Norval v. Cornell — 16 Johns. 73

Majority

p. 73

Mary Norval against Cornell.

Headnote

Under the 9tU section of the act relative id turnpikes, sesK, 30. c. 38. (I N. R. h. 334.) a toll-gatherer is not liable to the penalty of five dollars, for demanding toll of a person exempted from paying it; but only when he hinders or delays travellers and passengers bound to pay toll, or takes more toll than the law allows.

IN ERROR, on certiorari to a Justice’s Court.

The defendant in error brought an action in the Court below against the plaintiff in error, who was a toll-gatherer at one of the gates of the New Windsor and Cornwall turnpike road, for stopping and demanding toll of his son while returning from the mill with his team, and not letting him pass until he paid the toll. It was proved that the plaintiff’s son went with his father’s team and grist to a mill, and passed the gate on his way to the mill, without being required to pay toll; that he returned without the grist, not being able to get it ground that day; that on being required to pay toll, he stated this fact to the- defendant below* but she

p. 74

would not let him pass without paying it. The justice gave judgment for the plaintiff below, for five dollars, with costs,'

The only question is, whether the penalty was incurred or not. The case of Conkling v. Elting ( 2 Johns. Rep. 410 .) is in point, that the 9th section of the act relative to turnpikes, (1 N.R. L. 234.) does not apply, or inflict a penalty, where toll is demanded of a person entitled to an exemption from paying it. It applies only to the hindering or delaying travellers and passengers bound to pay toll, or for taking more toll than the law allows.

Judgment reversed.