ham, upon a special verdict. The question is, whether the plaintiff's carts, which passed through the turnpike at Croft Bridge, in that county, but did not pass more than 100 yards on the road, exclusive of the part at the end of the bridge which the county are bound to repair, were exempt from toll under the 52 G. 3, c. 38, s. 37, a local turnpike act. We are of opinion that they were not, and that the judgment of the Court below ought to be affirmed.

This act of parliament repeals those of the 32 G. 3, and 41 G. 3, the provisions of which, and of the older statutes relating to this road, are only so far material as they may aid in the construction of the enactments of the existing statute. In order to decide the point in question, we must look to the language of this act.

The

*Before I proceed to do this, it is to be observed, that it is a mistake *109] to suppose, as was urged in the argument on behalf of the plaintiff in error, that the object of this and other turnpike acts is to relieve parishes and townships from the burthen of repairing the highways. Their object is to improve the roads for the general benefit of the public, by imposing a pecuniary tax in addition to the means already provided by law for that purpose. obligation to maintain all public roads (with the exception of those which are to be repaired ratione tenure or clausuræ) is a public obligation, and in the nature of a public tax. The repairing by parishes or townships of some part, and by counties of other parts, are merely modes which the law has provided for discharging that obligation. It is their share of the public burthen, which those districts have to pay, and which is imposed for the general benefit of the community, and tolls are an additional tax for the same purpose.

But as this statute does impose a tax, the usual rule of construction must be applied to it which is adopted in similar cases, and the subject must not be charged unless the intention to charge clearly and distinctly appear.

Are, then, the words of this statute clear and distinct? It is entitled "An Act for more effectually repairing the Road from Boroughbridge, in the County of York, to the City of Durham;" and it enacts (section 25) that certain tolls shall be demanded and taken at each and every toll-gate and turnpike which shall be continued or erected by virtue of the act, from any person attending a carriage, before such carriage shall be permitted to pass; but it provides (section 37) that no toll shall be taken for any carriages which only cross *110] the said road, and shall not pass more than 100 yards thereon. The statute therefore, in clear words, imposes the tax on carriages which go through a turnpike gate, and pass more than 100 yards on the said road; and the term "the said road," in grammatical construction, refers either to the title of the act or to the nearest preceding description of the road (which is in section 28); and on either supposition, the road is the whole space between Boroughbridge and the city of Durham. And, besides, the act (section 68) contemplates that counties will have to repair some parts of the road; and what other parts can those be, than the space of 300 feet at the ends of the bridges?

Add to this, that the toll-gate in question, which is erected within that distance, is recognized as being on the road, by 22 G. 2, c. 32, s. 6, and no doubt its continuance is authorized by the twenty-first section of the present act, as a toll-gate "across the road thereby intended to be repaired."

The words, therefore, of the act are clear; and the construction should be according to those words, unless it can be shewn that such construction would be unreasonable, or inconsistent with the apparent intention of the framers of the act. It is said that it would be unreasonable, because toll is given as a compensation for the use of the road; and that the plaintiff had a right to use this part of the road before without paying toll, and gains nothing by the payment of the toll, because that toll could not be laid out in its improvement. But it is obvious that the first part of this objection applies equally to the parts of the road

[*111

repairable by parishes, townships, or individuals; and the latter proceeds* on an assumption which, as far as we are aware, is not founded upon any express provision in the act, that the trustees would violate their duty in laying out any portion of their funds upon this part of the road. It is true that they are not likely to be called upon to do so, because the county being in general provided with an ample fund, fulfils its obligations to repair completely and effectually; but if the reverse should happen to be the case, and the public exigency require it, we do not know that the trustees might not expend money in repairing this portion of the road.

And supposing it were otherwise, and that no part of their funds could be so laid out, it cannot be considered as unreasonable that a person who uses any part of a road, all of which is virtually repaired by the public, though in different modes, should pay something to the public in return.

It appears to us that there is nothing unreasonable in this construction; and there is certainly nothing inconsistent with the express or implied intention of the legislature, to be collected from other parts of the act. In our opinion no distinction can be made in respect of the obligation to pay toll, between the parts of the road which are repaired by parishes, townships, or individuals, and those which are repaired by the county; whatever the liabilities to repair may be, all are alike parts of the road.

The judgment of the Court below must therefore be affirmed.

Judgment affirmed.

*STORR and Another v. BOWLES. Nov. 5.

[*112

The act for uniformity of process, 2 W. 4, c. 39, s. 1, does not prevent the signing of a pluries bill of Middlesex in a suit commenced before the act came into operation.

S. HUGHES moved that the signer of Middlesex writs might be ordered by the Court to sign a pluries bill of Middlesex in the above cause, which that officer had declined to do, considering himself precluded from it by the act for uniformity of process, 2 W. 4, c. 39. In sect. 1, of the act (which came into operation the first day of this term), after reciting that the process for the commencement of personal actions in the superior Courts is inconvenient, it is enacted, "that the process in all such actions commenced in either of the said Courts," where it is not intended to hold to bail, shall be in the form after stated, namely, by writ of summons. But the writ of summons, by its form, applies only to the original commencement of an action, which in this case would have been too late to save the statute of limitations; the object of this application therefore was, that the plaintiff might have the benefit of the former process, which was sued out within the six years, and would be continued by the pluries bill of Middlesex.

PER CURIAM. We are of opinion that the clause applies only to actions commenced since the statute came into operation. It will probably be sufficient to give this intimation, for the guidance of the officer.

*STURCH v. CLARKE and Two Others. Νου. 5.

[*113

Plaintiff declared in case, that the defendants wrongfully and maliciously took his goods of the value of 700l. as a distress for 1411. alleged and pretended to be due, for a poor rate, whereby they levied an unreasonable and excessive distress for the said 141.; and it was proved that the defendants, overseers, having a regular distress warrant for the rate, distrained cattle, &c. of the plaintiff, to the value of more than 6007.:

Held, that the plaintiff was not bound to demand a copy of the warrant, pursuant to 24 G. 2, c. 44, s. 6, before commencing his action, as the overseers had not acted in obedience to the warrant, and no action would have lain against the justices.

Held further, that it was not a question to be left to the jury on these facts, whether or not the defendants acted maliciously.

And, on motion in arrest of judgment, held, that the declaration, though it did not expressly admit any poor rate to have been due (on which ground it was objected that the action ought to have been trespass), was sufficient, at least after verdict.

CASE for wrongfully and maliciously taking and distraining goods of the plaintiff, as a distress for 1417. for a poor rate alleged and pretended to have been duly assessed on him, and to be in arrear, such goods being of much greater value than 1417., to wit, 7007., whereby the defendants then and there took a great, unreasonable, and excessive distress for the said 1417., &c., and wrongfully and maliciously detained the same, to wit, for three days, and until the plaintiff was obliged to redeem the same by paying 1417. and costs; whereas one fourth part of the distress would have been sufficient to satisfy the said 1417. and charges, &c. Plea, the general issue. At the trial before Gaselee, J., at the Buckinghamshire Summer assizes, 1832, it appeared that the distress (consisting of sheep and rams, and a quantity of beans,) was taken under a warrant issued by two justices to the overseers of the parish of Haddenham, Bucks, reciting that the plaintiff had been assessed to the poor rate in the sum of 1417., and had refused payment, &c., and requiring them to make distress of the plaintiff's goods and chattels; and if the sum, with costs, &c., were not paid in five days, to sell the said goods and chattels, and retain the amount, rendering *114] the overplus to the plaintiff. The defendants, two of whom were the overseers, and the third an auctioneer employed by them, distrained goods which were valued by a witness for the plaintiff at 6427. The plaintiff obtained a verdict for 107.

Biggs Andrews now moved for a rule to shew cause why the judgment should not be arrested, or a new trial had, or (by leave reserved) why a nonsuit should not be entered. The objection in arrest of judgment was, that the declaration did not (according to the precedents in such cases) admit that something was due. If nothing was due, the action should have been in trespass. The ground for a new trial was, that the learned Judge did not leave it to the jury whether or not there was malice. Express malice need not be proved, but some evidence of it ought to appear. [PARKE, J. There was no need to shew malice if it appeared that a more than reasonable distress was taken. (See Field v. Mitchell, 6 Esp. 71.)] As to entering a nonsuit, the parties here acted in obedience to a warrant of justices, and the plaintiff never demanded a perusal and copy of the warrant, according to 24 G. 2, c. 44, s. 6.(a) No action, therefore, could be maintained. The law is the same even if the warrant was illegal. Price v. Messenger, 2 B. & P. 158.

PARKE, J. The object of the statute in making a demand of the warrant necessary is, that the justice may be joined as a defendant. But this is an *115] action for seizing goods more than reasonably sufficient for the *probable exigency of the distress-warrant; an excess for which the justices could not possibly have been made joint defendants. In such a case the act does not apply. Bell v. Oakley, 2 M. & S. 259, decides this, and it is apparent from the terms of the act. Milton v. Green, 5 East, 238, shews the distinction between cases in which the magistrate may be joined as a wrong-doer, and those in which the warrant is regular, but the officer has exceeded the authority given by it. Price v. Messenger, 2 B. & P. 158, and all the modern cases on the subject, shew that where demand of a copy of the warrant is held necessary, it is upon the ground that the officer acted in obedience to it. As to the first objection,

(a) Overseers distraining for poor's rate are within the statute, Harper v. Carr, 7 T.

R. 270.

the effect of the declaration is, that whether 1417. were due or not, more was taken by the defendants than was in fact due. I think it is sufficient, at least in this stage of the proceedings.

TAUNTON, J. I am of the same opinion. It seems to me that the term "excessive" implies that some poor rate was due. A copy of the warrant would have been of no use, where no proceeding could be taken against the justices. PATTESON, J. I am of the same opinion. In Branscomb v. Bridges, 1 B. & C. 145, where the plaintiff's goods were distrained for rent, the whole having been tendered, and there having been no subsequent demand and refusal, it was held that, if trespass would lie, still the plaintiff might waive the trespass and declare in case for an excessive distress. At all events, I think the sent declaration is good on motion in arrest of judgment, whatever might have been the result on special demurrer. Rule refused. (a)

pre

[*116

WRIGHT v. BRUISTER. Nov. 5.

A toll of one penny for every pig brought into a market is not necessarily unreasonable. ASSUMPSIT for tolls. Plea, the general issue. At the trial before Lord TENTERDEN, C. J., at the last assizes for the county of Hertford, the following appeared to be the facts of the case. The plaintiff claimed a toll of a penny for every pig brought into Bishop Stortford Market, by virtue of a lease granted by the Bishop of London, the lord of that manor. In support of the right, he gave evidence that a toll of a penny per pig, for every pig brought into the market, had been taken in Bishop Stortford for a long series of years. jected, that such a toll was unreasonable. Lord Tenterden reserved the point, and told the jury to find for the plaintiff, if they thought from the evidence that the toll in question had been usually paid by persons frequenting the mar ket. The jury having found for the plaintiff,

It was ob

[*117

Law now moved, according to the leave reserved, to enter a verdict for the defendant. Whether toll be reasonable or not, is a question of law, 2 Inst. 222. Here the plaintiff relied not upon a grant of toll, but on a prescriptive right to toll, to be inferred from the receipt of it for a long series of years. At the time of its presumed commencement (in the reign of Richard I.), one penny would have been a very unreasonable toll. In Heddey v. Welhouse, Moore, 474, it is said that, in the argument of the case, the justi ces held that the king might grant a toll with a new fair, if the toll were reasonable and not excessive; but one penny per beast they held unreasonable.

PARKE, J. I think there should be no rule in this case. The jury having found that this toll had been usually taken, it is the duty of the Court to support it, unless it be unreasonable; and the onus of shewing it to be unreasonable is on the defendant. He relies on the case of Heddey v. Welhouse, as reported in Moore, where it is said that the justices held, during the argument, that a penny per beast was an unreasonable toll. The case seems to be more correctly reported in Cro. Eliz. 558, and there it does not appear that the judges so decided. Popham, J., on the contrary, seems to have thought such a toll to be reasonable. He says, "The king may grant a fair, and that toll shall be paid, although it be a charge upon the subject; because his subjects, viz. the vendees, have benefit and ease by such fairs: but the king cannot appoint a burthensome toll; but it ought to be a petit sum, as a penny or twopence, which are the smallest coins, or of lesser; but not of any greater value to charge the

(a) As to demand of a copy of the warrant, see Kay v. Grover, 7 Bing. 312, and the

cases there cited.

subject." We do not know when the toll in this case commenced; and we *118] cannot say that a toll of a penny per pig, which has been taken for many years, is necessarily unreasonable and I think the defendant has failed in shewing that it is so.

TAUNTON, J. I cannot say that a toll of one penny per pig is, in point of law, unreasonable.

PATTESON, J. The jury having found that the toll has been paid for such a considerable period by persons frequenting the market, I think it is too much for us to say that, in point of law, it is unreasonable.

Rule refused.

HUTCHINSON v. W. LOWNDES, T. HALL, J. RADFORD, and S. BROAD. Nov. 5.

The 5 G. 4, c. 18, s. 2, reciting that, by some acts, penalties or sums of money are to be recovered before a justice, and he is authorized to issue his warrant for levying the same by distress, but no further remedy is provided in case no sufficient goods can be found, enacts, that whenever it shall appear to such justice that the party has not sufficient goods whereon to levy, it shall be lawful for such justice to issue forth his warrant for committing such offender to the common gaol for any term not exceeding three calendar months, unless the sum adjudged to be paid, and costs, shall be sooner paid: provided always, that the amount of such costs shall be specified in such warrant of commitment:

Held, that the warrant of commitment must be in writing; and that the detention of the party without such written warrant cannot be justified for any longer time than is necessary for making it out.

THIS was an action for assault and false imprisonment. Plea, not guilty. At the trial before Lord Lyndhurst, C. B., at the Chester Summer assizes 1832, the following facts appeared. The two first named defendants were. magistrates for the borough of Congleton, the defendant Radford was a constable, and Broad a gaoler of the same borough. On the 23d of May, 1831, one J. Cotterill, a labourer, obtained from the defendant, Hall, a summons *119] against the plaintiff, for wages on account* of work done by Cotterill for the plaintiff in Congleton; and in the evening of that day Cotterill and the plaintiff attended the defendants Lowndes and Hall; and Cotterill swore that the sum of 17. 4s. 6d. was due to him from the plaintiff, for wages which he had refused to pay. The defendant Lowndes then ordered the plaintiff, verbally, to pay Cotterill the 17. 4s. 6d., and 2s. 6d. for the costs of summons, &c.; but the plaintiff refused. He was then asked if he had any goods on which the sums might be levied, and he said he had not. And he was thereupon (without a previous warrant of distress being issued) committed verbally to the common gaol of the borough of Congleton, for one calendar month, unless the wages and costs were sooner paid, and was at once taken to the prison by the defendants, Broad and Radford, where he remained from the evening of the 23d to the morning of the 25th of May; he then paid the wages and costs, and was discharged. On the 31st of May, 1831, a copy of the warrant of commitment was demanded from the two constables, and such copy was delivered to the plaintiff's attorney on the 4th of June. The summons for payment of the wages and costs, and the warrant of commitment of the plaintiff in default of payment, were both dated the 23d of May, 1831, (the day when the complaint was heard,) but were reduced into writing, and signed by the defendant Lowndes, after the 31st of May. The warrant of commitment having been merely verbal at the time when the plaintiff was sent to gaol, an objection was taken, that the commitment was illegal; and the learned Judge, being of that opinion, directed the jury to find a verdict for the plaintiff, but reserved liberty to the defendant to move to enter a nonsuit.