hired for a year as a driver in a colliery, and the master covenanted to pay wages at the rate of 1s. 10d. for a good day's work, not exceeding fourteen hours, and 2d. a day more when that time was exceeded, *and the pauper *724] was to forfeit 2s. 6d. per day for lying idle, to be deducted out of his wages. It was contended, that that was an exceptive contract, because the master could not compel the pauper to work more than fourteen hours a day, and also because the pauper, on the payment of 2s. 6d. per day, was at liberty to absent himself. But the Court held, that the fourteen hours was only mentioned in the master's covenant to regulate the amount of the wages, and that the relation of master and servant continued during the whole twenty-four hours of every day, and consequently during the whole year; and that the clause as to forfeitures was intended not to give the servants a liberty to absent themselves, but merely to enforce regular attendance. The same observation applies to the clause of forfeiture in this case. In Rex v. Gateshead it was stipulated, that each man should, on each working day, do such a quantity of work as should be equal to a full day's work, and should not leave the pit until that quantity was completed, or, in default thereof, should forfeit 2s. 6d. There, as soon as each man completed his full day's work, he was at liberty to quit, and was no longer under the control of his master. According to the report of that case in 3 Dowling & Ryland, it was part of the contract of hiring, that the labourers were to work for the whole year, except ten days during the Christmas holidays, when they were not to work, nor to be liable to any penalties for not working. If that were a correct statement of the contract, there would be a clear exception of ten days. It appears, however, from the reasoning of the Judges there given, that the hiring was held to be exceptive, not because the pauper was not bound to work for his master during the ten days, but *725] because he was *not bound to work during the whole of every day, but during such part of the day only as might be required to complete a full day's work. The contract, as stated in 2 Barnewall & Cresswell, 117, was, that the master should find work for the men during the whole year, and forfeit 2s. 6d. for every day that he should oblige them to be idle, except at the Christmas holidays, which were not to exceed ten days. According to that statement, the stipulation, as to the ten days, would appear not to be an exception in the contract of hiring, intended to give a privilege to the servant, but to be a provision introduced for the benefit of the master; and, considering the reasons on which the judgment of the Court was founded, that must be taken as the correct report of the case. I think, therefore, this case falls within Rex v. Byker, and that a settlement was gained in the parish of St. Helens Auckland. The order of sessions must be confirmed.

LITTLEDALE, J. If the cases referred to had never been decided, I should not have had the slightest doubt on this case. By the agreement of the 4th of February 1815, the pauper agreed to hew, pit, and work coal till the 4th of February 1816, and to work constantly at the colliery or to forfeit 1s. for each and every day he should absent himself or not work a reasonable day's work. Now, the latter stipulation bound the pauper to pay 1s. per day, if he did not perform his part of the contract. There was a contract to work for a whole year and every day in the year, and the master had a right to call on the pitmen so to work. The mere agreement to pay 1s. per day as a forfeiture does not make the contract exceptive, because neither party can be supposed to have contemplated, *at the time when the contract was entered into, that there should be an absence or neglect to work.

*726]

PARKE, J. I felt some little difficulty, at first, in distinguishing this case from Rex v. Gateshead, 2 B. & C. 117, note, but I think it falls within Rex v. Byker, 2 B. & C. 114. In the first of those cases there was a stipulation that each man should, on each working day, do a full day's work, and that he should not leave the pit until that quantity of work was completed, and that, on default thereof, he should forfeit 2s. 6d. It was therefore stipulated by implication,

that the men were not to be under the control of the master on days which were not working days, nor on any day as soon as a full day's work was completed. Order of sessions confirmed. (a)

ROWE v. SHILSON and Another.

An embankment company was by an act of parliament (not limited in duration) empowered to make a road, and to erect turnpikes upon or across "any lanes or ways leading or that might thereafter lead out of the same;" and to take tolls at such turnpikes. By subsequent acts, another company was empowered to make a railway, and it was enacted, that all persons should have free liberty to use the same, with carriages properly constructed, upon payment only of such rates and tolls as should be demanded by the railway company, not exceeding the sums mentioned in that act. The railway was afterwards made, and it crossed the embankment company's road: Held, first, that the railway, though made and opened to the public by act of parliament, was a "way" within the meaning of the first mentioned act. Secondly, that the clause in favour of the public in the railway act, did not take away the vested right of the embankment company to their tolls; and, consequently, that they might take toll of persons crossing their road upon the railway.

INDEBITATUS assumpsit for tolls.

4

At the trial before Parke, J., at the spring assizes for the county of Devon, 1832, a verdict was found for the plaintiff, subject to the opinion of this Court upon the following case:

*By act of parliament 42 G. 3, c. 32, certain persons were incor[*727 porated by the name and style of "The Company of Proprietors for embanking Part of the Lairy near Plymouth;" (see Lowe v. Govett, 3 B. & Ad. 863,) and the embankment was accordingly made by the company. By an act 43 G. 3, c. xv., the company were empowered to make and maintain a road from Efford Quay in the said county to the borough of Plymouth; and it was also enacted as follows:-"That it shall and may be lawful to and for the said company to erect or cause to be erected such and so many turnpikes to receive the tolls hereby granted upon or across the said road, and on or near the sides thereof, or in, near, upon, or across any lanes or ways leading or that may hereafter lead out of the same, as they shall think proper." And that in consideration of the great expenses the said company must incur by making, maintaining, and supporting the said road, it was enacted "that it should be lawful for the said company to demand and take or cause to be demanded and taken at the said turnpikes, amongst other tolls therein mentioned, for every wagon," &c. And that the company might let the tolls to farm. The road was soon after made pursuant to the act.

By an act, 59 G. 3, c. cxv., for making and maintaining a railway or tramroad from Crabtree, in the parish of Egg Buckland, in the said county, to communicate with the prison of war on the forest of Dartmoor, in the said county, reciting that such railway would be of material benefit and convenience to the neighbourhood and the country at large, a company was incorporated for making, completing, and maintaining the same, *under the name of "The Ply[*728 mouth and Dartmoor Railway Company," and was invested with certain powers for that purpose. The act provided, among other things, that when the said railway should cross any turnpike-road or public highway, the ledge or flank of such railway, for the purpose of guiding the wheels of the carriages, should not exceed one inch in height above the level of such road: and it is thereby further enacted, in consideration of the great charge and expense which the said company must incur and sustain in making and maintaining the said railway and other the works thereby authorized to be made and maintained; that it shall and may be lawful for the same company, from time to time, and at

(a) See R. v. Ossett cum Gawthorpe, ante, 216.

all times thereafter, to ask, demand, take, recover, and receive, for the use of the same company, for the tonnage of all goods, wares, merchandizes, and other things which shall be carried or conveyed upon the said railway, or upon any part thereof, certain rates and duties therein mentioned: And it is thereby further enacted that all persons shall have free liberty to pass upon and use the said railway, with carts, wagons, or other carriages, properly constructed, as thereinafter mentioned, and to employ the said company's wharfs and quays for loading and unloading such goods and other things, upon payment only of such rates and tolls as shall be demanded by the same company, not exceeding the respective sums therein mentioned, subject to the rules and regulations which shall, from time to time, be made by the said company, by virtue of the powers therein granted. The railway was completed by the company at a great expense, the time being somewhat varied afterwards by an act of 2 G. 4, which it is unnecessary to notice further.

*By an act, 1 G. 4, c. liv., reciting that a branch railway, to join the *7291 Plymouth and Dartmoor railway, and to communicate with certain places there mentioned, would be of public utility, the Railway Company were empowered to make, complete, and maintain such branch railway, and to execute and perform all such works, matters, and things as should be requisite and convenient for that purpose. And it was enacted, that the said statute of 59 G. 3, and the several powers, authorities, directions, restrictions, provisions, rates, duties, and other matters and things therein contained, should be used and exercised by the said Railway Company, and be applied, enforced, and put in execution for making, completing, preserving, and maintaining the said branch railway, and also for making, erecting, doing, and performing all such other works, matters, and things as they should think necessary or expedient for the benefit of such railway, and for defraying the expenses thereof; and should and might also be used and exercised by the owners and proprietors of lands lying near or adjoining to the said branch railway, in such and the like manner, and as fully and effectually, as if the several powers, authorities, restrictions, provisions, rates of tonnage, and other matters and things contained in the same act, had been repeated and re-enacted in the body of that present act, and as if the branch railway and other works, by the same act authorized to be made, completed, and maintained, had been described in the said act passed in the fifty-ninth year aforesaid, as part of the works to be made and done by virtue

of that act.

The branch railway was made accordingly, and it crossed the Embankment Company's road in two places; at one of which, on the side of their turnpike *730] road, the company erected a toll-bar. The toll, fixed by the act 43 G. 3, c. xv., was demanded on behalf of the company's lessee (the plaintiff in this cause), from a servant of the defendant, who passed with a wagon on the railway across the Embankment Company's road, and through the turnpikegate. He had paid the regular tolls for passing along the railway. If the Court were of opinion that the plaintiff was entitled to recover, a verdict was to be entered for him for such sum as they should think proper; otherwise a nonsuit. This case was now argued by

R. Bayly for the plaintiff; who relied upon the words of the act 43 G. 3, c. xv. (empowering the Embankment Company to make the road and receive tolls), and contended that the branch railway in question was a way leading into and out of the Embankment Company's road, within the meaning of that act, and across which they were authorized to place bars for the receipt of toll; that there was nothing in the acts for making the principal and the branch railway to supersede this right of the company; and that there could be no argument, on the ground of hardship, against the right of taking toll for merely crossing a road, since the general exemption in this case only existed by an express provision in the Turnpike Act, 3 G. 4, c. 126, s. 32, and that, by 4 G. 4, 95, s. 90, did not extend to roads maintained under acts of parlia

ment passed for an unlimited period, which was the case with the Embankment road.

Butt, contrà. A railway like this is a public highway. Rex v. The Seven and Wye Railway Company, 2 B. & A. 646; and the acts establishing it have given the public a right to pass along it, "upon payment [*731

only of such rates and tolls as shall be demanded by the Railway Company, not exceeding the sums mentioned" in the act 59 G. 3, c. cxv. That right, according to the settled rules on such subjects, cannot be fettered with a new pecuniary imposition, unless by clear and unequivocal words of an act of parliament. Now, by the act just referred to, the only tolls to be paid on the railway are those demandable by the Railway Company. It is true, that at that time the branch was not formed; but, by 1 G. 4, c. liv., all the provisions of the former act are made applicable to the branch road, as if that road had been therein des cribed; and beyond this there is nothing in the act of 1 G. 4, to impose any charge on the public in respect of the branch road. Besides, the words (43 G. 3, c. xv.) enacting that the Embankment Company may erect turnpikes on their road "in, near, upon, or across any lanes or ways leading, or that may hereafter lead, out of the same, as they shall think proper," does not, by the terms used, apply to public highways, established by act of parliament.

DENMAN, C. J. There is no doubt that parties who seek to burden the public with an imposition of this kind must establish a clear title to do so. The authority here relied upon is in the words of 43 G. 3, c. xv., enacting, that it shall be lawful for the Embankment Company to erect turnpikes for receipt of tolls, upon or across the road to be made by them, and on or near the sides thereof, or in, near, upon, or across any lanes or ways leading, or that may thereafter lead, out of the same, as they shall think proper; and to demand and take at such turnpikes the tolls mentioned in the act. I think *this, if nothing followed, would give a clear right of taking toll for passage [*732 upon roads crossing the Embankment Company's road. It is said, indeed, that the clause does not apply to roads made by public authority; but there is nothing in the words themselves to support such a distinction; and although the road in question is made by public authority, it is for the advantage of the company who obtain the act. Then, does the statute 59 G. 3, c. cxv. make any alteration in the case? That only enacts, that all persons shall have liberty to use the railway with carriages properly constructed, upon payment only of such rates and tolls as shall be demanded by the Railway Company, not exceeding the sums mentioned in the act. That appears to me not to take away the former right of the embankment company, but only to prescribe what amount of toll shall be taken by the proprietors of the railway. If it had been intended by the statute to do what would certainly be a violent act, namely, to deprive the Embankment Company of tolls which they before enjoyed in the manner here suggested, that purpose would, I think, have been more clearly expressed.

LITTLEDALE, J. I think the clause imposing the tolls in 43 G. 3, c. XV., extends to all roads, whether made by private individuals or by authority of parliament. If it was meant that any kind of road to be thereafter made should be exempted from the tolls granted to the Embankment Company, that should have been done by express words. I am also of opinion, that those tolls are not taken away by the subsequent act, which gives liberty to all persons, with carriages of a certain description, to use the railway, on payment only of the tolls *there mentioned. The object of that enactment is only to point out [*733 what persons shall use the railway, and what they shall pay the Railway company for so doing. It is true that, if plaintiff's claim is well founded, they cannot cross the Embankment Company's road without paying other tolls; but we cannot, on that account, say that the Railway Act takes away the tolls before granted to the Embankment Company.

PARKE, J. I am of the same opinion, though I have entertained some doubts. I agree in what has been urged, that the Embankment Company, as

a private body, could not acquire the rights in question against the public unless the legislature expressly gave them. The clause which has been relied upon by the plaintiff in 43 G. 3, c. xv. does clearly give such rights; the only question is, how far they operate upon roads afterwards made. There is no doubt that if the Railway Company had by contract, without the intervention of parlia ment, acquired the power of making their road to lead into the embankment road, that would have been a way within the express meaning of the clause in question. But it is necessary to go a step further. A railway leading into that road is made by an act of parliament, which confers certain rights upon the public and the question then is, as to the effect of the former act upon such new public way. Upon this point I had some doubt; but I am of opinion that unless the subsequent act expressly takes away the vested right which the Embankment Company had in the tolls before granted, the public are not entitled to cross their road without paying toll. Then, what is there to give the public that right? The liberties they are to enjoy in respect of the principal *734] *railway are stated in the act 59 G. 3, c. cxv.; and although that clause is not expressly re-enacted, as to the branch road, in 1 G. 4, c. liv., yet this latter statute provides that the several powers, authorities, directions, restrictions, provisions, rates, duties and other matters and things, contained in the first Railway Act shall be used and exercised by the Railway Company, and shall be applied, enforced, and put in execution, for making, completing, preserving and maintaining the branch railway, and for doing what shall be necessary for the benefit and for defraying the expenses thereof, as if the several powers and authorities, rates and other matters, contained in the former act, had been re-enacted in this, or as if the branch railway had been described in that act. The latter act, therefore, incorporates and explains the clause in question in 59 G. 3, c. cxv. I think that clause was merely a bargain between the Railway Company and the public, that the public should use the railway upon certain terms, but not subject to any greater tolls than were stated in the act. The company were to be prevented from enhancing the duties above the original rate. But this does not enable persons to cross the road of another company without paying the rates before claimable by them; and unless the act did take away the vested right of that company, the public would not be entitled to resist the present demand. On the whole, therefore, I agree that the plaintiff ought

to recover.

*735]

Postea to the plaintiff.

*OGLE v. STORY, Gent., One, &c. April 29.

A. purchased premises which were mortgaged to B. with a proviso for re-conveyance, at the costs of the mortgagor, on payment of principal and interest. A. sold the premises, and was to pay off the mortgage on the completion of the purchase; but B.'s attorney, who held the title-deeds, would not deliver them to A. till his own bill was also paid. The bill contained some items fairly chargeable on the occasion as costs due from the mortgagor, and others which were properly payable by the mortgagee: Held, that the attorney might enforce his lien on the deeds against A. to the whole extent of the bill; and that A. having been obliged to pay it for the purpose of re-leasing the deeds, could not recover back from the attorney the amount unduly charged.

ASSUMPSIT for money had and received, &c. At the trial before Lord Tenterden, C. J., at the sittings in London after Trinity term 1832, the facts of the case appeared to be as follows:-The plaintiff had purchased an estate upon which one Fullwood held a mortgage, with a proviso for re-conveyance to the mortgagor, his assigns, &c., at the costs and expenses of the mortgagor, on payment of principal and interest. The plaintiff afterwards contracted to sell the estate, clear of the mortgage, to a Mr. Pemberton, and a day was appointed for completing the purchase. The plaintiff sent a release of the mortgage to the de VOL. XXIV.-21