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cannot include the bridge: and by s. 38, persons or counties liable to repair any part of the said road, or any bridge in the said road, are to remain liable as before; and where lands are liable to the repairs of the said road (omitting bridges,) the rents are to go to the person appointed by the trustees. There the word road clearly does not include bridge. By the statute 41 G. 3, c. 4, the former acts are recited and continued, and larger tolls given. The 52 G. 3, c. 38, recites the former acts, and that it would be convenient to continue all former provisions relating to the said road, and to consolidate them; and s. 21 gives power to erect or continue toll-houses and gates "in, or upon, or across the said road intended to be repaired." It may be said, that where individuals are liable to repair the road ratione tenure, the use of that part of the road for 100 yards would make a person liable to the toll. But that does not create any substantial difficulty. The person liable to repair ratione tenure, or a township liable by prescription, are only substituted for the parish upon which the common-law liability rests; and notwithstanding such special liability the trustees are authorized, and if so, compellable, to expend the tolls in those parts of the road as well as the parts repairable by parishes: consequently the use of those roads, inasmuch as they derive benefit from the tolls, is a consideration for the payment.

Alexander contrà. The plaintiff's carts were liable to toll, inasmuch as they travelled along 100 yards of the road leading from Boroughbridge to the city of Durham. There is nothing in any of the acts to *restrain the meaning of the exempting clause to the parts of the road repairable by the trus[*107 tees; and such a distinction would be very inconvenient, for many parts would be free from toll which are repairable by individuals ratione tenure: and in some parts one side of the road might be so repairable, and not the other. The question must mainly depend upon the construction put upon the statute 52 G. 3, c. 38, which repeals the former acts. Section 25, enacts, "that the respective tolls therein mentioned, subject to the restrictions thereinafter contained, shall be demanded and taken at each and every toll-gate and turnpike which shall be continued or erected by virtue of that act, from the person or persons using or attending any horse or carriage, before such horse or carriage shall be permitted to pass through the same." By this clause, the toll is imposed in plain, unequivocal language: and the question is, whether the carts mentioned in the special verdict, are exempted from the toll, to which they are otherwise clearly subject, by the enactment in section 37, that no toll shall be payable for any horses or carriages "which shall only cross the said road, and shall not pass more than 100 yards thereon." Now the said road, by reference to the title and preamble of the act, imports the whole line of road from Boroughbridge to the city of Durham; and by reference to section 28, which contains the nearest preceding description of the road, it has the same import. That section enacts, that no more toll shall be demanded for passing and repassing on the same day, with the same horses or carriages, through all or any of the toll-gates to be continued or 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 *thereof after specified, than as thereinafter mentioned, viz. upon the whole [*108 length of the said road, no more than six tolls; and upon other parts therein specified, (of which that between Northallerton and Darlington is one) no more than two tolls. The toll-gate, where the toll in question was taken, is recog nized by the 22 G. 2, c. 32, s. 6, as being in and upon the said road. It is there described as the gate built, and now standing in and upon the said road at Croft Bridge; and in the 32 G. 3, s. 38, county and riding bridges are spoken of as lying in and upon the said road; they are treated, therefore, as part of the road, that is, the road from Boroughbridge to Durham. Cur, adv. vult.

PARKE, J. now delivered the judgment of the Court. This question arises on a writ of error from the judgment of the two learned Judges (Lord Chief Justice Tindal and Mr. Baron Bayley) constituting the Court of Pleas at Dur

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.

*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. The obligation to maintain all public roads (with the exception of those which are to be repaired ratione tenure or clausura) 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

repairable by parishes, townships, or individuals; and the latter proceeds on an assumption which, as far as we are aware, is not founded [*111 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. Nov. 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 1417.; 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 present declaration is good on motion in arrest of judgment, whatever might have been the result on special demurrer. Rule refused. (a)

[*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. It was ob 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 market. The jury having found for the plaintiff,

[*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 justices 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.

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