where the plaintiffs, the Lords of the Manor, sought to exact a toll for the passage over a public river which flowed through their manor. They declared, that the town of Nottingham was an ancient town, and the Manor of Nottingham an ancient manor, being immemorially parcel of the County of Nottingham. That the River Trent was an ancient navigable river, and that the Mayor and Burgesses of Nottingham had always taken a toll from every boat laden with goods navigated on that river through the manor. They also declared for a toll for passing through a bridge. The jury found a special verdict, affirming for the most part the matters in the declaration. There were three objections to the plaintiffs' claim; but as the second was the principal, and that on which the defendant prevailed, namely, because the prescription was a void prescription, we will confine ourselves to that only. The Court considered the river in the light of a public highway, and said, that as both reason and authority militated against any claim of toll for passing along a public road, the same rule must apply to an ancient navigable river. The Court observed upon the distinction between a public and a private right, the latter might be presumed to have a reasonable commencement; but let that test be applied to the general privilege, and it will be found that it must begin by agreement. Then who could agree for the subjects of England? They could not consent to part with their rights, nor could they be deprived of their rights, any otherwise than by act of Parliament, in which the consent of every one is implied. This was not a toll traverse, for toll was demanded for nothing else but navigating on the River Trent, and it therefore became necessary to shew a particular consideration. The Judges were very clearly of opinion that the prescription could not be supported. (s) Neverthless, the Court in this last case made use of some expressions recognising the qualification of the rule above-mentioned. For they said, that coming into a port, or landing on the plaintiff's manor or quay, or coming to a wharf, would be particular benefits, and thus would distinguish the case from toll-thorough.(t) And thus it follows, that there are two cases in which a toll may be had upon a public river; first, where a sufficient consideration appears, and, secondly, where the *nature of the benefit [*303] is such, as to imply a consideration. As to the first, an action was brought by the Mayor and Burgesses of Gloucester, for toll in respect of every boat passing by the river, and the claim was allowed.(u) It must be presumed, that some sufficient consideration appeared.

Quo warranto was brought against the Corporation of Boston for demanding toll-thorough. They justified the demand by reason of a consideration for repairing a bridge and pavement, and also a sea-bank; and the Court held upon this, that although toll-thorough could not be claimed as such, without more, yet as here it was founded upon a consideration, it should be deemed good. (v) On the other hand, case was brought

(s) Willes, 111, The Mayor, &c. of the Town of Nottingham v. Lambert. (u) 21 H. 7, 16.

(t) Id. 116.

(v) Sir William Jones, 162, Roy v. The Corporation of Boston. See Cro. El. 711, by Popham, C. J.

against a defendant for carrying his barley over a certain bridge without paying toll. The claim was for toll-traverse, and no consideration was shewn. It was urged for the defendant, that no action lay in this case without shewing title and consideration; but the Court observed, that the consideration would appear upon the evidence, and that the declaration need not contain such title, &c. (w) This last case, indeed, was said to be founded upon a private right of toll-traverse, and it is desirable to attend to the distinction, that strickly speaking, toll-thorough is for passing highways, bridges, ferries, &c., which are public; but toll-traverse for such a passage over private ways.(x) And yet, although a port may be created by the exertions of individuals, toll-thorough may be demanded in respect of it, as we have seen. Toll-thorough, and toll-traverse, are said to have been used promiscuously in our books; (y) and, if so, any difficulty which may arise, in consequence of an apparent confusion of the public and private right, will be obviated. For example, in the case just now quoted from Levinz, where the claim was of toll for passing over the Bridge of Ware, if it were a public bridge, (as it was most probable), toll-thorough in strict language, and not toll-traverse, was the right toll demanded, because of the public place. And although a consideration would be implied from evidence of the repair of such bridge, yet the liability, by implication, applies equally to the one and the other toll, as we have proved in the case of the port.

Secondly, a toll may be exacted both upon the sea, and also upon rivers, under the sanction of acts of the Legislature.

*It will not be attempted here to set out the different statutes [*304] which impose tolls or dues of various kinds. The principle on which, however, they seem to be founded, is, that ships shall have an equivalent, or advantage, before they can be legally subjected to duties. And so, in the case of Ramsgate Harbour, where a vessel passing on the north-east side of Godwin Sands, and not through the Downs, had the duty imposed upon her; it was held, on action brought, that there was no pretence for the charges, because the ship had received no benefit from the harbour.(z) This last case was cited with success upon a subsequent occasion, where the same point was discussed; and De Grey, C. J., said, that the question was, whether the ship had come into such a situation as for it to be in a probable capacity of receiving aid from the harbour of Ramsgate; but the other Judges, although they agreed as to the points in the case, thought that the rule laid down by the Chief Justice was too general. (a) So again, it is well known, that the beaconage and lighthouse duties demanded by the Corporation of the Trinity House are authorized by Parliament, by reason of their evident utility. But there

(w) 3 Lev. 400, Steinson v. Heath.

(x) 1 Sid. 454.

(y) 1 Mod. 232, by Maynard, Serjeant, arg., to which the Court acceded.
(z) 4 Burr. 2258, Matson v. Scobell.
(a) 2 Sir Wm. Bl. 764, Poole v. Jonson.

must be some benefit accruing to the vessel chargeable for the dues demanded by the corporation. A question was made whether British built ships, the property of British subjects, were liable to pay for passing by the Eddystone, and other lighthouses in the Channel, when sailing from one foreign port to another, and not having touched at any port in Great Britain or Ireland. The act relied upon in favour of the imposition, laid the duty on ships inward or outward bound; and the Court said it was most evident, that the claim must be confined to vessels either departing from, or touching at British ports. Foreign ships could not be called on for the duty under such circumstances; and it would be a breach of public policy to inflict a burthen upon our own vessels, to which foreigners are not subject. Judgment was given against the Trinity House.(b)

So where a ship was chartered for the transport service, a temporary ownership was held to pass to the Crown, and, therefore, a nonsuit was entered in an action of assumpsit for tolls. (c) And where the proprietors of a lighthouse were empowered to take tolls, the exception of his Majesty's ships of war was held not to warrant the inference that other ships belonging to the Crown were chargeable with toll. The exception might have been ex majori cautela.(d)

*The long enjoyment of tolls lays a foundation for a good con[*305] sideration in respect of them. (e) them.(e)

The exceptions from these tolls are pointed out by particular statutes, and vessels employed in his Majesty's service are usually exempted from the duty. It was once made a question whether vessels hired by the Postmaster General to carry the mails and dispatches from Dover to Calais and Ostend, could be said to be vessels within the exception of an act which imposed a tonnage on all ships coming into an harbour of Dover unless employed in his Majesty's service. The collector of the rates for the port having seised the plaintiff's telescopes, trespass was brought in order to try the right. It was urged for the defendant, that the vessel in question was the private property of the master, that the employment of the Crown was partial, for that with the exception of carrying the letters and public despatches, the vessel was not in the employ of government. But the Court observed, that there were two exemptions, 1st, of all vessels belonging to his Majesty, and, 2ndly, of all such as should be employed in his service. Now here the captain was appointed by the Postmaster General. The appointment stated the vessel to be employed in his Majesty's service, and the captain was directed to obey such orders as he should from time to time receive from the agents of government. The latter stipulation was quite inconsistent with the right

(b) 3 T. R. 768, The Trinity House v. Sorsbie.

(c) 4 M. & S. 288, Master of the Trinity House v. Clark; and see 2 Ch. Rep. 689, Trinity Corporation v. Staples.

(d) 1 B. & Adol. 509, Smithett v. Blythe.

(e) 5 Q. B. 773, Mayor, &c. of Exeter v. Warren. S. C. Dav. & M. 524.

of employment being in the captain. Judgment was therefore, given for the plaintiff.(ƒ)

But it is fitting that we should notice an enactment here, which forbids the taking of exhorbitant toll upon the Thames. According to the preamble, a moderate and reasonable price might be taken from the owners of barges, boats, &c., at locks, wears, &c., for assistance in the passage. But the price of water carriage having been raised, and divers abuses having been committed by the bargemen,(g) it was declared, that the justices for Wilts, Gloucestershire, Oxfordshire, Berkshire, and Bucks, should be commissioners for executing the act, five to be a quorum. They are to make orders at the quarter sessions, upon due examination upon oath, for settling reasonable rates and prices in this matter within their respective counties, having regard to the ancient rates, as well as the necessary charges, of repairing such locks, &c. They are further empowered to make other orders concerning the navigation, and the locks, &c., together with the shutting them, &c., and also *respecting bargemen so as to prevent the abuses which hap[*306] pened before the act. (h) Then, they have authority at their Easter sessions, to assess the rates in question, public notice being subsequently given in writing to the mayor, or other head officer, in every market town within the counties, of such rates and prices, and all other rates, &c. Should any owner of barges, &c., after such notice, take a higher rate than has been ordained, or should any person offend any regulation made in pursuance of the act, he shall forfeit 57. for each offence, to be recovered by the party grieved, with double costs, in any action of debt, &c., wherein no essoin, &c.(i)

Any one considering himself aggrieved by the rates of the justices, may appeal to the Judges of assize at Oxford, within one year afterwards; and the rule complained of may be confirmed, vacated or altered, as may be deemed convenient. () The next section prescribes, that these orders shall be duly registered at the sessions, and shall continue in force for seven years, when made, or confirmed by the Judges.(1) Locks, &c., are to be considered to be situate in the county where they are rated to the church or poor. (m) The act, however, shall not lessen the authority of the mayor, commonalty, and citizen's of London, or of any other corporation, or of any other person.(n)

Lastly, every bargemaster, and owner of barges, &c., shall be answerable for damages done by his crew to any wear, lock &c., and may be prosecuted, and, if found, guilty, the plaintiff shall recover his damages, together with full costs of suit.(o)

In speaking of canal tolls, it cannot but be evident, that they are

chiefly regulated by the various acts of Parliament applicable to each canal.(p) And as the cases which have arisen were decided upon the construction of the several statutes relating to each particular subject, the general principle is rather to be gathered from the effect which the Courts have given to the enactments themselves, than from the decisions upon them. The principle seems to be, that the acts which imposes a toll shall be construed as strictly as may be proper; for to use the words of a learned Judge, "our construction may, perhaps, be inconvenient, but we cannot make a new toll." (g) Therefore, the limits of places from whence the persons who undertake a voyage are to pay toll, are preserved inviolate. Trespass was brought for seizing the plaintiff's

[*307] barge. The defendants pleaded the general issue, and they

claimed an additional toll of one shilling per ton gross tonnage on coal and coke navigated upon a certain part of the Crompford Canal. The words of the clause imposing the toll were these: "For all coal and coke which shall be navigated, carried, and conveyed upon any part of the said intended canal, from the place where the said canal, shall cross the River Amber, or from any place within two miles thereof, and passing in the direction towards Cromford, the further sum of one shilling per ton." The plaintiff's barge had commenced her voyage at a place more than two miles from the point mentioned as above, she had been navigated on a part of the Cromford Canal, with coal and coke on board, within the specified distance, and she was passing in the direction towards Cromford. It was the opinion of the learned Chief Justice,(r) that the words "navigated from," meant a voyage from the place where the goods were loaded on board the barge. Now the place in question was not within two miles of the point specified in the clause, and therefore the ship was not liable to the additional toll. The court were of the same opinion;(s) and it was said by Holroyd, J., that the words of such a clause must be perfectly clear, before a fresh tax should be imposed by their decision. (t) So, again, it was enacted, that the Monmouth Canal Navigation proprietors should not, take a greater rate of tonnage than those of the Brecknock Canal. The latter, by a resolution entered into at an assembly, ordered a reduction of their tolls. The Monmouth Canal Company, conceiving this not to have been a regular proceeding, did not reduce theirs; and it was contended on their behalf, that the advantage or disadvantage must be reciprocal, and that this moreover, was not a legal reduction. But the Court held, that the plaintiffs could not question the validity of the resolution passed by the Brecknock Canal proprietors under their common seal, at least so long as the proprietors of the canal thought fit to submit to its validity. It would have been otherwise if the reduced toll had been taken fraudulently, and without any colour of authority. Judgment was given for the defendants.(u)

(p) A canal act is not necessarily a public act. 1 Moo. & Malk. 421, Brett v. Beales.

(q) 3 B. & A. 140, Bayley, J.

(r) Abbott.

(t) Id. 141.

(s) 3 B. & A. 139, Brittain v. The Cromford Canal Company.

(u) 4 B. & A. 453, The Company of Proprietors of the Monmouthshire Canal Navigation v. Kendall and others.