TURNPIKE ACT. 1814. 17th May. PHILLIPS against HARPER. The exemption ABBOTT stated that this was an action for money in the gene ral turnpike had and received, to recover back tolls paid by (a) The statute (13 Geo. 3, c. 84, s. 34,) provides that no toll-gate shall be erected on the side of any turnpike road, unless ordered by the trustees at a meeting, after twenty-one days public notice, given in writing, affixed upon all the toll-gates erected on such roads, and also in some public newspaper circulated in that part of the country, specifying the place where such side-gate is proposed to be erected; and unless nine trustees at least (being a majority of those present) should sign the said order at such meeting; and that no person should be liable to pay toll at any toll-gate erected, or to be erected, across or on the side of any turnpike-road; or be subject to any penalty for any carriage, horse, or beast which should only cross such road, and not pass above one hundred yards thereon, except over some bridge, erected at a considerable expense by the trustees of such turnpike-road; any thing in this or any other statute notwithstanding. The provision in the new act, 3 Geo. 4, c. 126, s. 45. is, that no toll-gate shall thereafter be erected on the side of any turnpike-road, unless the same be ordered by the trustees or commissioners at a meeting, of which fourteen days public notice shall have been given in writing, affixed upon all the toll-gates erected on such road within ten miles of the place where such intended gate is to be erected, and within the trust for erecting the same; and also in some public newspaper circulated in that part of the country, specifying the place where such toll-gate is proposed to be erected; and unless five trustees or commissioners, at least, shall sign the said order at such meeting; and the exemption from toll is contained in the 32d section, which enacts, that no toll shall be demanded or taken by virtue of that or any other act of parliament, on any turnpike road, for any horses or carriages which shall only cross any turnpike-road, or shall not pass above one hundred yards thereon (the disjunctive being used instead of the copulative, and the exception as to passing over a bridge erected by the trustees being omitted). There appears to be some, though very slight distinction, between the case of Phillips v. Harper and that of Major v. Oxenham, 5 Taunt. 340, where the defendant passed through a gate, at which the tolls payable for carriages passing that road were collected, and continued upon the turnpike-road until he came to a lane turning off on the same side of the turnpike road on which he entered it (the lane leading to his the plaintiff. The defendant pleaded the general issue, and a verdict was found for the plaintiff, subject to a case, from which the following facts appeared:-The turnpike-gate, through which the plaintiff passed, was situate near a bridge. By the turnpike act, 13 Geo. 3, c. 84, no side-gate can be erected without leave of the trustees; and no toll is payable for only crossing the road, and not passing above one hundred yards thereon. The bridge was not a county bridge. The side-gate had been erected near the bridge within the last few years, and long after the passing of the act. It was more than one hundred yards from the bridge. By an inclosure act the new road was set out; and those who go the new road go only nine or ten yards along the turnpike road. But it was contended, that they were liable to toll, since they went along the road in a straight line, and not in a cross or oblique direction. LE BLANC J. Then the plaintiff contends that a party is not liable, unless he go one hundred yards upon the road? Abbott. Certainly. The road mentioned is a road set out under an Inclosure Act, and not a turnpike road. LORD ELLEN BOROUGH C. J. As soon as a person sets a foot upon a road, he has used a road; but here there is an exception, if a person uses a road in crossing, for one hundred yards. [DAMPIER J. The case states that he was passing along the road towards Abingdon. Abbott said that was another trust. ] These acts apply to the particular district to which lime-kiln); he did not pass along the turnpike road quite one hundred yards, and did not, as the case stated, cross the road. The Court however held the case within the exemption; and said, that the statute meant to exempt carriages making a very slight use of the road. 1814. PHILLIPS against HARPER, 1814. PHILLIPS against HARPER. they refer; and the tolls should be applied to the repairs of that district. Here the toll becomes payable within the district of the trustees. Abbott said the difference arose from the circumstance of the tolls being payable according to the quantity of road passed over; viz. one hundred yards. The first question is, what is meant by such road: the crossing is not the material part of the section. DAMPIER J. Crossing might raise a sine qua non : crossing and keeping on one hundred yards, are the words of the act. LORD ELLENBOROUGH C.J. The words are crossing the road. DAMPIER J. He must cross. LORD ELLENBOROUGH C. J. Crossing is the principal part which the legislature meant to privilege. BAYLEY J. It is substantially the same road, though under different trusts. LORD ELLEN BOROUGH C. J. This general act applies to all turnpike roads. The words " across," &c. are too strong for us to get over. LE BLANC J. Your argument would go the extent of shewing, that if a man had a house within one hundred yards of a turnpike-gate, he would never pay the toll. Gaselee, amicus curia, referred to a late case from Devonshire, reported in the last number of Taunton (Major v. Oxenham, 5 Taunt. 340). DAMPIER J. There they went out on the same side of the road. Nonsuit entered. UNDERTAKING. Ꮮ ANONYMOUS. 1815. 3d May. bail to bailable AWES V. shewed cause against a rule obtained A general undertaking by an by Ross, calling on Messrs. Wiltshire and Boulton, attorney to apattornies for the defendant, to put in bail pursuant to pear to process, does not oblige their undertaking, which had been given before the him to put in action was brought, "to appear to any process.” Bailable process had been sued out, indorsed for 1000l. Lawes contended, that under this undertaking the attornies were not to be called upon to put in bail. Ross, contra, contended, that as the debt was 1000l. and the defendants had refused to pay, the undertaking must be understood between the parties to apply to bailable process. PER CURIAM. The undertaking must be understood to apply simply to the appearance in the cause, and not to the putting in of special bail. It is the usual practice. It was only intended to save trouble, and to prevent the defendant's being personally served if it was common process. Rule discharged with costs. [There was no arrest, although Lawes contended there had been something equivalent to an arrest, which was a waiver of the undertaking. But the case was not decided on that ground.] (a) But an attorney's undertaking to put in special bail made to the plaintiff, may be enforced by attachment. Sedgworth v. Spuer, 4 East, 229. 1 T. R. 422. Tidd, 231. process (a). VENDOR AND PURCHASER. The vendor of a horse who rescinds the con tract, is liable to the purchaser for the keep of the horse during the time he kept it from the day of the contract. THIS KING against PRICE. HIS was an action for the keep of a horse. The defendant had sold a horse to the plaintiff, and afterwards rescinded the contract; and the question was as to the liability of the defendant for the keep of the horse, which had been delivered to the plaintiff at the time it was sold, and had been kept by him until the contract was rescinded. ABBOTT C. J. The defendant having rescinded the contract entered into by his wife, for the sale of the horse, at some distance of time after the contract was made, must nevertheless be taken to have rescinded it from the day it was entered into. The horse was kept by the plaintiff in the intermediate time, and it was received back by the defendant, improved in value by the keep which the plaintiff had bestowed upon it. We think, therefore, that the verdict, by which the defendant is rendered liable for the keep, is correct. Rule refused. |