Kent v. Newburyport Turnpike Corp. 4 Pick. 388, 21 Mass. 388

Stephen Kent Junior versus Newburyport Turnpike Corporation.

Nov. 11th.

A person residing in a town where a turnpike gate is placed, who is exempted from toll when going (t on the common and ordinary business of family concerns within the said town,” is not, by virtue of such exemption, entitled to pass the gate free of toll, when going into another town upon such concerns.

Assumpsit for money had and received. On a case stated m the Court of Common Pleas, it appeared that the plaintiff, being a resident in Newbury, went with his horse and wagon to a turnpike gate in that town, and demanded liberty to pass free of toll, saying that he was going to Newburyport to purchase some articles for family use; but the tollgatherer refusing him such liberty, he paid the toll and went directly to Newburyport for the single purpose above-mentioned, passing on no part of the turnpike road in any town other than the town of Newbury. Howe J. directed a nonsuit; upon which the plaintiff filed his exceptions.

Gerrish, in support of the exceptions,

relied upon the clause in St. 1802, c. 120, § 6, that the corporation shall not he entitled to demand toll of any person who shall be passing <c on the common or ordinary business of family concerns within the said town.” He also cited St. 1804, c. 125, § 5.

Moseley, for the defendants.