By the Court,
Mullin, J.On the 18th of November, 1861, the defendant was notified that he must pay toll for passing gate No. 9 on the plaintiff’s road. He told the gate-keeper that the company owed him. The latter said, in reply, that he knew ¡nothing of that, but would see the directors, and charge the toll till then. He after-wards saw the directors, and told the defendant that his orders were to charge toll to no man. This notice was given about the 23d of December, 1861. It was after this that the defendant passed through the gate repeatedly, not paying toll, upon demand of it; saying, on one occasion, “charge it.” These facts are sworn to by the keeper, and not denied.
The statute, (2 R. S. 512, § 156,) giving the penalties sought to be recovered in this case, is as follows : “ Any person who shall pass any turnpike or plank-road gate without paying the toll required by law and with intent to avoid the payment thereof, shall, for each offense, forfeit and pay to the corporation injured thereby, ten dollars.” The passing, by the defendant, is, as I have shown, clearly proved, and that he did not pay toll. The only remaining fact to be proved is the intent to avoid, the payment of toll. The learned justice charged correctly when he told the jury that a man who passed the gate without paying the toll is liable for the penalty, as his intention not to pay, is sufficiently indicated by the act itself. If the charge had ended here, there could have been no controversy in regard to it. But the learned justice proceeds to say that when a credit has been given and discontinued, and the passenger is responsible and well known,' and tells the gate-keeper to charge the toll, if the company thereafter . allows him to pass, the question will be whether the passen*610ger intended not to pay, or merely to obtain thereby a credit; and that if the jury are satisfied that the defendant only intended to obtain a credit, he will not be liable' to the action. The learned judge did not, I apprehend, in the hurry and confusion of the trial, consider the consequences of th ¿.proposition thus put forth, or, I am quite sure, he would have qualified the part of the charge referred to, in some important particulars.
A planlc-road or turnpike* company has. two modes to enforce the payment of toll by those passing its gates. One is by closing its gates and preventing the traveler from getting through until he pays; the other, by suing for the penalty, those passing and not paying after demand of the toll. In this case, the defendant had been informed he could not have credit. The learned judge does not, in terms, say that the defendant could compel the plaintiff to let him have credit; but the charge put forth, substantially, that proposition. Can a passenger, because he is responsible and well known, compel a plank-road company to give him a term of credit on tolls, against a resolution of its directors? I apprehend not. When credit has been given, notice of the intention to continue it no longer should be clearly given. But when notice is thus given, no pretense is left to the passenger by which he can insist on credit. When further credit is withdrawn the passenger must pay.
But it is said, a credit having once been given and withdrawn, and the passenger responsible and well known, disproves the intent not -to pay, if a direction is given to charge. If a jury can infer from these circumstances an intent to pay, or rather the absence of an attempt not to pay, then very well known and responsible men can pass the gate of a turnpike company and escape the penalty if they tell the keeper* to charge it. Although the company resolves that credit shall no longer be given, yet it is compelled to give credit to all persons answering to *611the description aforesaid, because the penalty cannot be enforced.
Ho question of intention to obtain credit can arise on the facts of this case. The company had done all in its power to' inform the defendant that credit would no longer be given. There was no longer any room left for a question of intent on the subject of credit, unless it is possible for a traveler to compel the giving of credit.
The attention of the jury was withdrawn from the real issue in the case and directed to another which could not arise in it, on the facts proved.
All ground for pretense of credit had been removed several days before the day on which the first penalty accrued. The defendant having passed the gate without paying toll, after demand, the law presumes the intent to be not to pay. The oath of the defendant cannot overcome this presumption, on the evidence in this case. And if the jury should find the absence of such intent, I should set the verdict a,side as against evidence.
A plank-road company is not bound, after withdrawing credit from a pasenger, to close its gates against him, in ' order to prevent an inference of intent to give credit. Having done its duty by giving notice that no further credit will be given, it may leave him to pass through if he will; and if he does pass, the inference is that he intends not to pay.
If the defendant, when sued for a penalty, may set up the giving of credit, his solvency, and the fact that he was well known and told the keeper to charge it, it follows that he must prove these several propositions. The plaintiff' may rebut them, and thus issues somewhat anomalous will be introduced in these cases, as troublesome as they are unnecessary.
But the great objection to the charge is, that it tolerates and invites violations of the rights of these corporations. It leaves them entirely at the mercy of those passing the *612gates, without any mode of protecting themselves, except by keeping their gates closed all the time—a thing both burdensome and uncalled for.
[Onondaga General Teem, April 7, 1863.Allen, Mullin, Morgan and Bacon, Justices.]
Did the facts of this case present a fair question whether the defendant, when he passed the gate, did not suppose he was being charged in account with his toll, it would have been highly proper to submit it to the jury. But on the facts, there was no basis on which to' rest any such proposition.
Without examining any other of the questions in the case, I think the judgment should be reversed and a new trial ordered; costs to abide the event.