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collection in fact of toll, it appeared to have been the usage, 1804. · as far back as living memory could trace, to pay ld. for

The Mayor, every horse-load of commercial goods for sale, either carried*&c. of in or out of the city ;(unless the goods were under the value CARLISLE

against of 13 d., and then no more than half toll was ever paid, Wilson. and sometimes nothing). If the goods were conveyed in a cart drawn by one horse, then 2d. was paid; if by more than one horse, ad. in addition for each horse, unless the carriers compounded for their tolls. The value of the goods in caits made no difference; but if the horse or cart merely passed through the city with the same goods, they paid but one toll. For many years back the proprietors of public waggons had usually compounded for their tolls; if not, 2d. a-horse was taken from the waggoner. Nothing was ever taken for hay, corn, household goods, &c. It further appeared that stage coaches had been used in Carlisle for about 50 years past; but no claim was made in respect of them for toll till about 15 years ago, which was then resisted. That where the proprietors bad forwarded goods in carts they had paid the usual toll; and they had also paid when fish and other articles had been sent into the city to be forwarded by the coaches: but this was explained to be toll paid for die bringing in of such articles by horses or carts, and not for the sending them on by the coaches. The goods for which toll was demanded in this instance were commercial goods for sale, sent by the defendants' coach. The defendants produced no evidence; and the case went to the jury with the learned Judge's observations to them, that the right to the horse and cart toll was clearly proved, and that possibly the consequence of that usage might, as to the toll in dispute, be a mere legal question upon which either party might take the opinion of the Court above: and he therefore left the case to them upon the usage; telling them that if they were satisfied that the plaintiffs were entitled to a toll on carriages carrying goods (such as had been in use) the pay, ment of the toll could not be evaded merely by using car, riages of a different construction from common carts and carriages; and that the only distinction he could point out for their attention was that the principal use of the coaches being for the carriage of passengers, for which no toll was due, and it appearing that the quantum of ihe toll was B2

estimated

1804. estimated by the number of horses employed in drawing

the carriages, the proportion of the number of horses to The Mayor,

&c. of them must be greater than the relative quantity of the goods CARLISLE which they carried would require; in consequence of which against

a much heavier toll in respect of the goods would fall on the

coach-owners than on the owners of other carriages used [ 5 ] chiefly for the conveyance of goods. And also that for a

considerable number of years since coaches had been set up in Carlisle, the corporation had not asserted their claim of toll for such carriages. The jury found a verdict for the defendants. But upon the report of the case, after a rule Nisi granted in Michaelmas term last for setting aside the verdict and granting a new trial, the learned Judge inti. mated a doubt whether the evidence did not require him to have told the jury that if they were satisfied that the right to the toll for the passage of carts and waggons was established by the written and parol evidence, it would follow as a legal consequence that the plaintiffs were entitled to the like toll for the passage of coaches carrying goods of the like description.

Park, Holroyd, and Hullock, in shewing cause against the rule, contended that the grant of toll, being in general terins, must be construed and restrained by the usage; and here it appeared by the evidence to be a grant of toll for the carriage of goods sub modo, that is, by hurses or in carts or waggons. In the single instance that any attempt was made to extend it to coaches, the claim was resisted with effect; and this extends back through a period of 50 years. And there is no absurdity in supposing that a toll might be grant. ed on goods carried in a particular manner, which was not meant to extend to goods carried in a different way; especially as the toll in this case varies according to the number of horses employed in the draught of the carriage, which may be reasonable enough as applied to carriages whose principal

use is for the conveyance of goods, as furnishing a good [6]

criterion of the weight of the draught, and consequently apportioning the toll to the probable injury done to the streets : but as applied to coaches, the number of whose horses is adapted to the weight of passengers, for whom no

toll is payable, and not to the goods, which may be triling . in weight and value, the same rate of toll must press very

unequally

unequally and unfairly. By these mean's the same toll may 1804. be paid for one small parcel which happens to be in a coach

The Mavor, drawn by four horses, as for various goods to a considerable &c. of amount drawn by the same number of horses in a cart or CARLISLE

against waggon. It is not, therefore, the shape or denomination Wilson. of the carriage which constitutes the difference, but the purpose to which it is principally applied.

Cockell, Serjt. Wood, Topping, and Raine, contrà, were stopped by the Court.

Lord ELLENBOROUGH, C. J.-The custom in substance, as to the present inquiry, is to pay a toll for goods conveyed in carriages, in proportion to the number of horses. What the form or denomination of the carriage may be is imma. terial, whether it be cart, waggon, or coach; if it be apo plied to the use of drawing goods for sale, the custom attaches upon it. The reason why the toll has not been, in fact, collected from the owners of public coaches is, be. cause, till of late years, it has not been the general custom of that part of the country to convey goods in such carriages; and therefore the collection of it might not have been worth attending to; and there is no reason to attribute the omission to any other cause. Within the memory of living persons, there were no more than four coaches kept in Cumberland. Bishop Nicolson, who wrote a history of that county, states, That about the year 1710, in travelling from Rose Castle, near Carlisle, towards London, with a young nobleman, his pupil, they were obliged to go as far as Stamford before they met with a stage-coach to carry them on. As to the disproportion stated to arise from the application of the toll to carriages of this description, where the number of horses is adapted more to the carriage of passengers than of goods, that is the party's own act, of which he cannot complain. The corporation cannot discriminate the proportion adapted to each; and may there. fore cbarge for the whole number which are actually used for the draught of the carriage in which tollable goods are conveyed ; for the toll is payable in respect of the goods, and not of the coach. Upon the same principle, where a man mixes his corn with mine in my bag, 1 may take the whole, because I cannot distinguish to separate them again; and it was his own fault to mingle them: , so if the coach.

owners

B 3

1804.

The Mayor,

&c. of CARLISLE

against WILSON.

[8]

owners will multiply the number of their horses, because of the additional weight of passengers which they carry, together with goods, for which the toll is payable in proportion to such number, it is their own act, and the corporation have no means of ascertaining the proportion of horses used for each. Here then the right to the toll having been clearly made out, there must be a new trial.

Gross, J. The question is, Whether any thing were due for toll in this case? The toll is that duty which persons passing in or out of the city with goods for sale, on horseback or in carriages, are liable to pay. It is not merely for the passage of the person, but of the person with goods. The usage was for some time probably confined to goods carried on horseback ; afterwards, as carts came into common use, it was extended to them ; and there is no reason why the toll should not be extended to coaches, since they have come into use for the purpose of conveying commercial goods: and as to these latter having been suffered to carry for some years back, without the corporation collecting from them, it was probably not worth their while to collect it in the first instance, till that mode of conveyance grew to be more frequent: but since that is the case, there is no reason why the same toll should not be collected from carriages of this description as from carts, when applied to the same purpose.

Lawrence, J. - The toll is payable for goods conveyed on horses and in carriages, and in order to measure the quantum of toll in the latter case, they reckon the number of horses used in the conveyance: and when we attend to the occasion of granting the toll, which was for the repair of the streets, such a measure seems reasonable ; for if the goods were carried on horseback, that was not considered as occasioning much damage to the streets; and, therefore, the toll was only ld. : but if conveyed in a cart with one horse, the damage done was considered to be double, and 2d. was taken ; and if more horses were necessary to draw the weight, the injury was reckoned to be proportionably greater. The carrier was considered to be a competent judge of the number of horses required to draw the weight; and that mode of ascertaining the quantum of the toll was

liable

liable to no difficulty or dispute.' It is no objection then 1804. that ihe coach may have but one parcel of govds to convey; the for it is for the carrier to consider whether it be worth bis &c, of while to proceed with his load or not; but if he do, he must CARLISLE

against pay toll according to the number of horses which he uses. Wilson.

LE BLANC, J. - By the inquisition and ancient grants, [o] it appears that toll was given to the citizens of Carlisle in general terms, leaving it uncertain by what the quantum was to be measured. This is supplied by the evidence of the usage; whence it appears that it is to be estimated by the horse-load when the goods are carried in that manner; or when conveyed in carriages, by the number of horses drawing each carriage. Formerly, it appears that the only carriages in which goods were conveyed, were carts and waggons; and it is not at all improbable that, when those were the only carriages in use, they took as many passengers in proportion to the quantity of goods as coaches do now. Yet during all that time the toll has always been claimed from the carrier, and not from the proprietors of the respective goods, in proportion to the number of horses by which the carriage was drawn: and it is more advan. tageous to the public that the toll should be collected in this manner; for when claimed from the carrier, he pays one entire toll for all the parcels of goods together, in proportion to the number of his horses; but if it were to be claimed from the owners of the goods, then each would have to pay toll according to the same proportion. If then the coach (proceed with passengers only, without any commercial goods, no toll will be payable; but if it have such goods in it, the toll is payable according to the number of horses by which the coach is drawn. In this manner it has always been collected from carts and waggons; and altering the form or name of the carriage can never affect the claim to the toll.

Rule absolute,

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