought to recover. The plaintiffs had a verdict, and the defendant brought a writ of error, on the alleged insufficiency of the declaration in not setting forth a consideration for the claim. But the Court was of opinion that the declaration was sufficient: the de- fendant, they said, had the liberty of bringing his goods into a port, which was a place of safety, and therefore implied a consideration in itself. The plaintiffs therefore had judg- ment. Let us now inquire in what cases a toll may be supported for passing along what is at present a public highway, without shewing any present consideration ; for cases may occur in which the courts will presume an original consideration even for such a toll. We have already seen " that in order to sup- port a prescriptive claim to a toll, on the part of a lord of the manor, on all goods landed within the manor, even though not landed on the lord's wharf, which alone he was under the obligation of maintaining, the Court felt themselves justified in presuming, that all the lands within the manor were anciently the demesnes of the manor (though since divided amongst his tenants) and that the lord reserved to himself the right to take the toll for landing goods within any part of the manor, when he divided the lands amongst his tenants. This subject has been much considered in some modern cases, and the view taken by the Courts in those just referred to, has been con- firmed. The most important of these is Pelham v. Pickers- ' Mayor of London v. Hunt, (in Error,) 3 Lev. 37. ' Colton V. Smith, Cowp. 47. ante 10. Crispe v. Belwood, 3 Lev. 424. ante 31. D :i4 Of Toll Traverse. uilP, which was twice argued on a special verdict, and re- ceived tiie fullest consideration. It was an action of assumpsit for toll, with a plea of the general issue, and the special ver- dict found the following facts : — That the manor of Bure (mentioned in the declaration) in the county of York, was a manor of the ancient demesne of the crown of England, as appeared by Doomsday Book, and that King William the First was seized of the manor and of the ground and soil thereof, (of which the borough of Borough- bridge, mentioned in the declaraHon, was parcel) in his de- mesne as of fee, in right of the crown of England. That the manor and the ground and soil thereof were and continued to be the inheritance and parcel of the possessions of the crown of England, and of the Duchy of Lancaster respectively, from the reign of William the First till the time of the alienation of the manor from the duchy in the reign of Charles the First. That all the kings and queens of England respectively for the time being, from time immemorial, had, in respect of such manor, by their bailiffs and farmers, had, taken, and received, and had been used and accustomed to have, take, and receive, at the bridge of the borough (otherwise called Boroughbridge) within the manor, a certain reasonable toll, that is to say, a toll of Ad. for every waine or waggon loaden, coming, going, or passing that way over the manor, for and in consideration of such liberty of passage with such waine or waggon loaden over the manor. That the office of receiving the toll in the manor, by the respective bailiffs and farmers of the kings and queens of England for the time being, long before and at the time of the making of the grant and demise thereinafter men- tioned, had been and was called and known by the name of the bailiwick of the borough of Boroughbridge in the county of York ; and that the said bailiwick and the tolls, long before the making of the grant thereinafter mentioned, had been an- nexed to and then were parcel of the ancient possessions of the Duchy of Lancaster. — The special verdict then stated a grant by William the Third, in the year 1697, of the bailiwick ' 1 T. R. 660, Of Toll Traverse. 35 and tolls to Sir Robert Howard, and after deducing title to them in the plaintiff, proceeded thus : — That by virtue of the premises, the plaintiff became and was and still is possessed of the baihwick of the said borough of Boroughbridge, and of the said tolls there, and all and singular the rights, members, and appurtenances thereunto belonging ; and he being so pos- sessed thereof, the defendant on a certain day came, went, and passed with three waggons loaded over the manor, by and at the bridge of the borough, otherwise Boroughbridge. That from time immemorial there had been and then was, a common pub- lic king's highway, through and over the manor, and over and along the said bridge of Boroughbridge within the manor, where the defendant came and passed with his waggons loaden as aforesaid, (and for which passage, the tolls were claimed to be due to the plaintiff,) used for all the king's subjects to go, return, pass and repass on foot, and on horseback, with their cattle, carts, and carriages, every year at all times of the year ; and that from time immemorial, the inhabitants of the North and West Ridings of the county of York had been used and accustomed to repair, maintain, and amend, and still do repair, maintain, and amend the said bridge of Borough- bridge, when and as often as might be necessary, in certain proportions. That King Charles the First severed the tolls from the manor, and reserved the tolls, and alienated the manor of Bure to several citizens of London, whose represen- tatives are still possessed thereof. It is not necessary to give at length the arguments on either side, or the judgment of the learned persons who decided the case ; but we may state briefly that it was contended on the part of the plaintiff that, the highway and the toll being coeval, the granting to the public the use of the former by the then owner of the soil, was the consideration for the latter, — which was certainly as good a consideration as the repair of a high- way. For the defendant, it was argued that the finding of the jury that there had been immemorially a common public king's highway through and over the manor and over and along the bridge, and that the bridge had immemorially been D 2 36 Of Toll Traverse. repaired by the inliabitants of" two of tlie Ridings of the county, expressly negatived the existence of a toll traverse, and left the plaintiff's claim, therefore, as one of toll thorough, which he could not sustain for want of a consideration, which was negatived by the case. In delivering his judgment, Ashurst J. said (amongst other things) that it had been properly admitted that toll thorough could not be supported without shewing a consideration, but that toll traverse might ; and the reason was, that the very circumstance of passing over the soil of another person, where the public had before no right to pass, imported a considera- tion. The reason of the distinction, in all probability, arose from the difficulty, in most cases, of shewing that the toll and the ownership of the soil were coeval ; for there were very few cases in which it could possibly be shewn that the soil over which an ancient road passed, was the soil of a private person. But in the present case it was so shewn, and that distin- guished it from all the former determinations. The toll must now be presumed to be coeval with the right of passage. The Crown had a right to say to the public, that they should not use the ground for the purposes of a highway without paying a toll for it. Buller J. observed, that by the verdict the possession of the soil and the toll were found to be coeval; the subjects, there- fore, never had a right of passage without paying the toll. — The learned Judge subsequently made some observations on a passage which is quoted in all the books on this subject. The 22 Ass. pi. 58,^ said his lordship, had been relied on by the defendants ; but in that case nothing was said with respect to the soil, and it was clear that the Court went on the idea that the party claiming the toll had no interest in the soil, and that there was a general right of passage before the toll was claimed: for the complaint was, that the toll was "outra- geous," and it was only claimed as a toll thorough. Thorpe J. there said that Toll Thorough was an oppression of the people, and that it was against common right, but Toll Traverse was ' Ante, 3. Of Toll Traverse. 37 where a man passed over the soil of another in a way not being a high street. From that case, it was manifest that Thorpe was speaking of a highway of which the pubhc had possession before the toll was granted ; if so, the Crown could not charge the public with the burthen. The note in Fitzh. ^ shewed that that might be the meaning of the old cases, but that was not the present case, for originally the public had not the right of way ; and if there were a contract between the Crown and the public that the latter should have the use of the road on paying the toll, the reservation was a sufficient consideration. — The rest of the Court concurred in this view of the case, and the plaintiff had judgment. This case and the recent one of the Cambridge Tolls- will enable any one very easily to ascertain whether any particular toll for passing over a highway, in which he may be interested, can be supported without proof of a present consideration moving towards the public. It is certainly very difficult in the case of a public highway, repaired and maintained by the public, to shew that, anciently, the soil was in the hands of the Crown or a private individual, and that when the Crown or the individual dedicated the way to the public, they reserved a toll for passing over it. In the case just considered, it was done very satisfactorily, but there are very few cases in which it can be now proved. In the Cambridge case, the corporation attempted it (as we shall presently see) but failed. We come now to the case of Rickards v. Bennett.^ The pleadings in this cause were stated, and the question in a great measure discussed, in considerinc; Toll Thorough.* We there, however, observed that the particular reasons for deciding that the claim in that case was one of Toll Traverse, and not of Toll Thorough, would be shewn in this chapter ; and we proceed to give them as briefly as, consistently with clearness, we can. It will be recollected that the particular point there decided was, that where the lord of a manor in a plea in tres- ' F. N.B. 518 a. ' Brett V. Beales, 1 M. & M. 416. 10 B. & C. .508. ' 1 B. &C. 223. * Ante, 12. 38 Of Toll Traverse, pass set out various burthens borne by him in the parish in which the trespass was committed, and then prescribed (not " by reason" of those burthens, but) generally, as lord of the manor, for a toll on all goods brought into and delivered in a town within the manor, (and which town had immemorially been parcel of the manor) the Court held that after verdict the claim was good as one of toll traverse, although the bur- thens set forth in the plea would not have constituted a suffi- cient consideration for a toll thorough. In delivering his judg- ment, the Lord Chief Justice observed. The plea in this case alleges, not only that the manor has existed from time imme- morial, but also that the town of Farringdon has from time immemorial been part of the manor. It is, therefore, to be presumed, that before the time of legal memory the site of the town belonged to the lord. It is also alleged that the toll has been paid immemorially : we may, therefore, fairly infer that the toll was originally granted to the lord in consideration of his consenting that the soil of the manor should be laid out in the streets of the town. The cases of Crispe v. Belwood,^ Colton V. Smith,2 and Pelham v. Pickersgill,^ prove that if such a consideration can be presumed, it is sufficient to sup- port the claim made in this case. Bayley J. in the course of his judgment said, that if a legal commencement of the toll could be presumed, that was suffi- cient, — a verdict having been found for the defendants. The toll might fairly be presumed to have been granted at a time when the lord of the manor was also owner of the soil, in re- turn for a dedication of a part of that soil to the public. The defendant, therefore, had judgment. The case of Brett v. Beales ■* (the Cambridge toll cause) was cited in the former chapter^ for decision on the subject of Toll Thorough : it is no less important on the subject which we are now considering. It was there mentioned that the plaintiff rested his claim upon the double ground of a toll tho- ' 3 Lev. 424, ante, 31. ' Covvp. 47, ante, 10. M T. R. 660, ante, 34. * 1 M. & M. 416. lOB. &C. 508, ' Ante, 14. Of Toll Traverse. 39 rough and a toll traverse ; the former ground we have consi- dered, and we now come to the latter. The object of the plaintiff was to shew that the king, before the time of legal memory, was owner of the town of Cambridge — that the tolls in dispute were in existence at that early period, and were taken and accounted for by the king's bailiffs,— and that the king, subsequent to the commencement of legal memory, had granted the town with all its appurtenances (including the tolls then payable to the Crown) to the corporation, who, it was said, had enjoyed them ever since. For the purpose of prov- ing the first two of these propositions — viz., that the town be- fore the time of legal memory was in the hands of the Crown, and that the tolls were then taken there,— the plaintiff gave in evidence an extract from Doomsday Book. By that it very clearly appeared that the first of these was correct, — that the town of Cambridge, at and before the compilation of that book, belonged to the Crown. As to the second, there was in Dooms- day Book an enumeration of the different wards in the town, with the number and value of the houses in each. The fol- lowing is an instance of the first ward: "The Borough of Cambridge was rated as one hundred in the time of King Ed- ward. In the borough, there were and are ten wards. In the first ward there are fifty-four houses : of these, two are waste (empty). In this ward. Earl Alan hath five burgesses, ren- dering nothing. Earl Morton holds of the lands of Judickel three houses ; and there are three burgesses, who in the time of King Edward paid five shillings and eight-pence-half- penny, now they render nothing," — and so on. In enumera- ting the second ward, itwas said that two were waste, thirteen paid nothing, the remaining three " reddunt omnes consuetudi- nes." The fourth and fifth wards are thus spoken of: " In quarta custodia, tempore regis Edvardi, fuerunt xlv masurse (mansions); ex his, xxiv sunt wastse ; residua reddunt oms consuetud." " In quinta custodia, T. R. E., fuer. l masurse : una ex his fuit wasta ; alia orris reddunt consuetudines." After enumerating the ten wards in this manner, there was what seemed to be a kind of summing-up of the value of them. 40 Of Toll Traverse. thus : " De consuetudinibus hujus villa, septe/n libra per annum ; de landgable, septem libra, et 2 oras, et2 denarii." The plain- tiff also gave in evidence a number of extracts and documents from the muniments of the corporation relative to the tolls be- longing to them ; and a considerable body of proof of the re- ceipt of the toll in dispute, by the testimony of living wit- nesses. For the plaintiff, it was contended, that the consuetudines in these extracts from Doomsday meant toll; and as he had given proof of the receipt in modern times of the toll for which the action was brought, he contended that it was for the jury to presume that the toll mentioned (under the name of con- suetudines) in Doomsday was the toll in dispute. The de- fendant contended that they meant nothing more than a rent or payment made in respectof the houses, inasmuch as it was manifest that they were out of the " masurse" mentioned in conjunction with them. The plaintiff's third proposition, that the town and the tolls in question passed by grant from the crown to the corpora- tion, (whose lessee the plaintiff was) he attempted to establish in the first place, by producing some extracts from the Pipe Rolls of the 31st. Hen. II. and of the 1st of John. The first of these was as follows; "The Burgesses of Cambridge render accompt for 300 marks, and 1 mark of gold, and that they may have their town to farm, and that the sheriff henceforth shall not interpose : In the Treasury 40 marks, and they owe 260 marks, and 1 mark of gold." The other ran thus : " New offerings made before the king in the parts beyond sea, and sent to Geoffrey Fitz Peter. The Burgesses of Cambridge 260 marks, to have their town to farm, and for such liberties as the free and demesne boroughs of the king have, which have liberties." They also gave in evidence a charter of the 8th of John, in these words : " John, by the Grace, &c. to &c. Know ye, that we have granted and by this our charter con- firmed to our Burgesses of Cambridge, the Town of Cambridge with all its appurtenances, to have and to hold for ever of us and our heirs to them and their heirs: rendering therefore Of Toll Traverse. 41 yearly at our Exchequer the ancient farm, viz. 40 pounds white [silver] and 20 pounds increase for every service, by their bonds, at two Exchequers in the year. Wherefore, we will and finally enjoin, that the aforesaid burgesses and their heirs shall have and hold the aforementioned town with all its appurtenances well and peaceably, freely, quietly, entirely, fully and honourably, in meadows and feedings, mills, waters, and pools, with all their liberties and free customs. We also grant to them, that they make to themselves a prepositor, whom and when they will. In witness," &c. The Chief Justice, in summing up this evidence to the jury, told them that there being no evidence of any sufficient con- sideration to entitle the plaintiff to claim the toll as one of toll thorough, they should put that part of the case out of their consideration. The only remaining question was, whether the corporation was entitled to claim it as a toll traverse. His lord- ship, as to this point, told them, that that species of toll arose when the owner of the soil dedicated it to the use of the public, but at the time of the dedication reserved to himself a toll from those who passed over it. That reservation must be made at the time ; and in the case before them it must have been made (if at all) before the time of William the Conqueror, as it ap- peared that the town of Cambridge was then in existence, and that there were highways there of some standing. At that time, the town belonged to the king, and if he or his pre- decessor, at the time when the highways were first made there, reserved to themselves a toll for passing over them, they would at that time be entitled to a toll traverse. Of that, the jury would judge from the expressions in Doomsday-Book, and from the evidence of later usage, to which they might pre- sume a rightful beginning, if any such could by law be devised. If, at that time, the king were entitled, not only to the soil of the town (of which there was a doubt), but also to toll tra- verse within it, he (the learned judge) was of opinion, that that right to toll would pass to the burgesses by the grant of the town with its appurtenances, by the charter of King John, without any more express words relating to it. 42 Of Toll Traverse. The jury found for the defendant, negativing the right of the corporation to the toll. In the ensuing term, the plaintiff moved for a nevi^ trial, on the ground of a supposed misdirection to the jury (which has been already noticed in the foregoing chapter) but not on any ground connected with this part of our subject. The Court refused to disturb the verdict.^ ' See 10 B. & C. 508. 43 Chapter tfte jTourtlb* OF FAIR AND MARKET TOLLS. \ INTRODUCTORY OBSERVATIONS. We class the cases relating to Fairs with those relating to Markets, because it will be found, that in general, the law which applies to the former applies equally to the latter, and vice versa.^ The questions and the authorities on this branch of our subject are more numerous than those which relate to Toll Thorough or Toll Traverse, and the present chapter is consequently divided into more sections than either of those which have preceded it. We will consider the subject in the following order : L What Fairs and Markets are ; where they ought to be holden ; and of the right to toll therein, generally. 2. Of the manner in which the right to a Fair or Market day may be acquired ; and under what words a right to take tolls in them, passes. 3. Of Sales in Fairs and Markets : and therein, of Sales in Markets by sample and by bulk ; and of evading the toll by selling out of the limits of the Fair or Mar- ket. 4. Of Stallage and Pickage. 5. Of Exemptions from Fair and Market Tolls. ' See 2 Inst. 221. 406. 44 Of Fair and Market Tolls. Section I. — What Fairs and Markets are ; where they ought to be holden ; and of the Right to Toll therein, generally. A Fair is a great sort of market, granted to any town, &c. for buying or selling, and for the more speedy or commodious provision of such things as the subject needs; and it is usually kept once or twice in the year.^ A Mart is a great Fair, holden every year.^ A Market is less than a Fair, and granted to a town, &c. for the like purposes, but chiefly for the provision of such vic- tuals as the subject wants; it is usually kept once or twice in the week.^ Every Fair is a Market, though every Market is not a Fair ; and, therefore, where a statute, &.c. speaks of a fair, a market shall be also comprehended.^ The duties which are usually paid at a fair or market are tolls, stallage,^ and pickage ; and this toll is a reasonable sum due to the owners of the fair or market upon the sale of things within the fair or market which are tollable.^ And this. Lord Coke says,^ was first invented, that contracts might have good testimony and be made openly ; for of old time secret or privy contracts were forbidden. And we find by an old sta- tute^ that the owner of every fair or market overt was re- quired yearly to appoint a certain place where horses should be sold, in which place there should be a person appointed to take the toll, who should have before them the parties to the bargain on the sale of every horse, and the horse itself, and should write in a book the names of residence of the parties, and the colour, &c. of the horse. And by a subsequent sta- ' Vin. Abr. tit. Market, (A. 3). Com. Dig, tit. Market, (A. B.). ' 2 Inst. 221, 406. Com. Dig. tit. Market, (B). ' Stallage and Pickage will be considered in a separate section, as they are distinct from that which is comprehended under the general term of Toll. * Com. Dig. tit Market, (F. 1). 2 Inst. 220. » 2 Inst. 220. « 2& 3 P. &M. C.7. S.2. Of Fair and Market Tolls. 45 tute ^ additional requisites were made necessary in order to legalize the sale of a horse in a fair or market. It seems that by common right, toll was demandable only upon live cattle sold in a fair or market, and not upon the sale of victuals and other wares f but by custom, toll may be pay- able for every thing brought to market, and for the standing of the seller there, — for the sale of victuals is for the good of the common-wealth. 3 It is also said in one case,* that by special » custom toll in a market may be due, whether the party sell his wares or not ; but this seems to be for stallage.^ And Lord Coke says,^ that no toll for anything tollable brought to the fair or market to be sold, shall be paid before the sale thereof, unless it be by custom time out of mind used, which custom none can challenge that claim the fair or market by grant within the time of legal memory ;7 which is a point, he observes, well worthy of observation for the suppression of many out- rageous and unjust tolls encroached upon the subject. At common law, toll for goods sold in a fair or market is due from the buyer, and not from the seller;^ but by custom it may be payable by the latter.9 There is a toll called Toll-turn, which is payable in some places for cattle or goods in their return from a fair or market.^° In the Reports" it is said that a man shall have toU- ' 31 Eliz. c. 12. S.2. » Heddy v. Wheelhouse, Moore, 474. Com. Dig. tit. Market (F. 1). * Lord Cobham v. Browne, 1 Leon. 218. * Leight V. Pym, Lutw. 1336. See Hill v. Hanks, 2 Buls. 201. * Com. Dig. tit. Market, (F. 1. 2.). Moore, 885. « 2 Inst. 221. See 2 Lutw. 1336. '' Upon the subject of prescription and prescriptive claims, see 2 & 3 Will. 4. c. 71; ante, 28. « 2 Inst. 221. Com. Dig. tit. Market, (F. 1). ' In the Market at Worcester, the toll on corn sold, is payable by the seller: see Hill v. Smith, 10 East, 476; 4 Taunt. 520; ante, 10. So also in Covent Garden market (by statute); see 2 B. Moore, 103 : 5 B. & C. 365. "> Com. Dig. tit. Toll (B). " Webb's case, 8 Rep. 46. 46 Of Fair and Market Tolls. turn in his own land, and if he be disseised he shall have an assize for it. By the statute of Winchester^ it is enacted that no fair or market shall be held in any church-yard. If the town in which a fair or market is to be held, is hmited by the grant, the grantee may hold it in such part of the town as he chooses ; but if no place be limited by the grant, it is said that he may hold it where he pleases.- The grantee may alter the place in the town for holding it, though it may have been held in one particular spot for more than twenty years. This was decided in Curwen v. Salkeld f the marginal note, which comprises all the material facts of the case, is as follows : ''The lord of a manor to whom a grant of a market is made ' infra villam de W.,' may hold it any where infra villam de W. : and whether villa extends to the town of W. or the township or parish of W. the lord has a right to remove the market-place from one situation to another within the precinct of his grant: and though he should have holden it above twenty years within the township of W. (when the grant only gave it to him within the town, properly so called, at the time), yet if he afterwards give notice of the removal to another place in the township, the public have no right to go upon his soil and freehold in the old market-place ; and any person going there will be liable to an action of trespass by the lord." In Curwen v. Salkeld, the plaintiff brought trespass for breaking and entering his soil, and placing stalls on it. Lord Ellenborough, C. J., in giving judgment observes. If the lord have a grant of a market within a certain place, though he may have at one time appointed it in one situation, he may certainly remove it afterwards to another situation within the place named in the grant. That was settled long ago in Dix- on V. Robinson, and in modern times has been acted upon in the case of the Manchester market. There is nothing in rea- ' 13 Ed. 1. Stat. 2. c. 6. ^ Dixon v. Robinson, 3 Mod. 108, ' 3 East, ,538. Of Fair and Market Tolls. 47 son to prevent the lord from changing the place within the precinct of his grant, taking care at the same time to accomjno- date the public. Neither is there any authority which says that, having once fixed it, he is compellable ever after to keep It in the same place. In many instances, there may be great public convenience in the owner having the liberty to remove it; for the buildings in a growing town may take a different direction, away from the old market-place. If the lord, in the exercise of his right, is guilty of any abuse of his franchise, there may be a remedy of another nature. The right of re- moval, however, is incident to his grant, if he be not tied down to a particular spot by the terms of it. Till it be removed, the public have a right to go to the place appointed, without being deemed trespassers ; but after the lord has removed it (of which notice was given in this case) the public have no longer a right to go upon his soil. The owner, however, cannot change the place of holding the market, so as to be guilty of an abuse of his franchise : and it might become a question whether, if the lord changed the place where it had been conveniently holden, to one which was inconvenient to the public, he would not be thereby guilty of an abuse of his franchise.^ And if a private injury be sus- tained by any individual who has been deceived by the lord having held out to him a particular site for the market-place, in order to induce him to purchase or build there for the con- venience of it, that may be the subject of an action against the lord, to recover damages for the particular injury sus- tained by the individual.*^ In a later case,^ Lord Ellenborough observes. If the cor- poration be lords of a market undefined as to place, the only mode of fixing the limits is by reference to the convenience of those who are the objects of the grant. These cases have been introduced, in order that it may not be supposed that the owner of a market loses his right to tolls by reason of any change in ' See R. V. Cotterill, 1 B. & Aid. 75. ' Per Lord Ellenborough, C. J., 3 East 545. ' R. V. Cotterill, I B. & Aid. 75. 48 Of Fair and Market Tolls. the place of holding it. The power of removal is incident to the grant. In a recent case,^ it was made a question whether the whole town in which a market is held, may not be considered as the market-place, so as to justify the levying a toll on goods brought into the town on a market-day to be sold, although not brought within the particular part of the town in which the market was held. The plea in that case, however, hav- ing itself made a distinction between the "town" and the " market," the court held that the defendant was precluded from raising the point. It was not necessary, the Chief Jus- tice observed, to say whether, in any case, the whole town might be considered as a market, as the plea distinguished the market from the town. The authority, which gave rise to the argument of the de- fendant, in the case just cited, and which alone was granted in favour of his position, is Kerby v. Wichelow f but it is ap- prehended, that when that case, and another which will be referred to presently, are examined, it will be found that they do not justify the proposition, — or at all events, that they will not govern any other case not situated as those were in all its particulars. The grant, it will be seen, on referring to the case of Kerby v. Wichelow, is in very peculiar terms ; they are such, probably, as are to be met with in no other grant. The opinion of the. learned Judge, too, who made the observations which were quoted and relied on by the defend- ant in Wells v. Miles, was hardly called for by the facts of the case. It was an action of trespass for taking the plaintiff's barley at WaUingford. The defendant pleaded, that W. was an ancient borough from time immemorial, and that the inha- bitants had immemorially been a body corporate, until the 36th Charles 2nd, and that they had, during all that time, an ancient market holden twice a-week in a certain market-place there, with stallage, &.c. : that they had repaired the market- place; and that by reason thereof they had, during all the ' Wells V. Mills, 4 B. & Aid. 5.59. * 2 Lutw. 1498. Of Fair and Market Tolls. 49 time aforesaid, received a certain reasonable toll (specifying it) of all persons not being inhabitants of the borough. The plea then stated, that King Charles the 2nd, in the 36th year of his reign, incorporated the town by the name of the mayor, &,c. and granted to them a market to be holden on certain days in every week, with all stallage, &.C., and all profits, 8cc. ; and that the mayor, &c. should hold, enjoy, receive, and take toll of all grain which should be brought, sold, delivered, or con- tracted for, on the market-days or any of them ;^ that one John Ferrers, on a certain market day, brought into the town, (ad villam illam) five quarters of barley to be there sold, and that he sold the same to the plaintiff': and so the plea justified the taking the barley mentioned in the declaration, as and for a toll for the barley so bought by the plaintiff. The plaintiff replied to this, that the defendant committed the trespass of his own wrong, and without the cause alleged ; with a special traverse that the five quarters of barley or any part thereof were sold in the market place (infra mercatum.) To this, the defendant demurred, assigning for cause that the replication contained matter not alleged in the plea. The case was decided for the plaintiff on the ground that it was not alleged in the plea \vhere the barley was sold. It was only stated that J. F. brought the corn into the town to be there sold, and that he sold it to the plaintiff, without saying that he sold it there (sans disant vendidit ibidem) ; he might have sold it out of the town. The plaintiff had judgment. The point, therefore, whether the whole town was to be con- sidered as the market, was neither raised or decided ; and the observation of the learned Judge, which was cited and relied on in Wells v. Miles, seems to have been inapplicable to the point which was raised. The opinion occurs, moreover, not in that part of the report which gives the judgment of the ' It will be observed that the plea does not confine the toll to grain brought into the market, but it is alleged to be granted on all grain " brought, sold, delivered or contracted for" on the market day. See 2 Lutwr. 1502, where it is said that the king cannot grant a toll for goods not brought into the market. E 60 Of Fair and Market Tolls. Court, but at the conclusion of it, under a " nota" as follows : " Nota que fuit dit per Justice Powell, que ne fuit ascun ne- cessity a pleder touts les charters; et que le Roy ne poiet granter un toll pur choses nient port al market de estre vend; et que le vill in cest case serra pris pur le market." The only other authority which I can discover on this point is an old case in Godbolt's Reports.^ It was an information against the defendant on the statute 5 & 6 Ed. 6. c. 14. (the act against regrators and forestallers) for buying seed corn, he having sufficient of his own, aud not bringing so much of his own to market. The particulars are not given in the re- port, but in the course of the case, Anderson C. J. observed that " the market shall be said the place in the town where it hath used to be kept, and not every place of the town." This seems to be at least as good an authority as the one last cited, and the observation was strictly connected with the case then before the Court; and it is consistent with common expe- rience. Section. II. Of the manner in which the Right to a Fair or Market may he acquired ; and under what Words a Right to take Toll therein, passes. The modes in which a fair or market may be acquired, are two only — by grant and by prescription.^ It was made a question in one of the earlier cases,^ whether a grant of toll in a fair or market would be good in law, where the amount of the toll to be taken for each article was not ex- pressed ; three of the judges were of opinion that it would, but the Chief Justice thought otherwise. The opinion of the three judges, hov/ever, is now acknowledged to be the law on the subject, as we shall see by reference to several cases. If an ancient fair or market, at which toll is due by prescription, ' Godb. 131. pi. 148. =^ 2 Inst. 220. ^ Rex V. The Corporation of Maidenhead, Palm. 78. Of Fair and Market Tolls. 51 come to the king, and he grant it to a subject, " Cum omni- bus hbertatibus ad hujusmodi feriam spectantibus vel perti- nentibus," this passes to the grantee a right to the toU.^ But it is said that the king cannot grant a toll for goods not brought to the market." And after a fair or market has been once granted, the king cannot grant a toll to be taken there, without some proportionate benefit to the subject.^ The question " whether any and what right to toll is con- veyed to the grantee of a fair or market under the crown, where the letters patent contain a grant of ' toll' in general terms, not specifying either the particular articles, for which it shall be paid, or the amount which may be taken," has been the subject of much discussion. It was brought under con- sideration of the Court of Exchequer Chamber in a very re- cent case,* where the decision proceeded, of course, on the particular words of the grant then before them ; and as it was there said that the majority of such grants are in similar or other general words, it may not be improper in this place to consider that case and some of the previous decisions on the point. It does not overrule any of the earlier authorities ; indeed, the Chief Baron, in dehvering the judgment of the Court, said that the Court were aware of no case which had been determined contrary to the construction which they put on the words of the grant then under consideration. So that, although that case is an authority in all others similarly si- tuated, it leaves those in which the terms of the grant are not precisely similar to those in the case before the court, open to discussion. It will be seen, by observing the terms of the dif- ferent grants, that the subject is an important one; and there must no doubt be at this time numerous grants in existence, which are in the same form as those in which the courts have decided that no toll passes. ' Palm. 78. Heddy v. Wheelhouse, Cro. Eliz. 591. 2 Lutw. 1502. ^ Rex V. The Corporation of London, 2 Shower, 266. * The Corporation of Stamford v. Pawlett, 1 Cromp. & .Jerv. 57. Paw- lett V. The Corporation of Stamford (in Error), 1 C. & J. 400. E 2 52 Of Fair and Market Tolls. If the king grant to a man a fair or market, but grant fio toll, the grantee shall have no toll ; " for toll, being a matter of private for the benefit of the lord, is not incident to the fair or market without a special grant, as it was adjudged in the case of Northampton : for such a fair or market is accounted a free fair or market.^" And in Lutw.,^ it is said, that it is not suf- ficient to allege a grant of a fair or market " with all toll be- longing," but there must be an express grant or a prescrip- tion : but this cannot be now considered, after the recent case in the Exchequer Chamber, to be law. The case of Northanipton,^ mentioned above, was an action of trespass for seizing the plaintiff's cow in that town. The defendant pleaded, that the town of Northampton was an an- cient town, and that King Henry the 7th, in the 11th year of his reign, granted to the mayor and burgesses of N. " unam feriam annuatim," to be holden~on a certain day, " cum omni- bus lihertatibus et liberis consuetudiuibus ad hujusmodi feriam specta/ttibus vel pertinentibus ;" and then alleged that at the fair holden at N. on a certain day, one J. S. sold the cow to the plaintiff, whereupon the defendant, as the servant of the mayor, he. of N., demanded of him one penny for toll, and that on refusal to pay it, he distrained the cow. To this plea the plaintiff demurred, and contended that no toll passed under the general words of " liberties and free customs," be- cause toll is not a liberty or custom of common right apper- taining to a fair, and therefore would not pass under these general words. It was argued for the defendant that toll was due, of common right, for the ent7y of things sold in a fair or market, and for the better knowing of the things sold, and into whose property they passed : and that therefore by the grant of a fair with all liberties, &c., toll would pass. The court in a subsequent term gave judgment for the plain- tiff, on the ground that no right to any toll passed by the grant in question, — it not being incident to a fair, as common expe- ' 2 Inst. 220. * 2 Lutw. 1380. ^ Heddy v. Wheelhouse, Cro. Eliz. 558, 591. Moore, 474. Of Fair and Market Tolls. 53 rience proved, the greatest part of the fairs in England having no toll. It will be material to observe the exact words of each par- ticular grant; in the one cited above, there is no mention whatever of toll. In the case of the King v. the Corporation of Maidenhead,^ (which was a proceeding by quo warranto) the defendants claimed (amongst other things) a right to a market, with pickage, stallage, toll, &-c. It appeared that King Henry the 6th, by his charter incorporating the town, granted to them and their successors *' quod sui habuerunt mercatum, quolibet die LunaB prout antehabuissent, simulcMw i:oi.^E.TO,pickagio, stallagio, cum omnibus aliis commoditatibus et emolumentis ad hujusmodi mercatum accidentibus, emergentibus, sive contingen- tibus." It was objected, on behalf of the crown, that the toll ought to have been specially granted and the amount fixed. The Chief Justice was of this opinion ; he thought that the grant was void for not specifying the nature and amount of the toll to be taken ; but the three other judges were of opinion that a right to toll was well granted, notwithstanding the amount of money to be paid for it was not expressed. So, says the report, the corporation continued to enjoy their privi- leges, notwithstanding the proceedings against them. Here, a right to some toll was expressly given by the char- ter, and the objection was only that the amount to be paid for each article should have been specified. We shall see by and bye, that the grantee is entitled to a " reasonable" toll in such a case, and in what manner its reasonableness is to be ascertained. The same question arose in another case^ about the same period, in an action of trespass. The defendant justified under a grant of two fairs, made by King James the 1st, and a right of toll therein. The charters granted the fairs, " cum omnibus TOLNETis, THELONiis, custumagiis, &c. ad hujusmodi ferias pertinentibus sive spectantibus." The plaintiff replied that he ' Palm. 76. ' Osbuston v. James, 2 Lutw. 137?. 64 Of Fair and Market Tolls. was exempt from toll throughout England, by reason of his being an inhabitant of the Duchy of Lancaster, and on de- murrer to this, the plaintiff also objected, that no toll passed to the defendant by the charter. The court decided in favour of the plaintiff, solely on the ground that he was exempt from the payment of toll for the reason alleged in his replication ; and they gave no opinion on the objection raised to the grant. The Court of Exchequer, in the Stamford case,^ thought that the decision of the Court just cited, was virtually in favour of the right to take toll under the charier; inasmuch as the judg- ment, by proceeding only on the replication, by which the j)laintiff claimed to be discharged of the payment of toll, countenanced the validity of the charter. Here, also, toll was expressly mentioned, though the particulars and amount were not specified in the grant. In Holloway v. Smith,- the question turned upon the terms of a grant of a fair by Queen Elizabeth, in which, after giving the fair, the words were: ''with all profits, commodities, emolu- ments, liberties, and free customs, ad hujusmodi ferias pertinen- tihus" On demurrer, the Court held the plea of the defend- ant, who justified a distress for toll under this grant, to be bad : " for toll is not incident of common right, and therefore not within the words of reference ; and being a new fair, upon which no toll was granted in express words, the custom can- not extend to them." The plaintiff, therefore, had judgment. This decision goes somewhat further than that in the case of Heddy v. Wheelhouse, inasmuch as the words there were only " liberties and free customs," which are not so extensive as those in the grant just quoted. The principle, however, is clear, and is the same in both cases. We come now to the decisions of modern times, which are ni strict conformity with those we have already considered. The older cases established the principle, which has been acted upon in the later authorities : so that in future the question will be, under which class of cases do the words of each parti- cular charter range themselves ? Is toll specifically mentioned, ' 1 Crompt. & Jcrv. 75. = 2 Stra. 1171. Of Fair and Market Tolls. 55 (though the amount may not be expressed) in the grant, — or are general words only, — such as " profits, commodities, free customs, liberties," and the like, — used ? It may be as well to glance slightly at some of the cases which preceded the Stamford case, which we shall do as briefly as possible. Holcroft V, Heel^ was an action for erecting a market near to the plaintiffs market, and to the injury of it; and the terms of his charter, in the part on which he rehed as a grant of tolls, were, — " omnibus libertatibus, liberis consuetudinibus, potestatibus, custumagiis, theloniis, &.c. ad hujusmodi mer- catum pertinentibus seu spectantibus." The same objection to the charter was taken, but the Court were so clearly of opinion that the plaintiff was barred of his right of action by his long acquiescence in the existence of the defendant's mar- ket, that they decided in favour of the defendant on that ground, and gave no opinion on the point on the construction of the charter. It seems, however, that toll was well granted, upon the authority of the foregoing cases and some later ones to which we shall have occasion to refer, relative to the mar- ket of Covent Garden, and of the Stamford case. The first of these is Lowden v. Hierons," which was an action brought by the lessee under the Duke of Bedford of the Covent Garden Market. A charter of the 22nd Charles the 2nd, to the Duke of Bedford, was given in evidence for the plaintiff. By this, the King granted to the duke and his heirs, to have, hold, and keep a certain market every day, in the parish of St. Paul's, Covent Garden, for the sale of fruits, flowers, and vegetables, — " together with all liberties, free customs, tolls, stallage, and pickage, and all other profits to the like market belonging."^ In 1813, an Act of Parliament was passed for the purpose, amongst other things, of regu- lating the tolls of this market. By the 5th section, it was enacted that it should be lawful for the owner of the market ' 1 B. & P. 400. - Holt, N. P. C. 647. 2 B. Moore, 102. ' These are the terms of the grant as they appear in Prince v. Lewis, 5 B.& C. 365. oG Of Fair and Market Tolls. and his lessee, to demand and take of and from all persons placing, pitching', and exposing for sale, or selling, within any part of the market all such toll and tolls as is or are usually taken or collected within the market, or which is or are pay- able for or in respect of the same. It appeared that the tolls had varied in amount. The defendant contended that no tolls could be demanded under the charter, for want of a spe- cification of the particular tolls to be taken ; and that the Act of Parliament only gave the owner a right to take accus- tomed tolls, which proceeded on a pre-conceived right, which it was for the plaintiff to establish, but which was negatived now that the origin of the tolls was seen. The plaintiff pro- posed to give evidence of the tolls taken in the other London markets, under the terms of the grant, — " in hujusmodi mercaturse," &c. The learned Judge at Nisi Prius refused to receive the evidence, and was much inclined to think that no toll whatever could be demanded under the charter, what- ever might be construction of the Act of Parliament ; and reserved the point. It was proved that the tolls in fact received had varied considerably in amount, and the rent paid by the lessee had fluctuated in proportion, and there ap- peared to be no uniform usage to regulate the tolls. The plaintiff had a verdict for 8 pence, for the standing of a waggon and two carts, to which the defendant admitted his right, and which he had offered to pay. The contest was as to the toll claimed for thirty sacks of beans, and fourteen of peas, which the judge who tried the cause thought there was no pretence for the plaintiff's recovering. On a motion for a new trial, the question whether any toll passed to the grantee by the charter, was much debated. The judgment of the Court is important as relating to the present enquiry. It should seem that where the sums to be received for tolls are not mentioned in the charter, the jury are to find what tolls have in fact been customarily taken, and it is then for the judge to decide whether the tolls, so received, are reasonable or not. The judgment of Dallas, J. is as follows: The specific sums to be demanded for tolls are Of Fair and Market Tolls. 57 not expressed in the charter. The tolls, therefore, which have been received subsequent to the grant, are merely pre- sumptive, neither have they been uniform. The jury should have given their verdict according to the invariable or uniform custom. The Judge alone could decide whether such tolls were or were not reasonable.^ In this case, there is no deci- sion of this sort, and no certain toll has been uniformly paid within the memory of any of the witnesses who were examined. I, therefore, think that under the circumstances there should be a new trial, and that the plaintiff is entitled to recover only such tolls as have been uniformly collected ; and as on the second trial it may be fully taken into consideration whether, subsequent to the original charter, a new grant from the crown may be presumed, I am of opinion that the rule should be made absolute for setting aside the verdict on the Court's granting a new trial. It would seem, from the last observation of the learned Judge, that, where a certain sum has been in point of fact paid for toll for a long period, a grant specifying the sum to be taken may be presumed, although the original grant, by which the fair or market was created, is silent respecting the amount to be paid. The case of Covent Garden market came again before the Court on a recent occasion, ^ when the same point was again made which had been raised in the case last cited. The ac- tion was brought by the Duke of Bedford to recover tolls ; and the question in the cause was — whether the plaintiff' was entitled to a toll of 4d. for each cart-load of fruit and vege- tables, or to a separate toll on each basket which the cart con- tained. The grant of Charles the Second, and the act of Par- liament, mentioned above, were again put in evidence ; and the Chief Justice was of opinion that the act of Parliament recognized a right in the owner of the market to such tolls as, at the time of its passing, were usually taken and collected there ; and directed the jury to say whether in point of fact, in that part of the market called " the fruit market," the toll ' See 2 Inst. 222. ' The Duke of Bedford v. Emmett, 3 B. & Aid. 366. 58 Of Fair and Market Tolls. usually collected and paid was 4d. for the cart-load, or the larger toll claimed by the plaintiff. The jury found a verdict for the larger toll ; and on a motion to set aside the verdict and for a new trial, the objection, that no toll passed by the gene- ral words of the grant, was renewed. The Chief Justice, how- ever, said he was of opinion at the trial that, under the 5th section^ of the act of Parliament, the jury had only to enquire what tolls had been usually collected and paid at the time of passing the act, and that they were not to enquire what rights the grantee might originally have had under the grant from King Charles the Second ; for the act seemed to him to have been passed with the intention of putting to rest all such ques- tions of law as to the orio-inal rioht to toll. He was still of the same opinion. The jury had found that this toll had, pre- viously to the passing of this act, usually been paid in the fruit market ; and whatever doubts might have existed under the common law as to a right to a different toll in different parts of the same market, yet that doubt was certainly removed by the act of Parliament : for the only question under that act was as to the usage, and there seemed to be no objection as to a usage applicable to the payment of different tolls for the same fruits and vegetables in different parts of the same market. In a still later case" relating to the same market, the point was not made by the defendant, it being no doubt considered that the last-cited authority was decisive of the question. Still, the case of this market was a peculiar one ; and was de- cided principally, if not wholly, on the act of Parliament, and not on the terms of the original charter. The question, however, as to the rights which the grantee takes under such a grant, is now settled by the very recent decision in the Stamford case, which we shall proceed to consider. That-* was an action of debt for tolls alleged to be due in a ' Ante, 55. =* Prince v. Lewis, 5 B. & C. 363. ^ The Corporation of Stamford v. Pawlett, 1 Cromp. & Jerv. 57. Pawlett V. The Corporation of Stamford, (in Error) 1 C. & J. 400. Of Fair and Market Tolls. 59 fair, brought by the corporation of Stamford against a gen- tleman residing in the neighbourhood ; and the sole question in the cause was — whether, under the grant of a fair or mar- ket to the corporation by Queen Anne " cum omnibus tolnetis et ahis proficuis predictis feriis sive nundinis pertinentibus et spectantibus," — the nature and amount of the toll, and the articles for which it was to be taken, not being specified, — the grantee could demand any toll whatever ? The Court of Ex- chequer, upon the point coming before them on a special case, decided that under the grant the corporation were entitled to demand and take a " reasonable toll :" and the Exchequer Chamber, on a writ of error brought by the defendant, affirmed their judgment. It is unnecessary to insert here the arguments in the case; they as well as the judgment of the Court embraced all the previous decisions on the subject. The Chief Baron, in delivering the opinion of the Bench, thus concluded : '' Upon this review of the autho- rities, we are of opinion that the corporation are entitled to retain their verdict. We think that where a grant of tolls is found in a charter, the word ought to have some meaning, and the charter some operation, and that it can receive opera- tion only by being construed to mean a " reasonable toll."^ We think that no one case has ever been determined against this construction. We are convinced that the terms used in the present grant are nearly the same as are used in a great majority of those charters which have received the fiats of the Attorney-General for the time being, and passed the great seal ; that tolls have in numerous instances been received under them ; and that, if we were to decide against this char- ter upon the principles contended for, we should shake the security of a vast mass of property which has been enjoyed un- disturbed for an age, perhaps for ages. We also think the ob- servation that, " to permit a grantee to take whatever may ap- pear to him to be a reasonable toll, is to make the grantee a judge for himself, and to expose the subject to extortion," has ' The Court is to determine whether a toll be reasonable or not. 2 Inst. 222 ; ante, 57. 60 Of Fail' and Market Tolls. received a satisfactory answer. The grantee demands it at his peril, and at the hazard of a private as well as a public prosecution : of a private, at the suit of the party injured ; of a public, at the suit of the Attorney-General in the name of his Majesty. The inconvenience of raising such questions cannot be avoided by specifying the sum. The King cannot grant an unreasonable toll, and it is competent to every sub- ject of the realm, from whom the toll is demanded, to question its being reasonable, even when the exact sum is specified in the charter. This question may always be brought under discussion, in whatever terms the grant may be expressed. For these reasons, we think that the verdict for the corpora- tion must stand." The grant, however, must not give the right to toll by refer- ence to some standard by which it is impossible for the Court to say what sum should be taken ; it may be general in its terms, but they must be sufficiently certain to enable the Court and Jury to say what sum is to be taken, where some scale or standard is referred to. This was decided in a case^ of which the Court expressed their approbation, in giving judgment in the Stamford case. It was an action of trespass for seizing two steers belonging to the plaintiff. The defendant justified by virtue of the king's patent, whereby he granted to the defendant and his heirs, that he and they should take at two bridges within his manor of Doncaster, called St. Mary's and Willow Bridges, such toll as is used to be taken " ibi et alibi infra regnum AnglicB." The plea averred that at Bo- roughbridge, in the county of York, there used to be taken 6d. for every score of beasts there passing, and therefore jus- tified under a claim of the sum of 12 pence for the passage of forty beasts over one of the defendant's bridges. Upon de- murrer to the plaintiff's replication, the Court adjudged for ' Lightfoot V. Lenet, Cro. Jac. 421. See 1 C. 8c J. 74, where the Chief Baron, in delivering the judgment of the Court, says, in speaking of this case : the uncertainty here is manifest, and the ground of the decision un- answerable. The grant did not specify a sum, but pointed at a measure, a scale, which it was impossible to apply. Of Fair and Market Tolh. 61 the plaintiff : for the grant of such toll as was taken " ibi et ahbi," &c. was uncertain and void. The result of the cases may, as it appears, be thus summed up : Tolls are not incident of common right to a fair or mar- ket : they will not pass under a grant from the Crown of a fair or market with the " profits," " emoluments," " liberties," " free customs," " privileges," (or other similar words) to such or the like fairs or markets belonging or appertaining ; but there must be an express grant of '* Toll," eo nomine. The grant, however, need not specify the amount ov nature of the tolls to be taken, or the particular articles in respect of which they are to be paid : but under such a grant the grantee is en- titled to demand and take a ''reasonable toll" for things sold in the fair or market. He must, however at his own peril take a reasonable toll only ; and he is liable to proceedings, both at the suit of the party aggrieved and of the Crown, if he take an unreasonable sum. It is for the Jury to say what toll is, in point of fact, taken, and for the Judge or Court to determine whether the sum so in fact taken is, in point of law, a reasonable and legal toll or not. It only remains in this place to consider what is a reason- able toll; and on this subject the books are singularly silent, the reports containing very few cases or dicta upon the point, and the text-writers not laying down any general rule (and perhaps none can be laid down) respecting it. With regard to tolls due by prescription, and indeed in all cases in which they have been taken for a great length of time, the sum which has been in fact uniformly taken would, in all probabi- lity, be deemed a reasonable toll ; unless it were manifestly disproportioned to the tollable article, or to the benefit which the buyer and seller derive from the privilege of using the fair or market. Long usage and acquiescence in one uniform pay- ment for toll, is undoubtedly cogent evidence that it is reason- able.' In a case which has been already cited- it is said that the > Gard v. Callard, 6 M. & S. 69. ' Ileddy v. Wheelhouse, Cro. Eliz. 559. 62 Qf Fair and Market Tolls. king may grant a fair or market, and that toll shall be paid, although it is a charge upon the subjects, because they have a benefit and ease by such fair or market ; but it ought to be a petit sum, as a penny or twopence, which are the smallest coins, or lesser, but not of any greater value. In the Mirror it is said that a halfpenny shall be taken of goods of the value of ten shillings, and so in proportion, so that no toll exceed one penny. In an early case^ the corporation of Newcastle, as owners of the port there, claimed five-pence a chaldron on all coals ex- ported. On a special verdict, it was contended that this was an unreasonable toll, the value of a chaldron of coals being only four shillings ; but Lord Holt, C. J. said that as the value of the coals was not stated in the verdict, the Court could not intend that it was unreasonable. The question, whether a toll of one penny on the sale of a pig in a market was a reasonable toll, came recently before the Court of King's Bench for its decision.- The action was brought by the lessee of the bishop of London of the tolls in the market of Bishop's Stortford, in the County of Hertford, (which were claimed by prescription,) to recover the sum of ten-pence on the sale to the defendant of ten pigs in that market. At the trial at the summer assizes of 1832 for the county of Hertford, before Lord Tenterden, C. J., the plaintiff recovered ; and Mr, Law, by leave of that learned Judge, af- terwards moved to enter a verdict for the defendant, if the Court should be of opinion that the toll was unreasonable. The earliest evidence adduced at the trial, was a lease of tolls in the year 1771, without any schedule annexed. The evi- dence did not shew any uniform payment of toll, but at one time the sum paid had been 6d. a score, at another, 4d. a score, and latterly Id. each, on the sale of pigs. It was con- tended, that although this latter sum might be a reasonable toll under a modern grant, yet that it was excessive and un- ' Vinkerstone v. Ebden, 1 Lord Raym. 384. 1 Salk.248. 5 Mod. 356. Carth. 357. ' Wright V. Brewster, K. B. Nov. 5, 1832. Of Fair and Market Tolls. 63 reasonable when claimed by prescription, as in this case it was. — During the argument, Taunton J. expressed an opinion that, under a grant of reasonable toll (or, what is the same thing, under a prescription, which supposes such a grant) the amount might vary from time to time, according to the vary- ing value of money : but he gave no express judgment upon that point.'^ On the main point, Parke J. said he was of opinion that no rule should be granted. The jury had found that the toll was received in point of fact, and that it had been so for a great length of time : that being so, the onus of shewing that the toll so in fact received, was unreasonable, is thrown on the defendant. That he had not done, and the Court, looking to the value of the commodity in respect of the sale of which the toll was received, and the amount of the toll itself, could not take upon itself to say that it was unreasonable. Taunton J. said the Court could not at this time of day take a penny for toll on the sale of a pig to be unreasonable in point of law, when in the case in Cro. Eliz. a penny or even two-pence was said to be a reasonable toll on the sale of a calf in a market. And Mr. Justice Patteson being of the same opinion, the rule was refused. Lord Tenterden was absent from Court, on account of illness, when this case was moved. Section III. — Of Sales in Fairs and Markets: and therein, of Sales in Markets by Sample; and of evading the Toll by Selling out of the limits of the Fair or Market. First. — Of Sales in Markets by Sample. The decisions upon the questions involved in this section are numerous, and the questions themselves are, perhaps, arising daily in many markets. In most fairs and markets ' In Rex V. The Corporation of London, 2 Shower, 266, it is said in ar- gument, that when once there is a market in the city, with a custom for a sum certain for toll, the owner of the market can never raise the amount, though he may lessen it. G4 Of Fair and Market Tolls. throughout the kingdom, some tolls are usually paid on goods brought into and sold in them ; which tolls, we have seen, are payable, if at all, by the buyer, at common law, though there may be a custom for the seller to pay them; and at common law also they arise only upon goods actually brought into and sold in the fair or market. It is therefore obvious that, — what constitutes, in law, a bringing of the goods to the fair or market, — what amounts to a sale there, — how far a man may safely buy or sell by sample, the bulk not being brought within the market, — in what mode the sale must be effected, and in what manner the parties may buy or sell so as not to incur a liability to the toll, — and what amounts to a fraud in law upon the owner of the fair or market, by seUing near to but not within it, — are questions of considerable interest. The first case on the subject of a sale in a market to which we shall advert, is that of Mosely v. Pierson. ^ The plaintiff in his declaration claimed to be entitled to a toll (to be taken in specie) for flour sold in the market at Manchester, on the market day. It was proved at the trial that he was entitled to a toll on flour brought into the market and there sold; but he had no right to any toll for flour sold in the market without being brought there, — that is, upon a sale by sample. The learned judge who tried the cause was of opinion that this evidence did not support the averment in the declaration, and nonsuited the plaintiff. The majority of the Court, however, thought the evidence sufficient, and set aside the nonsuit. The Chief Justice, Lord Kenyon, said the claim was stated in the declaration to be of a toll in specie, which necessarily implied that the commodity in respect of which the toll arose, was brought into the market. Grose, J. was of the same opinion ; but Mr. Justice Ashurst thought that, as the record was to remain as evidence of the right in future ages, the plaintiff should have shewn that he was entitled to a toll on goods sold in the market, though not brought there in bulk, and that the nonsuit therefore ' 4T. R. 104. Of Fair a„d Market Tu/ls. C5 was right. The record, he thought, would be evidence of a claim for toll on contracts for the sale of goods in the market by sample, which the evidence had disproved. The Chief Justice observed that there might be a sale by sample in fraud of a market, but not qua, sale in a market ; for the expression " sale in a market" imported that the goods were brought into the market and ready to be delivered to the purchaser. If the plaintiff's demand had arisen on contracts of sale by sample, he would have brought a different kind of action, — namely, an action for the fraud in not bringing the goods into the market. It was not necessary to determine whether or not a right to take toll on goods sold by sample, could be supported. The subject of a. sale by sample, to which the Chief Justice alluded in the above judgment, is one of considerable im- portance to the owners of markets and to the public ; and we shall examine the cases upon the subject, with some minuteness. In the above case it was merely decided, that a claim in a declaration for toll in specie, on goods "sold in a market," implied that the goods were themselves to be brought into the market and there sold, and was sup ported by evidence of a right to a toll on goods so brought into and sold in the market, without proof of any right to toll on goods merely sold in the market without being brought into it. We shall presently see that no toll, as toll, arises ' upon a sale by sample, though the seller may be liable to the owner of the market in an action on the case for not bringing his goods into the market for sale. In The Bailiffs of Tewkesbury v. Diston ^ the question raised was as to the legality of buying corn by sample in a market in which the plaintiffs had a right to toll on all corn, &,c. brought into the market to be sold, and there in fact sold, on the market day : whether such a purchase by sam- ple, — the bulk, (as the purchaser, the defendant, was aware) not being in the market at the time of the sale to him, — were legal, — or whether it were a fraud on the plaintiffs, — » 6 East, 438. F 66 Of Fair and Market Tolls. for which they had a right of action against the purchaser, was the question. After much dehberation, the Court were of opinion that the pu7cliaser was not liable to the action. I have marked the words " purchase," and " buying," for the purpose of calling the particular attention of the reader to them ; for he will see, by a subsequent decision, ^ that the case of the seller and that of the buyer stand on totally dif- ferent grounds in such a transaction ; and that what may be legal in the buyer, may be fraudulent and illegal in the seller, and subject him to an action: we shall find that this is the case from a consideration of these two authorities; each arising upon transactions in the same market. It will be necessary to look at the form of the declaration before we advert to the facts of the case. The plaintiffs (in the action against Diston) declared that they were possessed of a market holden every Wednesday, at Tewkesbury, for the buying and selling of corn, &,c.; and that by reason thereof they were entitled to a reasonable toll (stating it) of all grain, &c., brought into the market to be sold, and there sold, on any such market-day : and that the defendant, well knowing the premises, but fraudulently and maliciously intending to injure them in that behalf, and to deprive them of their toll, and to hinder them from enjoying the benefit and profits of their market in as full and ample a manner as of right they ought to do, wrongfully, injuriously, deceitfully, and fraudulently bought in the market on a market-day there, of one J. D. ninety-six bushels of wheat, by sample, — the wheat, so bought j or any part thereof, not being in the market, nor brought by the said J. D. into the market to be sold, and there sold ; and the defendant well knowing that the wheat had not been brought into the market to be sold, and was not in it at the time of his buying it ; whereby, &,c. — Another count alleged that the toll was due on all corn brought into the market on the market-day to be sold, and there sold ; and stated that the wheat bought by the defendant, was to be delivered in Tewkesbury. — The ' The Bailiffs of Tewkesbury v. Bvicknell, 2 Taunt. l20. post. 71. Of Fair and Market Tolls. 67 5th count stated that the defendant, on a market-day, bought in the market ninety-six bushels of wheat, ivJiich had been brought into and was in the market, to be sold ; by reason whereof the plaintiffs became entitled to a certain toll, which they demanded, and that he refused to pay it. The plaintiffs had a verdict at the trial, subject to the opi- nion of the Court on a case of which the following are the ma- terial parts : The plaintiffs were the owners by prescription of a market held every Wednesday at Tewkesbury, for the sale of corn, &c. ; and all corn, &.c. brought into the market and there sold in bulk had immemorially paid a certain toll amount- ing to one peck in forty-eight bushels. Until thirty or forty years back, all corn sold in the market ivas pitched there and sold in bulk ; but since that period a practice had gradually prevailed of selling bij sample, — but in such cases the custo- mary toll had also until lately been taken when the corn was delivered in Tewkesbury. The defendant on the market-day, knowing of the plaintiffs' claim to toll as stated above (which was to be paid by the buyer), bought ninety-six bushels of wheat of J. D. in the market, by sample. The wheat so bought was (to the knowledge of the defendant) in the barn of J. D., and had never been brought into the market or paid the toll. Two days after the sale, the corn was delivered to the defendant in Tewkesbury, but not in the market. The officer of the corporation demanded toll of him, which he re- fused to pay. For the plaintiffs it was contended : that it was a fraud in law to purchase corn by sample in the market, whereby the owner of the market was prevented from taking the accustomed toll. The defendant had the benefit of the market, to go in search of the seller of the commodity he wanted, and to look at the article ; and the seller had a corresponding benefit. If, then, both parties had all the advantages of a sale by bulk in the market, it was but just that the buyer, from whom the toll was due, should pay it, as the legal consideration for the benefit he received. His refusing to do so, was an injury to the plaintiffs, and a fraud in law. On the fifth count, it was f2 68 Of Fair and Market Tolls. argued that the law, by a fiction, would consider the delivery of the sample at the time of the sale as a symbolical delivery of the commodity in bulk — pars pro toto — and that when the corn was afterwards delivered, in pursuance of the contract made in the market, the delivery related back to the time and place of contract, and was to be considered as one entire act of sale and delivery in the market. — For the defendant it was argued : that it was necessary that fraud in fact should be proved and found by the jury, which had not been done here. It should be shewn that the defendant was guilty of some trick or conspiracy, by which the corn was prevented from coming to market, which would otherwise have been taken there. The fallacy of the plaintiffs' argument lay in assuming that the mere fact of purchase by sample without paying a toll was an actual wrong done to their franchise, — which could only be supported by shewing an extension of iheiv prescription from a toll on corn brought in bulk into the market and sold there, to all contracts for the sale of corn made there, whether it were brought into the market or not. — As to the fifth count, it was disproved by the facts; for the toll, qua toll, did not accrue. After consideration. Lord EUenborough C. J. delivered the the judgment of the Court. His lordship in the course of it observed, that the plaintiffs in every count of their declaration, except the last, complained of the defendant as a buyer in their market by sample, of wheat not brought into the market by the seller, — " whereby they were prevented from taking their toll out of the said wheat, as they would have done if the wheat had been brought into and placed in the market." In the last (the fifth) count, they complained of a non-delivery on demand of the toll due upon a sale of corn alleged to have been brought into the market to be sold, and there sold, — and which the count supposes to have been capable, at the time, of specific render and dehvery. That count, however, and the ingenious and learned arguments founded upon it, must be wholly laid out of question, on this simple ground, — that it contains certain allegations of fact, which are not in any de- Of Fair and Market Tolls. 69 gree sustained by the evidence stated. There was no such corn actually brought into the market to be sold, nor was any such corn there sold, nor did there ever exist any such phy- sical possibility of rendering in kind the toll demanded, as the fifth count supposed. And although the delivery of the sam- ple might be for some purposes a sale and delivery of that corn of which it is a part, or rather of the quality of that which it represented and exemplified, yet its production in the market could not operate as a production of the bulk actually sold, so as to generate in point of fact the consequences of such pro- duction, by affording the means of taking the toll specifically thereout : for no fiction or intendment of law, no symbolical transfer whatever, could operate to prod uce an effect merely natural, which could only be produced by natural means, — namely, by the specific introduction of the commodity itself, in its proper form and bulk, into the place where the toll was demanded, and where the fifth count supposed that it could (if the defendant had been so pleased) have been specifically rendered. That count, therefore, failing for want of the proof necessary to sustain the material allegations of fact contained in it, the question must turn upon the other counts, which complained of the defendant as a buyer of corn by sample, in fraud of the plaintiff's right to a market-toll. The complaint was made of the buyer only. It was not a charge in the na- ture of a conspiracy against the buyer and seller jointly, for an injury resulting to the plaintiffs from their joint contrivance and concert, but from the supposed misconduct and fraud of the defendant — the buyer, as such — and which was stated to consist in the mere act of buying corn by sample, which he knew at the time was not in the market. In that respect, the case was perfectly novel and unprecedented. Assuming, how- ever, for the sake of argument, that a seller'^ (whose case was very different from that of a buyer ^ but which it was not at pre- sent necessary to consider) would under the circumstances be liable to this species of action, as for a sale to the prejudice ' See the case of the seller, the Bailiffs of Tewkesbury v. Bricknell, post. 71. 70 Of Fair and Market Tolls. of the plaintiffs' market, — did it follow that a buyer would be so also ? His lordship, after noticing at length the distinc- tion between the case of the buyer and that of the seller, pro- ceeded: Why, in justice, and on the ground of receiving the consideration for which the toll is payable, should the buyer in this case be required to pay it? The corn he has bought some time before (by no fraud or contrivance of his own), it is true, is delivered at Tewkesbury ; but the correction of the market at the time and place of sale has been wholly lost to him in point of benefit. He had no benefit from the previous view of the entire bulk exposed in the market-place : he had not had the advantage in reduction of price which frequently results to the buyer, from the seller's dread of being obliged to carry back his commodity in bulk unsold. Of these advan- tages it does not appear that he has been deprived by any act or consent of his own ; or that he could have obtained his corn from the seller on any other terms, or by any other mode of sale and delivery, than that by which, in fact, he has received it. But, independently of these circumstances, by which the case of the buyer is distinguished from that of the seller (upon which latter case he would not be understood as intimating any opinion), it does not, upon the facts stated, appear that the injurious consequences alleged to follow from the buying of corn under these circumstances — viz., the loss of a toll which the plaintiffs otherwise would have taken — had, in fact, followed therefrom. How does it appear that this corn, if not sold by sample, would ever have been sold by bulk in Tewkesbury market ? And yet it should so appear, by evidence sufficiently probable as to induce this conclusion ; otherwise the consequential damage, which is the foundation of the ac- tion, is unproved, and of course the action is not maintainable. This allegation, of special damage, was sustained by no evi- dence sufficiently proximate to enable the Court to connect it with the act of buying, as the consequence and effect of such act. Upon this ground, therefore, they were of opinion that that allegation also — viz. of damage occasioned by the act of buying — as well the allegation that the buying itself was in Of Fair and Market Tolls, 71 fraud of the plaintiffs' right to a market-toll, and with intent to deprive them of the same — was not made out, in point of fact, by competent evidence, warranting such conclusion in point of law. On these grounds, they were of opinion that judgment of nonsuit ought to be entered in favour of the de- fendant. It appears from this case, that no action lies against a person for buying corn by sample in what is called a " pitched market," in which a right of toll on corn brought there for sale and there sold, exists, — where the bulk, to the know- ledge of the purchaser, has not been brought within the limits of the market ; provided it be not done by trick and contrivance, by conspiracy between the parties, for the pur- pose of depriving the owner of the market of the toll which would be due to him, if the bulk were brought into and sold in the market : that case may perhaps admit of some doubt. The above case was decided in the year 1805; and in 1809, the question of the seller by sample in the same market (the bulk not being brought into the market) came under the con- sideration of the Court, in the same form of action. It was there decided ^ that the plaintiffs might maintain a special action on the case against the person who sold corn in the market by sample, without paying to the plaintiffs the toll to which they would have been entitled had the bulk been brought '^into and sold in the market. This case is an im- portant one, especially taken in connection with that above cited, as regards the rights of the owner of such a market as this, and the rights and liabilities of the public, and as shew- ing the distinction which exists between the case of the buyer and that of the seller. The Court had, in the action against the buyer, in some degree prepared the way for this question by noticing this distinction, and we shall find that the dif- ference is not an imaginary but a real and substantial one. The declaration stated the plaintiffs' right to the market and toll, in the same manner as that in the action against Diston had done; and alleged that the defendant, on a certain ' The Bailiffs of Tewkesbury v. Bricknell, 2 Taunt. 120. 72 OJ Fair and Market Tolls. market-day, at Tewkesbury, sold some beans by sample in the market. It then stated that the defendant *' wilfully and fraudulently omitted to bring the said beans (the quantity sold) to market, to deprive the plaintiffs of the tolls thereof." The special castC stated the like facts that were stated in the above action against the buyer, as to the corn not being in bulk in the market, at the time of the sale by sample by the defendant, and as to the ancient practice of pitching the corn in bulk in the market, and the gradual disuse of that practice for the last thirty years. The case was argued at length, but having given the ma- terial points contended for on either side in the previous suit, we shall proceed at once to shew the view which the Court took of the case, and to state the principal reasons which induced them to come to the decision that the defendant was liable to the action. It was in effect, the Court said, an action against the defendant for selling corn in the market by sample, which Vvas alleged in the declaration to be done fraudu- lently and injuriously to the plaintiffs ; that is, not fraudu- lently according to the common sense of the word, but only fraudulently because injuriously, as depriving the plaintiflfs of a toll to which they were entitled. The first question was — whether the selling by sample in the market was an injury to and a fraud on the persons who have a right to toll on goods sold in the market? As to that point, it was very ex- traordinary that no cases were found to have been decided on the question, for neither had any of the counsel mentioned any, nor had any occurred to the Court. Considering that the origin of markets was by grant from the King, or by pre- scription, which supposed a grant, a lord of a market must necessarily have a right of action against any person who injuriously deprives him of toll accruing in that market. That being so, then came the question on the sale by sample; which mode of sale, though certainly not very recent in Tewkesbury, nor in many other towns, was comparatively modern. It had now in great measure superseded the ancient practice ; but anciently, when the communication throughout Of Fair and Market Tolls. 7 the country was more rare and difficult, it was a great con- venience both to the buyer and to the seller, to have a com- mon place of meeting, to barter and sell their goods; and even now it certainly was to a degree a convenience. But at the same time it operated as a tax upon the commodity, by enhancing the price, and by the restrictions which it im- posed on the operations of trade, if persons might not buy or sell but in that market. One question was — whether they who sell by sample have any benefit from the market ? And it was said that if they could not sell by sample, but were compelled to pitch their corn in bulk, they would not go there at all, but would sell at their own houses ; and that therefore the market was not beneficial to them. But on the other hand, they have a benefit from frequenting the market, for there they find customers, — persons ready to buy ; there- fore, by going to the market, they have the benefit of the market. If so, then the lord of the market ought not to be deprived of the benefit of the toll, which was his due for goods sold by persons taking the benefit of the market. The Prior of Dunstable's case^ was a very strong authority, that a person taking the benefit of a fair shall pay the duties of it; and consequently, to persons taking advantage of a market and seUing there by sample, the principle of that case strongly applied. The circumstances of that case were quite imma- terial, but the principle thereby established was, — that where a person does anything injurious to the right of a market, the lord of that market shall have an action. In Moseley v. Pier- son, - Lord Kenyon held it a clear fraud on a market to sell goods by sample therein. He says : If the plaintiff's demand had arisen on contracts of sale by sample, he would have brought a different kind of action, — an action for the fraud in not brinoino- the soods into the market. He refers to no authority, but states it as a clear principle in his mind, that if a person sold by sample in the market, it would give an action as for an injury to the market. Upon this ground, the » 11 U. 6. 19 B. M T. R. 107 ; ante, 64. 74 Of Fair and Market Tolls. Court were of opinion that the present action well lay, unless the defendant brought himself within the exemption. * These cases appear to be very clear and intelligible, and as the facts found in them are frequently occurring in many parts of the country, I have thought it advisable to state the circumstances and the law of the cases at some length. It seems from them that it is in point of law a fraud in a person, in such a market as that of Tewkesbury, to sell by sample (the bulk not being brought into the market). For this fraud, the owners of the tolls of the market may have a special action on the case against him. He has no action against the hxiycr, unless there is some concert or contrivance between him and the seller in that mode of dealing, in order to deprive the owner of the market of his toll. And although the seller may be thus answerable in a particular form of action, the owner of the market cannot maintain an action for the toll, as toll, in such a case ; nor can he justify a distress for the toll upon the corn when it is brought into the town to be delivered. This appears from the cases which have been already considered, and it is confirmed by the more recent decision in Hill v Smith. ^ The pleadings in that case have been already stated, in the Chapter on Toll Thorough. ^ The case also involved a claim to a Market Toll, as will be seen on reference to the former part of the work. Lord Mansfield, C. J. in delivering the judgment of the Court said (as to this part of our subject): The question was — whether the prescription was such as could be sustained in law. The plea rested on the right to take toll of corn sold by sample. In stating that right, the defendant alleged that the Corporation of Worcester repaired the streets for the more convenient bringing the corn into the city to be sold there. It was contended that the claim could ' The exemption arose on a claim made in favour of the buyer as a bur- gage tenant at Tewkesbury, and is immaterial in this place : it will be noticed in considering the subject of Exemptions from Tolls. See post. ^ 10 East, 476 : in error, 4 Taunt. 520. 3 Ante, 10. Of Fair arid Market Tolls. 75 not be supported. It was the first time that such a toll was ever thought of, and he was surprised that any evidence could be found to satisfy a juiy that such a right existed. It was well known that sales by sample were of modern introduction, and it was so admitted by the counsel for the defendant, as an excuse for not finding any case in support of such a right. What a sale by sample was, was well understood at this day, but there was no explanation of it in any law-book. The sale by sample had no connection with the market; the corn so sold was never brought into the market ; and if toll might be demanded for corn so sold, he could not see why it might not be demanded for any sale whatever, contracted for in a market, — for the sample was only used to shew the quality of the thing sold. When the sale by sample, as it was called, was considered, it was an abuse of the word " sale." It was no sale at all. It was a contract to sell a quantity of goods answering to the sample, — but not any specific goods ; it was to sell fifty bushels of such a quality, — but no specific fifty bushels. — The corn was not sold in the market ; and the toll to be paid for a sale in a market, is for corn brought into the market and there sold. — The Court were, therefore, of opinion that the prescription could not be supported, and gave judgment for the plaintiff", reversing the judgment given below. This doctrine was recognised in a subsequent case ^ in the Court of King's Bench. The plaintiff brought trespass for seizing his wheat at Aylesbury. The defendant pleaded that the Marquis of Buckingham was seized of the manor of Ayles- bury, and that he and all those, Sec. from time immemorial had held a market at Aylesbury every Saturday, for buying and selling corn, grain, &c. ; and had also taken toll " of all corn, &c. brought into the town of A. to be sold on any market-day there, whereof any part was pitched within the market for sale, and which corn, &c. should be there sold on the market-day." The plea then stated that the plaintiff" ' ^Vells V. Miles, 4 B. & Aid. 559 : ante, (on another point) 18. 76 Of Fair and Market Tolls. brought on the market-day, into the town of Aylesbury, for the purpose of being sold tliere, a quantity of wheat, part of which, to wit one sack, he pitched within the market for sale, the residue being deposited within the town of Aylesbury ; and "which quantity of wheat was then sold upon the market-day at the market :" by reason whereof, the defendant, as lessee of the Marquis of Buckingham, was entitled to take from the said wheat the tolls so due and payable ; and so justified the seizure. Issue was taken on the prescription, and the defendant had a verdict. The plaintiff, however, obtained a rule nisi for entering judgment for him notwith- standing the verdict, and after argument the rule was made absolute, and the plaintifthad judgment. Abbott, C. J. said the question raised upon the pleadings had in fact been decided in Kerby v. Wichelow, ^ and in the late case of Hill v. Smith. According to those authorities, toll could only be taken in respect of things actually brought into the market and there sold. — Best, J. observed that it was stated in the plea that part of the corn was out of the market; and that being so, he was of opinion that the plea could not be supported. The authority of the cases already cited, is thus confirmed. The question in the only other case - which we shall have occasion to cite on this point, was raised upon a bill of ex- ceptions. The plaintiffs (below) declared that the defendant (below) was indebted to them in divers large quantities of wheat, barley, &c. due and of right payable and renderable by the defendant to them as and for certain tolls of wheat, barley, &c. by the defendant before that time brought into the borough of Reading, and there disposed of. The second count was similar, substituting only the word market for borough. The evidence was, that "the defendant sold to one B.C. eighty-three coombs of wheat in the market-place, on a mar- ket-day, bij tico sacks pitched in the market.'' The Court were of opinion that it did not appear that any corn had been ' Ante, 48 ; 2 Lutw. 1498. ' Vines v. The Mayor of Reading, 4 Bing. 8. Of Fair and Market Tolls. 77 brought into the market and sold by the defendant below ; but from the allegation that the sale was by two sacks, it might rather be inferred that the corn was at a distance. Judgment was, therefore, given for the plaintiff in error (the defendant in the action). This case is another authority to shew that no toll for corn, &c. sold in a market can, as toll, become payable, unless the corn, &c. be actually brought into and sold in the market: the two sacks in this case were only a larger sort of sample. The owner of the market, therefore, has as it seems no right to toll unless the goods, in respect of the sale of which he claims it, are actually brought into the market and there sold. In markets in which the proper mode of selling corn, &c. is to have the bulk itself brought into the market for sale, and where the toll arises upon the sale of the article there, the seller cannot deprive the owner of his toll by selling by sam- ple, (the bulk itself not being brought into the market) : If he does, the owner of the market may maintain a special action on the case against him (not for the toll, but) for the injury done to his market by such mode of sale. In such a case, however, no action lies against either the buyer or the seller for the toll to which the owner of the market would have been entitled had the bulk been brought into it and there sold : nor can he seize any portion of the bulk for the toll, upon its being afterwards brought into the town to be delivered in pursuance of the contract of sale. And no action lies in such a case against the buyer, unless there is some trick or contrivance between him and the seller, to deprive the owner of the market of his toll, by adopting the sale by sam- ple instead of the ordinary mode of sale which prevails in the market. Secondly. — Of Evading the Toll by Selling out of the Limits of the Fair or Market. Actions for a fraudulent evasion of toll by selling near to but not within the limits of a fair or market, have been of rare 78 Of Fair and Market Tolls. occurrence ; few cases, consequently, are to be found in the books upon the subject. We have already seen' that where a person does any thing injurious to the right of a market, the lord of the market has an action against him ; and that a per- son taking the benefit of a fair or market must pay the duties of it. It is easy to apply these two principles to the subject- matter of this part of our enquiry. A person who sells near to, but not within, the limits of a fair or market, is cer- tainly guilty of an act injurious to the rights of the owner, as it is calculated to abridge his receipt of the tolls which would arise upon the sale of commodities within the fair or market : he is, therefore, it would seem, liable to an action at the suit of the lord. But the lord cannot maintain such an action, if he have himself been guilty of an abuse of his franchise, by generally appropriating a portion of his fair or market for the sale of articles not permitted by his grant ; even though, at the particular time when the person so sells his goods near to the fair or market, there should, in point of fact, happen to be sufficient room for him and his commodities within the limits of the fair or market, where he might have sold them. Prince v. Lewis- was an action brought by the lessee of Covent-garden market against the defendant, for selling vege- tables out of the market. The first count of the declaration charged the defendant with erecting a new market for the sale of vegetables near to that of the plaintiff, intending frau- dulently to deprive him of the profits of his market. The se- cond count was for exposing to sale and selling divers vege- tables in the public street, within seventy-two yards of the plaintiff's market; and contained an allegation that divers persons bought vegetables of the defendant there, who would otherwise have resorted to the plaintiff's market, and have there bought the articles &,c., whereby the plaintiff was de- prived of divers tolls and profits which would have accrued to him from the sale of such articles in his market, &c. ' Per Cur. in the Bailiffs of Tewkesbury v. Bricknell, citing the Prior of Dunstable's case, ante, 73. ^ 5 B. & C. 363. Of Fair and Market Tolls. 79 At the trial, the charter of the 22d Charles II. and the private act relating to Covent-garden market, which have been already stated,^ were produced by the plaintiff. It appeared that the defendant resided in James-street, about seventy or eighty yards beyond the limits of the market ; and that be- tween the hours of 6 and 8 o'clock in the morning, a waggon laden with greens was drawn up before his door, and the greens were there exposed to sale and sold by him. During some part of the time he was selling, there was room for his waggon in the market ; but the plaintiff's agent, who demand- ed a toll of the defendant, did not inform him that there was room. Part of the centre of the market was let out to yearly tenants for the sale of different articles, not being fruit, flowers or vegetables (for the sale of which the charter was granted) ; and there were also china shops, old iron shops, and some pub- lic houses there. It farther appeared that the toll had been frequently collected for articles standing and sold in James- street. In consequence of so much of the market being ap- propriated to other purposes than those contemplated by the charter, the remaining space was on ordinary occasions fully occupied. The learned Chief Justice (Abbott) at the trial, (without adverting to the fact that during a part of the time that the defendant was selhng his vegetables, there was room for his waggon in the market) was of opinion that the plaintiff was not entitled to maintain the action, unless he gave up the whole space of the market for the use of those who attend it, from day to day, for the purpose of selling those commodities to the sale of which the market was devoted. The plaintiff was therefore nonsuited, with liberty to move to have the ver- dict entered for him; and he obtained a rule nisi for that purpose, which was eventually discharged, and the defendant had judgment. In delivering his judgment, the Chief Justice said : He still thought, as he did at the trial, that before the lord of the mar- ket, or his lessee, could complain in a court of law of a person who sells without the limits of his market, as doing him da- ' Ante, 55. 80 Of Fail and Market lolls. mage, it was incumbent on him to shew (or at least the con- trary should not have appeared in evidence against him) that no part of the market which ought to be open and free of ac- cess, for the public accommodation, was with his assent de- voted to other purposes. It might be true, perhaps, upon a critical examination of the evidence, that during some part of the time when the defendant's waggon was standing in James- street, there might have been room for it within the limits of the market. But assuming that to be the fact, it would not alter his opinion as to the right of the plaintiff to maintain the action ; because if, according to the general and ordinary use which was made of the market, the public were deprived of the accommodation which they ought to have, and if it generally happened that the space allotted to them was wholly filled up, then — inasmuch as the lord of the market, or his lessee, could not complain of a person selling near the market when it was full — it was incumbent on the lord, or the lessee, when, on a particular occasion, it was not wholly occupied, to give notice to any person whom he sought to charge with a toll, that there was room. That had not been done ; and the plaintiff, there- fore, could not claim of a person selling out of the market, the same toll as if he had sold in the market. It had been said that many of the erections in the market had existed from very ancient times ; and that might be so ; but before the lord of the market could maintain an action against any person for defrauding him of his toll, by selling near to it, he must re- move all the obstructions, and devote the whole of the space to the objects for the furtherance of which the grant of a market upon that space was intended, — viz. the accommodation of persons who went there to sell commodities of a particular de- scription. The rest of the Court concurred in this judgment, and Mr. Justice Bayley observed: Generally speaking, if the space allotted for the market was more than was necessary for the purposes of the market in ordinary times, the lord might lawfully appropriate a part of that space to other pur- j)0ses ; but whenever the convenience of the public frequent- ing the market, required tliat the whole of the space should Of Fair and Market Tolls. 81 be dedicated to the use of the market, then there was an obli- gation on the part of the proprietor so to dedicate it. If the sale be made out of the market in the fair and ordi- nary way of business, and not for the purpose of fraudulently evading the toll which would be due if the article were sold within the market, the transaction is legal ; but if by trick and contrivance the sale take place near to the market but without its limits, for the purpose of depriving the owner of his toll, a special action on the case lies at his suit. But in such an action it seems that the fact of the fraud must be expressly proved and found by the jury, otherwise the sale will be taken to be fair and legal. Blakey v. Dinsdale^ was an action of trespass for seizino- the plaintiff's wheat. The defendant justified under a claim by the corporation of Ripon, as owners of the market there, to a toll on corn brought to the market or borough for sale. It appeared in evidence that one Cowper had a corn-chamber at Ripon, and that, on a market-day, he called on the plaintiff at his own house there, which was about 200 yards from the market-place. They went together to Cowper's corn-chamber, where the latter shewed the plaintiff a sample of wheat, and sold him four quarters of similar wheat, which was then at Cowper's house, ten miles from Ripon. The wheat was to be delivered at any time within a month, at Cowper's conve- nience. Afterwards, and within the month, on a day which chanced to be also the market-day at Ripon, Cowper sent the wheat to the plaintiff; and as his man was driving it through the market-place in Ripon (which was a public street) the toll-collector for the corporation demanded toll for the corn. The man refusing to pay, the collector called the defendant, who was an officer of the corporation, and he took from the sacks thirty-two half pints of wheat for toll, — that being ihe quantity to which the corporation were entitled, if, under the circumstances, they had a right to any, — and it was for this trespass that the action was brought. ' Cowp. 661 . . C 82 Of Fair and Market Tolls. The plaintiff contended that, if it was intended to be said that the transaction was a fraud on the corporation, with a view to elude the toll, that should have been found by the jury ; for the Courts never presume fraud. On the other hand, it was argued, that though no fraud was found, it was obvious that the sole object of the parties in this mode of sale was to evade the toll. The Court decided in favour of the plaintiff, and in deliver- ing judgment Lord Mansfield, C. J., said : As to the sugges- tion that this was a fraud upon the corporation, there were cases in which a man could not defend himself, even by facts ever so strong, in support of a fraud, if the fraud can be got- ten at; but then it must be made to appear. If this mode of sale were a fraud upon the toll, the remedy of the corporation was by a special action on the case. He remembered a case of that sort brought by the City of London against persons for bringing corn just by the market, in order to avoid the toll; and on a special action on the case the fraud was found. But this case was a very different thing. Here, the vendor lived in the town ; he shewed a sample of corn to a customer, who agreed for a certain quantity, to be delivered at his mill, ten miles off; and the goods happened, on a market-day* merely to pass through the market in the way to the place where they were intended to be delivered. If this were really a trick, the defendant should have brought an action on the case. The owner of an ancient market may by law have a right to prevent other persons from selling their goods in their private houses, situate within the limits of his franchise.^ It does not follow as a necessary consequence of law resulting from the right to a market, that he may prevent persons, being inhabi- tants of the place, from selling in their private houses ; but such right may exist wherever there is an ancient right to a market, either by grant or prescription. If the market be an ancient market, and the lord appears at all times to have pre- ' Mosley v. Walker, 7 B. & C. 40. Of Fair and Market Tolls. 83 vented a sale in private houses, the exercise of such a controul is evidence of the right.^ It is said in an old case,- that if a man has a fair in a place, those who have houses next adjoining to the fair cannot open their shops to sell commodities in the fair, but stallage is due for it ; for they cannot take the benefit of the fair without giv- ing the duties which appertain to him who has purchased it. An action was brought^ by the proprietor of a market at Manchester, against the owner of a house adjoining the mar- ket, for opening a shop in his own house, and selhng goods similar in kind to those on the sale of which, in the market, the plaintiff had a right to stallage ; the defendant having at the time when he sold the goods a stall in the market-place, which he might have occupied. It appeared in evidence that the market had been from ancient times held in a public street, but in consequence of the increased population and traffic of the town, persons frequenting the market were exposed to in- convenience and danger; and the plaintiff had permitted a part of the market-place to be used for other purposes than for the sale of articles usually sold there. The learned Judge at the trial left it for the jury to say whether, from the state of the market-place, the defendant had a reasonable cause for quitting his stall and selling in his own house : they found that he had not, and returned a verdict for the plaintiff, and the Court were of opinion that the question was fairly and properly sub- mitted to them. Where a man has a market and a right to toll on the sale of goods therein, and another is coming to the market with goods, on the sale of which in the market a toll would be due, and a third person hinders him from coming to the market ; an action lies at the suit of the owner of the market against such ' Per Holroyd, J. 7 B. & C. 56. ^ Newington's case, 2 Roll. Abr. tit. Market (B), pi. 1. Vin. Abr. tit. Market (B). It is said that Lord Raymond, C. J., called this " a monstrous case, that a man should pay a toll for opening his windows, and laying goods upon his own ground :" See 3 Burr. 1411. 3 Mosley v. Walker, 7 B. &C. 40. Mosley v. Cbadwick, cited 7 B. & C. 47. g2 84 Of Fair- and Market Tolls. third person/' because of the possibility of damages."' But here, the hindrance by the defendant is the only circumstance which is supposed to intervene between the lord and his toll, to prevent his receiving it. The case assumes that the person would, but for the hindrance of the defendant, have come to the market with his goods, and have sold them there : and the law in all cases proceeds upon proximate possibilities of this kind, as being prima facie sufficiently certain. If the hin- drance were ultimately occasioned by any other circumstance, — so that what the defendant did was only an attempt to hin- der, and not an effectual hindrance, — that might be shewn by him in his defence, in order to repel the plaintiff's claim to damages.^ So, an action lies by the owner of an ancient market with a rio-ht of toll on goods sold, against another for erecting a new market near his ; and yet, possibly, the goods that came to the old market might not have been sold, and consequently no toll would have become due.^ But the owner of an ancient market cannot maintain an action against another person for erecting a new market near to, and to the prejudice of his, — whereby he is deprived of tolls on articles which would, but for the new market, have been sold in his, — if he has acquiesced in the existence of the new market for twenty years without interruption.* The defendant's market had been established without any legal authority, within two miles of the plaintiff's, twenty-three years before the commencement of the action ; and during all that time cattle had been bought and sold there without hindrance. The Court held this to be an absolute bar to the action. ' Ashby V. White, 6 Mod. 49. 2 Lord Raym. 948. ' Per Lord Ellenborough,C. J. 6 East, 462. ' Per Powell, J. Ashby v. White, 2 Lord Raym. 948. ♦ Holcroft V. Heel, 1 B & P. 400. Ante, 55. Of Fair and Market Tolls. 85 Section IV. — Of Stallage and Pickage. These are two of the duties which are mentioned in Corayns' Digest as being usually paid in fairs and markets ; and we are now to consider their nature, and in what cases they are pay- able. Stallage is a duty for the liberty of having stalls in a fair or market, or for removing them from one place to ano- ther : Pickage is a duty for picking holes in the lord's ground, for the posts of the stalls.' '* Toll" is a general word, and may import stallage;- though both stallage and pickage are usually given in express terms in grants of fairs and markets : and we shall presently see that stallage has but few incidents in common with Toll, commonly so called, and that if it be a toll it is one sui generis. Stallage and pickage are so nearly similar in all their qualities, and in the law applicable to them, that we shall consider them together; and the rather because there are few cases to be found in the books respecting them. They are both incident to the soil ; and, therefore, if the king grant a fair or market with toll to one and his heirs, to be held within land subject to the custom of Borough English, and the grantee die, the heir at common laiu shall have the fair or mar- ket and the toll, but the younger son shall have the stallage and pickage with the soil, by the custom.^ Having thus briefly stated the nature and character of these two duties, we will proceed to consider in what cases they are due and payable, and the remedy which the owner of the fair or market has to recover them. The right of coming into a fair or market to buy and sell goods, belongs to all the sub- jects of common right; but they cannot erect stalls or place tables upon the soil, for the purpose of exposing their goods for sale thereon, without the leave of the owner of the fair or market. To this effect is the case of the Mayor of Northampton v. Ward. * > Com. Dig. tit. Market, (F. 2). ' 2 Lutw. 1519. Vin. Abr. tit. Market, (B). 3 Heddy V. Wheelhouse, Moo. 474. MWils. 107. 2 Stra. 1238. 86 Of Fair and Market Tolls. It was an action of trespass for breaking and entering a close of the plaintiffs, situate at Northampton, called " The Butcher's Row," and erecting a stall there. To this the de- fendant pleaded several pleas, but the only one on which the question of law turned was the third, which was in substance this : That the town of Northampton was an ancient town, and that the place in which the supposed trespass was com- mitted was part of the town ; that there was a public market held in that place every Saturday, for the selling of butcher's meat, and that the defendant entered the place where the market was so kept, with his meat, to sell it, and erected a stall there for the purpose of exposing it to sale there, and laid it on the stall to sell it ; and that the stall was necessary for him for the exposing of his meat for sale. The plaintiffs in their replication admitted that there was a market held for the purpose and in the manner and place stated in the plea, but alleged that they were seized in fee of the market, and that the defendant erected his stall there without their license or consent. On demurrer, the Court decided in favour of the plaintiffs. The question raised on the pleadings was whether, of com- mon rio-ht, any person might come with his goods into a public market and erect a stall there, for the purpose of ex- posing them to sale ? The Court, in giving judgment, said that by law every man had of common right a liberty of coming ' into any public market for the purpose of buying and selling there, without paying any toll, unless it be due by custom or prescription. But if he required any particular easement or convenience, — as a stall in the market, — he must have the license of the owner of the soil for that purpose, if there be no particular sum fixed by the custom of the market for stall- age ; and if any sum be fixed by custom, that could not be exceeded, but still he must agree with the owner of the soil. The defendant, therefore, had no right to erect a stall without making a satisfaction for it to the owner of the soil, which was called stallage ; and if the pavement or soil be picked or dug up, or broken, then it was called pickage. Toll could only be Of Fair and Market Tolls. 87 due by grant, custom, or prescription ; and though stallage was called a toll in some of the books, it was a toll sui generis ; for the owner of the soil was entitled of common right to stallage, even in a newly-erected market, and the soil was no farther appropriated to the public use than that every man has aright to enter into the market to buy and sell there. The Court added that a market might not be improperly compared to a parish church, whither all the parishioners have a right to go to hear divine service, but have not liberty to furnish themselves with pews without the appointment of the ordinary. And they decided that the action was properly brought in trespass. In like manner, the Court determined ^ that tables cannot be set in the market for the purpose of exposing goods for sale on a market-day, against the will of the owner of the soil. It was attempted to distinguish this case from the fore- going one, because there the defendant had " erected a stall," whereas here he had only " placed a table ;" but the Court said they could not criticise and distinguish between a table and a stall. De Grey, C. J. observed that men have a right to go to market, but not to meddle with or encumber the soil. The case of Wigley v. Peachey ~ was cited and relied on by the defendant in the last case, but the Court replied it was sufficient to say that the case then before them was not like that. It was an action of trespass for seizing beans. Sec. belonging to the plaintiff. He had taken his goods into a market for sale, and had laid them on the ground for sale there. The defendant claimed a toll for them, and on the plaintiff's refusing to pay it, he distrained the goods (as his plea stated) damage feasant, and impounded them, and so justified. It was, however, held that the placing his goods on the ground did not make the plaintiff a trespasser ab initio ; and if stall- age were due to the defendant, he ought to have brought an action or pursued his proper remedy for that, and not have distrained the plaintiff's goods damage feasant. So in another ■ The Mayor of Norwich v.Swann, 2 W. B1.1116. - 2 Lord Raym. 1589. See Willes, 623. 88 Of Fair and Ularket Tolls. case^ it ajjpeared that the defendant had seized corn in his market at Lawnson, belonging to the plaintiff; and in his plea he staled that the town of Lawnson was incorporated by Queen Ehzabeth, who granted to the corporation a market every Saturday ; that the place in which the corn was seized was the market-place; and that the plaintiff had brought his corn on the market-day and set it there ; and so justified the seizure for a distress damage feasant. But the Court held that the seizure could not be justified, and the plaintiff had judgment. But these two cases are essentially different from the North- ampton and Norwich cases: there the defendants had not only entered the market with their wares for sale (which they had a right to do), but had committed a trespass to the soil, the one by erecting, the other by placing, a stall thereon ; which they had no common-law right to do. But in the cases last cited, the plaintiffs had merely brought their goods for sale to market, and placed them on the ground there; which they had a right to do, without being deemed trespassers. It has been recently decided" by the Court of King's Bench that the owner of a market may maintain an action of inde- bitatus assumpsit for stallage, without shewing any contract in fact between him and the occupier of the stall. It had been said by the Court in the Mayor of Northampton v. Ward that trespass was the proper form of action, and that neither debt-nor assumpsit for stallage would lie; but this was extra- judicial.^ Assumpsit lies for the use and occupation of pre- mises at the suit of the owner; and stallage is a satisfaction to the owner of the soil for the liberty of placing a stall upon it. If assumpsit is maintainable in the one case, there is no reason why it should not be so in the other. We have already seen^ that the owner of an ancient market may in some cases have a right to prevent other persons from ' The Mayor of Lawnson's Case, Cro. Eliz. 75. ^ The Mayor of Newport v. Saunders, 3 B. & Adol, 411. » Per Lord Tenterden, C. J., 3 B. & Adol. 413. * Ante, 82. Of Fair and Market Tolls. 89 selling goods in their private houses situate within the limits of the franchise; and that if a man have a fair in a place, those who have houses next adjoining it cannot open their shops to sell commodities in the fair without paying stallage. As to the amount to which the owner of a fair or market is entitled for stallage and pickage, there are very few au- thorities. In one of the old books, ^ it is said that stallaj^e must be certain: but in the Northampton case- the Court said that if no particular sum is fixed by the custom of the market to be paid for the privilege of having a stall there, the person placing one must agree with the owner for the sum to be paid ; and if any sum be fixed by the custom of the market, that alone can be demanded and must be paid. A prescription ^ to take a certain sum for the stall and the soil " prope et circa stallam" is good in law, for it is suffi- ciently certain, being easily ascertained by the common usage of the fair or market. A prescription'* also from the lord of a manor to take half a peck of corn in specie from every four bushels which are brought to market within the manor, "nomine tolonii for stallage," is a good prescription. Section V. — Of Exemptions from Fair and Market Tolls. Individuals and bodies corporate may be exempt from tolls in fairs and markets in various ways : by reason of their being tenants of lands in ancient demesne — ^ by chaiter — by pre- scription — by reason of inhabitancy in the Duchy of Lancas- ter, &c. — as a resident freeman of London 5 of all of which we shall speak in their turn. With respect to tenants in ancient demesne : we will briefly enquire who they are, from what they are exempt, the reason of their exemption, and in what manner they may enforce their privilege. Those manors are called ancient demesnes of the Crown, which were in the hands of Edward the Confessor, or ' 2 Shower, 266. ^ Ante, 86. ^ 2 Lutw. 1519. "• Hickman's case, 2 Roll. Abr. tit. Market (B). pi. 2. 90 Of Fair and Market Tolls. William the Conqueror, and are so expressed in the Book of Doomsday, made or begun in the fourteenth year of William the Conqueror.^ This book is the only trial of ancient de- mesnes ; against which, for the uncontrollable truth and ve- rity thereof, there can be taken no averment ; and therefore, in that respect, it is like the doom and judgment at Doomsday."^ To these tenants of lands in ancient demesne, says Fitzher- bert,3 there are many and divers hberties, gifts and grants by law ; as, to be quit of toll and passage and such impositions, which men shall demand of them for the goods or chattels sold or bought by them in fairs and markets, 8cc. And again ;* tenants in ancient demesne, by the custom of the realm, ought to be quit of toll, &c. in every market, fair, town, or city throuo;hout the realm. And those tenants in ancient demesne who hold of the manor in ancient demesne which is in the possession of a subject, are exempt from toll, as well as those who hold of the manor in ancient demesne that is in the king's hands and possession.^ And it is said ^ that an inhabitant within ancient demesne, although he be not a tenant, shall have the privileges; which extend to tenants for life, for a term of years, or at will, of lands in ancient demesne.''^ Lord Coke observes,^ that he found the reason why such te- nants are quit of toll throughout the realm, in an ancient reading, viz. that all the lands in the hands of Edward the Confessor and William the Conqueror, set down in the Book of Doomsday, were ancient demesne, and so called TerrcR Regis; and they were to provide victuals for the king's garrisons, for then they were troublesome times ; and for those causes, and » 4 Inst. 269. * 4 Inst. 269. If the issue be whether the manor of X. is ancient de- mesne or not, the plea should aver it by the record of Doomsday ; and if it be not found under the title of Terra llegis there, it is not ancient demesne : but if the issue be whether the land be parcel of a manor which is ancient demesne, the plea should conclude to the country. Hunt v. Burn, 1 Salk. 57. Com. Dig. tit. Ancient Demesne, (F. 5). 3 F. N.B. 14 E. * F. N. B. 228 A. * F. N. B. 228 A. 4 Inst. 269. * The case of the town of Leicester, 2 Leon. 190. ' F. N. B. 228 D. « gee 2 Leon. 191. Of Fair and Market Tolls. 91 because they made provisions for others, they had many pri vileges. Although toll may have been always paid by the tenant in ancient demesne, yet it seems that the privilege remains and may be claimed. In the Institutes/ a judgment in the case of the manor of Brimsgreen and Norton, is set forth. It is there said that the manor was ancient demesne and in the king's hands, and that William of Birmingham and his ancestors had, time out of mind and before the Conquest, taken toll as well of the tenants of the manor as of others. But judgment was given that the plaintiffs (who had alleged their tenancy in an- cient demesne, and claimed to be free of toll throughout the whole realm of England) and all others of the manor, should be for ever quit from the payment of toll in the town, accord- ing to the law and custom of the kingdom, and should recover damages, &Lc ; " and the said William of Birmingham, for his unjust continuation and the usurpation of his ancestors, in mercy, &c." Lord Coke, upon this, says : " Nota, ante conques- tum ; and that a possession beyond time of memory shall not stand, but give place to law." And the lord in ancient demesne himself is free of toll throughout the realm, as well as the tenants in ancient de- mesne ; as appears by the Register," of an attachment sued by the lord of the manor in ancient demesne against the bailiffs of C. because they took toll of him. And they are not only quit of toll, but of pontage, passage, and the like.^ It has been made a question in several cases to what things the privilege, the freedom from toll of a tenant in ancient de- mesne, extends: whether he is free for all goods bought and sold by way of merchandize, or only for the buying of such things as concern his lands and the sustenance of himself and his family, and the selling of the produce of his lands ; and there are various and conflicting authorities upon the subject. Fitzherbert is of opinion that the privilege extends to all things which he buys in a fair or market ; whilst Lord Coke is of opi- ' 2 Inst. 654. ^ Registrum Brevium, 260. ' F. N. B. 228 B. 92 Of Fair and Market Tulls. nion that it is limited to those things which concern his lands and the provision for his family. The cases, also, are at va- riance with each other on the subject. Fitzherbert ^ quotes a case 19 Hen. 6, (66) where Newton J. saysthat tenants in ancientdemesneshall bequit of tollof things which they sell, which arc arising of their lands, and so of all things which they buy which are for the manurance of the land; but quaere, if they shall be quit for all things bought and sold ? But in a subsequent part of the work,*^ where the forms of " writs to be quit of toll" are given, he says they are entitled to be quit of toll for their goods and chattels which they mer' chandize ivifh others, as well as 'for their other goods; for the writ to which they have a right is general, " pro bonis et rebus suis." Again, he says:^ See 7 Hen. 4, that a tenant in an- cient demesne may merchandize, buy and sell, and shall not pay toll ; and the same agreeth with the Register. But, Trin. 19 Hen. 6, it is holden that they shall not pay toll of things coming of their tenements within ancient demesne, nor for things bought for their sustenance, but for other things it is a question : but forasmuch as they shall be quit of pontage, mu- rage, and passage, I conceive that they shall be quit of toll ge- nerally, although they do merchandize with their goods. Lord Coke on the other hand says, * That tenants in ancient demesne, for things coming of those lands, shall pay no toll, because at the beginning of their tenure they applied themselves to the manurance and husbandry of the king's demesnes ; and therefore, for those lands so holden, and all that came or renewed thereupon, they had the privilege. But if such a tenant be a common merchant for buying and selling of wares or merchandizes that arise not upon the manurance or husbandry of those lands, he shall not have the privilege for them, because they are out of the reason of the privilege of ancient demesne: and the tenant in ancient demense ousht ' F.N. B.I 4 E. 2 F.N.B.228A. ' F.N. B.228 E. •* 2 Inst. 221. Of Fair and Market Tolls. 93 rather to be a husbandman than a merchant by his tenure, and so are the books to be intended.^ Persons may be exempt from toll by prescription, or by the King's grant ; and a city, borough, Sic. may prescribe to be exempt. ^ By charters of Henry the First, and Henry the Third, all the men of London and all their goods are made free from scot and lot, and from all toll, passage, and lastage, and all other customs through all England and the ports of the sea. ^ It was, however, decided on a trial at bar,* that a freeman of London is not exempt from toll unless he be a resident inha- bitant and in scot and lot; which decision, it is said,^ has been hitherto acquiesced in by the City. And the exemption cannot be claimed against tolls created by statute for new purposes, such as turnpike tolls. ^ But it seems that the King cannot grant, either to indivi- duals or corporations, an exemption from toll in fairs or mar- kets already in existence, and in which any person has a right to receive toll. Lord Coke^ says, the King's grant to a man to be free of toll in a fair or market extends to the king's own fair or market; also to all tolls which, together with an y fair or market, are granted subsequent to the grant of discharge ; but it does not discharge the grantee from tolls which were previously due to any subject, whether by grant or prescrip- ' The reader who is desirous of pursuing this subject farther, may find several cases cited in Hale's notes to Fitzherbert's Nat. Brev. 223. See also Vin. Abr. tit. Toll (E). The case of the town of Leicester, 2 Leon. 190; and Ward v. Knight, Cro. Eliz. 227. * F. N. B. 226 L Com. Dig. tit. Toll (G. 1 .). ^ 4 Inst. 252. Com. Dig. tit. London (L. 1.). Norton's Commentaries on the History and Franchises of the City of London, 364. The Mayor, &c. of London v. The Mayor, &c. of Lynn, 1 H. Bl. 206. 4 T. R. 1 30. 1 B. & P. 512. 7 Bro. Pari. Cas. 120. * The Mayor, &c. of London v. The Mayor, &c. of Liverpool, 1 B. & P. 522 n. (a). Norton's Comm. 365. * 7 Bro. P. C. 121. * Norton's Comm. 365. 7 2 Inst. 221. See F. N. B. 227 A. Hill v. Prior, 2 Show. 34. 94 Of Fair and Market Tolls. tion. In one of the cases 1 on this point, the King granted to the archbishop of York the toll of all corn sold in the mar- ket of Ripon ; and aftenvards he granted to the mayor and citizens of York that they should be discharged from the pay- ment of all toll through the whole realm. Subsequently to these grants, the archbishop exchanged his manor of Ripon with the king for another manor. Under this state of cir- cumstances, the question came before the Court of King's Bench, whether the mayor and citizens of York should be dis- charo-ed of toll within the manor of Ripon ; the grant to the archbishop being prior to that made to them. Dyer, C. J. was of opinion that they were not discharged, for the grant to the archbishop was prior to theirs, and by the exchange be- tween him and the king the latter had a new right; and when he p-ranted over the manor of Ripon the grantee was entitled to toll notwithstanding the grant to the city, for that grant could not discharge them of toll in Ripon, and it should not take effect after the exchange. If, indeed, the grant to the archbishop had been for life, then that made to the citizens should take effect at his death. They, therefore, held that the citizens of York should pay the toll in Ripon. In a recent case," the Court put a construction upon the terms of some ancient charters of exemption which it will be well to notice in this place; there are most probably other places in which similar charters exist. The case itself has been already quoted in the course of the present chapter.^ It is therefore only necessary to state that it was an action against a person who had sold corn by sample to one Buckle in the plaintiff's market ; upon which two questions arose, — one, as to the liability of the defendant (the seller) on the grounds already noticed, — the other, whether Buckle (the buyer of the corn, by whom, if at all, the toll was payable to the plaintiffs) was exempt from the payment of toll in the market, by reason of his being a burgage tenant at Tewkes- ' The Archbishop of York's case, 4 Leon. 168, 214. ' The Bailiffs of Tewkesbury v. Bricknell, 2 Taunt. 120. » Ante, 71. Of Fair and Market Tolls. 95 bury ? As to this latter point, it appeared, by an inquisition taken on the death of Gilbert de Clare, Earl of Gloucester, that he on the day of his death held in fee the manor of Tewkesbury, with the appurtenances, of the king in capita, by knight's service. The inquisition enumerated the burgages, customary tenements, and other lands in the manor and borough of Tewkesbury, the value of the rents, ?cc. and other particulars usually belonging to a feudal lord in those times. The value of the tolls there, was found to be IOO5. by the year. Gilbert de Clare, by his charter of the 7th of Edward the Second, granted aud confirmed to the burgesses of the borough of Tewkesbury, that they should have and hold their burgages by free service, at the rent of Is. for a burgage, and that " the same burgesses,'' should be quit of toll and custom within the lordships of the Earl in the Honour of Gloucester and elsewhere in England, " according to ancient usage." The Honour of Gloucester having afterwards become vested in the crown, Edward the Third by a charter made in the 2nd year of his reign (containing an inspeximus and recital of the charter of Gilbert de Clare, and particularly mentioning the above clause of exemption from toll and custom) for a fine made to him by the burgesses, granted for himself and his heirs, that the same burgesses and their heirs and successors (burgesses of the same town) might be quit for ever from toll, pavage, murage, pontage, passage, quayage, pickage, stallage, and from all other such like customs, as well within the liberty or the said Earl as elsewhere throughout the kingdom. Buckle, the person who purchased the corn of the defendant in the manner before stated,^ in respect of which the toll was claimed by the plaintiffs, was at the time of the purchase seised and possessed of one of the ancient burgage tenements, and paid the yearly rent of \s. to the corporation. The jury at the trial found that there was no ground of exemption from the payment of the toll, unless it were fur- nished by the fact of Buckle being a burgage tenant. They ' Ante, 71. 96 Of Fair and Market Tolls. also found that so far back as the memory of living witnesses went, no exemption had in fact ever been allowed to any per- sons except the freemen of the borough ; and that neither Buckle or the defendant was a freeman. The exemption had never, as far as they remembered, been allowed to or claimed a burgage tenant. The court decided that Buckle was not, as one of the bur- gage tenants, exempt from the toll payable by the buyer of goods in the plaintiffs' market. In giving judgment, they observed: that the words "according to ancient usage," which occurred in the charter, were very important, and had been relied upon by the defendant as affordinac an argument that the exemption contended for was pre-existing by ancient usage. But they also afforded a strong inference on the other side, — that it might be a grant of no other exemption than the burgesses anciently used, and so might be no grant of exemption at all. And it was very remarkable that the char- ter spoke not of tolls in Tewkesbury, but in the Honour of Gloucester and throug-hout all Enoland : and farther that it was not in respect of their burgage estates, for by the charter the exemption was not granted to the burgesses of their heirs^ but to them and their successors. Then, the grant by Edward the Third was to the burgesses, their keirs and successors, to be free of toll, &c. Now, one or other of those words (heirs and successors) must be improper : the first, if the grant were to a corporation ; the second, if it were to the burgage tenants. The question was, whether on the charter and the facts toge- ther, found by the jury, an exemption was made out for a person having no other claim than as the proprietor of a bur- gage tenement? The charters were so general and so loose, that they ought to be expounded by that usage which had immemorially prevailed. The charter of Gilbert de Clare might have exempted the burgage tenants from the tolls of the market, but it did not appear that it did so ; and from time immemorial no such exemption had been allowed to the burgage tenants. As to the word " successors," it applied to what was usually understood to be a corporation ; Of Fair and Market Tolls. 97 and to the members of the corporation the usage had always appHed it. The charters, then, being such as they were, and the usage invariable to exempt the members of the corporation and no others, the court were of opinion that Buckle was not entitled to the exemption ; and therefore gave judgment for the plaintiffs. A case has recently been before the Court of Common Pleas^ involving the construction of a charter of Queen Eliza- beth, granting an exemption from tolls, &,c. to the inhabitants of the borough of Truro, which it will be proper to notice, as no doubt many charters containing similar clauses exist in other towns. The action was brought to recover tolls alleged to be due in respect of goods landed by the defendant from ships on the plaintiffs' quay, situate in the borough of Truro : the sum sought to be recovered was I5. for every sack of flour landed. The plaintiffs proved a prescriptive right to the tolls, both by documentary and parol evidence. The defendant, who was an inhabitant of the borough, claimed to be exempt from the payment of the toll, under a charter granted by Queen Elizabeth in the thirty-first year of her reign. The charter recited, that the borough of Truro was an ancient borough ; that the port of Falmouth was ia great decay, whereby the borough of Truro was so much in ' jured, that ships of thirty tons' burden could not enter ladeh. into the port, whereas vessels of one hundred tons' burden formerly entered ; that the inhabitants of Truro had used every means to preserve the port, in order that ships coming thither might pursue their ancient course to the quay \ and that the inhabitants of the borough enjoyed many franchises, privileges, immunities, 8cc., both by prescription and by divers charters, &c. It then granted to the inhabitants to be incor- porated by the name of the mayor and burgesses of the borough of Truro ; it also granted and confirmed to the mayor and burgesses, and their successors, all messuages, lands, customs, privileges, immunities, 8cc., within the borough, which they ' The Mayor, &.c, of Truro v. Reynalds, 8 Biiig .275, H 98 Of Fair and Market Tolls. or the inhabitants, by reason of any prescription, &c., had held for fifty years past : '' and that the burgesses and inhabi- tants of the borough and their successors from thenceforth for ever should and might be free of toUnet, passage, pontage, murage, pannage, penage, anchorage, coynage, wharfage, cranage, quayage, stallage, lastage, feltage, and toUage, stonegeld, and scot of all their own proper things, goods and merchandizes, throughout the whole kingdom of England, except the City of London, and the suburbs and limits thereof." It appeared in evidence at the trial, that the toll in ques- tion had been, in fact, demanded and taken as well of the in- habitants of the borough of Truro, as of strangers; indeed, about four-fifths of the entire dues were received from inha- bitants. The learned Judge left it to the jury to find whether the plaintiffs had shewn a prescriptive right to the tolls in question, or whether the existence of the charter of Elizabeth, (although it could not of itself abrogate any former grant or prescription) was incompatible with the presumption of such a prescription. They found a verdict in favour of the plain- tiffs. On a motion for a new trial, the defendant contended, that the charter having specified London as the only place in the kingdom in which the inhabitants of Truro should be hable to toll, it had by that specification impliedly exempted them in all other places, including Truro itself. The plaintiffs argued that the charter exempted the inhabitants of Truro from dues in other towns, (except London) but did not exempt them from dues necessary for the support of Truro, and received by the corporation before the charter : and if the meaning of the clause were doubtful, the true exposition had been put upon it by contemporary and continued usage, which, in cases of doubt, had been holden to be the safest guide.^ And of this latter opinion were the court. ' See as to the exposition of such instruments by contemporary usage, The Attorney-General v. Parker, 3 Atk. 577. Blankley v, VVinstanley, 3 T. R. 279. Withnell v. Gartham, 6 T. R. 396. Chad v, Tilsed, 2 B. & B. 403. Lowden v. Hierons, 2 B. Moo. 102. Rex v. West Looe, 3 B. Of Fair and Market Tulh. 99 The natural impression, the court said, on first reading the passage, was, that the sovereign who grants is about to grant the inhabitants an exemption from some duties to which they were liable antecedently to the charter. But upon lookino- at the words accurately, it was plain that tliey cannot relate to duties within the borough of Truro : *' Shall be free of toUnet, passage," — that must mean passage over the lands of others, for it was not probable that they should have paid toll for passing over their own lands. Pontage, — that was a duty le- vied for repairing bridges. It would be reasonable to exempt them from repairs of bridges at Exeter or Bristol ; but if they were not to repair at Truro, who should ? The special excep- tion of London from the general clause of exemption, arose either from the pre-eminence of the capital, or for the sake of greater caution ; but it leads to no inference that the inhabi- tants were to be exempted from the necessary charges of their own town. The court, therefore, refused the rule for a new trial. With respect to the remedy which a tenant in ancient de- mesne, or a corporation, or an individual, who may be entitled Ante, 123. ' In the course of his judgment, Lord EUenborough remarked that there were at present (that is, in 1810,) no other places lawfully authorized for the warehousing of wines, except these warehouses within the London Dock premises, or such others as were in the hands of the Company. But if those other warehouses were licensed in otiier hands, it would not cease to be a monopoly of the privilege of bonding there, if the right of the public were still narrowed and restricted to bond their goods in those particular ware- Of Dock Dues. 131 ing cases have been decided.^ The statute 39 Geo. 3. c. 69, sect. 137, gave to the West India Dock Company certain rates of duties upon all goods imported from the West Indies, which should be landed, unshipped, or discharged from on board any vessel entering into and using any of the basins or cuts belonging to the docks ; which duties were directed to be accepted and taken '' for the use and conveniency of the docks and the quays, wharfs, cranes, and other machines which should belong thereto, and the land-waiter's fees on account of such goods after being unshipped, and all charges and expenses of wharfage, landing, housing, and weighing such goods, and of all such cooperage as the goods might want after being un- shipped, and all rent for warehouse- room for them for twelve weeks, a/td all charges of delivering the same from the said tcare- homes." It appeared that the goods of the plaintiffs, after having been deposited in the company's warehouses, were re- quired by the plaintiffs to be delivered for the purpose of be- ing removed by water carriage. For this purpose, the goods (instead of being delivered directly from the warehouses into the plaintiffs' carts or lighters) were put on to trucks, and so conveyed by the servants of the company across the quays, and put on board the lighters. The question was, whether, for the compensation given to to the company by the above clause of the statute, they were bound to deliver the goods from their warehouses, in any other way than that by which they may be removed by the owner bj/ land carriage ; or whether the owner was entitled, for the same compensation, to require that they should be deli- vered to him in such a manner as that they may be removed bj/ water, if he should be disposed or have occasion so to remove houses, though they might be in the hands of one or two others, besides the Company's. If the Crown should hereafter think it advisable to extend the privilege more generally to other persons and places, so far as that the public would not be restrained from exercising a choice of warehouses for the purpose, the company might be enfranchised from the restriction which attached upon a monopoly. ' Harden v. Smith, Schroeder v. Smith, 8 East, 16. K 2 132 0/ Dock Dues. them? The company contended that they were only bound, in consideration of the rates of duty which were received by them upon the importation of goods under the provision just set forth, to dehver them, free of further charge, from their warehouses ; the plaintiffs contended that they had a right, for the same compensation, to have them taken by the company from the warehouses, across the quays, and by means of the cranes thereon put on board their lighters, so that they nught remove them by water. It appeared on the trial that tb.ere was more risk, labour, and expense in shipping goods from the warehouses into the lighters, than in merely delivering them from the warehouses into carts for inland carriage ; because in the latter case they were simply craned at once from the warehouses into the carts, whereas in the former case they were first craned into trucks (as in this instance), in which they were drawn across the quays to the water's edge, and there reslung on other cranes, and so lowered into the vessels. More hands are re- quired, and an extra charge had always been paid for these services at the old legal quays, before the passing of the act. The Court, however, decided in favour of the plaintiffs. Lord Ellenborough, C. J. observing that if the goods were de- livered into carts, it was not contended that any thing was to be paid for the cranes used in such delivery ; and if the plain- tiffs were entitled to have them delivered into lighters, by pa- rity of reasoning, no compensation could be claimed for the use of the necessary machines, and of the quay employed and used on such occasion. That brought the question to the single point, — whether the company could say they would adopt only one mode of delivery ? It would be a violent con- struction of the act to hold, that, when goods under certain circumstances might be much more conveniently delivered in one way than in another, the legislature intended to invest the company with a right of refusing to deliver them in the most convenient way. It should rather, in point of reason, seem that the mode of delivery should be left to the election of the owner of the 2:oods, whose interest was to be advanced bv the Of Dock Dues. 133 delivery, and who must necessarily do the first act towards a delivery, by sending either a land or water carriage for them. The Court added, that in giving this opinion it was not to be understood that more was meant than that the owner of the goods was entitled to have such a complete delivery of them made to him for the amount of compensation limited by the act, as might enable him to carry them away, either by land or water at his election. Another question was shortly afterwards decided on another part of the same section of this statute, by which a duty of 6s, 8d. per ton (of the ship's burden) was imposed on all vessels entering into and using the West India Docks or anv of the basins or cuts which should belong thereto T" which rate or duty," the act provided, " shall be accepted for and in satisfaction of the use and conveniency of the said docks and all charges and expences of the navigating, mooring, un- mooring, removing, and management of such vessel, from her arrival at the entrance into the docks at Blackwall, until such vessel shall be unloaded, and moored in the dock for light ships; and also of the unloading or unshipping of her cargo within the docks, and the land-waiter's fees on account thereof, and the cooperage and hoops and nails wliich such cargo may require in the course of such unloading," 6cc. On an action^ brought against the company, the declaration (after stating that the plaintiff's ship entered the docks, and that he had paid the duty of 6s. 8d. per ton on the ship's burden) alleged that she was leaky when she entered the docks, and that it was necessary for the preservation of the cargo that it should be unloaded, and the pumps kept at work ; that the company refused to unload her or to cause the pumps to be worked, by reason of which the water flowed into the ship; and that the plaintiff", for the preservation of the cargo, was put to an expence of 170/., in unloading it and in pumping the ship, and in coopering and providing hoops and nails in the course of unloading ; to recover which, the action was brought. ' BlackeU v. Smitli, 12 East, ol8. 134 Of Dock Dues. It appeared that the ship entered the basin at Blackwall on the 19th of July, when she was in so leaky a state as to render it necessary for the preservation of the cargo to keep the pumps at work, and notice of her being leaky was given to the company. On the 27th, the plaintiff sent a letter to the com- pany, requiring them to furnish on the following day proper lighters and assistants to discharge the cargo, or as much of it as might be considered necessary ; and stating that in the event of their refusing to do so, the plaintiff himself would, and charge them with the expences. The company refused to comply with this request, and on the 29th, the plaintiff hired lighters and unloaded the cargo into them from the ship. The 5th of August was the day on which it was the turn of the plaintiff's ship to be quayed in rotation, but the company began to unload the lighters, (into which the plaintiff had transferred the cargo) on the 4th ; and the whole cargo was landed by the company from the lighters, upon the same quay, and placed in the same warehouses as it would have been if the ship had discharged it alongside the quay in the usual course ; and the cooperage required to be performed to the cargo on the landing of it from the lighters and depositing it in the warehouses, was performed by the company. For the plaintiff, it was contended that whatever inconve- nience arose, or whatever expense the company might be put to, from the unloading of ships which arrive in a leaky con- dition, they were owing to the monopoly which they enjoyed, and that they were bound to provide the means of obviating or bearing it. The Court, however, were of opinion that under the words of the statute which have been cited, the company were not liable to the charges for which the action was brought. They observed that ihe law required ships of this description to go into the docks, and if they were in such a state when they arrived there that they could not wait for their proper turn to unload, they must discharge their cargo at once ; and if any inconvenience or loss ensued to the owners from not being able to do this in the manner prescribed by the acts, it must be attributed partly to the regulations of Of Dock Dues. 135 the acts, and partly to the leaky condition of the ship itself. It was a grievance, however, which the acts threw upon the owners, and not upon the company. Lord Ellenborough, C. J. seemed to consider that there was an implied condition that the ship should be in a navigable, moorable, and removable condition when she comes into the docks : otherwise, the extent of loss might be incalculable which the company might incur in providing extraordmary means of performing those services for ships that were in such a crazy state as not to be capable of being navigated, moored, removed, and unloaded in the ordinary course. And his Lordship asked whether the plaintiff meant to contend that a ship coming into the docks in the leaky condition in which his ship entered, so as to require such extraordinary precautions, was to be nursed and comforted by the com- pany, as if the docks were to be considered as a hospital for infirm ships ? Several cases have arisen upon the construction of the Liverpool Dock Acts. These docks were formed under the provisions of the 8 Anne, c. 12, by which (and the 2 Geo. 3. c. 86) certain tonnage-duties, were made payable to the dock company, who had granted a piece of land for the purpose of erecting the docks. These duties were payable for all ships trading or coming into or going out of the port of Liverpool, with any goods or merchandize on board ; such duties were to be paid '' at the time of the ship's discharge, either inwards or outwards, at the custom-house in the said port; so as no ship shall be subject or liable to pay the duty but once for the same voyage both out and home, notwith- standing such ship may go out and return back with a lading of any goods or merchandize." By the 2 Geo. 3. c. 86, it was enacted that the tonnage-duties payable upon ships coming into or arriving in the port, should be paid to the collector at the dock office upon the arrival of the vessel inwards at Liverpool. It was decided ^ that the acts imposed only one entire duty ' Gitdart v. Gladstone, (in Error,) 11 East, 675. 136 Of Dock Dues. upon utie entire voyage out and home, if" there be either an inward or an outward cargo in such voyage, and without making any advance, or charging two duties, if there should be both. For instance : a Liverpool ship carrying a cargo out to the West Indies, and bringing another cargo home to Liver- pool, is liable to only one duty, viz. the duty outwards ; and a foreign ship bringing a cargo to Liverpool, and carrying another out from thence, is in like manner liable only to pay the duty inwards. But where (as in this case) it appeared that the ship was built in another port (for and on account of the owner, who was residing at Liverpool, where she was registered) and sailed with a cdjgo from that other port to the West Indies, without first coming to Liverpool, but brought her return cargo from the West Indies to Liverpool, as to her home ; this was held to be one entire and distinct voyage within the meaning of the acts, for which the duty inwards was payable ; and that, consequently, when she next sailed from Liverpool with a cargo, she was liable to pay the duty outwards, although she in fact, on her first voyage, only used the docks inwards. The duty is payable upon ships which sail with a cargo outwards, except in cases in which they paid the duty on sailing imvards, and where such sailing outwards can be connected with the previous sailing inwards, so as to constitute under the statute of the 8th Anne, " the same voyage." In another case ^ which turned on the same clause of the statute of 8th Anne, the facts were somewhat differerit. It appeared that the plaintiffs were owners of a ship which be- longed to, and was registered at the port of Liverpool. She sailed from Liverpool to Halifax, where she delivered her cargo, and took in another for Demerara, for which place she sailed, where she delivered that cargo. She there took in a third cargo, with which she sailed to and arrived at Liverpool. On leaving Liverpool with her outward cargo for Eahfax, she paid ' Gladstone v. Gildart, 2 Taunt. 97. Gildart v. Gladstone (S. C. in Error) 12 East, 439. Of Dock Dues. 137 the outward duties required to be paid by the statute : and the question in the cause was, whether she was liable to the pay- ment of the duties as for an inward voyage, on her return to Liverpool, from Demerara, in consequence of her having tra- ded to Demerara, and delivered a cargo there, after the delivery of her outward cargo at Halifax ? The Court decided that she was not. They thought that these facts disclosed " only one and the same voyage out and home," notwithstanding the circumstance of her having traded to other places and delivered an intermediate cargo, between the time of her quitting and returning to the port of Liverpool. What more, said Lord EUenborough, C. J. does "the same voyage out and home" mean, than one continued voyage, from the departure of the vessel out, until her return home ? And Lord Mansfield (in the Common Pleas ^ in which the case was first decided) observed, that nothing in the act restrained the voyage, or said that the ship should not vary it whilst she was out, or prescribed that she should come home the shortest way : she might go to any ports she pleased, and pay toll from the farthest port, and it was only one voyage out and one voyage home. A later statute ^ provided that " all vessels which shall ar- rive at the port of Liverpool, and trade inwards, shall be liable to pay the dockage-rates fixed by the act, according to the rates payable from the most distant port or place, from which they shall so trade to Liverpool." A vessel cleared out- wards from the port of Liverpool, to St. Domingo, where she discharged her cargo and loaded again for London, where she discharged that second cargo, and loaded another cargo for Liverpool, and arrived there with the cargo so loaded at London : it was decided ^ that under the above statute, she was liable to pay a dockage duty according to the rate payable from London only, and not from St. Domingo. • 2 Taunt. 106. 2 55 Geo. 3. c. 143. s. 6. ^ The Trustees of the Liverpool Docks v. Giadstone (iii Error), 5 M. & S. 328. 138 OF TURNPIKE TOLLS. INTRODUCTORY OBSERVATIONS. The general turnpike acts now in force are, — several sec- tions of the 3 Geo. 4. c. 126 : the 4 Geo. 4. c. 16 ; the 4 Geo. 4. c. 95 ; the 7 & 8 Geo. 4. c. 24 ; the 9 Geo. 4. c. 77 ; the 1 8c 2 Wm. 4. c. 25 ; and the 2 & 3 Wm. 4. c. 124. The several turnpike roads in England are, as to the amount of toll to be taken and for most other purposes, usually under the management of local acts ; but it is important that the provi- sions of the general acts should be well understood, for by the first of them it is enacted ^ that in order that one uniform system may be adhered to in the laws for regulating the management and maintenance of turnpike roads throughout the kingdom, all the enactments, provisions, matters and things in that act contained, shall extend to all acts of Parliament then in force, and to all acts ivhich should thereafter be passed, for making, widening, turning, &.c. any turnpike road in Eng- land, — save and except as to such enactments, provisions, mat- ters, and things as should be expressly referred to and varied, altered, or repealed, by any act which should be thereafter passed. And by the third of these statutes ^ all the clauses ' 3 Geo. 4. c. 126. s. 4. ' 4 Geo. 4. c. 9.5, s. 88. It should, however, be observed that neither of these acts extends to any roads not under the care of trustees or commis- Of Turnpike Tolls. 1 39 &c. of the 3 Geo. 4. are extended to that act, where they are not expressly altered or repealed by it. It is therefore obvious that all persons interested in the management of any turnpike road, though it be regulated as to matters of detail by a local statute, and all persons taking or paying tolls under any local statute, should be well acquaint- ed with the provisions of the general turnpike acts. Our object in this place is confined to the question of tolls, and in order that the provisions relating to them may be brought under inspection at one view, classed under their proper titles, we propose to consider them in the following order: — 1st. Of the letting of turnpike tolls. 2nd. Of the collecting them. 3rd. Of additional tolls. 4th. Of reducing and advancing them. 5th. Of exemptions from them. 6th. Of mortgaging tolls and toll houses. These several divisions will also include all the decided cases to be found in the books on the construction of any sta- tute, whether general or local. It may be further remarked that when the provisions of any act are set forth, the very words of the statute will be adhered to, avoiding unnecessary repetitions : and wherever " trustees" of any road are men- tioned, " trustees and commissioners" will be intended ; and in like manner whenever ** waggons, &,c." are mentioned, " waggons, carts, and other carriages" will be intended, unless the contrary be expressed. By this means, much time and space will be saved. sioners; or to any roads made or maintained under the provisions of any act passed for an unlimited period (4 Geo. 4. c. 95. s. 90): or to the acts of 59 Geo. 3. c. 30, & c. 48, relative to the London and Holyhead Road by Ches- ter; nor to the London and Bangor Road by Shrewsbury (s. 91.); nor to the Commercial Road or the several branches leading from and out of the same (s. 92.) : but they do apply to certain parts of the road from Carlisle to Glasgow (s. 93.). And see 9 Geo. 4. c. 77. s, 20. 140 Of Turnpike Tolls. Section I. — Of the Letting of Turnpike Tolls. The trustees of any turnpike road, at a public meeting may let to farm the tolls of the several gates erected upon their respective trusts, although no express power be given to them for that purpose by their own local or other acts of Parliament.^ In so doing, the following directions are to be observed, whether they are let under the powers contained in the local act or otherwise. 1st. They are to cause notice - to be given of the time and place for letting the tolls, at least one month ^ before the day appointed, by affixing it upon every toll-gate belonging to the road, and by inserting it in some public newspaper, circulating in that part of the country. This notice must specify (1st) the sum which the tolls produced in the preceding year, (clear of the salary for collecting them, if they were collected by any person appointed and hired for that purpose) ; (2ndly) that the trustees will let such tolls by auction, to the best bidder, on his producing sufficient sureties for payment of the money monthly or otherwise (as in such notice shall be speci- fied) ; and (3rdly) that they will be put up at the sum which they were let for or produced in the preceding year, clear of the salary of the collector. 2nd. In order to prevent fraud or undue preference, the trustees are to provide a glass with as much sand in it as will run from one end of it to the other in a minute, which is to be set on the table at the time of letting the tolls ; and im- mediately after every bidding the glass is to be turned, and as soon as the sand is run out it is to be turned again, and so for three times, unless some other bidding intervenes; and if no other person shall bid until the sand shall have run through three times, the last bidder is to be the renter of the tolls. 3rd. Such last bidder is forthwith to enter into a proper ' 3 Geo. 4. c. 126. s.55. ^ A form of the notice is given in the act; see Sched. No. 6. ^ This means a lunar month. Of Turnpike Tolls. 141 agreement for taking the tolls and paying the money at the times specified in the notice, with such surety or sureties for the payment, and under such conditions, and in such manner, as the trustees shall think fit. 4th. If such person shall not forthwith enter into such agreement, the trustees may put the tolls up again, and con- tinue putting them up until a bidder shall be found who will enter into such agreement. .5th. If no bidder shall offer, or if the tolls are not let at the auction, the trustees may accept a private tender for them, and let them, or any of them, at any sum not less than that for which they shall have been last let: or they may appoint a collector of the tolls, or fix some future day for letting them, as they shall judge most proper, upon giving such notice thereof as aforesaid ; and in that case, they shall and may put them up at such sum as they shall think fit. 6th. The trustees are not to demise or lease the tolls for any longer term than three years at any one time. It is also provided that at such letting of the tolls, the trus- tees may bid for them on their own account either by them- selves, or by any person appointed by them ^ The trustees may let all or any part of the tolls of the seve- ral gates erected upon their respective roads, and all or any of the gates. They may also let them together in one lot, or by parcels, and in several lots ; and if they let them in lots, they may put each lot up at such sum as they shall think fit 2. All contracts and agreements for the letting of turnpike tolls, signed by the trustees or any two or more of them, or by their clerk or treasurer ^, and by the lessee and his sureties, are valid and effectual to all intents and purposes, nolwith- ' 3 Geo. 4. c. 126. s. 55. 4 Geo. 4. c. 95. s. 53. 2 4 Geo. 4. c. 95. s. 52. ^ Trustees may sue and be sued in the names of any one of them, or in the name of their clerk or clerks for the time being. 3 Geo. 4. c. 126. s. 74. The clerk and treasurer must not be the same person ; Id. s. 71 ; and see 7& 8 Geo. 4. c. 24. s. 4. 142 Of Turnpike Tolls. standing they are nut by deed or under seal; any act or law to the contrary notwithstanding.^ It has been recently decided - that if two or more persons be appointed to the office of clerk to the trustees, they must all join in executing a contract for letting the tolls under this section. A contract signed by one of two persons who were appointed clerks, was held to be void. In an action of covenant ^ by the clerk to the trustees ao;ainst a surety of the lessee, to recover arrears of tolls, the plaintiff in his declaration made profert of the indenture in these words ; " Which said indenture, sealed with the seal of the defendant, the plaintiff now brings here into court." The plaintiff at the trial produced a counterpart , executed by the de- fendant and the lessee, but not by the trustees ; and the Court were of opinion that this was no variance. The plaintiff, as lessor, must be understood to make profert of the part of the indenture executed by the lessee ; and the terms of the decla- ration were sufficiently answered by the production of the counterpart. — The deed, when produced, had a 30s. stamp only, and it was contended that the stamp should have been 3os. ; but the Court held it sufficient, the instrument produ- ced being a counterpart only, and not a lease. It was, therefore, chargeable only with a 30s. stamp, under the 55 Geo. 3. c. 184, Sched. part 1. It sometimes happens that a toll-gate or bar belonging to the trustees of one road, is placed so near to that belonging the trustees of another road, as to be inconvenient to the re- spective trusts and to the public. It is, therefore, provided that the trustees of any turnpike-road, if they shall agree at any public meeting to be held for that purpose, may take to farm the tolls payable at any gate or bar of any other road adjoining, or near to, the road under their care ; and such trustees may collect the tolls so hired, or they may reduce or discontinue them, as they shall see tit "*. ' 3 Geo. 4. c. 126. s. 57. » Bell v, Nixon, 9 Bing-. 393. ' Pearse v. Morrice, 3 B. &, Adol. 396. * 4 r.eo. 4. c. 9.5. s.54. Of Turnpike Tolls. 143 The statute of the 3 Geo. 4. * required the payment of the rent for the tolls, by the lessee, in advance ; but this was re- pealed by the 4 Geo. 4. -. By the latter act it is provided, ^ that in case the lessee of the tolls shall neglect or refuse to perform the terms and conditions on which they shall have been demised or let ; or in case the rent agreed to be paid for them, shall be in arrear by the space of seven days next any of the days on which it ought to have been paid pursuant to the agreement ; or in case the lease or agreement shall be- come in aruj other manner void : in either of such cases, any justice of the peace for the county or place, by warrant under his hand and seal, may order a constable or other peace- officer, with such assistance as shall be necessary, to enter upon and take possession of the toll house, gate. See, and to remove and put the lessee or other persons whom they shall find therein, and their goods, out of and from the possession of the toll-house, and from the collection of tolls, and to put the trustees, &c. or any person acting by or under their authority, into possession. And thereupon the trustees may, if they think fit, vacate and determine the contract for letting the tolls, which shall then be void to all intents and purposes, except as to the agreement for the payment of rent up to that time, or other agreements on the part of the lessee ; and they may demise or let the tolls to any other person. The 3 Geo. 4. c. 126, and the 4 Geo. 4. c. 95, do not apply to the Commercial Road, or the several branches leading from or out of it. * Section II. — Of the Collecting of Turnpike Tolls. We have already seen that by the 3 Geo. 4, the trustees may appoint a person to collect the tolls, when they fail in letting them by auction : and by the 4 Geo. 4, ^ they are em- ' Cap. 126. s. 56. * Cap. 96. s, 51. » Sect. 59. * See s. 149 of the former, and s. 92 of the latter act ; and 9 Geo. 4. c. 77. s. 20. * Cap. 95. s. 43. 144 Of Turnpike Tu/is. powered, by writing under their bands, to appoint such col- lectors of the tolls as Ibey may think necessary, and to allow them reasonable salaries; to be paid out of the monies arising on the road. On the death, neglect, Sec. of any person so appointed, any two or more trustees, though not assembled at any meeting, may appoint another in writing, in his stead, to continue till the next meeting of the trustees ; and the person so appointed has the same power, and is accountable in the same manner, as the collector whom he succeeds. ^ The lessee of the tolls may al:o by writing appoint any persons to demand and take the tolls leased to him, and to use all such means for the recovery of them, in case of evasion or non-payment, as the collector of such tolls appointed under any act of parliament is authorized to use.- The lessee or the person so appointed by him is subject to the same penal- ties, actions, and prosecutions, as any collector appointed by the trustees is subject or liable to. ^ In order that the public may know precisely what tolls are payable at any toll-gate, the trustees are required ^ to cause to be put up and continued, at every toll-gate within their respective districts, a Table,* containing the name of the gate, and a list of all the tolls payable thereat, distinguishing the total amount payable under any local act or acts, and the acts of the 3 and the 4 Geo. 4. ; and the different sorts of car- riages for which they are to be paid, where there is any vari- ation ; and also a list of the several gates which a payment at that gate will clear, either wholly or partially. The trustees are also to provide tickets, denoting the payment of toll, which is to specify the name of the gate at which it is delivered, and of all others freed by payment ; one of which the collector is to deliver gratis to every person paying any toll at his gate ; and such person is to be freed at the gate mentioned in it, upon producing the ticket there. ' 4 Geo. 4. c. 95. s. 49. =^ 3 Geo. 4. c. 126. s. 58. ' 4 Geo. 4. c. 95 s. 28. •• To be painted in distinct and legible black letters, on a board willi a white ground. 4 Geo. 4. c. 95. s. 28. Of Turnpike Tolls. 145 The tolls which the trustees are empowered to demand by- virtue of any act of parliament, are to be taken by them or by the collector, at the several toll-gates and side-bars and chains on their line of road, before any horse, Sec. is permitted to pass through. They are to be taken everyday; and for such purpose the day commences at twelve o'clock at night and ends at the same hour on the succeeding night. ^ For all purposes mentioned in ani/ act with respect to tolls, two oxen or neat cattle are to be considered as one horse, in all carriages in which such cattle are used.- If any one who is liable to the payment of any turnpike toll shall, after it has been demanded, neglect or refuse to pay it or any part of it, the person ap|X)inted or authorized to collect such toll may take such assistance as he shall think necessary, and seize and distrain the horse, &c. or other thing in respect of which the toll is imposed, and their respective saddles, bridles, gears, harness, or accoutrements, — or any carriage, in respect of the horses or cattle drawing which the toll is imposed, — or any of the goods of the person so neglecting or refusing to pay. If the toll or any part of it, and the reasonable expences of making the distress, shall not be paid within four days next after the distress, the person distraining may sell the horse or other thing distrained, or a sufficient part of it ; and he is to return the overplus to the owner, on de- mand, after deducting the tolls due and the charges occa- sioned by the seizure, distress, and sale. ^ In the event of any dispute happening with respect to the amount of the tolls due, or the charges of the distress, &,c. the collector is to retain the thing distrained, or the money arising from the sale of it, until the amount of such tolls and charges shall be ascertained by some justice of the peace for the county, &,c. in which the gate is situated. Such justice, upon application made to him, is to examine into the matter ' 9 Geo. 4. c. 77. s. 16. We shall see by and bye, that in certain oases post-horses may repass for nine hours after midnight, without paying a. second toll: post. 171. 2 3 Geo. 4. c. 126. s. 38. ^ jbid. s. 39. L 146 Of Turnpike Tolls. on oath, and determine the amount of the tolls due, and award such costs and charges to either party, as he may think proper : and such costs and charges, if not paid forthwith, are to be levied upon the goods of the person so directed to pay them, by warrant under the hand and seal of such justice. ' In order to prevent persons from evading the payment of tolls, severe penalties are enacted by the general as well as by the several local turnpike acts. By the 3 Geo. 4.,- it is pro- vided that if any person shall with any horse, &c. go off or pass from any turnpike road over any land near or adjoining, (not being a public highway, and the person not being the owner or occupier, or his servant, or one of his family) with intent to evade paying the toll ; or if any such owner or occupier knowingly suffers such person to do so; or if any person gives to or receives from any other than the collector, or forges or alters, any ticket directed to be given, with the like intent; or if he fraudulently or forcibly passes through any gate with any horse, &c. or leaves any horse, &c. upon the road, by reason whereof the payment of any toll shall be lessened, or avoided ; or if he takes any horse, &c. off any carriage, either before or after having passed through the gate, or, having passed through, shall put on any additional horse, &c. to his carriage ; or if he shall do any other act what- ever, in order or with intent to evade payment of any toll, and hereby the same shall be evaded ; — every such person, for every such offence, shall forfeit and pay any sum not exceeding 51. Every collector is required, ^ on some conspicuous part of the fronts of the several toll-houses at which he shall be stationed (so that it may appear to public view) to have his christian and surname (painted in black, on a board with a white ground) in letters of at least two inches in length. And if he do not so place and keep it there during his collec- torship ; or if he take a greater or less toll from any person than he is authorized to do;* or if he shall demand and take ' 3 Geo. 4. c. 126. s. 40. => Cap. 126. s. 41. 3 4Geo. 4. c. 95. s. 30. « 4 Geo. 4. c. 95. s. 30. By the 3 Geo. 4. c. 126. s. 55, it is enacted that Of Turnpike Tolls. 147 toll from any person who shall be exempt, and shall claim such exemption ; or if he refuse to permit any person to read or hinder him from reading the inscription on the board con- taining his name, &c. ; or shall refuse to tell his christian and surname to any person who, on paying the toll, shall de- mand it, or shall give a false name ; or if he refuse or omit to give to the person paying the toll, a ticket denoting the pay- ment, &c. ; or upon its being paid or tendered, shall unneces- sarily detain or wilfully obstruct, &,c. such person from pas- sing through the gate; or shall make use of any scurrilous or abusive language to any trustee, traveller or passenger ; — such collector is to forfeit and pay any sum not exceeding 5/,, for every such offence. ^ Any trustee, &c., or the collector, or his deputy, &c., is authorised to measure and examine the breadth and construc- tion of the wheels of any waggon, &c., passing on the road ; which measurement. Sec, is to take place previously to al- lowing it to pass through the toll-gate. And if the owner or driver turns or drives out of the road to avoid the measure- ment, or if he refuses to allow such measurement, &,c., or attempts to pass through the gate before such measurement. See, shall be made, or shall obstruct such trustee, collector, &c., in making such measurement, &c. ; he is to forfeit, for each offence, any sum not exceeding 5/. And it shall not be lawful for such waggon, &c., not permitted to be examined. Sec, to pass along the road ; and if any collector, &.C., shall permit it to pass before such measurement and examination shall be made, (the same having been required), he is liable to a pe- nalty of bl." if the farmer or renter, or collector of tolls shall take a greater or less toll than what is authorized by that or the particular act, he ?\\dX\ forfeit the sum if 51., and the agreement for renting the tolls shall, if the trustees think fit to vacate it, become and be null and void. And by 4 Geo. 4. c. 95. s. 50, it is further provided that no indictment for extortion shall lie against a collector for asking and taking more toll than he is authorized to take, and no other proceeding shall be had other than by prosecuting for the penalty, as directed by that act or by the 3 Geo. 4. ' 4 Geo. 4. c. 95. s. 30. == 3 Geo. 4. c. 126. s. 11. l2 148 Of Turnpike Tolh. If any person by any fraudulent or collusive means what- soever claims or takes the benefit of any exemption from toll, or from overweight, or for using any additional horse, 8cc., or of any other exemption contained in the act of the 3 Geo. 4., he shall forfeit any sum not exceeding 5/. for every offence : and in all cases the proof of the exemption is upon the person claiming itJ This provision applied only, as will be seen, to a fraudulent claim of some exemption contained in the general act : but by a recent statute, the same penalty is given against any person claiming or taking the benefit of any exemption mentioned in any local act ; and the proof is there also cast on the person making the claim." Various other penalties are provided by these acts against collectors for misbehaviour in their office ; but as they hae not a distinct reference to the question before us, it seems im- proper to refer particularly to them. I will, therefore, only mention in this place, that a penalty not exceeding 10/. (upon conviction before any justice of the peace) is provided against any person who shall make any resistance or forcible opposi- tion to any person employed in the due execution of any turnpike act; or who shall assault any collector, &c., in the execution of his ofl^ice ; or who shall pass through any gate. Sec, without paying the toll there payable ; or who shall hinder or make any rescue of cattle, &c. distrained by virtue of the act.^ Section III. — Of Additional Tolls. Many local acts of parliament impose additional tolls on carriages, &c., traveUing on Sundays, or carrying particular kinds of goods, and on other accounts, but it is not within the scope of this treatise to notice them, as they depend on their own several enactments, and contain nothing of a general nature. The statutes of 3 Geo. 4. c. 126. and 4 Geo. 4. c. 95, however, contain provisions on this subject applicable « 3 Geo. 4. c. 126. s. 36. ' 9 Geo. 4. c. 77. s. 17. » 3 Geo. 4. c. 126. s. 139. Of Til IN pike Tolls. 149 to all turnpike roads, which it is, therefore, material to ex- amine ; this we shall do by considering : 1st. Of additional tolls for overweight ; 2nd. Of additional tolls to be taken for wheels of less than certain specified breadths ; 3rd. Of additional tolls for horses or carriages tied or affixed to other carriages ; 4th. Of additional tolls for watering the roads; 5th. Of double tolls. First. — Of Additional Tolls for Ovenoeight. The statute of the 4 Geo. 4. repeals the Table of weights which were allowed, by that of the year preceding, to be carried for the ordinary rate of toll, and provides a new Table, which is as follows :^ Table OF Weights allowed in Winter and Summer to Carriages directed to be weighed (including the Carriage and Loading) by the Act of the 4th George the Fourth. For every Waggon with nine-inch wheels - - - For every Cart with nine-inch wheels - - - - - For every Waggon with six-inch wheels - - - - For every Cart with six-inch wheels - - - - - For every Waggon with wheels of the breadth of four-inches and a-half -------- For every Cart with wheels of the breadth of four- inches and a-half ---------- For every Waggon with wheels of less than four- inches and a-half ---------- For every Cart with wheels of less than four- inches and a-half ------_--___ SUMMER. WINTER. Tons. Cwts. Tons. Cwts 6 10 3 10 4 15 3 6 3 4 2 5 15 4 5 3 15 2 12 2 7 31 5 3 5 1 15 1 10 This Table, however, does not apply to all four-wheeled car- nages, or to two-wheeled drays under particular circumstances. By the statute of 1822 ^ it is enacted, that to every caravan ' 4 Geo. 4. c. 95, s. 89. Schedule No. 1. = 3 Geo. 4. c. 126. s. 13. 150 Of Turitfyike Tolls. or other four-wheeled carriage used for the conveyance of goods, and built and constructed with springs, the following weiohts shall be allowed, viz. 3 tons and 15 cwt. in winter, and 4 tons 5 cwt. in summer. And by the same statute ' it is enacted that to every dray with two wheels of not less than four inches and a half in breadth, drawn by not more than three horses, and vsed in London or within the Bills of Morta- lity, there shall be allowed, together with the loading of such dray, the full weight of 2 tons and 16 cwt., at all times of the year. Nor do the regulations respecting weight extend to any waggons, &.C. carrying only manure ^ or lime for the improve- ment of land, or any hay, straw, fodder, or corn unthrashed (except hay, straw, fodder, or corn, carried for sale) j nor to any waggons, &c. carrying only one tree, or one log of timber, or one block of stone, or one cable or rope : nor to any chaise- marine, coach, berlin, barouche, sociable, chariot, calash, hearse, break, gig, chaise, or taxed-cart.^ This last exception is extended by the 4 Geo. 4. (in addition to those which we have just read) to phaetons, curricles, chairs, or any cart not drawn by more than one horse or two oxen.* Nor do the re- gulations respecting weight extend to any waggon, &,c carry- ' Sect. 14, * The plaintiff' sent his waggon to London with a load of vegetables and two bottles of cream ; and, the goods having been delivered, the waggon took in a load of manure, and the two empty bottles were tied to the waggon. When the waggon arrived at the turnpike on its way home, the defendant, (who collected the tolls there) insisted that these bottles being in the waggon rendered it liable to be weighed and to pay for overweight, inasmuch as the statute (14 G. 3. c. 82. s. 3) exempting waggons carrying manure from the penalties for overweight, required that they should be employed in car- rying " only" manure. Lord EUenborough, C.J. was clearly of opinion that the plaintiff" was not liable to the penalty for overweight. His Lord- ship observed, that if the load consists substantially of manure, and manure only, the exemption will not be defeated by an article being tied to the wag- gon which could not be considered as goods and merchandize, and which could not produce the mischief against which the legislature meant to pro- vide. Chambers v. Eaves, 2 Camp. 393. * 3 Geo. 4. c. 126. s. 16. < 4 Geo. 4. c. 95. s. 19. Of Turnpike Tolls. 151 ing only one block, plate, roll, or vessel of iron or other metal, or compounded of any two or more metals cast, wrought, or united in one piece.^ Such being the table of weights which the legislature has allowed vehicles of various kinds to carry at different periods of the year, on payment of the ordinary rate of toll, and such the exceptions to these regulations, let us now see in what manner additional tolls are to be paid, in case these weights are exceeded. These additional tolls are payable on a pro- gressive scale, as follows : — £ s. d. For the first and second hundred-weight '^ which the carriage and load shall weigh f „ above the allowed weight (for each off such 2 cwts) J For each cwt. of overweight above 2, and > n n f; not exceeding 5 S For each cwt. of overweight above 5, and ") not exceeding 10 y For every cwt. of overweight exceeding 10 5 which additional tolls are payable at any weighing engine, and may be levied and recovered in the same manner as any other toll, payable on the road on which the engine is erected, may be ; and they are to be applied to the repairs of the road." Waggons, &c. provided for the service of his Majesty's forces, or for conveying any ordnance, or barrack, or commis- sariat or other pubhc stores belonging to his Majesty, or for the use of the forces, are exempt from all additional tolls or penalties for overweight ; nor may such waggons, &Lc. (whilst so employed) be stopped or delayed by reason of any weight they may contain, or of their being drawn by any number of horses or oxen.' It is, however, enacted by the 4 Geo. 4. c. 95,* that 710 person shall claim or take the benefit of any ex- emption from any toll or penalties for overweight, Sec. unless the waggon, &c. in respect of which the exemption is claimed, » 4 Geo. 4. c. 95. s. 21. ^ 3 Geo. 4. c. 126. s. 15. ' Ibid. s,35. * Sect. 10. 1 52 Of Tunipike Tolls. shall have the sole of the bottom of the fellies of the wheels of the breadth of four inches and a half, or upwards ; except it is employed in carrying corn or grain in the straw, hay, straw, fodder, dung, or lime for the improvement of land, or other manure, or any plough, harrow, or implements of hus- bandry only. Except in such cases, every waggon, &c. hav- ing the wheels of less breadth than that just mentioned, is to pay all the tolls and penalties for overweight, &c. precisely as if no exemption had been enacted or allowed. The exemptions from toll, allowed by any act of parlia- ment, do not extend to the additional tolls imposed for over- weight, unless the waggon, &c. in respect of which the exemp- tion is claimed, be likewise specially exempted from such addi- tional tolls; but in all cases (where not specially exempted) the additional toll is to be paid, and only the original toll al- lowed.^ It is provided by a recent statute" that any waggon^ on which a penalty for overweight has been levied, shall, on re- ceipt of a ticket to that effect, be exempted from any farther penalty for overweight on that day and on the same trust, pro- vided there be no alteration of the loading of the waggon. If any person, by any fraudulent or collusive means, claims or takes the benefit of any exemption from toll or from overweight, or for using any additional horse, he is liable to a penalty not ex- ceeding 5/. ; and the proof of the exemption is thrown upon him.* In a recent statute ^ there is the same penalty for claim- ing or taking the benefit of any exemption to which the party is not entitled, which is contained in any local act; and the same proviso as to the proof of the exemption. If any person unloads any goods from any waggon, &c. at or before it arrives at any turnpike-gate or weighing engine, or loads on such waggon, after it has passed such gate or en- gine, any goods unladen from any horse, 8cc. belonging to or hired or borrowed by the same waggoner or carrier, in order to ' 4 Geo. 4. c. 95. s. 17. ^ 2 & 3 W. 4. c. 124. s. 2. 3 Cart, or wain, or other carriage, are not mentioned in the act. ♦ 3 Geo. 4. c. 12G. s. 36. * 9 Geo. 4. c.77. s. 17. 0/ Tun/pike Tulls. 153 avoid payment of the duties payable for overweight ; or if he shall so unload in order to carry considerable quantities of goods through any toll-gate or by any weighing engine, in the same day, and thereby pay less toll at such gate or engine than he would have paid if they had not been so unladen ; or if the driver of any waggon, &c. does not wait a reasonable time whilst any other carriage which shall have come up be- fore his, shall be weighed ; or if he shall refuse or delay to re- move or drive his waggon, &c. from the weighing engine, in order to delay the weighing of any other waggon, &c. • or if he drives out of the road to evade the weio-hing; of his wa. and C; but that every person, having paid the toll, should be permitted to pass and repass with the same horses, cattle, beasts, and carriages, toll free, during the same day, through all the toll-gates in that division." Other tolls were imposed by the act, — on horses, mares, mules, and geldings, laden or unladen, and not drawing, and on oxen, calves, hogs, 8vc. It appeared in a case ^ arising under this statute, that a stage-coach belonging to the plaintiff passed through one of the toll-gates in this division in the morning, and paid the toll imposed by the act on a carriage drawn by four horses ; in the evening of the same day, the same coach repassed through the same gate, driven by the same coachman, but having different horses and passengers. The Court were of opinion that the plaintiff was not liable to a second toll, which the defendant contended he was, by reason of his not ]_ Waterhouse v. Keen, 4 B. & C. 200, Of Turnpike 'foils. 175 having repassed with the same horses as well as the same car- riage. Bayley, J. said, that as a distinct toll was previously imposed upon horses, upon cattle, calves, &.C., which are pro- perly denominated beasts, he thought that the exemption ap- plied to every separate thing on which the toll was previously i mposed. The fair construction of the clause was, that the word and was not to be taken conjunctively, but disjunctively or dis- tributively, and then the consequence would be, that if you return with the same horses drawing the same carriage, you are to pay no toll ; if you return with the same horses, mares, mules, &c. laden or unladen, you are to pay no toll, &c. ; and if you return with the same carriage, you are to pay no toll. There was nothing in the act which necessarily connected the word carriage with beasts. The Court, however, gave judgment for the defendant, on the ground that he ought to have received notice of action,' though they decided the question on the statute relating to the toll in favour of the plaintiff. In Loaring v. Stone ^ the question as to the liability of the plaintiff to pay a second toll arose on a statute by which a toll was imposed upon everi/ horse, &c. drawing in any coach, chaise, 8lc. \ another, upon every horse drawing singly any carriage ; another, upon every horse drawing any waggon, cart, or other such carriage ; and another upon every horse not drawing. The clause limiting the payment of thetoll to once in the same day, provided " that no person should be liable to pay toll more than once at any one toll-gate in any one day, for passing and repassing through the same gate with the same horse or horses, cattle, beasts, and carriages ; but that, having paid the toll once, he should pass toll free with the same horse or horses, cattle, beasts, and carncrges, during the same day." A stage-coach belonging to the plaintiff, drawn by four horses, passed through one of the toll-gates, and paid thetoll; and in the evening of the same day a different coach, drawn by the same horses, driven by the same coachman, and belonging ' 3 Geo. 4. c. 126. s. 143. *2B. &C.515. 176 Of Turnpike Tolls. also to the plaintiff, but carrying different passengers and par- cels, repassed through the same gate. The Court held that the plaintiff was liable to the payment of a second toll, in consequence of the coach being different — the exempting-clause having introduced the word " carriages." Bayley, J. said that as no toll was imposed by the enacting- clause upon the carriage, there could be no reason for intro- ducing that word into the proviso, unless it were intended to confine the exemption in respect of horses drawing carriages, to the same horses drawing the same carriage : and it might be very reasonable that the exemption should be limited to that case, for otherwise the same horses, with a different hired chaise and different travellers, would be exempt from the pay- ment of toll. But in a later case ^ where the statute imposed a toll upon every horse, S^c. drawing any carriage, another upon every horse not drawing, and another upon oxen, the proviso was, " that no collector should take more than one toll from any person for the same carriage, horses, beast, or other cattle, passing once and repassing once in the same day, on such person producing a ticket denoting that such toll had been paid on that day for or in respect of such horse, beast, or other cattle." The plaintiff passed through a gate with a stage-coach drawn by four horses, and paid the toll ; and in the course of the same day he returned through the same gate with a different coach drawn by the same horses. The Court held that he was exempt from payment of a second toll, notwithstanding the word " car- riage" in the exempting clause. Bayley, J. observed that the word carriage was introduced as a subject of toll for the first time in the exempting clause. 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 repassed, drawing the same carriage. The car- riage therefore was contemplated as a subject matter of toll. But then the clause went on to annex, as a condition precedent ' Jackson v. Cuiwen, 5 B. & C. 31. Of Turnpike Tolls. 177 to any exemption, that the party claiming it should produce a ticket denoting that such toll had been paid on that day, for or in respect of such "horse, beast, or other cattle." — Consider- ing, therefore, that the toll was originally imposed upon the horses drawing, and not upon the carriage, and that it did 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, the general rule of construction ought to prevail ; and consequently no second toll was payable for the same horses returning the same day with a different carriage, the property of the same person. Chambers v. Williams^ was a case in which a local act im- posed a toll on every horse drawing any coach, 8cc. ; another on horses not drawing ; another on four-wheeled and another on two-wheeled carriages, tied or affixed to any waggon. The exempting clause enacted, " that every person having paid the tolls, on producing a ticket denoting payment, might repass toll free once in the same day through the gate mentioned in the ticket, with the same horses, mules, or other beasts, coach, cart, waggon, or other carriage." The plaintiff's stage-coach and four horses passed through a toll gate, and in the even- ing the same coachman drove the same horses with a diff'erent coach through the same gate. It was decided that he was not liable to a second toll, the Court observing that, taking the two clauses together, — and adverting to the rule of construc- tion which had been applied to similar statutes where the toll had been imposed on the animal draicing the carriage, and where there was a general clause of exemption ap- plicable both to the horse and carriage, — they thought it very doubtful whether the legislature meant to impose a second toll, where the same horse returns with a different carriage on the same day ; and that being so, they ought to incline to that construction which would have the effect of relieving the sub- ject from a burthen. A local statute, 38 Geo. 3, imposed a toll on every coach, ber- lin,^c.; certain other tolls on horses not drawing; and others ' 5 B. &C. 36. N 178 Of Turnpike Tolls. on cattle ; and it was provided " that every person having once paid the tolls so made payable for his carriage, horses, and cattle, and returning the same day with the same carriage, horses, and cattle, should pass toll free, and not pay a second toll." By a statute of the 59 Geo. 3, the tolls imposed by the above statute were repealed, and instead of them (as to the tolls on carriages,) a toll of sixpence " for evert/ horse drawing any coach, berlin," &c. was imposed ; and it was further en- acted that all the clauses &,c. of the prior act should remain in force except where they were actually repealed or varied by the new statute. It appeared ^ that the plaintiff's stage-coach, (subsequent to the passing of the new statute,) drawn by four horses, had passed through one of the toll gates in the morn- ing, and paid the toll for a coach drawn by four horses ; and that the same horses, drawing a different coach, repassed in the course of the same day. It was decided that no second toll was payable, notwithstanding the later statute imposed the toll on the horses, and not on the carriage. The Court said they must construe the exemption clause in the 38 Geo. 3, with reference to the new mode of imposing the toll, provided for by the 59 Geo. 3, as if that had been originally the mode prescribed by the 38th Geo. 3 ; and consequently the plaintiff was not liable to a second payment of toll. The 12 Geo. 3, provided that certain tolls should be paid " for evert/ horse S)C. drawing any stage coach ;" and by a subsequent clause it was enacted " that, if any person should have paid the toll for the passing of any cattle or carriage through any turnpike gate on the road, he should, on pro- ducing a ticket denoting such payment, be permitted to pass and repass through the same gate with the same cattle or carriage, toll free, at any time during the same day." It ap- peared - that a stage-coach drawn by four horses passed through and paid the toll at a gate in the morning ; and in the evening of the same day the same horses repassed, drawing a different coach, (all belonging to the same proprietor,) and ' Fearnley v. Morley, 5 B. & C. 25. * Norris v. Poate, 3 Bing. 41. 10 B. Moore, 293. Of Turnpike Tolls. 179 driven by a different coachman. The Court held that the proprietor was not liable to pay a second toll ; observing that it was intended that a party should pay only once in the same day,ybr the same horses. It was perfectly plain that the toll was imposed on the horses, and not on the carriage; and as to the person attending, ' the coachmen were employed by the same proprietor, and the proprietor was always attending, and responsible in the person of his coachman. The last case to which we shall have occasion to refer on this subject, is that of Hopkins v. Thorogood. - By a local act of the 4 Geo. 4, certain tolls were imposed, to be taken at all the turnpikes from Whitechapel to Ongar, and amongst them was one of one shilling " for three or four horses or other beasts of draught, drawing any coach" S)X. The next section (the 20th) provided that " no person should pay toll more than once in the same day for passing or repassing with the same hoises, cattle, beasts, or carriages, through any of such turnpikes ; but that every person, after having once paid toll as aforesaid, should afterwards (on producing a ticket &.c.) pass with the same horses, cattle, beasts, and carriages, toll free, during that day, through all the said turnpike gates." The defendant passed through one of the gates on this line of road with a stage-coach and horses, paid the toll, and received a ticket denoting the payment. He then drove a short distance far- ther, changed horses, and drove the same coach with such fresh horses through another of the gates on the same road : and the question was whether he was liable to pay the toll when his coach passed through this second gate, in consequence of the horses having been changed before they arrived at it ? The Court were of opinion that he was. Some little doubt, Parke, J. said, was created by the use of the word "or" in the ' This observation was made in answer to an argument having been used for the purpose of shewing that a second toll was due, in consequence of the two coaches having been driven by different coachmen ; the statute having enacted that the toll should be paid " by the person attending any cattle or carriage." ^^ 2 B. & Adol. 916. x\ 2 180 Of Turnpike Tolls. 20th section : but in construing the act, the true point to look at was the subject-matter on which the toll was imposed, which in this case was the horses. The different parts of the 20th section were inconsistent with each other, and taken as a whole it was without any definite meaning. The safer course was, therefore, to look to the plain meaning of the clause imposing the toll; and according to that, a toll was demandable at the second gate in respect of different horses, though drawing the same carriage. In order to entitle a party to claim the exemp- tion, it was necessary, at all events,, that there should be the same horses. These are all the cases which have been decided relative to the liability of carriages to pay a second toll in the same day. By means of them, — looking to the precise terms used in the several statutes cited, both in the enacting and the exempting clauses, — bearing in mind that all these questions depend upon the manner in which each particular act is worded,^ — and that, in order to charge the public with the burden, the language of the legislature must be plain and unequivocal,^ — a party will perhaps have little difficulty in deciding for him- self whether the words of any particular statute in which he may be interested, do or do not render him liable to, or entitle him to demand (as the case may be) a second toll. Eighteenth. — Horses (not drawing) paying, and returning tcith a carriage. Where a horse or horses, not drawing, pass through a gate and pay the toll, and return drawing any carriage on the same day (or within eight hours after their first passing through the gate), the toll paid on their originally passing is to be deducted from that payable for them when drawing such carriage on their return ; so that no higher toll is to be taken, in the whole, than if they had in the first instance passed through the gate drawing the carriage.^ • 2 B. &C. 518. » 10 B. Moore, 301. .3 Bing. 4.5. 1 B. & C. 425. ^ 3 Geo. 4. c.l2e). s. 30. Of Turnpike Tolls. 181 Section VI. — Of Mortgaging Turnpike Tolls and Toll Homes. The trustees of turnpike roads may borrow and take up at interest, on the credit of the tolls of their respective roads, such sums as they shall from time to time think proper ; and they may demise and mortgage^ such tolls or any parts of them, and the turnpikes and toll-houses for collecting them, as a security to the person, or his trustees, who shall advance the money.- The costs and charges of the mortgage are to be paid out of the tolls. Copies of all such mortgages are to be entered in a book to be kept for that purpose by the clerk or treasurer to the trustees, who is to be paid the sum of five shillings for making such entry, out of the tolls ; and this book shall and may at all seasonable times be inspected and pe- rused without fee or reward." The mortgagee (or the person who shall be entitled to the money secured by the mortgage) may assign or transfer his right, title, and interest in such mortgage, and the principal mo- ney and interest secured by it, to any person whomsoever.^ This assignment is to be indorsed^ on the mortgage, or underwritten or annexed to it, and signed in the presence of and attested by one or more credible witnesses.* This transfer is to be pro- duced and notified to the clerk or treasurer, within two ca- lendar months next after the date of it, and he is to enter it in the same book, and for this he is also to receive the sum of five shillings.* This being done, the transfer entitles the as- signee, his executors, administrators, and assigns, to the full benefit of the mortgage, and he may in like manner assign it, and so toties quoties.* It is not in the power of any person (except the person to whom it shall be last transferred, or his executors or adminis- trators) to release, discharge, or make void the original mort- ' A Form of the Mortgage is given in the act 3 Geo. 4. c. 126. s. 81. ^ 3 Geo. 4. c. 126. s. 81. 3 A Form of the Assignment is also given in the 81st section of the statute. * 3 Geo. 4. c. 126. s. 81. 182 Of Turnpike Tolls. gage-security, or any part of the money due on it : and all persons to whom such mortgage or transfer is made, are, in proportion to the sums thereby secured, creditors^ on the tolls granted by the act, and on the toll-gates and toll-houses, in equal degree^ one with another, or in such order as shall be agreed upon and stipulated by the trustees at the time of the advance of their respective shares.'' If the act under which the money was advanced, should happen to be repealed or to expire, and a new one be granted, the mortgages are as available under the subsequent act, as they were under the former. For, by a recent statute* it is provided that where, at the time of the expiration or repeal of any turnpike act, any money borrowed or subscribed under its provisions shall be due on the credit of the tolls granted by it, the term and the tolls to be granted by any subsequent act for maintaining the road shall be and are thereby made sub- ject and liable to the payment of such money and of all inte- rest to grow due thereon, as effectually, to all intents and pur- poses, as if such money had been borrowed, &c. on the credit or security of the tolls granted by such subsequent act. And all persons who may owe or be liable to the payment of any money to the trustees under the old act, are made liable to the payment thereof to the trustees under the new act. And all bonds, conveyances, covenants, contracts, agreements and se- curities, made or entered into by any persons to or with the trustees under any local turnpike act, are to remain in full force and effect, notwithstanding the expiration or repeal of such act.^ The trustees may also receive in and cancel all or any of the mortgages granted under any former act for the same ' We have already seen that where the whole of the money borrowed on the credit of the tolls has not been paid, the trustees have no power to re- duce the tolls without the consent of the creditors who shall be entitled to five-sixths of the money remaining due. Ante, 158. See 3 Geo.4. c.l26. s. 43. 2 See 3 Geo. 4. c. 126. s.49. Doe, d. Banks, v. Booth, 2 B. &P. 219. 3 3 Geo. 4. c. 126. s. 81 . ■'9 Geo. 4. c. 77. s. 10. s 9 Geo.4. c. 77. s.U. Of Turnpike Tolls. 183 road, and instead of it execute another mortgage, at the ex- pense of the parties who require it.^ And if it shall appear by the clerk's or treasurer's books (or by any satisfactory evi- dence adduced at any meeting of the trustees) that any person is a creditor on the security of the tolls granted by any local act, and that the mortgage or assignment of the tolls for se- curing his claim has been lost, mislaid, or accidentally de- stroyed, they (or any three or more of them) may execute an assignment of the tolls granted by the act, for the money men- tioned in the original assignment. The person applying for such new assignment is to pay the expense of it ; and it is declared to be valid and effectual for the purposes thereby in- tended.- In order to enable the trustees to get in the money agreed to be advanced for the purpose of making or maintaining any turnpike road, or any highway intended to be made turnpike, the persons who have subscribed or agreed to advance it, must pay it within such time, and in such parts and proportions as shall be expressed in the writing which shall be subscribed by or on behalf of such persons, or as the trustees shall order and direct. The trustees may, by writing, authorize a person to receive the money, who shall demand it, and to whom it shall be paid. And if any persons refuse or neglect to pay any part of the sums they have agreed to advance, the trustees may sue for it in the name of any one of them or of their clerk or treasurer.^ The mortgagee in possession of any toll-gate or bar, or of any lands. Sec, of which the rents are appropriated to the repairs of any turnpike road, is to render an exact account in writing to the trustees (or to such person as they shall ap- point) of all monies received by him, or by any persons for his use or by his authority, at such gate or bar, or otherwise, and what he has expended in keeping or repairing it ; which ac- count is to be rendered within twenty-one days after he shall have received notice in writing from the trustees for that pur- pose. If, upon being so required, he shall neglect to render ' 9 Geo. 4. c. 77. s. 12. Mbid.s.l3. ^ jbid. s. 7, 184 Of Turnpike Tolls. such account, he is liable to a forfeiture to the trustees, for every refusal, neglect, or omission, of the sum of 50/. which they are to apply to the use of the road.^ As to the power of the trustees to pay off the creditors; it is enacted,^ that in case they shall be desirous of paying off any portion of the principal monies due, where all the interest due thereon shall have been paid or satisjied, ihey may, — at any meet- ing held according to the directions of the general or their local acts, if they shall think fit, — instead of paying the same rateably amongst all the other creditors, determine by lot to which of them the whole or any portion shall be paid, and pay it to such creditors only, — or to any of the creditors, with the consent of all the other creditors. Twenty-eight days' no- tice of such meeting and of its purpose is to be given, by ad- vertisement in some newspaper printed or usually circulated in the neighbourhood of the road. And where any lands, &c. purchased for the purpose of any turnpike road shall be in mortgage, the trustees (upon ap- plication in writing made to them or to their clerk, signed by the mortgagee, his executors, administrators, or assigns) are required to pay to such mortgagee, his Sec, such sum as shall be agreed for, ascertained and determined for the purchase of such lands, &c.,or a competent part of it.^ Such money, when so paid, is to be deemed to be in discharge of the principal, or part of it, due on the mortgage ; and the re- ceipt of it is to be indorsed on the mortgage deed, and signed by the mortgagee, his executors, &c., in the presence of at least one credible witness.^ If the mortgagee (by himself or by any other person on his behalf) shall keep possession of any toll-gate or bar, and re- ceive the tolls thereat, or any rents or profits, &c. after he has received his mortgage-money, interest, and costs, — he is to forfeit and pay to the trustees, by way of penalty, double the sums which he has received over and above such mortgage- money, interest, and costs, with treble costs of suit, to be re- ' 3 Geo. 4. c, 126. s. 47. * 4 Geo. 4. c. 95. s. 60. 3 7 & 8 Geo. 4. c. 24. s. 7. Of Turnpike Tolls. 1 85 covered by their treasurer or clerk in any of his Majesty's courts of record, and applied to the use of the road.^ An action of ejectment may be maintained by one mort- gagee, without uniting in the demise the other mortgagees (if any) ; but when he has obtained possession of the toll- gates, &c. by such action, he is not to apply the tolls which he may consequently receive, to his own exclusive use, but to the use of all the mortgagees of the premises pari passu, and in proportion to the several sums which may be due to them severally." The trustees before the act of the 3 Geo. 4, c,126. were not estopped from disputing the legality of a mortgagee executed by them, where they had no power to mortgage.^ But where the trustees had demised to one of several mortgagees such proportions of the tolls arising on the road, and of the toll- gates and toll houses, as the sum advanced by him bore to the whole sum raised on the credit of the tolls ; and that mort- gagee* brought an action of ejectment for the toll-gates, in order to pay himself the interest which was due to him; it was held that he might maintain the action, notwithstanding a clause in the act that all the mortgagees should be creditors upon the tolls in equal degree. The trustees are not personally liable to be charged by rea- son of their having signed or executed any mortgage or other security to be made in pursuance of any turnpike act : and if any action, 8cc. be brought against a trustee, for anything done by virtue or in pursuance of the general turnpike acts, or of such act, all the costs of defending such action, &c. are to be defrayed out of the tolls arising on the road for which he acts.^ The statutes of the 3 Geo. 4. c. 126 ; 4 Geo. 4. c. 95 ; 7 & 8 Geo- 4. c. 24 ; and 9 Geo. 4. c. 77 ; from which all the above provisions relative to the mortgaging of tolls are taken, do not ' 3 Geo. 4. c. 126. s. 48. "^ Ibid. s. 49. 3 Fairtitle v. Gilbert, 2 T. R. 171 . ^ Doe, d. Banks, v. Booth, 2 B. & P. 219. 5 4 Geo. 4. c. 95. s. G I . See also 3 Geo. 4. c. 126. s. 74 ; and 7 & 8 Geo. 4.C.24. s. 2, 3. 186 Of Turnpike Tolls. apply to the Commercial Road, or the several branches leading from and out of it, or to the road leading from Glasgow to Carlisle.^ It should be mentioned that the trustees vxa-y compound Vi\\h any person for his tolls for one year." ' 9 Geo. 4. c. 77. s. 20. « 4 Geo. 4. c. 95. s. 13. 187 OF THE RATEABILITY OF TOLLS TO THE RELIEF OF THE POOR. We propose to consider this branch of our subject in the following order : 1st. In what cases Tolls, or the property out of which they issue, are rateable ; 2ndly. There must be a beneficial occupation in order to render the occupier liable to be rated for Tolls ; 3rdly. Of the Parish or Place in which Tolls are rateable ; 4thly. Of the amount at which the owner of Tolls, or the occupier of the land out of which they issue, is rateable. Section I. — In tvhat cases Tolls, or the Property out of which they issue, are Rateable. The statute 43 Eliz. c.2. s. 1. directs the overseers of the poor " to raise, weekly or otherwise, — by taxation of every Inhabitant, parson, vicar, and other, and of every Occupier of lands, houses, tithes impropriate, propriations of tithes, coal- mines, or saleable underwoods in the said parish, in such competent sum and sums of money as they shall think fit, — a convenient stock of flax, &c. to set the poor on work ; and also competent sums of money for and towards the necessary relief of the lame, impotent, old, blind, &c. ; to be gathered out of the same parish according to the ability of the same parish," &,c. In the case of the Earl of Bute v. Grindall ^ the Court laid down the general rule upon the subject of rating the occupier of lands in these terms : The person who is in possession of 1 88 Of Iht Rateabilily of Tolls lo the immediate profits of land may be taxed to the relief of the poor in respect of those immediate profits; quoad these im- mediate profits, he is an occupier of the land within the meaning of those authorities which have decided that the occupier only can be assessed to the relief of the poor. It has been frequently decided that tolls, per se, * are not rateable ; but if the subject matter out of which the tolls arise be one which is mentioned in the statute of Elizabeth as the object of rate, then that may be rated by name, and the tolls which constitute its profits may he thus made to contribute to the relief of the poor.'' In order to render a person liable to the rate, he must be either an " inhabitant," (which we shall presently see means a resident) of the parish, or he must be an " occupier" of one of the descriptions of property which the statute directs the overseers to tax. In Rex V. Nicholson,* the Court of King's Bench decided that the lessee and occupier of an ancient and exclusive Ferry, who was not an inhabitant resident within the parish in which one of the termini of the ferry was situated, was not liable to be rated there for any share of the tolls of such ferry ; for, supposing a ferry to be real property, it is not such real pro- perty as is mentioned in the statute of Elizabeth, the occu- pancy of wliich subjects the party to be rated to the relief of the poor of the place. Lord Ellenborough, C.J. observed that tolls do not come within any one specification of occu- pancy described by the statute ; they are not lands, nor houses, &c. If, therefore, the owner be taxable for them at all, it must be as an inhabitant of the parish out of which they arise ; but there is no case in which the word vihahitant in that statute has been held to mean any other than a resi- dent within the parish. — But we are reminded of cases where tolls arising from navigable canals, to which the tolls of a • 2 H. Black. 266. See Rowls v. Cells, Cowp. 451. ' See post, 180, 191. ' Per Bayley, J. Rex v. Kingswinford, 7 B. & C. 241. ■* 12 East, 330. See upon the subject of Ferries, ante, 106. the Relief of the Poor. 189 ferry are assimilated, have been held rateable without any reference to the question of inhabitancy ; and the Wycombe case ' is much relied on, where a corporation was held rate- able for market tolls ; but they were lords of the soil where the market was held, in respect of v/hich they were rated for the tolls. In Rex v. Cardington, * the rate was specifically upon the sluices, on that which was local and visible property and producing profit within the parish; and all the cases where tolls have been held to be rateable, when they are examined, will be found to have proceeded on that ground. It was so in the case of the Staffordshire and Worcestershire Canal : ^ the company were rated for their "basins, towing- paths, and that part of their canal and the locks lying within Lower Mitton, and for the tolls and duties arising therefrom due at Lower Mitton." There could be no doubt that the basins, towing-paths, canals and locks, were local visible property there, and the tolls and duties arising therefrom, — classed and connected as they are with the local visible pro- perty rated, — were considered as resulting from that local and visible property. In all these cases the tolls have arisen from the use of the canal, which is local and visible, being part of the land itself, lying within the parish where the tolls have been rated. But there is no case where tolls, detached altogether from local real property, have been held to be rateable per se. When, therefore, we are called upon to de- cide such a question for the first time, I am always disposed to go to the fountain head, which is the act of the 43 Eliz. ; and, looking at the words of that act, I do not find any of them which extend to rate any person not being an inhabitant of the place, nor the occupier of any of the specific kinds of property mentioned in the act. And not finding any descrip- tion in the statute which applies to the case of this appellant, I cannot hold him to be rateable for these tolls. In another case ^ the facts were similar to those in Rex v. ' 3 Keb. 540. 1 Freem. 419. " Cowp. 581. ' 8 T. R. 340. * Williams v. Jones, 12 East, 346. 190 Of the Rateability of Tolls to Nicholson, with the additional circumstance that a post was fixed in the ground at one of the landing-places, to which the ferry boats where moored when lying on that side of the water. The Court, however, observed that that circum- stance did not essentially vary the question ; for the owner of the ferry was not found to have any property in the soil at the landing-place (which was the highway, common to all the king's subjects); and supposing that he had a right to make such a special use of the highway for the purpose of securing his ferry-boats, that did not make him the occupier of the highway, or give him any exclusive possession of it, nor could he maintain trespass for any injury done to the soil at the landing-places, which were common to all the king's subjects to land and pass upon. Le Blanc, J. in remarking upon these authorities in a sub- sequent case,^ observed that it was impossible to say that the parties in those cases were occupiers of anything but the boat and tackle in which the passengers were conveyed, in the same manner as a stage-coachman is the owner of his coach. In Rex V. Eyre - the defendant was rated merely " as lessee of the tolls of the Key-bridge" at Tewkesbury ; and the Court said that as they had so recently decided (in Rex v., Nicholson and Williams v. Jones) that tolls per se were not rateable, and as the defendant was rated merely as lessee of the tolls, and for nothing else which might havegiven them a corporeal qua- lity and locality within the parish, such as a sluice or the like, and as it did not appear that he was an inhabitant of the pa- rish, or made any profit of the tolls, there was nothing stated in the case to raise any question. They held, therefore, that he was not liable to the rate. This decision turned upon the particular form of the rate, in which the defendant was charged simply as the lessee of the tolls : but there is no doubt that the proprietor or lessee of the tolls of a bridge is rateable for the • Rex V. the Baptist Mill Company, 1 M. & S. 620. » 12 East, 416. the Relief of the Poor. 191 land on which the bridge is erected, which is local real pro- perty, and the tolls which are payable thereat.^ The defendant- was rated in the township of Manchester for *• the Rochdale Canal, lock, tunnel, dues or rates." He was not an inhabitant of Manchester, but he was entitled to and in the receipt of certain tonnage dues, in respect of vessels passing through the lock built upon the Rochdale Canal by virtue of a statute 34 Geo. 3., which empowered the Duke of Bridgewater to erect the lock, and to receive the dues at or near it. It was contended for the defendant, that this was a rate upon the dues or rates payable at the lock, and not upon the lock itself. But Lord Ellenborough, C. J. said that the Court had only decided that tolls were not rateable per se, but only when connected and rated conjunctively with real and substantial property situated in the parish, which — as yielding a profit there by means of the tolls — was the proper subject of rating within the act of Elizabeth. Here the lock itself was rated, which was something real and substantial, locally situ- ated in the township, and producing profit ; and the addition of the dues or rates was merely giving other names for the same thing. The rate was therefore confirmed. In Rex V. Cardington ^ the Court held that the grantee of the right of navigation of the river Ouze between Erith and Bedford, was rateable to the poor of the parish of Cardington, in respect of the tolls arising from a sluice erected in that pa- rish, although he resided elsewhere and the tolls were collected in another parish. Several cases have been decided, as to what constitutes a sufficient occupation of the land by the proprietors of a Canal. Certain persons ^ were authorized by act of parliament to make the rivers Mersey and Irwell navigable from L. to M., and to ' Rex V. Barnes, 1 B. & Adol. 113. Jones v. Mancel, Doug. 302. n. " Rex V, Macdonald, 12 East, 324. 3 Cowp.581. * Rex V. the Proprietors of the Mersey and Irwell Navigation, 9 B. &C. 95. See Rex v. Thomas, 9 B. & C. 114, where the same point was decided re- specting the navigation of the River Avon ; and Rex v. the Aire and Calder Navigation, 9 B. & C. 820 ; 2 B. & Adol. 139. 192 Of the Rateabilitj/ of Tolls to maintain such navigation ; and for those purposes to clear, cleanse, scour, open, enlarge, or straighten the rivers, and to dig and cut the banks ; and to make new cuts, trenches, or passages for water through the adjoining lands ; and to build sluices, bridges, locks, 8cc. ; and to do all other things neces- sary for making and maintaining the navigable passage, or for the improvement thereof, first giving satisfaction tathe owners of the lands: and in consideration of the expenses to be incurred, they were authorized to take certain tolls "for their own proper use and behoof." They made the rivers navigable, and scoured and cleansed them : they also made towing-paths and cuts on land purchased by them under the powers given by the act. They were rated to the relief of the poor at the sum of 2908/. 7s. 6d. for " land taken and used for the M. and I. navigation, towing-paths, locks, and tonnage arising therefrom." The Court were of opinion that they were not liable to be rated for the ancient bed of the navi- gable part of the river (which was included in the rate) be- cause they were not the occupiers of it within the statute of Elizabeth, having only an easement in it: but that they were rateable for the new cuts and towing-paths, and for the wears, locks, and dams, which were erected on their own lands. — Bailey, J. observed, that in order to make the company rate- able, they must be, within the words of the 43d of Elizabeth, " occupiers of lands or houses ; " and it struck me at first, that inasmuch as they had a right to have the bed and banks of the river upheld, to hold the water, which water they were to use, they might perhaps be called the occupiers of that land which was so covered with that water, and which held the water so afterwards to be used. But when, after considering the sub- ject, I find they can maintain no description of action which an occupier generally is capable of maintaining, I am now disposed to think that the correct view of the case is, not that they are occupiers of the land covered with water, but that they had an easement only in the land. They have only a qua- lified right to use the land, to deepen the channel of the river, and make the soil fit for the purpose of holding the water, which the Relief of the Poor. 193 water they are afterwards to use : but, subject to the right of navigation being vested in them, and subject to the right they have that the soil shall continue to hold the water in which the navigation is to take place, the soil remains in the ownership and occupation of those persons to whom that soil originally be- longed. And Parke, J. said that no personcan be an occupier un- less he has the exclusive right to enjoy some portion of the soil. A question very recently arose ^ respecting the rateability of the Chelsea Water-works Company for the reservoir in the Green Park. It appeared that in consequence of a petition to the Crown, King George the Second granted and assigned to the Governor and Company of the Chelsea Water-works, and their successors, ** all that the canal or basin, and all that the old pond in our said park afore described ; to be converted into reservoirs, to be used and enjoyed by the said company and their successors as such, and for the purposes aforesaid, for and during the pleasure of us, our heirs, and successors." In support of the rate, it was contended that the company occupied the basin by their works, they having converted it into a reservoir, and (as a warehouse) by their goods, viz. the water which it contained, and which was distributed and sold for their benefit. On the other side it was argued that all that the Crown had granted, was a permission to turn water into and take it out of the basin, and that there was no exclu- sive occupation ; as to which the cases cited ante page 191 (note 4) were relied upon. The Court, after taking time to consider, were of opinion that the company had an exclusive right in a portion of the soil, and were therefore rateable. The owners of mills ^ in the township of Hunslet, as a com- pensation for the loss of water occasioned to them, within the township, by an adjoining navigation, were allowed by act of parliament to take certain tolls at a lock situate on the line of navigation, but in a different township : the lock was rated in that other parish as part of the Aire and Calder navigation, ' Rex V. the Chelsea Water-works Company, K.B. E.T. & T.T, 1833. * Rex V. the Aire and Calder Navigation, 3 B. & Adol. 533. O 1 94 Of the Rateability of Tolls to but not in respect of these tolls. A rate was made on the owners of the mills in the township of Hunslet for " fulling- mill, scribbling-mill, and corn-mill, and tolls receivable in respect of them." It was decided that they were not rateable in that township in respect of the tolls so taken. Can the owners of the mills, the Court asked, be rated in respect of the toll as a compensation paid to them for their loss of water ? They might have let the mills, reserving the toll to them- selves ; and if they had done so, could they have been rated on account of the toll? It appears to us that they cannot, in respect of this compensation, be considered as occupiers of any property in Hunslet producing a profit there. It has been frequently decided that the tolls of a light- house are not rateable, ^ and the subject underwent a very full discussion in a recent case." The defendant was there rated at the sum of 2250/. as " the occupier of the light-house, with the duties or contribution-money in respect of ships, &c. passing by the same." The annual value of the light-house, independently of the duties, was 4/. only. It was decided that the defendant was not rateable in respect of the tolls received of vessels passing by the light-house ; and the Court ordered the rate to be amended by confining it to the sum of 4/., the value of the house independently of the tolls. Mr. Justice Bay- ley, in delivering his judgment, said : It seems to me that this house is rateable, but that the rate to the extent to which the parties are desirous of carrying it, cannot be supported. The rate is upon the light-house, with the duties in respect of ships, &c. passing by the same. To make the defendant rateable to the full extent of 2250/. a-year, it must be shewn that he comes within the words of the statute of Elizabeth, and is the occupier of a Iiouse or hmd of that annual value. The authorities cited in the course of the argument are dis- tinguishable from the present case, except the two cases of Rex V. Rebovvc and Rex v. Tynemouth, where it was expressly decided that the tolls of a light-house were not rateable. A ' Rexv. Rebowe, 1 Const, 142, pi. 177. Rex v. Tynemouth, 12 East, 46. ' Rex V. Coke, 5 B. & C. 797. Rex v. Fowke, 5 B. «c C. 814. the Relief oj the Poor. 195 considerable interval of time elapsed between the decisions in those cases ; and where there has been one uniform course of proceeding as to property of this description for a very consi- derable period of time, we ought not to introduce any altera- tion, unless it be founded upon sound legal principles. And Littledale, J. observed, that in order to make tolls rateable, there must not only be a profit produced within the parish, but it must also arise from the use of the thing and in respect of it. Here, the ships have not that sort of use ; they have merely a transient view of the light as they pass. They do not come within the light-house as they do within a dock ; in that case they have the actual use and occupation of the dock. The defendants ^ were rated in the parish of Little Amwell, at the sum of 300/. for certain land covered with water : the annual value of the land without the spring, and if it were not covered with water, was 5/. only. No part of the profits of the company was received in the parish of Little Amwell, nor was any use made of the water or any part of it distri- buted there ; but the water was distributed and the profits received in London. The Court were of opinion that the company were, nevertheless, properly rated in Little Amwell, observing that the property was locally valuable in that parish, although that value was derived from extrinsic circumstances, and although the profits were actually received elsewhere. We shall have occasion to consider some other cases of rates upon water tolls in the third section of the present chapter. ^ The act of parliament establishing a Gas-Light Company at Brighton, authorised them (with the consent of the com- missioners appointed under an act for paving and lighting the town) to break the ground and lay pipes for the purpose of conveying the gas. The company accordingly laid down pipes in the streets of the town, and the gas was sold in the town. They were considered ^ as occupiers of the portion of ' Rexv. the New River Company, 1 M.&S.503. ' See Rex v. the Rochdale Waterworks Company, 1 M. & S. 634. Rex v. the Corporation of Bath, 14 East, 609; post, 201. ' Rex V. the Brighton Gas Light Company, 5 B. & C. 466. See Rex v, o2 " 1 9 Rex V. Kingswinford, 7 B. & C. 236. See Rex v. The Oxford Canal Company, 4 B. & C. 74. lOB. &C. 163. 2 Per Bayley, J. 7 B. & C. 242. ' Rex V. Lower Mitton, 9 B. & C. 810. the Relief of the Poor. 209 the purpose of being rated, to be considered as having been produced in that parish in which they were situate, and not in the several parishes through which the canal passed, in proportion to the length of the canal in each parish. Whether the subject-matter of the occupation be productive of itself, or rendered productive by something brought from another parish, or by being used in conjunction with property in another parish, no difference is to be made in the mode of rating. Thus, whether the water in a canal be brought from the same parish, or another parish, whether conveyed in pipes or carts or by engines, makes no difference, if the land in which it is placed be thereby rendered more valuable. It makes no difference whether it remains comparatively still as in a canal, or moves constantly as in a river, or occasionally as in a lock ; nor does it make any difference that, unless there was a canal in another parish connected with the lock, no profit would be gained. It might as well be contended that the profits of a bridge, which would not arise unless there were roads to it, or of land rendered more valuable by roads in an adjoining parish, — should be rated in part only in the parish in which such bridge or land is situate.^ Section 4. — Of the Amount at which the Owner of Tolh, or the Occupier of the Land out of which they issue, is Rateable. We have seen by the cases in the foregoing section, that the proprietors of a canal are rateable as occupiers of the land covered with water in each of the parishes through which the canal passes, and in which tolls are earned ; and the rate in each parish is to be in proportion to the value of the land in such parish. The rent of land, where it is let, is the criterion of the value of the occupation ; and the proprietors of a canal are, in like manner, rateable for the sum at which it would let, and not for their gross receipts, minus their expences. * In a » Per Bayley, J. 9 B. & C. 819. « Rex V. The Trustees of the Duke of Bridgewater, 9 B. & C. 68. See Rex V. The Oxford Canal Company, 4 B. & C. 74. P 210 0/ the Kuteabi/ify of Tolls to recent case ^ in which it became necessary to determine the mode in which the proprietors of a canal were to be rated, the Court said that they were to be rated according to the annual profit or value which the subject of occupation within the pa- rish produces. That, in general, would be properly estimated at the rent which a tenant would give, he paying the poor-rates and the expenses of repairs, and the other annual expenses ne- cessary for making the subject of occupation productive; and a farther deduction should be allowed from that rent where the subject is of a perishable nature, towards the expense of renewing or reproducing it. That was the rule laid down in Rex V. the Duke of Bridgewater's trustees, and Rex. v. Tom- linson." This principle of rating the occupiers of canals was acted upon in a very recent case. ^ The commissioners of a navigation had borrowed the sum of 28,000/. on mortgage of the tolls ; and being in want of farther funds, they agreed to let the na- vigation and tolls for 99 years, the lessee undertaking to make certain advances, and to pay the interest on the 28,000/. to the mortgagee. After a part of the term had expired, a doubt arose as to the validity of the agreement ; and an act was passed which recited the agreement, and empowered the com- missioners to lease the navigation and tolls, to the person en- titled to the beneficial interest under the agreement, for the remainder of the term : the statute also enacted that the lessees should pay the interest of the 28,000/. yearly to the mortgagees. The Court were of opinion that the interest, amounting to 1,400/., was in substance, a rent, and that the rate ought to be calculated upon that sum. They also held that the defend- ants (the lessees) were not occupiers under a beneficial lease ; although the annual earnings at the time the rate was made, were 3,418/. (from which about 1000/. was to be deducted for repairs, &c.) and the interest only 1,400/; and that they were not liable to be rated at what the land would let for, laying 1 Rex V. Lower Mitton, 9 B. & C. 810. * 9 B. & C. 163. ' Rex V. Chaplin, 1 B. & Adol. 926. the Relief of the Poor. 21 1 the mortgage out of consideration ; one year's value being no criterion ; and there being no proof that the rent of 1,400/. was unduly small. The tolls of a canal, Mr. Justice Taunton observed, like the profits of land, are to be valued at what they would let for, communibus annis ; and it had been held that no difference is to be made, because in one particular year there was a loss.^ In ascertaining what a property is worth to let, the best cri- terion in general is what it actually does let for. When, therefore, in this case, the value was estimated from the earn- ings of a single year, a wrong basis of calculation was taken. Here was a rent spreading itself over a period of forty-eight years, and the produce in one year was no proof what the ave- rage will be. Here, in point of form, there was no rent, but a payment of interest ; it was, however, in the nature of rent. Instead of the lessee's paying 1400/. a year to the proprietors, and their handing it over to the mortgagee, the lessee paid it to the mortgagee at once. Where the navigation was in the occupation of, and the tolls were received by, the proprietors of the canal, the Court held - that in fixing the amount at which they were to be as- sessed, the expense of collecting the tolls, the sum paid for the poor's-rate itself, and the expense of repairing the banks of the canal, and of supplying it with water, were to be deducted from the gross profits. These and other cases clearly shew that lands taken for the purposes of a canal are rateable, not according merely to the value of the lands at the time when they were taken for the purposes of the canal, but according to the improved value which they have acquired from having been used for the pur- poses of the canal. But canals being of great public benefit, the acts of Parliament under the authority of which they have been formed, frequently contain clauses of partial exemption, so as to leave the lands, &c. upon the same footing as regards their rateability, as when they were first taken for the uses of » See Rex v. The Hull Dock Company, 5 M.& S. 394; ante, 200. » Rex V. The Oxford Canal Company, 10 B. & C. 163. p2 212 Of the Rateahility Tolls to the canal. Thus, a canal act provided ^ that the company should berated to all rates, &,c. for the lands or grounds which the act authorised them to purchase, and for the buildings erected by them in pursuance of the act, " in the same pro- portions as other lands, grounds, and buildings adjoining to or lying near the same should be rated.'" The Court decided that the effect of this provision v^'as, to make the lands, &c. of the company rateable in respect of their value as lands, &c. simply, with reference to the adjoining lands, — without re- gard to their value as increased by the tolls received by the company. In another case,- a canal act directed that the company should be rated for their lands and " buildings in the same proportion as other lands and buildings lying near the same were, and as they would be rateable if they were the property of individuals in their natural capacity." A subsequent act directed that " all rates and assessments upon the personal estate of the company, should be imposed in each parish in proportion to the length of the canal in such parish, and not otherwise." It was con- tended on the part of the parish, that the words of the first of these acts were essentially different from those in the Leices- ter case. The latter part of the clause which directed the rate to be imposed on the lands, &lc. in the same manner that it would be if they had continued the property of individuals in their natural capacity, could only be complied with by rating the company for the improved value; as land, when in the hands of individuals, was always so rated. Then, on the latter act, it was argued that the clause directing the rate to be im- posed in proportion to the length of the canal in each respect- ive parish, could only have a reference to the tolls. The Court, however, thought that by the provision in the first act, the legislature meant that the lands were to be rated > Rex V. St. Mary's, Leicester, 6 M. & S. 400. ' Rex v.The Grand Junction Canal Company, 1 B. & Aid. 289. See also Rex v. St. Peter the Great in Worcester, 5 B. & C. 473. Rex v. The Regent's Canal Company, 6 B. & C. 720. Rex v. The Chelmer and Black- water Navigation Company, 2 B. & Add. 14. the Relief of the Poor. 2 1 3 as other lands would be, supposing them not to be appHed to the purposes of the canal, but to have remained in the hands of individual farmers for the ordinary purposes of agriculture, and not possessing any artificial value. The second act only apportioned the rate between the different parishes, and did not vary the extent of the company's liability. It is obvious that if the construction of the acts contended for on behalf of the opponents of the company in the above cases were to prevail, the consequence would be that the company would be rateable for the lands occupied by their canals, in the same manner and to the same extent that they would have been if the acts had contained no special clause of exemption ; a con- sequence which would make the clause, which was passed for the benefit of the company, entirely useless. A canal act ^ empowered the proprietors of the canal to take certain rates and duties in respect of vessels navigating the canal ; and expressly exempted " the said rates and duties" from the payment of any rates, taxes, &,c. ; but the statute did contain any express exemption of the land taken by the com- pany for the purposes of the navigation, from the payment of rates and taxes as land. It was decided, however, that the land occupied by the canal was also thereby exempted from being rated to the poor's rate. A rate on land, Holroyd, J. observed, is in effect a rate on the profits of the land ; for where there are no profits, there is no beneficial occupation; and the rates and duties being exempted in this case, and there being no other profits of the land, the land itself must be con- sidered as exempted. But in a case ^ where the tolls of the river Lee were ex- empted by statute from rates, and the trustees of the river built a house out of the tolls received, which was occupied by their surveyor for the purpose of superintending the business of the trustees ; the Court held that the house was not exempt, but was liable to be rated. ' Rex V. The Calder and Hebble Navigation Company, 1 B. & Aid. 263. See Rex v. The Leeds and Liverpool Canal Company, 5 East, 323. ' V. Armstrong, 2 Stark. N. P. C. 543. 214 Of the Rateability of Tolls to The profits of a gas-light company are very different from the tolls of a canal.^ When a canal is once formed and filled with water, it produces to the proprietors, without any- thing farther being done, a permanent profit in the shape of tolls; but a gas company can obtain no profit by merely laying down pipes for the conveyance of gas through the streets. The gas must be manufactured by them at a great expense, and sent through the pipes to the consumers, before they will be entitled to any recompense. The gas company, therefore, stand in the same situation as any other manufac- turer who produces, by artificial means, a saleable commodity. Two cases have been decided as to the manner in which they are to be rated, which it will be proper to notice. In one of them - the Birmingham gas-light and coke com- pany were assessed for dwelling houses, shops, buildings, land, and premises, and the trunks, pipes, and other apparatus for the conveyance of the gas, situate and being fixed in the ground in the parish of Birmingham, and the profits therefrom within the parish ; the rate was upon an annual value of 800/. It ap- peared that the company were empowered by statute to sup- ply the town and individuals with gas, and (with the consent of the commissioners for paving the town) to break up the soil of the streets for the purpose of laying down pipes and other necessary apparatus for the conveyance of the gas from the manufactory to the houses of the consumers. They pur- chased the dwelling-houses, &,c. for which they were rated, and erected therein retorts, gasometers, and other apparatus for the manufacture of the gas and coke (part of which apparatus was affixed to the freehold, and part was not ; ) and broke up the soil of the streets, and fixed therein the trunks, pipes, &c. mentioned in the assessment. They derived a profit from the sale of gas and coke. Stock in trade and the profits of the ma- nufactories in Birmingham, were not assessed to the poor's- rate. The premises for which the company were assessed, if ' PerBayley, J. 1 B. &C. 512. ' Rex V. The Birmingham Gas Light and Coke Company, 1 B. & C. 506. the Relief of the Poor. 215 rated as other lands in the parish (that is, if the profits arising from the sale of gas were not included) would be worth 200/. a year; but if such protits ought to be included, they were properly assessed at 800/. a-year. The Court were of opinion that the company were not rateable for the profits, and that consequently the rate onght to be reduced from 800/. to 200/. If the profits arising from the sale of gas could be rated, a blacksmith's forge might be rated, not at what it would let for, but at the sum which the blacksmith acquired by it. These profits, the Chief Justice said, are very different from the profits of canals or of mineral waters, which are natural products arising within the parish, and render the land in which they are situate, more vahiable. The amount at which the company in the present case were rateable, was the sum for which the buildings, trunks, and pipes would produce to them if let at an annual rent to a per- son willing to carry on the trade, or that rent which the com- pany would be forced to pay if the premises were not their own property. The Brighton gas-light company were in like manner em- powered to break up the soil of the streets of the town, and to dig trenches and lay pipes, and to alter their position, and to relay them. It was decided^ that they were rateable as occu- piers of land, for the increased value of the land arising from the gas pipes being placed in it : the pipes were so laid down as to become part and parcel of the land for the time they re- main ; and they thereby improve the value of the land in the same manner as buildings erected npon the land, and the whole must be rated accordingly. • Rex V. The Brighton Gas Light Company, 5 B. & C. 466. See Rex v. The Corporation of Bath, 14 East, 609. Rex v. The Rochdale Water- works Company, 1 M. &: S. 634. Rex v. The Chelsea Water-works Com- pany, K. B. April 27, and June 10, 1833. 216 Cfcapttr tfee ei^tf). OF THE REMEDY FOR TOLLS BY DISTRESS AND BY ACTION: A>'D OF EVIDENCE IN ACTIONS RELATING TO TOLLS. FiEST. — Of the Remedy for TolU hy Dutrtu. It is said that a right of Distress is incident to erery tolL^ The distre;-* may be made on the thing itself, in respect of which the toll is due, or on any portion of it, — as, on one or more sheep for the toll dae on the sale or passage of a whole flock.^ So, it may be on a ship or any part of it fas the an- ebor, sails, and cable; for a toll dae upon goods exported in the ftbip.^ In this case the defendant prescribed for a toll on goods exported from the port of Newcastle, in right of the corporation of that town, and the plea alleged a right to disk train the goods of the exporter if the toll were not paid. The plaintiff was the master of the ship in which a third party had exported goods from that port, and had no interest whatever in the ?oods themselves ; and the defendant distrained the •ails and cable of his ship for the toll. The court held that • Bac Abr. m. Di^eas (F.) pL 6. Vra, Abr. tic Toll O). Heddj v. WWdihowe, Cro. Ebz. 559. * SmoA r, SAtefhetdj Cro. HXa. 710. \'inkerstooe t, Eb^n, 1 Lord Raym- 386. ' I'lnkentooe t. Elyieo, I I.>ofd Rajrm. 386. 1 Salic. 243. Carth- .3.S7. Of the Remcdj/ for Tolb. 2 1 7 the distress was properly made ; for although the master of the vessel was not strictly the exporter, yet as to the port duties he was always looked upon as such, and he was to satisfy and discharge them: for it would be unreasonable to drive the owner of the toll to seek for the j:>erson who exported the goods in order to demand the toll of him. It was objected that the sails and tackle of a ship were pro- tected from distress ; but the court were of opinion, that the law upon that subject did not apply to a distress for such a duty as this : the whole ship was liable to the distress, and a fortiori any part of it. At common law. a distress is only in the nature of a pledge; it is therefore a general rule, that no distress at common law (except for fines, &c. in a court leet) can be sold or otberwise disposed of to the use of the person distraining. The provi- visions of the statute of William and Mary, and later acts, apply to the sale of distresses for rent, and not to those for tolls and duties. A distress for toil can only be impounded and kept till the goods are replevied or the toll paid : it can- not be sold. A distress cannot be made on o^oods tVaudulently sold out of a market, Si.c. in order to evade payment of a toll : the owner of the market must brino a special action upon the case for the fraiid.^ We have already seen the mode in which a distress for turn- pike tolls must be made, and the proceedings subsequent to the sale.- Secondlv. — Of the Remadi/ for Toils by Action. It was at onetime doubted whether an action of indebitatus assumpsit would lie for the tolls, but it is settled that it does, and indeed such form of action is now the most usual for the recovery of them.' It possesses one ad\Tintage over the pro- * Blakey v. Dinsdale, Co\vp. 661; ante, 81. See also ihe Baili^ of Tevfkesburj- v. Brickuell, 2 Taunt. r^O ; ante, 71. * Ante, 145. * Seward v. Baker. 1 T. R. 616. 218 Of the Remedi/ for Tolls. ceeding by distress, for the party claiming the toll is not com- pelled to disclose his title on the pleadings, which he must do in a plea in trespass, if the person disputing the claim should resort to that action upon a distress being made. The mode of pleading a prescriptive title in an action of trespass is, however, greatly simplified by Lord Tenterden's recent act for shorten- ing the time of prescription in certain cases.^ So, a count in indebitatus assumpsit, stating the defendant to be indebted to the plaintiff in divers to wit 100 fish, of the value of 10/. for divers tolls due and of right payable in re- spect of the defendant having used divers capstans, wind- lasses, &c. of the plaintiff's, to haul divers boats on to the beach, &c. is good." In such an action the circumstances must be such as to raise an implied promise, or an actual contract must be shewn. In the case last cited, it appeared in evidence that it was the custom for the plaintiff or his agent to select a fish out of every fishing boat landing its cargo in Senan Cove, in Corn- wall, after the fisherman had selected the best fish in the boat for himself; and the fish so selected by the plaintiff was to be rendered to him for his toll. It farther appeared, that neither the plaintiff" or his agent had made any such selection in this case. The Court were of opinion, that as there was no legal liability on the part of the defendant to pay any given fish before selection, there was no promise implied by law on his part to do so ; and as no selection had been made by the plain- tiff, judgment was given for the defendant. A declaration in assumpsit, alleging the defendant to be indebted to the plaintiff in divers to wit 500 quarters of wheat, 500 quarters of barley, &c. for divers tolls of wheat, barley, &.c. brought into the borough of Reading, was held bad because it stated no value. The value is the measure of damages ; and unless the article, in respect of which the party ' 2&3 Will. 4. c. 71 ; ante, 28. * The Earl of Falmouth v. Penrose, B. & C. 385. Of the Remedy for Tolls. 219 is alleged to be indebted, be of some value, there is no consi- deration for the subsequent promise.^ In an action on the case for not grinding at the plaintiff's mill, he may declare generally on the custom for a certain toll, without specifying the particular toll, or the consideration for it, or that it is a reasonable toll.^ Long usage and acquies- cence in one uniform payment, is cogent evidence of its rea- sonableness. It has been already seen, that a person cannot erect a stall in a market for the purpose of exposing his goods for sale there, without the consent of the owner of the market, who is entitled to stallage ; and if he does, he is liable to an action of trespass.^ In the Mayor of Northampton v. Ward, the Court appear to have said, that neither debt nor assumpsit would lie for stallage; but that was extrajudicial, and the Court of King's Bench have recently decided** that indebi- tatus assumpsit will lie for stallage, without shewing any con- tract in fact between the owner of the market and the occu- pier of the stall. Tolls are recoverable in that form of action, and no proof is given of anything like a contract by the party against whom the claim is made. Evidence is given of the right to receive them, and that is always deemed sufBcient ; and stallage is not distinguishable from tolls in this respect. Where a party entitled to take a toll in specie on corn, &c. sold in a market, takes a greater quantity than he has a right to, an action of trover lies against him for the excess. The customary mode of taking the toll on corn sold in the market at Cockermouth is, by putting the hand into each sack sold and taking out a handful : the defendant having varied from this mode by sweeping instead of lifting the toll out of the sack, so as to take a small quantity more than he was ' The Mayor of Reading v. Clarke, 4 B. & Aid. 268. » Card V. Callard, 6 M. & S. 69. ' The Mayor of Northampton v. Ward, 1 Wils. 107, 2 Stra. 1239. The Mayor of Norwich v.Swann, 2 W. Black. 1116. ■* The Mayor of Newport v. Saunders, 3 B.&c Adol. 411. 220 Of Evidence in Actions entitled to, it was held that trover lay against him for the excess.' Thirdly. — Of Evidence in Actions Relating to Tolls. 1. — Of Reputation, or Hearsay/ Evidence. Hearsay evidence is the statement which a witness professes to have heard given by a third person, as to some particular transaction or thing ; literally, what the witness states he heard the person say. It is a general rule (subject to certain exceptions) that hearsay is not admitted in our courts of jus- tice, as proof of the fact which is stated by a third person.^ One of the excepted cases^ in which the evidence of common reputation, or hearsay, is admissible, is in questions concerning public rights. Such rights, being matters of public notoriety, and of great local importance, become a continual subject of discussion in the neighbourhood, where all have the same means of information and the same interest to ascertain the claim.' If a question should be raised whether a corporation has a prescriptive right to collect tolls on a public navigation, &c. it would be good evidence for them to shew that deceased persons have been heard to acknowledge the right, and to de- clare that they had been so informed by their predecessors.'* If the reputation or tradition relate to the exercise of a right or privilege, evidence of the reputation is inadmissible until a foundation is first laid by other evidence of the right ; the right is first to be proved by acts of enjoyment within the period of living memory. When that foundation is laid, then, — inas- much as there cannot be any witnesses to speak to acts of en- joyment beyond the time of living memory, — evidence is to ' Norman v. Bell, 2 B. & Adol. 190. " 1 Phill. on Evid.(7th edit.) 229. * Morewood v. Wood, 14 East, 327. See Weeks v. Sparke, 1 M. & S. 679. Tradition and the received opinion are evidence of the lex loci. Per Lord Kenyon, C. J. Roe, d. Becbee, v. Parker, 5 T. R. 31. ♦ 1 Phill. on Evid. 248. Relating to Tolls, 221 be admitted from old persons who are conversant with the neighbourhood where the right is claimed, of what they have heard other persons, who are since dead, and who were in a situation to know what the rights were, say respecting them.^ And although a general rigjht may be proved by traditionary evidence, yet a particular fact cannot." Evidence of reputation upon general points is receivable, because all mankind being interested in them it is natural to suppose that they may be conversant with the subjects, and that they should discourse together about them, having all the same means of informa- tion. But this does not apply to particular facts, which may not be notorious, or which may be misrepresented or misunder- stood, and may have been connected with other facts by which their effect would be limited or explained.^ Reputation is in general weak evidence ; and when it is admitted, it is the duty of the judge to impress on the minds of the jury how little conclusive it ought to be, lest it should have more weight with them than it ought to have.* In the case of More wood V. Wood, ^ Grose, J. mentioned a trial at Winchester relating to a pedigree, where there was a strong reputation throughout the whole country one way, and a great number of persons were examined to it ; but after all the whole was overturned, and proved to have no foundation what- ever, by the production of a single paper from the Heralds' office ; which shews to be sure, observes that learned Judge, how cautiously this sort of evidence ought to be admitted. In an action brought by the lessee ^ of the corporation of Cambridge to recover a toll, for a waggon passing laden over the streets of that town, the plaintiff produced an award made ' Morewood v. Wood, 14 East, 330. Weeks v. Sparke, 1 M. & S. 688. See Roe, d. Beebee, v. Parker, 5 T. R. 31. * Per Lord Kenyon, C. J. Outram v. Morewood, 5 T. R. 123. More- wood V. Wood, 14 East, 329. ' 1 Starkie on Evid. 63. * Per Lord EUenborough, C. J. Weeks v. Sparke, 1 M. & S. 687. * 14 East, 330. « Brett V, Beales, 1 Moody & M. 416. 222 Of Evidence in Actions in the reign of Henry the 7th, between the University and the corporation, and a composition deed reciting and made in pur- suance of the award, for regulating certain disputes between those two bodies. One of the causes of the disagreement was respecting " the excessive taking of toll, pickage, and stallage by the corporation ;" and by the 19th clause of the award the amount of toll to be taken by the corporation, " of every ripier and all other persons," was fixed. This was objected to on the part of the defendant, but it •was contended on the other side that, inasmuch as the proof of a demand of the toll having been made and submitted to, was admissible evidence, a submission to the toll by deed was much stronger ; and the Chief Justice admitted the evidence. The deed, his Lordship said, derived no additional authority from being made in pursuance of the award, but he received it on its own account. In this action, reputation was admissible ; and certainly a solemn deed, under the seals of the University and the Corporation, relating to the tolls in question, was ad- missible evidence of reputation respecting them. The objec- tion that the deed did not appear to have been exactly fol- lowed in practice, applied rather to the effect than the admis- sibility of it. 2. — Of Former Verdicts. It is a general rule that a Verdict cannot be given in evidence for either party, in an action against one who was a stranger to the former proceeding, who had no opportunity to examine witnesses, or to defend himself, or to appeal against the judg- ment. Nor, in general, can a verdict be given in evidence for a stranger against one who was party to the former suit.' There are, however, exceptions to this general rule, as there are to that respecting the inadmissibility of hearsay evidence. The objection of its being res inter alios acta, is not allowed against verdicts in cases of customs or of tolls; for the custom or toll is lex loci, and facts tending to prove that may be given ' 1 Phill on Evid. 326. See Weeks v. Sparke, 1 M. & S. 679. Relating to Tolls. 223 in evidence by any person, as well as those who have been par- ties to such facts, or to such verdicts, as have found and de- termined them. And in such cases it is not material whether such verdicts be recent or ancient. ^ The following case will be sufficient to shew the principle upon which the courts admit former verdicts in evidence against strangers to the original suit. An action was brought^ for a toll of one farthing per quarter for all malt brought to London by any west-country barge : it was tried at bar. The plaintiffs offered in evidence four several verdicts against west- country maltsters, in which the jury had found in favour of the claim : the defendant was neither party nor privy to those records, and he therefore objected to their being received. But the Court admitted them, observing that it was as reasonable that a recovery against a stranger should be given in evidence, as that the payment of the toll by other strangers should be, which was never doubted. The judgment in causes between other parties is admissible in evidence, either to prove or to disprove the custom which is set up.3 3. — Of Corporation Books, S^c. Corporation books, containing an account of the privileges or public transactions of the body, are evidence in a suit be- tween the several members, on the same footing as manor- books between the tenants of a manor. But they are not evi- dence in favour of the corporation to support a claim of right against a stranger : as, where a right to certain tolls is claimed by a corporation, entries in the corporation books, respecting payments made by individuals in former times, are not admis- sible on the part of the corporation against a party who con- ' Bull. N. P. 233. That the verdict was admissible cannot be doubted ; for tradition and the received opinion are evidence of the lex loci. Per Lord Kenyon, C. J. 5 T. R. 31. ' The City of London v. Gierke, Carth. 181. ' Per Best, C.J. Lord Falmouth v. George, 5 Bing. 294. 224 Of Evidence in Actions tests the right to tolls ; for such entries, relating to the private interests of the corporation, and being of a private nature, cannot be evidence for the party to whom the books belong.^ It was proposed by the plaintiff in Brett v. Beales, to give in evidence the " Common Day-books" of the corporation of Cambridge. The particular entry proposed to be read was under the date of September, 1638, whereby certain persons were ordered to find out what toll and custom for goods brought to the town or carried out of it were due to the cor- poration. This was objected to by the defendant, and the Chief Justice was of opinion that the evidence was inadmis- sible. Suppose, observed his Lordship, there was an entry of some person, who had disputed the claim of the corporation, coming in and submitting, and being ordered to pay a fine, — that could not be made evidence. If he had paid the fine, that fact might be given in evidence. — The plaintiff afterwards moved for a new trial, on the ground, amongst others, of the rejection of this evidence ; but the Court were of opinion that it was properly rejected, and refused the rule.- And although the entry be made in a public book of the corporation, it is inadmissible on their behalf, unless the entry itself he of a public nature. Thus, in action of trespass' the defendant justified, as the water-bailiff of the borough of Mal- don, and the question in the cause was as to the right of the corporation of that town to certain tolls. The defendant, in support of his case, offered in evidence an entry in one of the books of the corporation. The entry stated, that on a certain day two ships laden with coal had arrived within the liberties of the borough ; that the masters of them had, without any ' 1 Pliill. on Evid. 422. The Mayor of London v. The Mayor of Lynn, 1 H. Black. 214, n. (c), where the defendants were not allowed to give their corporation books in evidence to prove their own rights; and on the Mayor of Hull V. Homer (Cowp. 102), where such evidence was produced, being cited, Wilson, J. said he was counsel in that cause, and the books of the corporation were there produced by consent. ' 1 Moody 5c M. 429. * Marriage v. Lawrence, 1 B. & Aid, 142. Relating to Tolls, 225 licence from the bailiffs, and without paying any fine, delivered a quantity of the coal, and after being warned of their infringe- ment of the rights of the borough, had finished the delivery ; that the ships were thereupon seized by the bailiff and council, after consulting their charter ; and that the masters then came and admitted their offence, and were fined 40 shillings, of which 36 were remitted and 4 paid. The book in which this entry was found was one of the public books of the corporation, and contained the records, &c. of the sessions. The learned Judge rejected the evidence. The Court were of opinion that the evidence was properly rejected ; and observed, that if the entry had been of a public natui-e, it would have been different ; but if a corporation enter their own private business in the public court book, that cir- cumstance will not alter the nature of the entry, — for if that apply to private transactions alone, it will still fall within the rule applicable to private books, which cannot be given in evi- dence for the party to whom they belong. But in an action for tolls claimed by a corporation, an an- cient schedule produced from among their muniments, copies of which were delivered by their officer to the lessee of the tolls, and hy the lessee to his collectors, and by which they collected the tolls, was admitted on behalf of the corporation. But where the copies in the hands of the lessee were not shewn to have been deliver- ed to him from the corporation, they were held inadmissible ; although they corresponded accurately with the old schedule.^ Upon the second trial of this cause, the town-clerk produced from the muniment-room of the corporation a paper, purporting to be an ancient schedule of tolls due to them, which he had seen for the first time three years before. A copy of this was also produced, which was proved to have been given by one Edwards, a former lessee (who was dead at the time of the trial) to his collectors j but in what manner it came into the hands of the lessee, there was no evidence. On this proof the Chief Justice rejected the schedule. ' Brett V. Beales, 1 Moody & M.419. Q 226 OJ Evidence i/t Act ions Butupon the third trial,a person who was a clerk in the town- clerk's office when Edwards was lessee, proved that he made, in that office, from that which purported to be an ancient schedule, the copies which were given by Edwards to the collectors, by which they collected the tolls. The learned Judge upon this evidence admitted the schedule. The difference between that and the previous trial was, that the proof on the former occa- sion was only that the collector received the papers from Ed- wards, and that, on being recently compared, they were found to correspond with the parchment at the town-clerk's : there was no proof how they came to Edwards. It now stood thus : that in 1814 the copies were made in the town-clerk's office, and delivered to the lessee, who delivered them to his collec- tors, and they collected the tolls by them. At the same trial, for the purpose of proving that repairs were done by tlie coporation to certain bridges in the town, the plaintiff offered in evidence the receipts of deceased per- sons, given to the corporation upon the payment of their bills for such repairs. The earliest of them was in 1734, and they were produced by the town clerk from the muniment-room of the corporation. The plaintiff cited the cases where the entries in a deceased steward's books, by which he debits himself with the receipt of money, have been held to be admissible on the ground that he would not have made the entry, which was against his interest, unless he had actually received the money. On the other side it was observed that those entries were ad- mitted on the principle that the steward thereby made himself accountable to his master for the money ; but these receipts made the persons giving them accountable to nobody. The Chief Justice was of opinion that the evidence was inadmissi- ble : the receipts were offered for the purpose of proving both that the repairs had been made by the corporation, and that the money was paid for them ; for which he thought that they were not receivable. ^ The books of a corporation cannot be admitted in any case ' See Outram v. Morewood, 5 T. R. 121. Doe, d. Gallop, v. Vowles, 1 Moodv and Robinson, 261. Relatmg to Tolls. '227 unless they are shewn to have been regularly kept by the proper officer of the corporation, or unless some satisfactory reason is given for their not being so. In the Kini^ v. Mother- sell, ^ which was a proceeding by quo warranto, the Court said, corporation books are generally allowed to be given in evidence wheu they have been publicly kept as such, and the entries made by the proper officer ; not but that entries made by other persons may be good if the town clerk be sick or refuses to attend, but then that must be made to appear. Whoever produces a book must establish it before he delivers it in. The Court often make people, when they produce deeds, give an account where they have been kept, and how they came by them. It may be added that in an action by a corporation against one who is a member of the corporation, the defendant has a right to inspect the books of the corporation ; but where the defendant is a stranger, he has no such right.^ 4. — Of Private Acts of Parliament, An act of Parliament, private in its nature, is not made ad- missible in evidence against a stranger, by the usual clause de- claring that "it shall be deemed and taken to be a public act, and shall be judicially taken notice of as such by all judges, justices, and others, without being specially pleaded." This was decided in Brett v. Beales. ^ The act proposed to be given in evidence was entitled " An act for making and maintaining a navigable canal from B. S. in the county of Hertford, to join the river Cam, at C.H. in the county of Cambridge," &c. The clause which the plaintiff wished to read, recited that the corporation of Cambridge were entitled to certain tolls, and that those tolls would probably be ' 1 Stra. 93. * The Mayor of Southampton v. Graves, 8 T. R. 590 ; overruling several prior cases. See also Hodges v. Atkis, 3 Wils. 398. » 1 Moody & M. 421. q2 228 Of Evidence in Actions diminished by the establishment of the proposed navigation ; and then provided a mode of compensation to the corporation for any injury they might sustain in the diminution of their tolls. The act also empowered the navigation company to take certain tonnage duties on all goods carried on the canal, and to recover them by action or distress. — The last clause of the act was in the words quoted above. The contemplated canal was never made. Upon the defendant objecting to this act being received in evidence, the Chief Justice observed that the point was quite new and of great importance, as it applied to so large a class of statutes : he would therefore consult with the other judges upon it, and give his opinion on the following day. According- ly the next morning (the cause not having been finished on the first day,) his lordship observed, " Two grounds have been laid for the admission of the act in evidence ; the one, that the concluding clause renders it admissible as a public act ; the other, that even independently of that clause, it is so from its nature. The answer given to the first was, that the clause only applied to the forms of pleading, and did not vary the general nature and operation of the act. I was inclined to that opinion at the time, and my learned brothers agree with me in that impression. We also think that the second ground fails. It is said that the act gives a power of levying a toll on all the king's subjects, and therefore that it is a public act ; but the power given is not so extensive ; it is only to levy toll on such as shall think fit to use the navigation. The ground therefore on which it is said that the act is public, and the evidence admissible, fails ; and I cannot receive it." When the plaintiff afterwards moved for a new trial, on the ground (amongst others) of the rejection of the corporation books, no point was made of the rejection of this act of Parliament. Chief Baron Gilbert, speaking of the difference between public and private acts, observes ^ that those which relate to ' Gilb. Ev. 39. Relating to Tolls. 229 the kingdom at large are called general acts ; those which re- late only to particular classes of men, or to certain individuals, are called private acts. Laws which concern the king, or all lords of manors, or all officers in general, or all spiritual persons, or all traders, are public laws ; but such as relate to the nobility only, or to spiritual lords, or to particular trades, are private acts. 5. — Of Contemporary/ Usage to Explain Ancient Charters, &;c. It frequently happens that the language in ancient Char- ters, &c., which are constantly given in evidence in actions relating to tolls, has become obscure from its antiquity, orthe construction is doubtful: and in such cases the constant and immemorial usage under the instrument may be resorted to for the purpose of explanation, though it cannot be admitted to controul or contradict the express provisions of the instru- ment.^ Thus, in a case which has been considered in an earlier part of this work,- it appeared that King Edward the 3rd by charter exempted the " Burgesses" of Tewkesbury from all toll, Sic. ; and on a question arising as to whether the ex- emption extended to the burgage tenants of that town, or was confined to those persons who were freemen of the corpo- ration, evidence that no persons except the freemen had, in fact, been exempt as far back as the memory of living wit- nesses went, and that the burgage-tenants had always paid toll, was admitted for the purpose of explaining the meaning of the word burgesses. Mr. Phillipps, in his book on evidence, says' that the uni- form course of modern authorities fully establishes the rule, that, hoivever general the words of ancient grants may be, they are to be construed by evidence of the manner in which the thing has been always possessed and used. And modern ' See the Mayor of Truro v. Reynalds, 8 Bing. 275, and the cases there cited. 2 The Bailiffs of Tewkesbury v. Bricknell, 2 Taunt. 120. Ante, 94. ' 1 Phill. on Evid. 541. See Rex v. Osborne, 4 East, 327. Weld v. Hornby, 7 East, 195. 230 Of Evidence in Actions usage of forty years' duration, is evidence not only for that period, but evidence from which it may be presumed that the same course was pursued in earlier times, if nothing is shewn to the contrary.^ 6. — Of the Competency of Witnesses in Toll Causes. PiRST. — Of the Evidence of Members of a Corporation in Support of a claim by the Corporation. There is no doubt that wherever a member of a corporate body can derive any personal advantage from the verdict, he is an incompetent witness to support it. Thus, upon an issue whether the election of common-councilmen in a borough was not confined to persons of a particular description,' — it was held that one who fell within that description was not a com- petent witness in support of the affirmative, since the limitation enhanced the value of his own situation. - And a freeman of a corporation is not competent to sup- port a corporate title to rent, where the rent is reserved to the use of the corporation.^ This was an action of trespass, and a justification under a right of common ; the replication alleged an approvement under the statute of Merton : and the issue was, whether sufficient common was left. It appeared that the plaintiff claimed the close under the corporation of King- ston- upon-Thames, who being lords of the manor had enclosed it out of waste land in which the defendant and others had a right of common, and a rent was reserved from the plaintiff to the corporation. In support of the issue, the plaintiff called certain freemen of the corporation, but the learned Judge was of opinion that they were not competent witnesses, and re- jected their testimony : and the Court were of the same opi- nion. The rent, they said, was reserved for the use of the cor- poration, and therefore the objection must prevail, however small the interest may be in reality. * Per Richardson, J. Chad v. Tilsed, 2 Brod. & Bing. 409. ' Stevenson v. Nevinson, 2 Lord Raym. 1353. ' Burton V. Hinde, 5 T. F \7A. Relating to Tolls. 231 So, on a trial at bar/ in which the issue was on the right of the Corporation of London to a certain toll on the importation of wines, several freemen of the City were offered as witnesses in support of the right. Three of the Judges held them to be incompetent witnesses, but the fourth Judge thought their evi- dence receivable. The evidence was therefore rejected, and a bill of exceptions was tendered, but the verdict being in favour of the claim, it became unnecessary to proceed with it. In an action- where the question was, whether a bond for 400/. was intended for the benefit of a corporation or of the defendant, the evidence of members of the corporation was rejected. It was decided in Ilex v. the Governors of the Poor of St. Mary Magdalene,-' that the defendants, — who were appointed by an act of parliament governors and directors of the poor of a parish, and made liable, upon an appeal aoainst a rate made by them, to costs, in case the sessions should award any to the appellant, — could not be witnesses on such appeal, thougii in truth they were only trustees, and were entitled to be reimbursed such costs out of the parochial funds ; for they were parties to the cause, and liable to tiie costs in the first instance. Upon a quo warranto against the corporation* for taking a duty on coals brought to London, the defendants prescribed for the duty, and the issue was upon the prescription. It ap- peared that the Lord Mayor and Sheriff's took the toll for the benefit of the whole corporation. The defendants produced several freemen, who were members of the corporation, as wit- nesses, to prove the prescription; and their evidence was ad- mitted. An action for work and labour was brought against the Go- ' The Case of the City of London, 1 V'entr. 351. ' The Corporation of Sutton Coldfield v. Wilson, 1 Vern. 25-i. » 3 East, 7. See 54 Geo. 3. c. 170. s. 9. * Rex V. The Mayor, &c. of London, 2 Lev. 231. See Bull. N. P, 290, where this case is qu(EJ-ied. 232 Of Evidence in Actions vernorsof the Foundling Hospital/ in which the defence was that the work was so badly done, that the defendants derived no benefit from it. For the purpose of proving the defence, several governors of the Hospital were called, and Lord Kenyon, C. J. admitted their evidence. The defendants, his Lordship observed, were sued in their corporate and not in their natural and individual capacities. This cose was di/Jerent from the case of a maijor and citizens ; because, though sued in their corporate name, they might still have a great interest in the event of the cause ; but these defendants had notthe least personal interest ; they were mere trustees of a public charity. It may be observed, that if the party proposed as a witness be interested, the magnitude of the interest is not material; the objection must prevail, however minute the interest may be.- The reason is sufficiently obvious ; a plain and simple rule of law is absolutely necessary, and if a small degree of interest did not disqualify the witness, it would be impossible to draw a practical line of distinction. Where a member of a corporation is interested, the usual mode of removing the objection is by disfranchisement ; but it is sufficient if he release his right to the corporation.^ Secondly. — Of Witnesses Admissible from Necessity, though Interested. In some instances the law admits the testimony of persons interested, from the extreme necessity of the case. Such a necessity arises from the particular nature of the subject of en- quiry, which renders it exceedingly improbable that any person who is not interested should possess any knowledge of the facts, — whether that improbability arises from the confined na- ture of the transaction, which makes it likely that no one is privy to it except the interested witness; or from the generali- ty of the interest, which is equally likely to affect all other ' Weller V. The Governors of the Foundling Hospital, Peake's N. P. C. 153. » Burton V. llinde, .', T. R. 174. See 2 Vern. 317. ' 2 Starkieon Evid.427. Enheld v. Hill, Sir T.Jones, 1 16. 2 Lev. 236. Relating tu Tolls. 233 witnesses. But it is to be observed that this necessity must result, not from the accidental failure of evidence in a parti- cular and isolated case, — for it would be highly impolitic to sacritice a general rule in order to alleviate a particular hard- ship ; but it must be general in its nature, embracing a large and definite class of cases, and it must arise in the usual and natural course of human affairs.^ This is the general principle with respect to the admission of the testimony of an interested witness on the ground of neces- sity ; and a reference to the two most recent cases upon the subject will be sufficient to shew in what manner the principle is acted upon in our courts. The first of them. Lord Falmouth v. George, may perhaps be considered as having been overruled by Lancum v. Lovell; but as the Court in the latter case pointed out a distinction between the two cases, on which it perhaps might be possible to support the decision in the former, it is right to state briefly what the question and decision were. It was an action - in which the plaintiflf sought to establish a claim by custom to the second best fish out of every boat- load of fish landed in Senan Cove in Cornwall. It was pro- posed on the part of the defendant, to examine as a witness, to disprove the custom, a person who admitted that he was then a fisherman frequenting Senan Cove. The learned Judge who tried the cause thought that he was not a competent witness, and rejected his testimony. And the Court of Common Pleas were of opinion that the evidence was properly rejected, on the ground of his having a direct interest in disproving the right claimed by the plaintiff^. Although, the Court observed, the declaration did not set out the custom, yet as the plaintiff' claimed his right upon a custom, and the defence consisted in a denial of it, the judgment in the case, with evidence shewing that the question at the trial was whether there was a custom or not, would be admissible, should an action be brought against the witness for landing fish in Senan Cove without • 2 Staikie on Evid. 753. * Lord Falmouth v. George, 5 Bing. 286. Ante, 223. See Lord Fiilmoiith V. Penrose, 6 B. & C. 385. Anle, 218. 234 Of Kvide/ice in Actions paying the toll. He had, therefore, a direct and immediate interest to obtain a verdict for the defendant. This subject has recently undergone the most ample dis- cussion, and been decided in the Court of Exchequer Chamber by fourteen of the Judges, in the case of Lancum v. Lovell.^ It was an action of assumpsit for toll traverse, brought by the lessee of the Corporation of Northampton. At the trial, the defendant called several witnesses to prove that they had used the way in question (which was a public road passing through the borough of N.) without payment of any toll; in some cases when no demand had been made, in other cases where toll had been demanded and refused. It was objected by the plaintiff that these witnesses were incompetent, inasmuch as the verdict in this action mioht be given in evidence against them if an action should be brought against them for the toll ; and he cited the case of Lord Falmouth v. George, upon the autho- rity of which the objection was allowed, and the testimony re- jected, but leave was reserved to the defendant to move. The Court of Common Pleas afterwards requested that the question might be argued before all the Judges, which was ac- cordingly done. For the plaintiff, the objection relied on at the trial was renewed, and several cases were cited in support of it. For the defendant, it was argued that claims against the public might be divided into two classes : 1st, those which affect a portion of the public, as the inhabitants of a manor, parish, or township, or persons of a particular vocation : 2ndly, those which affect all the king's subjects. In the first class, the testimony of interested witnesses was excluded by common law, because it is possible to procure other and less excep- tionable testimony : but in claims which fall under the second class witnesses are admitted, notwithstanding their interest, from the impossibility of procuring other testimony. That distinction reconciles all the cases. To receive the evidence of those only who paid the toll, would be to receive evidence only on one side. ' D Bmg. ie.i. Relating to Tolls. 235 After considering the case, the Court were of opinion that the witnesses were competent, and the evidence admissible. In the course of their judgment, the Court observed that there could be no doubt that this was a matter in which every subject of the king had an interest; and if any one man, be- cause he has passed that way unmolested or resisting, and therefore having an interest, were rejected, every individual in the kingdom was equally exceptionable. The Court and the other Judges therefore wished this case to be placed upon this broad ground, — that this is a public right in which all man- kind are interested ; and if such an objection to witnesses were allowed to prevail, a man would have only to set up a toll or any other claim as against all the world, and no man who had used the way could be called to controvert or contradict the claim, although he had uniformly resisted the yielding to such a demand. It is of course, therefore, as it seems to us, that such witnesses of necessity must be admissible. After noticing the cases which had been cited, the Court thus con- cluded : The result of the whole is, therefore, that we are of opinion that the right claimed is a public right, in which all the king's subjects are interested ; and that consequently the right on the one hand, and the resistance on the other, can only be substantiated or resisted by the subjects of the king, who are all equally interested; and therefore the rule for the new trial must be made absolute. In arguing this case, the counsel for the defendant observed that the claim in the action of Lord Falmouth v. George might be ranged within the class of claims which affect only a portion of the public. And the Court said, that whether it would be possible to support the decision in that case by sup- posing that it savoured more of a private than of a public right, it was not worth while to discuss ; because in the case then under consideration there could be no doubt that it was a matter in which every subject of the king had an interest. 7 . — Miscellaneous. The alterations in the mode of proving and rebutting a pre- 236 Of Evidence in Actions delating to Tolls. scriptive title to tolls, &c., which are made by Lord Tenterden's act for shortening the time of prescription in certain cases, have been already shewn.^ The act has not been the law of the land long enough to allow many questions to arise upon it, but it would not be difficult to point out several parts of it which seem calculated to raise questions of great import- ance. It has been seen that the question whether a toll be reason- able or not, is one of law, and not of fact. The Jury are to find what toll has been in fact paid, but whether the toll so paid be reasonable, is for the court." When a toll has been in fact received for a long time, the onus of shewing that it is unreasonable is thrown upon the party resisting it.^ And long usage and acquiescence in one uniform payment for toll, is cogent evidence of its reasonableness.^ A claim for toll, to be taken in specie, on goods sold in a mar- ket, \^ supported by evidence of a right to toll for goods 6;omo7<^ into the market and sold, — without shewing any right to toll on goods sold in the market without being brought there : that is, without shewing a right to toll on a sale in the market by sample.^ The expression " sale in a market" imports that the goods are brought into the market and are ready to be deli- vered to the purchaser.^ ' Ante, 28. 2 & 3 Win.4. c.71. 2 Holt's N. P. C. 647. 2 B. Moo. 102. 2 Inst. 222. 3 Wright V. Brewster, K. B. Nov. 5, 1832. Ante, 62. * Gard v. Callard, 6 M. & S. 69. * Moseley v. Pierson, 4 T. R. 104. Ante, 64. « Per Lord Kenyon, C. J. 4 T. R. 107. ^r INDEX. ACTION : For injury to Market ; against purchaser of corn by sample, page 65. seller of corn by saraple, 71- for evading toll by selling near to but out of the limits of the market, 77. when this action does not lie, 78. for hindering person from bringing his goods to market, 83. for erecting a new market, 55. 84. does not lie after 20 years' acquiescence, id. lies for anything injurious to the right of a market, 73. for erecting a stall in the market, 86. does not lie for placing goods in market for sale, 85. for market toll, does not lie, unless the goods are brought into and sold in the market, 68. 74. 76. for stallage, 86. 217. for toll, 217. for erecting new ferry near ancient one, 109. no defence to shew that plaintiff has neglected his ferry, 110. or taken too large a toll, id. does not lie against owner of ferry for not ; boat, &c., without specia damage, 108. lies against ferryman for taking excessive toll, 109. ADDITIONAL TOLLS : See Turnpike Tolls. AGRICULTURAL PRODUCE : Waggons, &c. carrying, exempt from turnpike toll, 165. ANCIENT CHARTERS, &c.: See Evidence. ANCIENT DEMESNE : See Exemption from Tolls. ANCIENT SCHEDULE OF TOLLS, 225. ASSAULTING TOLL COLLECTOR, 148. AMOUNT OF TOLL : Need not be expressed in grant of a fair or market. 50. 53. 58. the grantee is entitled to a reasonable toll, 59. whether reasonable or not, is a question for the court, 57. 61. long payment of the same amount is evidence of reasonableness, 61. 63. it lies on the party resisting, to shew that the amount received is unreasonable, 63. 128. 238 Index. AMOUNT OF TOLLS— continued, for wharfage, dockage, &c. ; general rule, 123. 130. by act of parliament, 123. 126. by prescription, 123. 128. variation in amount received, 56. 62. in assessment to poor's rate, 211. BAGGAGE WAGGONS : Exempt from turnpike toll, 169. BRIDGE : Toll for passing over, 18. 32. repairing, not sufficient consideration for toll thorough, 14. waggons, &c. carrying materials for repair of, exempt from turnpike tolls, 162. rateability of tolls of, 190. 203. CANAL ACTS : Construction of, 102. CANAL TOLLS: 101. Rateability of, 191. 205. 207, 208. alteration of law respecting, 205, 206, 207. formerly rateable only in parish where voyage terminated, though extend- ing through several parishes, 205. now rateable in every parish through which the canal passes, 207, 208. principle of rating, id. amount at which they are rateable, 209. partial exemption of from rate, 211. C ATTLE : Going to water, pasture, iScc. exempt from turnpike toll, 166. CHARTER : Evidence of usage to explain, 95. 229. CHURCH OR CHAPEL, &c. : Persons going to or returning from, exempt from turnpike toll, 167. CLERK TO TRUSTEES OF TURNPIKE ROADS : Contracts signed by, valid, though not under seal, 141. • all must join in executing contract, 142. trustees may sue and be sued in name of, 141. COLLECTOROF TURNPIKE TOLLS: Trustees may appoint, 141. 143. death, neglect, &c. of, 144. lessee may appoint, id. responsible in same manner as if appointed by trustees, id. to put up table of tolls and his name, 144. 146. penalty for omitting, 144. 146. for refusing to tell his name, 147. for detaining or abufiing traveller, id. \ Index. 239 COLLECTOR OF TURNPIKE TOLLS — continued, to give a ticket to persons paying toll, 144. may distrain for toll, 145. may weigh waggons, &c., 153. penalty for omitting, id. may examine wheels, &;c. 147. penalty for omitting, id. p taking greater or less toll than he is entitled to, id. obstructing or assaulting, 148. COMPETENCY OF WITNESS : See Evidence. COMPOUNDING FOR TURNPIKE TOLLS. 186. CONTEMPORARY USAGE : See Evidence. CORPORATION BOOKS : See Evidence. CONSIDERATION FOR TOLL THOROUGH : Must move towards the person charged, 3. 6. 8. 10, 14. repair of bridge not sufficient, 14. of some streets not sufficient for toll over the whole town, 8. 10. 12. 14. of market-house, pound, &c., not sufficient, 12. when toll thorough may be supported without proof of present consideration^ 33. 37. CRANAGE, 122. CREDITOR : See Turnpike Tolls. CURATE : Exempt from turnpike toll, when, 168. DISSENTERS: Exempt from toll in going to or returning from their usual place of worship, 167. DISTRESS : For port dues ; may be on the ship or tackle, 119. 216. on the master, though he is not the exporter, id. for turnpike tolls, 145. may be sold, id. incident to every toll, 216. cannot be sold, 217. DOCK DUES : (See London Dock Company, — Liverpool Dock Company, — Wett India Dock Company.) By statute, 129. when not restricted by statute, must be reasonable, id. DOOMSDAY BOOK, 89. DOUBLE TOLLS : See Turnpike Tolls. EJECTMENT : Maybe maintained by one mortgagee of turnpike tolls, in his own name, 185. but tolls consequently received, to be applied to the benefit of all the mortgagees, id. 240 Index. EVIDENCE IN ACTIONS RELATING TO TOLLS: Hearsay ; when admissible, 220. particular fact cannot be proved by, 221. is weak evidence, id. ancient award between other parties, id. Former verdicts, 222. Corforat'wn Books, S)C. when admissible, 223. ancient receipts, 225. must be shewn to have been kept by proper officer, 226. Private act of parliament ; not made evidence against a stranger, by clause declaring it a public act, 227. Contemporary usage, to explain charters, 95. 229. Competency of witnesses ; members of corporation, when incompetent, 230. how objection removed, 232. wtinesses from necessity, though interested, id. Miscellaneous, 235. EXEMPTION FROM TOLLS : (See Turnpike Tolls.) Tenants in ancient demesne, 89. what constitutes ancient demesne, 90. to whom the privilege extends, id. to what articles it extends, 91. are free of toll throughout the realm, 90. of pontage, &c. 91. not lost by non-claim, id. remedy, if toll is demanded of, 99. by prescription, 93. by grant, 93. freemen of London, 93. 128. inhabitants of Truro not exempt from tolls taken there, 97. burgage tenants of Tewkesbury not exempt from tolls in the market at T., 94. from turnpike tolls : See Turnpike Tolls. from ferry tolls, 107. of ships employed in the service of the crown, 121. of lands, &c. taken for canals, from poor's rate, 211 : See Canal Tolls. FAIR: (See Market.) Whatconstitutes,44. duties payable in, id. in what place the owner may hold it, 46. how acquired, 50. ' toll is not incident to, 52. 54. must be expressly granted, 52. amount of, need not be expressed in grant, 50. 53.58. Index. 241 FAIR — Toll — continued. grantee entitled to reasonable toll, when grant does not specify the amount, 59. what is a reasonable toll, 61. long payment is evidence of reasonableness, 61. 63. reasonableness is a question for the court, 57. 62. party resisting must shew it is unreasonable, 63. variation in amount of, 56. 62. FERRY: Definition of, 106. cannot be erected without royal license, id. may exist by prescription, id. owner of, has a right to toll, id. need not have any properly in the soil of shore, 107. must keep a boat, 6cc., id. cannot erect bridge instead of keeping boat, 108. may be indicted for neglect of, 107. no action lies against for not keeping boat, without special damage, 108. action lies against, for taking excessive toll, &c., 109. action by, for erecting new ferry, id. no defence, to shew that plaintiff has neglected his ferry, 110. or taken too large a toll, id. tolls of, cannot be leased by parol. 111. exemption from, 107. rateability of, 188. 190. FRAUD : (See Action.) In evading fair or market toll, 77. in selling out of the limits of the fair or market, 77. 81, 82. buying or selling by sample, 65. 71. evading turnpike tolls, 146. 152. claiming or taking benefit of exemption fiom toll, when not entitled to, 148. 161. FUNERALS : Persons attending, when exempt from turnpike toll, 168. GAS COMPANY : Rateability of, 203. 214. GENERAL TURNPIKE ACTS : (See Turnpike Tolls.) Statutes now in force, 138. powers of 3 Geo. 4. c. 126. and 4 Geo. 4. c. 95., extended to all local acts, except, &c. id. do not take away, or lessen any exemption granted by local act, 160. do not authorize the taking toll for lime, 164. GRANT : See Exemption from Tolls.,— Market. HARBOUR DUES, 111. 120. HEARSAY : See Evidence. HIGHWAY : See River,— Toll Thorough,— Toll Traverse,— Turnpike Tolls. R 242 Index. HORSES : (See Turnpike Tolls.) Employed in husbandry, or going to be shod, watered, &c. exempt from toll, 165. of officers on march, orduty, &c„ exempt, 169. of yeomanry cavalry, &c., exempt, when, id. conveying persons to county elections, exempt, 170. affixed to waggon, &c., and not drawing, toll on, 156. INHABITANT : Means resident, for the purpose of rating, 188. LEASE OF TURNPIKE TOLLS : (See Turnpike Tolls.) Not to be for more than three years, 141. contract valid, though not by deed, when, id. void on non-payment of rent, &c. 143. when void, justice may remove lessee and put trustees into possession, id. voidable by the trustees, if too great or too small a toll be taken, 147. LIGHT-HOUSE TOLLS : (See Bateahility of Tolls.) Exemption from, of vessels employed in service of the crown, 122. not rateable, 194. 203. LIME : (See Tiimpike Tolls.) The 3 Geo. 4. c. 126. does not authorize taking toll for, 164. toll may be taken for, if authorized by local act, 165. exemptions of from toll, granted by local acts, are not taken away by 3 Geo. 4. c. 126. s. 32., 164. LIVERPOOL DOCK COMPANY: Construction of statutes relating to, 135. when vessel liable to only one duty, 135, 136. when liable to a second duty, 136. what constitutes " the same voyage out and home/' 137. from what port entitled to charge duty, id. LONDON . Exemption of resident freemen of, from toll, 93. 128. custom in, as to mooring barges at wharfs, 126. LONDON DOCK COMPANY : To what rate of duty they are entitled, 129. must receive wines on a reasonable drity being tendered, id. MAIL COACHES : Exempt from turnpike tolls, 169. MANOR : Toll on goods landed wilhin, 21. 31. MANURE : Waggons, &c., employed in carrying, exempt from turnpike toll, 164. except where they are specially made subject to toll in local act, id. driver of waggon going empty to fetch, is to pay the toll, which is to be repaid on his returning so laden, 165. Index. 243 MARKET : (See Market Tolh, — Stallage and Pickage.) What constitutes, 44. duties payable in, id. in what place the owner may hold it, 46. place of holding it may be changed, id. the whole town where held, is not, 48, 50. how acquired, 50. toll is not incident to, 52, 54. must be expressly granted, eo nomine, 52. does not pass under general words, as profits, free customs, &cc., 52. 54. 61. but amount need not be specified, 50. 53. 58. case of Covent Garden Market, 55. 57, 58. grantee entitled to reasonable toll, when amount not specified, 59. what is a reasonable toll, 61. long payment evidence of, 61. 63. reasonableness is a question for the court, 57. 62. party resisting must shew it is unreasonable, 63. variation in amount of, 56. 62. of Sales in : by sample, 63. when action lies for buying or selling by sample, 65. 69. 71. no toll due on, 68. 74. 76. evading toll by selling out of the limits of, 77. 82. when action lies for, and when not, 78. 82. action lies for anything done to the injury of, 73. for hindering person from bringing his goods to, 83. for erecting new market near to, 55. 84. for erecting a stall in, 86. does not lie for placing goods in for sale, 85. all persons have a right to go to, 86. goods laid in for sale, cannot be distrained damage feasant, 87. owner of, may have a right to prevent sales in private houses, 82. MARKET TOLLS : (See Exemption, — Market, — Stallage and Pickage.) . Division of the subject, 43. payable only on sale of things brought into the Market, 48. 64. 74, 75. not payable before the sale, 45. unless by custom, id. , at common law, payable by the buyer, id. may by custom be payable by seller, 1 1. 45. not incident to a market, 52. 54. must be expressly granted, id. amount need not be expressed in grant, 50. 53, 58. variation in amount of, 56. 62. what are reasonable, 61. evading by selling near to, 77. when action lies for, when not, 78. 81. r2 244 Index. MARKET nous, — continued. when not rateable, 197. exemption from, — see Exemption from Tolls. MATERIALS : For repair of road, highway, or bridge, exempt from turnpike toll, 162, MORTGAGING TURNPIKE TOLLS: See Turnpike Tolls. NAVIGABLE RIVER : See Eiver. NOTICE : Of meeting to let turnpike tolls, 140. to reduce or advance tolls, 158. action, 175. OCCUPATION OF LANDS AND TOLLS: What sufficient in order to render person rateable, 191. OFFICER : On march or duty, &c., exempt from turnpike toll, 169. OVERWEIGHT : (See Turnpike Tolls) Additional tolls for, 149. PENALTY : (See Turnpike Tolls.) For evading or attempting to evade turnpike tolls or overweight, 146. 152. refusing to allow wheels of waggon, &c. to be measured, 153. driving away to avoid measurement of wheels, 147. fraudulently claiming or taking the benefit of any exemption from toll, 148. 152. 161. resisting or assaulting toll collector, 148. hindering or rescuing distress, id. On Collector of Turnpike Tolls ; collector appointed by lessee liable to same penalties as if appointed by trustees, 144. for not having his name painted on toll house, 146. refusing to permit person paying toll, to read his name, 147. refusing to tell his name to person paying toll, 147. giving a false name, id. refusing or omitting to give a ticket to persons paying toll, 147. 163. refusing to return toll received, on waggon, &c. returning laden with manure or road materials, 163. unnecessarily detaining traveller, 147. abusing traveller, id. not measuring wheels of waggon, &c., being required, 147. 154. not weighing waggon, &c., 153. taking greater or less toll than he ought to take, 146. demanding and taking toll of person who is exempt, and claims his exemption, 146. On Mortgagee of turnpike tolls, for not accounting to trustees, 184. for continuing in possession and receiving lolls after he has received his mortgage-money, &c., id. Index. 245 PICKAGE : See Stallage and Pickage. POOR'S RATE : See Rateability of Tolh. PORTS : (See Wharfage.) Nature of. 111. 114. extent of, 112. how created, 114. title to, 115. rights of the owner of, 116. incident to the ownership of, 117. by prescription, id. distress for port dues, 1 19. PORT TOLLS: See Ports. POST HORSES: (See Turnpike Tolls.) When liable or not to a second toll, 171. entitled to repass toll free nine hours after midnight, id. PRESCRIPTION : Meaning of, 27. act to shorten the time of, id. statutable periods of, 28. no presumption to be made in favour of enjoyment for less than, 30. exclusion of time from the computation of, id. proof of, 28. 31. how defeated, 29. 30. interruption of. 29. how pleaded, 30. for toll thorough, bad, 3. for toll traverse, good, 27. for port and port tolls, 24. llo. 117, 118. for wharfage, &c. 123. 126. fair or market may be acquired by, 50. exemption from toll by, 93. 107. PRIVATE ACT OF PARLIAMENT : See Etidence. RATEABILITY OF TOLLS: In what cases rateable : dependson 43 Eliz.c. 2. s.'l., 187. person to be rated, must be an occupier or inhabitant, id. 188. general rule as to rating occupier, 187. 191. inhabitant, means resident, 188. tolls, per se, not, 188, 189, 190. but where subject matter, out of which they arise, is rateable, it may be rated for the improved value inconsequence of the tolls, 188. 195, 196. 201. 203. non-resident occupiers of ferry, not rateable, 108. tolls of a bridge rateable, 190. 203. non-resident lessee of, not, 190. sluice lolls are, 191 . 246 Index. RATEABILITY OP TOLLS — In what cases : — continued. canals, locks, &c.are, 191. 205. 207, 208. tolls of light-house are not rateable, 194. land covered with water, rateable for improved value, 195. gas-light companies for pipes, &c. id. occupier of toll and share of calamine, 196. stallage and pick age, 197. non-resident lessee of market- tolls, not incident to soil, not rateable, id. docks are, 197. what is a sufficient occupation of canals, &c. 191. turnpike-tolls are not, 198. There must be a beneficial occupation : tolls applicable to public purposes only, not rateable, 198. Of the parish in which tolls are rateable : water companies, 195, 201. reservoirs, pipes, &c. rateable where situate, though water sold else- where, 202. bridge rateable where situate, not where the tolls are received, 203. so of a sluice, 195. 204. so of a barge-way, towing-path, &c. 204. where ships, &c. are rateable, id. Canal tolls : formerly rateable only in parish where the voyage terminated, 205. now rateable in every parish through which the canal passes, id. principle of rating, 207, 208. Amount at which Tolls are rateable : general rule as to, 209. what outgoings to be deducted from gross profits, 21 1. when the property is rateable only as adjoining lands, and not for improved value, id. REASONABLE TOLL : (See Market.) When grantee of fair or market entitled to, 59. what is, 61. is a question for the court, 57. 62. jury are to say what is, in fact, payable, 57. onus of shewing that it is not, is on the party resisting, 63. London dock entitled only to, for warehousing wines, 130. RECEIPTS : See Evidence. RECTOR, &c. When exempt from turnpike toll, 168. REDUCING TURNPIKE TOLLS, 157. REMEDY FOR TOLLS : By distress, 216. by action, 217. REPUTATION : See Evidence. RIVER: Navigable river is a highway, 18. Index. 247 RIVER — • continued. what constitutes a navigable river, 18. may be changed by act of God, 19. how determined, id. is free to all at common law, id. prescription for toll on, bad, 20. 22, the public have no common-law right to use the banks of, 101. such a right may exist by prescription, id. SALE IN MARKETS : See Market. SAMPLE, SALE BY: See Market. SEA : Toll for passing along, 18. SHIPS : Employed in the service of the crown, exemption of from toll, 121. rateability of, 204. STAGE-COACH : See Turnpike Tolls. Liable to toll payable for carts, &c. laden with goods, 17. when liable to a second turnpike toll in the same day, 171. STALLAGE AND PICKAGE : Definition and nature of, 85. are incident to the soil, id. owner of market entitled to, id. trespass lies for erecting stall without payment of, 86. assumpsit lies for, 88. amount which is payable, 86. 89. STATUTE DUTY : Waggons, &c. employed on, are exempt from turnpike toll, 163. SURVEYOR OF TURNPIKE ROAD : Exempt from toll, when, 163. to make places for waggons, &c. to turn to be weighed, 154. may order waggons, &c. to be weighed, id. TEWKESBURY : Burgage tenants at, not exempt from toll in market there, 93. "TIME OUT OF MIND:" See Prescription. TOLL : See Particular Titles. TOLL THOROUGH ; Definition of, 2. general nature and incidents of, d. cannot be prescribed for, 3. 8. for passing over a public street ; cannot be claimed without consideration, 3. consideration must move towards the person of whom the toll is claimed, 3. 6. 10. 16. must be co-extensive with the claim, 10. repairing some streets not sufficient for toll over the whole town, 8. 16. repairing market-house, bridge, &c. not sufficient, 12. 14. claimant must repair the street, &c. in which he claims the toll, 9. 16. 248 Index, TOLL THOROUGH — For passing over a public street : — continued. in what case it may be demanded without shewing a present considera- tion, 33. 37. for passing along the sea or navigable rivers ; navigable river is a highgway, 18. what constitutes such a river, id. cannot be demanded without consideration, 20. 22. 24. on stage-coaches carrying goods, 17. TOLL TRAVERSE : Definition of, 26. may be claimed by prescription, without consideration, 27. what is evidence of prescription, 28. when it may be demanded for passing over a highway, 33. 37. TRUSTEES : See Turnpike Tolls. TURNPIKE ACTS (GENERAL): Statutes now in force, 138. provisions of 3 Geo. 4. c. 126., and 4 Geo. 4. c. 95., extended to local acts, except, &c., id. do not take away or lessen any exemptions granted by local act, 160. do not authorize the taking toll for lime, 164. TURNPIKE TOLLS : (See Collector,— Lease of Turnpike Tolls,— Penalty.) General turnpike acts now in force, 138. provisions of 3 Geo. 4. c. 126., and 4 Geo. 4. c. 95., are exten led to all pre- sent and future local acts, except, &c., id. Letting ; Trustees may let the tolls, though not empowered to do so by their local acts, 140. notice of the time and place of letting to be given, id. to be put up at the clear sum produced in the preceding year, id. mode of receiving biddings, id. trustees may bid, 141. not to be let for more than three years at one time, id. may be let in one or more lots, id. if not let, trustees may accept a private tender for them, or appoint a col- lector, or fix a future day for letting them, id. trustees may hire tolls, &c. of adjoining trust in certain cases, 142. contract for, signed by trustees, or clerk, &c. valid, though not by deed, 141. if two or more persons be appointed clerks, all must join in executing contract, 142. rent need not be paid in advance, 143. contract for made void : on non-payment of rent, &c. id. on non-performance of conditions, id. justice may in such case remove lessee from toll-house, &c. and put trustees into possession, id. contract voidable in certain cases, 147 n. Index. 249 TURNPIKE TOLLS — cntinue^. Collecting ; Trustees may appoint collector, 141. 143. on death, neglect, Sec, of collector, any two trustees may appoint another until next meeting, 144. lessee may appoint collector, id. lessee's collector liable to same penalties, &c. as collector appoint- ed by trustees, id. table of tolls to be put up at all the toll-gates, id. trustees to provide tickets, to be given to all persons paying toll, id. tolls to be collected every day, — day to commence and end ai midnight, 145. two oxen considered as one horse, id. distress for toll, id. justice to settle disputes respecting, id. penalties for evading or attempting to evade payment, 146. 152. collectors to put up their names in front of toll-houses, 146. penalty for omitting to do so, id. for refusing to allow person to read name, J 47. for refusing to tell name, id. unnecessarily detaining or for abusing traveller, id. on collector for taking greater or less toll than he ought, id. trustees, collectors, &c. may examine wheels, &c., 147. 159. penalty for improperly claiming or taking the benefit of any exemption, 148. 152. for obstructing or assaulting collector, 148. Additional Tolls: for overweight ; table of weights allowed for single toll, 149. to what vehicles they do not extend, id. weights allowed in London and within the bills of mortality, 150. do not extend to vehicles carrying straw, corn, manure, iScc, id. scdile of additional toWs, 151. waggons, &c. conveying ordnance or other public stores, exempt from, id. exemption from toll does not extend to overweight, 152. only one penalty for overweight for same waggon and load on same day, id. penalty for unloading, &c.or doing any other act in order to evade, id. for fraudulently claiming or taking the benefit of exemption from, 148. 152. proof of exemption lies on the person claiming it, 152. trustees may erect engines for weighing waggons, &c. 153. waggons, &c. to be weighed, id. penalty on collector for not weighing, id. on driver for refusing to turn to have wagpjon weighed, 154. trustee, &c. may order waggon, &c. to return and be weighed, 153. surveyor to make places for waggon, &lc. to (urn, 154. S 250 J^f'dex. TURNPIKE TOLLS— Additional — for overweight— cojttmwed. trustees of roads within ten miles of London and Westminster may re- duce tolls for overweight, id. for wheels of less than certain breadths ; statute prohibiting the use of waggons with wheels of less breadth than three inches, repealed, id. waggons, &c. having wheels of less breadth than four inches and a-half, to pay one half more than the same description of vehicle with six-inch wheels, id. waggons, &c. with four inches and a-half but less than six inch wheels, to pay one fourth more toll than the same description of vehicle with six-inch wheels, 155. where the tolls directed by 13 Geo. 3. c. 84, to be taken for waggons, &c. with less than six-inch wheels, have not been taken pre- viously to Jan. 1, 1824, — and local act has provided no scale, — tolls to be payable according to the scale specified in p. 155. where local act does provide a scale adapted to the width of wheels, and the 13 Geo. 3. c. 84 has not been acted upon, — such scale to continue, 156. to what vehicles the provisions respecting the breadth of wheels do not apply, 156. trustees, &c. have power to measure and examine wheels, 147. 156. for carriages and horses affixed to waggons, &c., 156. for watering roads, id. double tolls, 157. Reducing and advancing; trustees may reduce and afterwards advance turnpike tolls, 158. notice of meeting for this purpose, id. no reduction to be made without the consent of a certain portion of the creditors on the tolls, id. must be made proportionably, 158. reduced or advanced at all the gates equally, id. trustees may order a less toll to be taken for waggons, &c. having wheels rolling on flat surface, nails countersunk, &c., 159. trustees, &c. may measure and examine wheels, 147. 156. 159. Exemptions from ; general rules respecting, 160. exemption from toll does not extend to additional toll for overweight, id. general turnpike acts do not take away any exemptions granted by local act, id. penalty for fraudulently claiming or taking the benefit of, 161. on collector for taking toll of person exempt, and who claims his exemption, 146. to be construed liberally, 161. 1. Horses, &c. attending or going to attend, &c. the King or Royal Family, 162. Index. 251 TURNPIKE TOLLS — Exemptions horn— continued. 2. Materials for roads, highways or bridges, 162. extends to waggons, &c. going empty to fetch, or returning empty, id. on waggon, &c. going empty, driver to pay the toll, which is to be repaid on returning so laden, id. 3. Horses, &c. employed on statute duty, 163. 4. Surveyor of road, id. 5. Manure, &c. (except lime) or implements of husbandry, 164. exemptions in favour of lime in local acts, to continue, id. 6. Agricultural produce, 165. 7. Horses, &c. employed in husbandry, or going to be shod, watered, &c. id. this extends to all cattle, at gates more than six miles from London, 166. 8. Persons going to or returning from church, chapel, &c. 167. does not extend to places of worship with five miles of London or Westminster, 168. 9. Persons attending funerals, id. 10. Rector, vicar, or curate, id. 11. Horses, &c. conveying vagrants or prisoners, id. 12. Mail coaches, &c. 169. 13. Horses of officers or soldiers on march, &c. or conveying baggage, &c. id. 14. Waggons, Sec. conveying King's stores, &c. id. 15. Yeomanry cavalry, &c. id. 16. Persons going to or returning from county elections, 170. 17. Horses, &c. only crossing the road, or not passing above 100 yards thereon, id. 18. Post-horses, &c. 171. post-horses having passed through gate, and the toll having been paid, may repass toll free on same day, or before nine on the fol- lowing day, id. decisions on similar clauses in local acts, 172, &c. general rule as to payment of a second toll, or otherwise, 172. 19. Horses (not drawing) paying, returning with a carriage, 180. Mortgaging ; trustees may borrow money on mortgage of the tolls, 181. form of mortgage, id. costs of mortgage, id. mortgage may be assigned, id. form of assignment, id. assignment to be produced to and entered by the clerk to trus- tees, id. mortgages, bonds, &c. to remain in force notwithstanding repeal or expira- tion of any act, 182. trustees may cancel mortgages and execute others, id. may renew lost or destroyed mortgages, 183. 252 - I/idex. TURNPIKE TOLLS —Mortgaging— cwiii/med. nioitgagees in possession, to account to trustees, 183. penalty for neglecting, id. trustees, instead of paying off creditors rateably, may do so by lot, 184. on purchase of lands, trustees may pay off existing mortgage upon them, id. mortgagee, keeping possession of tolls after he has received his mortgage- money, &c, to forfeit double sum and treble costs, id. ejectment may be maintained by one mortgagee, 185. but tolls consequentlj received, to be applied to the benefit of all, id. trustees not personally liable for mortgages, id. Compouvding ; Trustees may compound for tolls for one year, 186. Are not rateable, 198. USAGE : Evidence of, to explain ancient charters, &c. 95. 229. VARIATION : In amount of toll, 56. 62. VERDICT : See Evidence. VOYAGE : (See Liverpool Dock Company.') What is " the same voyage out and home," 135. WAGGONS : See Turnpike Tolls. WEIGHING ENGINES : See Turnpike Tolls. WEST INDIA DOCK COMPANY : Must deliver goods from their warehouses, either for land or water carriage, for statutable compensation, 130. not to bear extra expense occasioned by leaky state of vessel when she enters the docks, 135. WHARF : Custom in London as to mooring barges at, 126. W? HARE AGE : Definition of, 122. compared to stallage, 123. not due unless the goods are placed Kpon the wharf, 124. amount which may be taken ; general rule, 123. 130. by act of parliament, 123. 126. by prescription, 123. 128. WHEELS : See Turnpike Tolls. W^ITNESS : See Evidence. YEOMANRY CAVALRY, &c. : Exempt from turnpike toll, when, 169. rrilNTED BY STtWART AND CO., OLD BA1I,1:Y. 7, FLEET STREET, LONDON, Febiuary, 1852. Hab) ^(tofi^ PUBLISHED BY Messrs. BUTTERWORTH, LAW BOOKSELLEES AND PUBLISHERS, AND PUBLISHERS TO THE PUBLIC RECORD DEPARTMENT. M^'^ tm ml ^miin nf ^5iirliiimBtit.— iBrnnli d^Wtinn. 8vo., 21s. cloth. A PRACTICAL TREATISE on the LAW, PRIVILEGES, PROCEEDINGS and USAGE of PARLIAMENT. 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