The plaintiff in error passed through a turnpike gate on the Hartford and New-London turnpike road, in a small one-horse wagon, having one person with him besides himself. The defendant in error, the keeper of the gate, exacted 12 1-2 cents, the full rate of toll for a loaded wagon on that road. The plaintiff having paid the sum exacted, brought his action of assumpsit to recover it, and obtained judgment for the sum paid ; on which a writ of error was brought, and the judgment was reversed.
Two questions arise : 1. Was this vehicle a wagon within the company’s charter? 2. Was it a loaded wagon?
It certainly was a wagon ; and, I think, a wagon within the charter ; for the charter includes wagons by the general name, without any other distinction than loaded and empty, or loaded and not loaded.
It is immaterial, whether at the time of granting the charter, wagons of this construction were, or were not, in common use. A different modification of the same thing, in substance, cannot alter its essential character.
But I am of opinion, that within the true spirit and meaning of the charter, this was not a loaded wagon. That such wagons may be so loaded as to come within the class of such as are liable to pay full toll, I admit ; and that two persons may constitute a heavy load for a small feeble horse, I also admit ; but that such would constitute a loaded wagon within the meaning of the charter, I do not admit.
To say, that every wagon must be either loaded or empty ; that this wagon was not empty ; therefore, it must be loaded, *468may, for aught I know, be tolerable school logick ; but when applied to the present subject, it is logick, which I think common sense will not sanction. A “ loaded” wagon, as meant by the charter, is not contra-distinguished from a wagon absolutely “ empty.” A wagon absolutely empty, would be taken as an estray ; at least, it would not be suffered to pass the gate; for there would be no person answerable for the toll.
That a man in one of these little one-horse wagons, with his wife or daughter, going into some of our towns, with a basket of eggs, or a box of butter, or on a journey, can be said to be travelling in a loaded wagon, I do not believe.
I am, therefore, of opinion, that there is error in the judgment of the Justice. I am also of opinion, that there is error in the judgment of the Judge on the circuit, if he determined that the vehicle in question was a loaded wagon, liable to full toll. I think the charter directs a middle course, and requires toll as an empty wagon.
Hosmer, Ch. J. was of the same opinion. Peters and Bristol, Js. thought, that the vehicle in question was not only a wagon, but a loaded wagon.Judgment reversed.