
    *The President, Directors, and Company, of the Newburgh and Cochecton Turnpike Company against Belknap.
    According to the true construction of the 10th section of the act incorporating the New-burgh, &_c. Turnpike Cam-panil, (sess, 24. eh. 36. 2 K. # R. 459.) a person who owns a farm on the west side of the toll-gate, and anotner farm on the east side of the gate, within a mile thereof, is exempted from toll, on passing through the gate with materials from one farm to the other, for building and improvements, it being, according to the proviso, the common business of his farm.
    IN ERROR to the Court of Common Pleas, of the county of Orange. The plaintiffs brought an action of assumpsit in the court below, against the defendant, to recover toll claimed to be due to them from the defendant, for travelling, with his cattle and carriages, on the turnpike road, and through the gate in Newburgh, belonging to the plaintiffs. It was proved, that the defendant, and his servants, had passed through the toll gate divers times, in the years 1813, 1814, and 1815; and tliat the defendant being asked by the toll-gatherer, in 1813, to whom the toll was to be charged, answered, that it was to be charged to him, the defendant, which was accordingly done ; and the toll so charged, according to the rates established by the act incorporating the plaintiffs, amounted to 149 dollars and 87 cents.
    It was proved, by the defendant, that he owned a farm on the east side of the toll-gate, and within one mile thereof, on which he resided; and that he was part, and principal owner, and superintendent of another farm, on the west side of the gate, about one mile therefrom ; that, during the periods above mentioned, he was erecting several buildings on the farm west of the gate, and which contained about 1,000 acres ; that during the time the toll was claimed, the defendant was employed in carrying lime, boards, timber, and other materials, from the lime-kiln, and saw-mill, on the farm east of the gate, to be used in the improvements on the other farm; and in carrying materials from the farm west of the gate to the farm east of the gate; and that the toll charged on such occasions, amounted to about two thirds of the toll claimed. This evidence was objected to, but the court below decided that it was proper, and ought to bar the plaintiffs from a recovery of part of the amount, demanded.
    The plaintiffs tendered a bill of exceptions to the opinion *of the court; and having submitted to a nonsuit, the court below gave judgment against them for the costs.
    The ca.se, on the record, and bill of exceptions, was submitted to the court without argument.
   Per Curiam.

The whole question depends on the construction to be given to the proviso to the 10th section of the act incorporating the plaintiffs. (2 K. 8f li. 459. sess. 24. ch. 36.) That section fixes the rates of toll demandable, from all persons using the road, at the gates ; and the proviso declares, that nothing in the act shall be construed to entitle the corporation to demand toll of or from any person passing to or from public worship, on Sunday, or to or from his common business on his farm, &fC.

We think that the court below did not err in their construction of the act. The defendant had two farms, the one on the east, and the other on the west side of the toll-gate; and the teams passing with materials from the one farm to the other were passing on the common business of his farm. If this case is not within the proviso, we are at a loss to know what business will exempt a person passing the gate from toll. It is the plain, common sense, of the act, and according to its natural and just construction. We are of opinion, therefore, that the judgment below ought to be affirmed.

Judgment affirmed.  