1818. LEWIS against MORLAND. ABBOTT, J. If it were necessary to decide whether a bail bond taken by the sheriff in such a case as this were a valid instrument, I should have wished for further time to consider that question. But it is unnecessary in this case to pronounce any judgment upon that point; for supposing the sheriff to be guilty of a breach of duty, in letting the party out of custody, it does not thence follow that an action may be maintained against him for such neglect of duty. If it were altogether a case of criminal process, the sheriff would not be liable to an action; and even supposing that the person to whom the money was payable could maintain such action, it would be an answer thereto either to prove payment, or to shew that the sheriff had the defendant in custody at the return of the writ. It has been said, that an attachment is in the nature of process of execution; there is however this material difference, that upon a ca. sa. the defendant, upon being brought into court, is committed immediately, whereas in this case the Court are not bound to commit, but may and generally do admit the party to bail; he is then to answer interrogatories, and it depends upon his answers, whether he can purge himself of the contempt, and whether he is ultimately committed or not. This constitutes an essential difference between this species of process, and that of process in execution. It has been urged, that in favour of insolvent debtors, an attachment is considered as in the nature of execution, and therefore that it ought to be so considered in this case, But that act being passed to relieve persons in custody for debt, receives, in favour of liberty, a very large and liberal construction; and those cases, therefore, bear no analogy to the present. Upon the whole, I am of opinion, that this is not in the nature of process in execution; and even supposing an action might in some cases lie against the sheriff for the escape of a person upon an attachment, that it would not in this instance, as the sheriff had the party in custody at the return of the writ. HOLROYD J. I am of the same opinion. In form the attachment is a criminal process, for it commands the sheriff to attach the party for certain trespasses and contempts; and if it be considered as a criminal proceeding only, it is perfectly clear that the plaintiff could not have any ground of action. Inasmuch, however, as the non-payment of money creates a civil right, the attachment which issues to enforce such right, is considered as in the nature of civil process. Now, process is of two sorts, mesne process and final process. The object of mesne process is, to compel the appearance of the party in court, to answer the charge made against him; the object of final process, is to satisfy the plaintiff in the suit. The attachment in this case issues in pursuance of the master's certifi cate, and is an order, not to keep the party in custody, but only to attach him, so that the sheriff may have his body to answer. It is not absolutely to punish the party for the contempt, nor at all events even to enforce payment, but only to compel the party to answer, that further inquiry may be had. This is therefore clearly in the nature of mesne process, and is not analogous to a ca. sa. where a party is brought into court to satisfy his debtor, and that being so, it is perfectly clear that the sheriff having had the party in custody at the return of the writ, is not liable to an action for an escape. Judgment for the Defendant. 1818. LEWIS against MORLAND. 1818, Friday, A canal act directed, that no boat navigating therein, which should not be capable of car HOLLINSHEAD and Another against The Company of Proprietors of the LEEDS and LIVERPOOL CANAL. (a) AS sums of SSUMPSIT to recover back certain money demanded and taken by the defendants, as and for the tonnage rates on certain boats of the rying a greater plaintiffs, for passing through certain locks on their navigation. The cause was tried at the Lent Assizes, 1817, at Lancaster, before Bayley J., when the jury found a verdict for the plaintiffs, subject to the opinion of this Court on the following case. burden than twenty tons, or which should not have a loading of twenty tons on board, should be allowed to pass through the locks, unless on payment of ton nage equal to a boat of twenty tons: Held that this was not confined to boats carrying some loading, but that empty boats came within the meaning of the clause, and that for them toll was payable as on boats having a loading of twenty tons. Held also, that the act having imposed different rates of toll on different goods carried The tonnage in question was claimed for the passage of the boats of the plaintiffs, over certain parts of the Leeds and Liverpool Canal and Douglas Navigation, the rates of which tonnage were fixed and ascertained by the statutes 6 G. 1. c. 10, 10 G. 3. c. 114, 23 G. 3. c. 47, 30 G. 3. c. 65, and 34 G. 3. c. 94. On the 6th January, 1817, the plaintiffs, being proprietors or lessees of certain coal mines, situate at Orrell, in the county of Lancaster, about three miles to the west of Wigan, and near to the Douglas Navigation, shipped from the mines on the navigation, 38 tons of coal on board their own boat, No. 22. The boat proceeded therewith on the Douglas navigation, and through certain locks thereon to Newborough, and from thence on the Leeds along the canal, the tonnage on an empty boat was to be calculated at the lowest rate applicable to any species of goods. (a) This case was argued at Serjeants' Inn. and and Liverpool Canal to Liverpool, (in which part of the canal there are no locks, the same being upon one and the same level,) where the appropriate tonnage rates on the 38 tons of coal, for such passage on the said navigation and canal, were paid by the plaintiffs to the defendants. The boat was usually employed in carrying and conveying coals from Orrell to Liverpool, upon the said canal and navigation; it was also capable of carrying a greater burthen than twenty tons, and did exceed fourteen feet in width. The boat wholly discharged the coals at Liverpool and returned empty, (except that there was a person on board to navigate such boat, and the necessary food and apparel and bedding for such person) from Liverpool, along the Leeds and Liverpool canal to Newborough, and from thence along the Douglas Navigation, towards Orrell, for the purpose of being again employed in carrying coals to Liverpool, upon the navigation and canal. When the boat arrived at the first lock upon the Douglas Navigation, called Apley Lock, the company refused to permit the boat to pass such lock, unless the sum of 31. 15s. was paid to them, being the amount of tonnage on the twenty tons of coal navigated upon the canal and navigation from Liverpool to Orrell. The plaintiffs not being able, by reason of the refusal, to pass the lock without paying the said sum of 37. 15s. claimed by the defendants, did, in order to pass such lock, pay the defendants the sum of 31. 15s., under protest and with notice that an action would be brought against them to recover it back. No question however was made as to the correctness of the amount of the sum claimed by the defendants, but it was agreed between the parties, that if the Court should be of opinion that any tonF 2 nage 1818. HOLLINSHEAD nage was due under the circumstances, the verdict should be entered for the defendants. The following was the clause on which the claim "And of the defendants was founded, 23 G. 3. c. 47: be it further enacted, that no boat or other vessel, navigating upon the said intended canal from Leeds to Liverpool, on the river Douglas, alias Asland, or upon any of the cuts or canals made or which shall be made by virtue of or under the authority of the said first recited act, or for opening a communication by water between the said river Ribble and the said town of Wigan, or any of them, which shall not be capable of carrying a greater burthen than twenty tons, or which shall not have a loading of twenty tons, shall be allowed to pass through any of the locks already made, or which shall hereafter be made upon the said navigation, or any of them, without the consent of the said company of proprietors, or their principal agent for the time being in writing first had and obtained, or unless the owner or navigator of such boat or vessel, shall pay tonnage equal to a boat or vessel of twenty tons." The following clause was contained in a former act, 10 G. 3. c. 114, relating to this canal, and had been repealed: "And be it further enacted, that no boat or other vessel of less burthen than twenty tons, shall pass through any of the locks to be made by virtue of this act, without the consent of the said company of proprietors or their principal agent for the time being in writing first had and obtained, or unless the owner or navigator of such boat or vessel shall pay tonnage equal to a boat or vessel of twenty tons." The 23 G. 3. also contained a clause, giving to the owners of lands adjacent to the canal, the right of passing the |