Hill and Wansford Bridge, in any one day, from the 1st January, 1821, to the 7th February, 1822. The Rockingham coach, going from London to Leeds, having changed horses at Stilton, passed through the Wansford toll gate at eight o'clock at night, when a toll of 2s., that is, of 6d. for each horse, was paid by the coachman. The same horses for which the toll had been paid, returned with the Rockingham coach, going from Leeds to London, being a different coach, with different passengers, and passed through the said gate at eleven o'clock, and got back to Stilton before twelve o'clock the same night. Upon reaching Wansford gate the second time, a second toll of 2s. was demanded by the collector appointed by the trustees, because, although the coachman and horses were the same, the coach and passengers were different. The gate being closed, and the coach prevented from proceeding, the coachman, protesting against the collector's right to exact it, paid such second toll, for the above-mentioned period of time. In the like manner the Rockingham coach going from Leeds to London, changed horses at Stilton, and passed through the Sawtry toll gate at one o'clock in the morning, when a toll of 2s. was paid. The same horses returned with the coach going from London to Leeds, being a different coach, with different passengers, at six o'clock in the same morning, when a second toll was demanded, and paid under a similar protest, for the same period of time. The toll gates at Wansford and Sawtry are both situated on the line of road between Alconbury Hill and Wansford Bridge, and there are no other gates within the same distance. This case was argued at the sittings after Easter 1826. FEARNLEY บ. MORLEY. 1826. FEARNLEY v. MORLEY. term, 1825, by Dover for the plaintiffs, and Storks for the defendant, when the Court took time for consideration. Judgment was now delivered by BAYLEY, J. (a).—The plaintiffs in this case brought their action to recover back the amount of certain tolls paid by them, between January 1821, and February 1822, in respect of their coach called the Rockingham, which ran from London to Leeds, passing through two toll-gates, situate at Sawtry and at Wansford; and the question was, whether two tolls were payable on the same day at those gates, or only one. The same horses passed through the gate each time, driven by the same coachman, but drawing different coaches, with different passengers. Both the coaches belonged to the plaintiffs. It was contended that the plaintiffs were entitled to exemption the second time of passing, the horses being the same, though the coaches were dif ferent. The question depends upon two acts of parliament, the 38 Geo. 3, and the 59 Geo. 3. The 38 Geo. 3, imposes tolls, first, upon coaches, &c., drawn by more than two horses, 1s. 6d. ; second, upon waggons, &c., according to the breadth of the wheels, and the number of horses, &c., by which they are drawn; third, upon horses, &c., not drawing; and lastly, upon oxen, &c., at the rate of so much per score. The exemption clause provides, that all persons having once paid toll for their carriages, horses, and cattle, having occasion to return, and actually returning before twelve o'clock at night of the same day, with the same carriages, horses, and cattle, shall pass toll free. The 59 Geo. 3, recites, that the money borrowed for the roads (a) The arguments used, and the authorities cited by the counsel, are so fully gone into by the Court in their judgment, that it was thought superfluous to detail them in the report of the case. 1826. บ. MORLEY. cannot be repaid, nor the roads kept in repair, except the term of the former act is prolonged, the existing FEARNLEY tolls increased, and some of the provisions altered and enlarged; and it continues the provisions of the former act, with certain exceptions, in as full, ample, and beneficial a manner, as if they were re-enacted. One of the alterations is, that the former tolls shall cease, and that, instead thereof, there shall be paid for every horse, &c., drawing a coach, &c., 6d.; drawing a waggon, &c., 3d.; horse, &c., not drawing, ltd.; score of oxen, &c., double the former toll; carriage fixed behind another, if with four wheels, 1s., if with two wheels, 6d. This act contains a new exemption clause, but wholly inapplicable to the present case. The question, therefore, is, whether the exemption clause in the 38 Geo. 3, applying the language of that clause to the tolls imposed by the 59 Geo. 3, extends to this case, namely, that of the same horses drawing a different coach. According to the mode in which the tolls were payable under the 38 Geo. 3, that is, in respect of the carriage, not in respect of the horses drawing it, the new coach in this case, would, in conformity with the opinion of the Court in Williams v. Sangar (a), and Waterhouse v. Keen (b), be liable to the second toll: and according to the mode in which the toll is payable under 59 Geo. 3, that is, in respect of the horses drawing the carriage, not in respect of the carriage itself, the new coach in this case, would not, in conformity with the case of Morris v. Poate (c), be liable to the second toll, but would be exempt. The point for consideration, therefore, is, whether the existence of the liability, according to the mode in which the toll was payable under the 38 Geo. 3, will extend that liability (a) 10 East, 66. (b) Ante, vol. iii. 190. 4 B. & C. 200. (c) 3 Bing. 41. 10 J. B. Moore. 1826. FEARNLEY บ. MORLEY. to the mode in which the toll is payable under the 59 Geo. 3. If the toll had been payable under the 38 Geo. 3, in the same mode in which it is payable under the 59 Geo. 3, the exemption in question would certainly have existed. When the 59 Geo. 3, varies the mode of imposing the toll, has it not the same effect as if the substituted mode introduced into the 59 Geo. 3, had been inserted in the 38 Geo. 3, and that mode would have extended the exemption to the second toll? The variation in the mode was introduced into the 59 Geo. 3, either at the instance of the framer of the bill, or by the discretion of the legislature. If it was introduced by the former, the legislature has acceded to it. If it was insisted on by the legislature, the legislature has required it. In either case there is a sanctioned variation in the mode, and if the mode has been authoratively varied, who can say that the consequences of that variation are not to follow? It may be a hardship upon those to whom the 38 Geo. 3, gave an exemption, that that exemption was not continued by the 59 Geo. 3. But they should have attended to the continuance of that exemption; they must have been aware, if they had paid proper attention to the subject, that the 38 Geo. 3, was near upon expiring, and that some new provision must be soon forthcoming, and then they might, and should, have used their endeavours to continue in the new act that mode of imposing the tolls, which afforded them an exemption under the old act. They either neglected to do so, or their endeavours were unsuccessful; but the result is, in either case, the same. The previous mode is not continued; a new mode is substituted and does not the substitution of the new mode supersede with all its consequences the old? Gray v. Shilling (a), is an authority in (a) 1 J. B. Moore, 371. 2 B. & B. 30. point to shew that it does; and without any authority upon the point, a variation in the mode necessarily implies a change in the intention. Had it been intended to continue the old system, the use of the old language, and the continuance of the old mode, would naturally have been expected. Where new language is introduced, and a new mode adopted, it must be supposed a new system was intended. We are, therefore, of opinion, that we must construe the exemption clause in the 38 Geo. 3, with reference to the new mode of imposing the toll provided for by the 59 Geo. 3, as if that had been the mode originally prescribed by the 38 Geo. 3; and consequently, that the defendant wrongfully took the tolls in question. This opinion will produce an uniformity of decision, according to the language of each act, whether it applies to an act where there has previously been no turnpike, or to one where a turnpike with its tolls and toll regulations has previously existed. Judgment for the Plaintiffs. ROGERS V. BRODERIP, Esq. THIS was an action brought against the defendant, one of the magistrates of the Thames Police Office, in respect of an alleged wrongful act committed by him, as such magistrate, under the statute 2 Geo. 3, c. 28, commonly called the Bum Boat Act (a). The jurisdic (a) Continued and amended by the subsequent statutes 1 & 2 Geo. 4, c. 118; 3 Geo. 4, c. 55; and 6. Geo. 4, c. 21. 1826. FEARNLEY บ. MORLEY, The 2. Geo. 3, c. 28, which tion to Jus gives additional protectices in cases of actions brought against them for any thing done in pursuance of that act, but which does not require notice of action, does not deprive them of their Tight to the notice required by the 24 Geo. 2, c. 44; which requires notice in cases of actions brought against Justices for any thing done in execution of their office. Therefore, where in an action against a magistrate under the 2 Geo. 3, c. 28, the plaintiff proved service of a notice not perfectly conformable with the requisites of the 24 Geo. 2, c. 44, and was thereupon nonsuited:-Held, that the nonsuit was right. |