Reports of Cases Argued And Determined in the Court of King's ..., volume 1

Cover Reports of Cases Argued And Determined in the Court of King's ..., volume 1
Reports of Cases Argued And Determined in the Court of King's ..., volume 1
Great Britain. Court of King's Bench, Charles Durnford, Sir Edward Hyde East
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Then as to the case of Smith r. Shepherd^ Mo* 574, which is likewise reported in Cro. Eliz.
Vol. I. Rrrr 710; (a) Moor S7^. {b) 2 Wih. 299. (0 Vide 8 Co. 46. *. (d) 152.
Digitized by Google I 670 CASES IN EASTER TERM^ 1787. 710 ; there toll was daiiaed Jor sheep passing through a vifl s V.--y^ but it was not stated that the party cbuoung it was seised of Lord Pel. the soiL The court in that case said, ^' that the inheritaiu:e HAM ^ 44 q£ every man in the king's highway is prior to all prescrip-
... PicKBRs- " tions,'' That goes decidedly on the ground that the party GILL, was not entitled to the soil ; and that the subjects had a right of passing over the road before the toll was claimed ; otl^ wise the word ^^ inheritance" is not capable of being erfdaia* ed* To create a toU, therefore, in such a case, would be to deprive the subjects of their right : but if the right did not ex* ist, the subjects could not be deprived of it. And when the / case proceeds to state that if the party shew a consideration, *^ as repairing a road or a bridge ;" those instances are only put by way of examples, and do not exclude any other consi- deration* If what was said by the court there, ^ that toll- ^^ traverse may be prescribed for, because it is for passing over a man's freehold," was said with a reference to the case Aco ^ before the Court, it is a strong confirmation of the other an- thorities* For it shews that though a toll cannot be claimed for passing through a vill, yet if it be for passing over a nsan's own soil.

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