1 N.H. 20 | Superior Court of New Hampshire | 1817
The opinion of the court was delivered by
This case presents so'me difficulties, but the court, after such examination as they have been able to give it, are inclined to render judgment on the verdict.
It is also contended, that as the act of incorporation prescribes only one method of collecting toll, viz. : by stopping the traveller until he makes payment, the corporation could exercise no rights but those explicitly conferred, and that a designation being made, of one remedy alone, it is equivalent to an exclusion of all others.
We are aware that cases exist where a rule of this kind has been adopted, but they will be found on examination to depend on principles not analogous to those that ought to govern the present case. Penalties imposed for particular offences must be sued for in the mode prescribed by statute, in those cases only where the offence is merely malum pro-hibitum, or the punishment is made less than that inflicted by the common law, or where a restrictive clause is expressly introduced, (2 Burr. 799, The King vs. Robinson.) When a new right, too, is conferred on an individual by a statute, which at the same time provides a remedy, or when, for some public consideration, as to prevent a multiplicity of suits, a new remedy is given for an old right, such remedy
In the present case, the power to detain the traveller until payment of the toll is manifestly conferred for the benefit of the corporation, that it may collect its dues promptly and without the risk of credit, or the expense of an action. Those, remedies therefore which the common law would furnish, if the act of incorporation provided none, (Com. D. Tolls, E,) could never have been intended to be taken away. The construction contended for would not benefit travellers, for they often prefer credit to punctual payment. And instead of being useful to the corporation, it would leave them wholly remediless in a class of cases embracing the present one, and all cases where travellers, by fraud or force, should pass through the gate without paying toll. Nor is such construction necessary, to effect the only public purpose which can be imagined in its favor — the prevention of suits : for no corporation, unless from necessity, would resort to an action at common law, for toll, when there was a summary remedy so much more speedy, safe and convenient. We are, therefore, of opinion that this objection cannot prevail. One other objection against a recovery in this action, was suggested from the circumstance of the defendant's having, by the consent of the plaintiff, passed the gate without paying toll. This would deserve much consideration, had it not appeared that the consent was given under a mistake as to the fact of the defendant’s exemption. Both parties erroneously supposed that the defendant was exempted from toll. But the princi-
Judgment on the verdict.
The Chief Justice, having been of counsei, did not sit in this cause.