The opinion of the court was delivered by
.Williams, Ch. J.— The whole question in this case depends on the construction of the providing clause to the eighth section of the act by which the plaintiffs are made a .corporation. This clause is as follows: — “That nothing in'this act shall extend to entitle said corporation to demand or receive toll of any person who shall be passing with his horse or carriage to or from public worship, or on military duty, or with his horses, teams or cattle, to or from any grist or saw-mill, or any other person living within this state, and within eight miles of said gate.” Under the latter clause the defendants claim to be exempt from tolls. The first part exempts any and every person, wherever they may reside, when passing the gate for the purposes therein mentioned. A similar exemption is usually contained in turnpike grants, both in this and other states.
The cases read from Johnson’s Reports — the case of Medford Turnpike Company vs. Torrey, (2 Pick. 538,) and the 'case of the Green Mountain Turnpike Company vs. Hemmingway, were decided on clauses in the turnpike grants, similar to the first part of the providing clause in the grant to the plaintiff. It has been considered, that where persons were travel-ling the road for the purposes mentioned, they were exempt' from toll, and might remove the gate if they were prevented from passing; but if they were passing for other purposes, as well as for those mentioned, they were not exempt; and that no fraud or imposition is to be practised on the turnpike corporation. Although the statute incorporating this company speaks in the singular number, and mentions his horses, his carriage, &c. yet it cannot be doubted that the exemption extends to any firm or co-partnership who are sending their horses, teams, or cattle, to or from any grist or saw-mill, nor- that it would extend to any person who should send servants or children to mill, or to any firm who should send their servants, or *550the persons in their service to mill, and on that business alone. The case of Wooster vs. Van Vechten, 10 John. 467, was de-* "cided on this principle. In the latter part of the clause or provision, there is a personal exemption from toll in favor of every person living within this state and within eight miles of the gate, to pass and repass at all times, whatever might be their business, and exempts them in all cases when travelling on business, but does not protect them if they attempt wantonly to disturb the toll-gatherer, and pass and repass for no other purpose than to put him to unnecessary trouble. This exemption being a personal privilege, extends to every person and persons within the limited distance, whether single, united as a company, or as joint owners of a team, or horses, or whether passing with their oxen, horses, or those of others. It is unnecessary to con-' sider what would be the effect of a firm or copartnership composed of two or more, some of whom resided within the eight miles, and some beyond. Probably the .privilege would be considered as strictly personal, and only exempting the individual partner and his servants, and not the teams, carriages, or servants of the firm. This question, however, does not arise in this case, as all the persons composing the firm were within the limited distance. The exemption cannot be used to defraud or injure the company, any further than they are injured, by the necessary consequences attending and arising from the extensive and unusual exemptions contained in this grant. The persons entitled cannot make use of it to enable others to pass free of toll, can only claim it themselves when they travel for their own convenience, pleasure, or profit. And when they de thus travel on the turnpike, whether for pleasure or profit — whether they drive a team, or send their servants — whether for transportation of baggage in wagons, or passengers in a stage coach, they may pass the gate exempt from toll. The defendants, in this case, under the exemption contained in the latter part of the providing clause in the eighth section, were exempt from toll, and had a right, under the circumstances detailed in the exceptions, to.remove the obstructions occasioned by the gate.
As the plaintiff cannot .recover on the facts, it is unnecessary to consider the defects in the declaration and replication, which are pointed out in the argument on the demurrer to the replication to the defendant’s second plea in bar.
*551The judgment of the. county court, which was in favor of the defendants, is affirmed.
NOTE.
In deciding this case, the court connected the case of the plaintiffs against one Balch, who was in the employ of said Langdon and Brewer & Hawes, as driver of their stage coach with the United States mail.