Cro. Jac. 289, matters of fact were assigned for error in this Court upon a judgment in C. B. Cur. adv. vult.

PARKE, J. now delivered the judgment of the Court.

This was a writ of error from the judgment of the Court of Common Pleas in an action of trespass for forcible entry on the statute 8 Hen. 6, c. 9. The declaration contained three counts; one on the statute, and two for trespasses at common law. The defendants appeared in person and suffered judgment by default, and general damages were assessed on all the counts, for the treble amount of which, and treble costs, final judgment was given. The assignment of errors was as follows: "that the said Matthew appeared in the suit aforesaid in his own proper person, nevertheless the said Matthew at the time of his said appearance, and also at the time of giving the judgment aforesaid, was under the age of twenty-one years, to wit, of the age of seventeen years, and no more; in which case the said Matthew ought to *have been admitted to appear in the court afore*95] said to defend the aforesaid suit by his guardian, and not in his own proper person; therefore in that there is manifest error, wherefore they pray that the judgment aforesaid may be revoked, annulled, and altogether held for nothing, and that they may be restored to all things which they have lost by occasion of the judgment aforesaid," &c. To this the defendant in error pleaded in nullo est erratum.

An assignment of error in fact ought to conclude with an "hoc paratus est verificare;" and the case of King v. Gosper and Shire, Yelv. 58, (Walker v. Stokoe, Carth. 367; Sheepshanks v. Lucas, 1 Burr. 410,) is in point, that such an assignment of error as this, without a verification, is bad; and if there be no other error on the record, the judgment ought to be affirmed. But in this case the judgment is clearly erroneous, for general damages are assessed on all the counts, and it is, therefore, impossible to say what portion is to be ascribed to the first count, on which alone the damages and costs could by law be trebled; and yet judgment is given for the treble amount of the whole. The only question, then, is, whether it is competent for the plaintiff in error to avail himself of this objection; or, more properly, whether the Court is bound, ex efficio, to take notice of it, there being no assignment of error in law.

a.

The general rule is, that the Court, ex officio, must give the proper judgment according to the right appearing upon the whole record, Le Bret v. Papillon, 4 East, 502; Charnley v. Winstanley, 5 East, 271; Fraunces's case, 8 Coke, 93, *96] In a case cited in Dive v. Manningham, Plowden, 66, on not guilty by one found against him, and a plea in bar by another found for him, it is said, "inasmuch as it appears to the judges by the record, that the plaintiff had no title, they, ex officio, ought to give judgment against the plaintiff;" and afterwards it is said, "So always, if it appear to the Court that the plaintiff has no title, he shall not have judgment, although the defendant admits his title: and though the defendant by his bad conclusion has concluded himself of his advantage, the plaintiff shall be barred by the Court ex officio, if so be it appears he has no title."

And there is no difference, in this respect, between the office of a court of error, and of a court of original jurisdiction, 4 East, 502. Thus, in Bishop's case, 5 Coke, 376, the Court agreed, that where an original writ was removed by certiorari, and varied from the declaration, the judgment should be reversed, although that error was not assigned.

In Carleton v. Mortagh, 6 Mod. 208, Lord HOLT says that, "if a bad plea in bar be pleaded to a bad declaration, or to a bad assignment of error, it is idle; and the Court shall take no notice of the insufficiency of it, but shall judge on the record."

The result of these authorities is, that the Court ought to give judgment of reversal, if there be error in law; notwithstanding no error in law is assigned: and though it be true, that a plaintiff in crror will thus have the same advantage indirectly, as if error in fact and in law were both assigned (which cannot

be permitted directly); this does not appear to us to be valid objection. It is somewhat analogous to the case of a plea and demurrer *to the declaration, which cannot be joined; and yet a defendant after a plea, may, on demur[*97 rur to the plea, in arrest of judgment, or on a writ of error, take all the objections which are not cured by the plea or otherwise, and which he could have done on general demurrer to the declaration.

One question was raised on argument, whether a writ of error for a matter of fact would lie in this Court, on a judgment of the Common Pleas ? It is clear from the authorities that such a writ of error may be brought in the Court of Common Pleas, but there is no authority that it must. It will not lie in the Exchequer Chamber; not because that Court could not try an issue, but because the statute 27 Eliz. c. 8, under which it was constituted, was enacted to give a more speedy remedy for error which lay in parliament; but errors in fact were examinable in the King's Bench and not in parliament; and, therefore, the Court of Exchequer Chamber had no cognizance of such errors, Roe v. Sir John Moore, Comyns, 597. But that a writ of error for error in fact will lie in the King's Bench from the Common Pleas, the cases cited in argument show; for they were instances where such errors were assigned in this Court. The judgment of the Court below must, for these reasons, be reversed.

Judgment reversed.

BUSSEY v. STOREY. Nov. 5.

[*98

By an act of the 52 G. 3, entitled "An Act for more effectually repairing the road from Boroughbridge, in the County of York, to the City of Durham," it was in section 25 enacted, "That the respective tolls therein mentioned should, subject to the restrictions thereinafter contained, be demanded and taken at every toll-gate and turnpike which should be continued or erected by virtue of that act, from the persons using or attending any carriage, before any such carriage should be permitted to pass through the same."

By section 28, it was enacted, that no more tolls should be taken from any person for passing and repassing the same day, with the same horses or carriages, through any of the toll-gates or turnpikes erected by virtue of that act in the whole length of the said road from Boroughbridge to the city of Durham, nor upon the several parts thereinafter specified, than as thereinafter mentioned, viz., six tolls on the whole length, and on certain specified parts, two tolls each.

By section 37, it was enacted, that no toll should be demanded or taken for any carriage which could only cross the said road, and which should not pass more than 100 yards thereon.

By section 68, all persons, counties townships, &c., and bodies corporate, who, by reason of tenure or otherwise had been used to repair any part of the said road, should continue liable to such repairs:

Held, that the words said road in the exempting clause, by reference to the title of the act, and to the nearest description of the road, which was in section 28, imported the whole space between Boroughbridge and the city of Durham, and, therefore, that a cart which had passed more than 100 yards along the road, including a part repairable by the county as being at the end of a bridge, but which had gone less than 100 yards, exclusive of that part, was not exempt from toll: and that the liability of the county to repair that part did not render it unreasonable that such part should be included in the 100 yards for passing over which toll was demandable.

And quære whether, under this act, the road trustees might not be liable, in case of default by the county, to employ their money in repairing the 300 feet at the end of a bridge?

ASSUMPSIT for money had and received. Plea, general issue. At the trial before Bayley, B., at the Summer assizes for the county of Durham, 1830, the jury found a special verdict to the following effect:

By an act of parliament of the 18 G. 2, c. 8, entitled an Act for repairing the high Road leading from Boroughbridge in the County of York, through

North-allerton in the same County, to Croft Bridge on the River Tees, and from thence through Darlington, in the County of Durham, to the City of Durham, certain trustees were appointed for surveying, ordering, amending, and keeping in repair the said road, and likewise for putting in execution the powers by the said act given, and they were by the said act empowered to erect *turn*99] pikes in or across any part or parts of the said road, and also toll-houses upon the same, and to demand and take thereat the tolls in the said act specified, which tolls were vested in the trustees, to be applied to and for the amending and keeping in repair the road aforesaid in such manner as in the act is directed. This act was continued and enlarged (certain new tolls being granted to the said trustees) by an act, 22 G. 2, c. 32, entitled An act for enlarging the terms and powers granted by the act passed in the 18 G. 2 (the act above recited), and for making the same more effectual. By an act of the 32 G. 3, c. 118, for enlarging and altering the terms and powers of the two acts of parliament passed in the 18 & 22 G. 2, and for reducing the said acts into one, and for more effectually repairing and keeping in repair the said road, the several powers contained in the said two recited acts were, by the second section, consolidated, and further term granted for the purpose of widening, repairing, and keeping in repair the said road leading from Boroughbridge, &c., describing it as in the firstmentioned act. The 32 G. 3, was continued and amended by an act of the 41 G. 3, c. 4.

By a subsequent act, 52 G. 3, c. 38, entitled An act for more effectually repairing the rord from Boroughbridge, in the county of York, to the city of Durham, after reciting the last two acts by their titles (in which the road is described as before stated), and that the trustees had borrowed considerable sums upon the credit of the tolls to be taken on the said road, which remained unpaid, and that it was necessary to grant further tolls and a further term, and further, that it

would be convenient that all the requisite tolls, powers, and *provisions *100] in respect of the same road, should be consolidated in one act of parliament; the said two acts were repealed, and a new term and tolls granted. By the 37th section of this last act, amongst other exemptions from tolls, it was enacted, that no tolls should be paid for any horses, cattle, beasts or carriages, which should only cross the said road, and should not pass more than 100 yards thereon. The 68th section of this act is as follows:-" And be it further enacted, that all and every person and persons, counties, townships, parishes, hamlets, vills, and places, and the inhabitants thereof respectively, and bodies politic and corporate, who, before the making of the said recited acts or this act, have or hath used, or of right ought, by reason of the tenure of any lands, tenements, or hereditaments, or on any other account or accounts, to repair any part or parts of the said road, or any bridge, drain or watercourse in or upon the same, shall, notwithstanding this act, be subject and liable to such repairs, in the same manner as they and every of them have or hath heretofore usually been, or would have been in case the said recited acts or this act hath not been made." The 69th section provided for the statute duty. The 70th section is as follows:"That it shall be lawful for the said trustees, and they are hereby authorized and empowered, to compound or agree by the year or otherwise with any of the inhabitants or occupiers of lands, tenements, or hereditaments, of or in any of the parishes, townships, or places, in which the said road shall lie and be situate, for a certain sum of money in lieu of the whole or any part of their statute work; or to compound with the surveyor of the highways for any such parishes, town*101] ships or places, for the whole or any part of the statute work liable to be performed within the same respectively; all which composition moneys shall be from time to time paid in advance, and shall be applied in the repair of the said road. (a)

(a) Section 28, which was also much relied upon in the argument, will be found at p. 107, post.

On the 7th of June, 1830, the defendant was collector at Croft Bridge of the tolls authorized to be taken by the recited act of the 52 G. 3.; and on that day the plaintiff came upon the road in question with two laden carts, each drawn by one horse from a road leading from the depot of the Stockton and the Darlington Railway Company, within the distance of 100 yards from the foot of Croft Bridge on the Durham side, and passed over Croft Bridge and along 186 yards of the road beyond the foot of it on the Northallerton side, and then turned out of and finally quitted the road in question for one leading to Richmond. The plaintiff claimed to pass through the said gate with his carts and horses without payment of toll, by reason, as he alleged, of not passing 100 yards on the road maintained by the trustees of the said road. The defendant refused to allow him to pass through the toll gate, with the said carts and horses, until he had paid 10d., being the amount of toll appointed by the table of tolls at the said toll-gate to be taken, for two carts, each drawn by one horse and laden with coal, which sum the defendant demanded and received from the plaintiff. The trustees of the said turnpike road do not repair or contribute to the repair of the road over Croft Bridge, and 300 feet at each end thereof; but the inhabitants of the respective counties of York and Durham exclusively repair the same out of the county rates. The gate at Croft Bridge, and also a gate near to Topcliffe *Bridge, were erected and continued at those places for taking toll for the road, and they are built upon parts of the approach [*102 to the respetive county bridges there; which parts are severally repairable by the counties of York and Durham, and not by the trustees of the said road. No statute work is done by the inhabitants of the respective parishes, townships, or places of Harworth in the county of Durham and Croft, in the county of York, in respect of the said road over Croft Bridge, and 300 feet at each end thereof. The plaintiff with his carts and horses did not, on the said 7th day of June, pass over a greater extent than eighty six yards of the said turnpike road; unless the road over Croft Bridge, or the 300 feet at either end thereof, repairable by the respective counties of York and Durham as aforesaid, is to be taken as part of it.

TINDAL, C. J. and BAYLEY, B. sitting as the Court of Pleas of Durham, were of opinion (after argument), that the carts in question were liable to the toll, and gave judgment for the defendant. A writ of error having been brought, the case was argued in last Trinity term.(a)

Cresswell for the plaintiff in error. The carts mentioned in the special verdict were not liable to toll, inasmuch as they had not travelled along 100 yards of the road repaired by the trustees under the statute 52 G. 3, c. 38, by which the toll was imposed. The toll, being a charge upon the subject, must be imposed in clear and unambiguous words. If there be any doubt, the public must have the benefit of it, The Leeds and Liverpool Canal Company v. Hustler, 1 B. & C. 424. There, but for the act imposing the toll, the party would never have had the use of the canal. It was not, therefore, a burden in derogation of any pre-existing right Here it is, and therefore the rule of [*103 construction applies more strongly, for, with or without the toll, the plaintiff would have had the use of Croft Bridge. It cannot be supposed that the legis lature would have imposed this toll without giving some adequate consideration, and that consideration, is the repair of the road, and the statute itself only gives the toll where the road has been used for 100 yards and upwards. Besides, turnpike acts imposing tolls on those who use the road, are intended for the relief of parishes though which the road runs, and not of counties, and the act in question must be construed with reference to that object. The 32 G. 3, passed for amending the first two acts for repairing the road in question, enacts by section 38, that persons liable to repair any particular part of the road, or any bridge or bridges upon the road, shall continue so. The turnpike act, 13 G. 3, c. 84, s.

(a) Before Lord Tenterden, C. J., Littledale, Parke, and Taunton, Js.

:

34, provides that no person shall be liable to pay toll at any toll-gate across or on the side of any turnpike road, or be subject to any penalty for any carriage, horse, or beast, which shall only cross such road, and shall not pass above 100 yards theron, except over some bridge erected at a considerable expense by the trustees of such turnpike road. This clearly proves that the legislature did not consider that the use of any bridge not occasioning expense to the trustees would be a consideration for the payment of toll. And where a toll is claimed by prescription, in consideration of repairs done, it is clear that the repair of a road from A. to B. is no legal consideration for demanding a toll on a road from A. to C. the toll can only be taken for the use of the very road repaired. Why *104] should it be presumed that *the legislature meant to adopt a different rule here, and to make the use of a road along a bridge not repaired by the trustees a consideration for paying the toll to them? The presumption is against the present claim of toll, and the question, then, is whether the language of the statute it is so clear and precise that no doubt can be entertained as to the true construction? The point to be ascertained is the meaning of the expression said road in the exempting clause in the 52 G. 3. It is manifest, from an examination of the different provisions in that and the former statutes relating to the road, that "the said road" means the road to be repaired by the trustees with the tolls to be taken for the use of it. In a great many instances the expres sions "the said road," or "the road intended to be repaired," appear to be used in a manner that clearly excludes the bridge in question, and the 100 yards at each end which are not repairable by the trustees. Nor is it clear that those expressions do, in any one instance, include the bridge. Before any of the statutes in question were passed, the plaintiff might have passed, with his carts, along the road in question without payment of any toll. Then, the road being found so bad that it could not be repaired by the ordinary method provided by the common law, the legislature passed the first statute, 18 G. 2, c. 8, entitled An Act for repairing the Road from Boroughbridge, through Northallerton, to Croft Bridge, on the River Tees, and from thence through Darlington to Durham, and by that act, s. 1, the trustees are empowered to erect toll gates in or across any part of the said road, and to take the tolls therein mentioned, which are to be applied to the keeping in repair the said road. By section 10, the trustees are em*105] *powered to dig for gravel for repairing the roads aforesaid. This would give them no power to take gravel to repair the bridge. Neither would the power given to them to widen the road entitle them to widen the bridge. The statute duty to be done on the roads directed to be repaired is to be settled by justices at petty sessions. But no statute work is to be done on the bridge, or on the 100 yards at the end; that is, therefore no part of the said road. Again, lands liable to the repair of roads directed by the act to be repaired are to continue so, and the rents to be paid to the trustees or their collector. This would not authorize them to receive the rents of lands liable to the repair of Croft Bridge. The second statute, 22 G. 2, c. 32, is in terms similar to the former act, and throughout speaks of the said roads, and by one clause, persons travelling on the road intended by the former act and that act to be repaired, are subjected to a penalty for going over any person's ground to avoid the toll. That would not apply to a person travelling only along the road repaired and repairable by the county, and not by the trustees. By the stat. 32 G. 3, c. 118, the road to be repaired is described in the title and preamble, and by sect. 2, the powers of the former act are continued for repairing the said road, again describing it as before. The property in gates, lamps, &c., and in all dung and soil gathered off the said road, is vested in the trustees. That would not give to them lamps, gates, &c. upon, or soil gathered off the bridge or the approaches to it; and if so, the words "said road do not include the bridge or 100 yards. By s. 12, the tolls are to be taken for repairing the said road; by s. 21, the tolls are to be applied to the repair of the *said road; and there is aftorwards a power given to get materials for repairing the said road; that

*106]