
    William Addison v. Benjamin F. Hard.
    Charleston,
    Feb. 1830.
    By the act of 1799, 2 Faust. 289, the proprietor of a ferry forfeits thel-ight to demand or receive the tolls allowed by law, unless he keeps the rates of toll fixed up in some conspicuous place. Where, however, a person has been in the habit of crossing a ferry without paying, but there is no evidence of his ever having objected to the rates not being fixed up, the jury, in an action against him for the toll, may presume, that he knew the rates and contracted to pay them; and a verdict for the plaintiff will not be disturbed. Richardson, J. dissenting on the last point.
    Tried before Mr. Justice O’Neall, at Walterborough, Spring Term, 1829.
    Assumpsit upon an account for tolls incurred by the defendant at the Jacksonborough ferry, of which the plaintiff was proprietor. The account was admitted by the defendant, but the plaintiff’s right to recover was resisted, on the ground, that by the provisions of the act of 1799, 2 Faust, 289, he had forfeited his right to the toll, in consequence of having neglected to “ keep fixed up in some conspicuous place,” the rates of toll established by law. The act, after requiring that the rates of toll of ferries, bridges, &c. shall be fixed up in some conspicuous place, provides, that “ if any person or persons, their heirs or assigns, in whom public ferries, toll-bridges, or causeways, have been, or hereafter shall be vested, shall neglect, or refuse to keep fixed up their several rates, as established by law, such keeper, or keepers of a public ferry, toll-bridge, or causeway, shall forfeit all such toll as they would have been intitled to receive.” It was fully ascertained by the evidence, that the plaintiff, in this action, had not kept the rates of toll fixed up, as required by the act, during the period comprised in the account; but there was no evidence, that the defendant had, at any time, during the same period, complained of the omission, or alleged ignorance of the rates.
    It was contended for the plaintiff, that the forfeiture, provided by the act, did not enure to the benefit of the defendant, but to the public. Such was the technical import and effect of the word forfeit; and there was nothing in the connexion in which it was used in the act, to alter the ordinary legal import of the j.erm_ The language of the act is, “ shall forfeit all such toll not the right to demand or receive the rates allowed by law. Besides which, the same section went on to provide, that if the proprietor of a ferry, &c. should demand or receive greater rates of toll, than he was intitled to by law, he should forfeit treble such rates, to be recovered by warrant and execution from any justice of the peace; which latter provision evidently applied to both the classes of forfeitures created by that section of the act. If it were conceded, that the defendant could derive any benefit from the forfeiture, it could only be in the character of informer; and he could not be intitled to that character, except by instituting proceedings for the recovery of the forfeiture in the mode prescribed by the act. Without instituting such proceedings, the act could, under no circumstances, avail as a defence to the present action.
    The presiding Judge was of opinion, and so instructed the jury, that the intention of the Legislature, in the enactment in question, was to apprize persons passing a ferry, &c. of the rates of toll, to which the law subjected them, and thus to guard against imposition; and if this end was attained to the satisfaction of the parties, by any other means, the act would not apply. If the defendant had paid the rates of toll allowed by law, he certainly could not recover them back; so if, knowing them, he had contracted to pay them, on condition of being allowed to pass the ferry on credit, the act would afford him no defence to this action. There was no evidence, indeed, that defendant knew the rates of toll, or that he had contracted to pay them : but on the other hand, it was admitted that he had made use of the ferry for a long time, and had incurred tolls to a large amount; and there was no evidence that he had ever objected to the rates not being fixed up, nor was there any pretence that he was ignorant of the rates. The conclusion seemed to be inevitable, that the defendant would not have been allowed to use the ferry, for so long a time, without having obtained credit, or in other words, promised to pay the toll — for doubtless if he had made the objection, the plaintiff would have obviated it by fixing up the rates.
    The jury found for the plaintiff; and the defendant moved to set aside their verdict on the ground of misdirection.
    
      Clarke, for the motion.
    Contended, that the construction, given to the act by the presiding Judge amounted, in effect, to its absolute repeal; and was, therefore, inadmissible. As to the question made upon the effect of the forfeiture, and whether the defendant was intitled to the benefit of it, the intention of the Legislature, that it should enure to his benefit, was too plain to be mistaken. No one, indeed, but himself, could take advantage of it. This point was conceded in the case of Frazier v. Drayton, 2 N. & M. 471, which may be regarded as having settled the question.
    J. D. Edwards, contra.
    
    The opinion delivered in Frazier v. Drayton is in exact conformity to the charge of the presiding Judge in this case. If it is authority on the one point, it is so also on the other, and is conclusive against the present motion.
   Colcock, J.

In this case we concur with the presiding Judge in the view which he has taken, both of the-law and of the facts. No doubt can exist as to the object of the law; but whilst the Legislature was affording to the citizens of the country a shield to protect them from the imposition of ferry-owners, they could not intend, that it should be converted into an engine by which the citizen might injure these public agents. We do not hear of any objections made by the defendant in his frequent passings over this ferry, of the want of information as to the rates of ferriage. Had he made this a ground of objection at first, can it be doubted that the ferryman would have complied with the act? The presumption, on which the Judge and' the jury have relied, is an irresistible one, that there was a private contract between the parties, and that the defendant obtained a credit; and in relation to these points, there can be but one opinion of the verdict. What would be the conduct of a person who considered himself aggrieved by a violation of the act, in not putting up the rates of toll? Would he not immediately complain; and particularly if he was compelled to cross the ferry frequently ? Had the defendant done so, and relied on the protection the law afforded him, he might have refused to pay; and he then could not have been compelled to- do so. In the case of Frazier v. Drayton, 2 N. & M. 471, the rates had been put up, aud therefore the plaintiff was not put to the necessity of relying on either presumption, or direct proof of a contract to pass on credit. But in that case the Court did not rely 1 on that fact alone ; and if there had been no proof that the rate* ^ac* been Put UP’ tbe decision would have been the same.

Again: What is meant by admitting the account? or, why was it admitted? I take it, that by admitting the account, the defendant admitted the services had been performed, and that the charges were made according to law. This is giving up the case; for after a verdict by which justice has been obviously advanced, I would never set it aside upon a mere legal objection, which can be avoided by any rational presumption. And why the account was admitted I think is obvious: some explanatory evidence might have been given, if witnesses, or any witness had been called to prove it. The motion must therefore be dismissed.

Johnson, J.

I concur with my brother Colcock. By the usage, as well as the law, the tolls are due on the instant that the passenger is ferried over; and the neglect of the plaintiff to demand, and the defendant to pay, at each time, furnishes an irresistible presumption of a contract to pay at a future day. His crossing the ferry so frequently, and for so long a period, without giving the plaintiff notice, that he would insist on the want of the rates being posted up according to the act, was a fraud on the plaintiff; and the jury having found against him, I would not set aside the verdict, although a technical rule had been violated.

Richardson, J.

dissenting. There is no mistaking the fact* of this case. The defendant admitted that he had passed the ferry, and it was proven that the rates of ferriage had not been put up, as required by the act. The case is simply and unquali-fiedly that of every traveller who passes a ferry, and refuses to pay the established rates of ferriage, not because he did not know the rates, but because notice of the rates of ferriage had not been put up in some conspicuous place, as required by law. No special agreement is alleged, and none proven; and we art, therefore, merely to inquire, what is the law for such cases, without any peculiar regard for this particular case.

The law is clear, in letter and in spirit; and the whole bench are unanimous in this construction of the act: that unless the notice required be kept up, the owner of the ferry forfeits his right to receive the toll; and that it is not a forfeiture to the'' State for receiving the toll, without a notice, in the nature of a mulct, or fine, but of the right to receive the toll from the travel-ler. The policy and object of the enactment are palpable. The public notice is a condition precedent to the right to receive the toll; and this sine qua non, expressly made by the act, is, to prevent habitual impositions, and imperceptible extensions of the rates of ferriage, which so often begin with good, easy men, and end in practical law by the contagious acquiesence of many travellers.

The. presiding Judge evidently overlooked the preventive policy of the law, in supposing the act meant, merely, that if the traveller knew the rates of ferriage, the right to toll attached. He thought the individual knowledge of the defendant a legal substitute for the public notice, and the end required by it. Is •such a substitution good % Is such a construction legal 1 In my judgment it would practically repeal the act; because every traveller, when he has been carried over a ferry, must be informed, as the defendant was, of the rates, before he can pay his ferriage. The Judge evidently means, that inasmuch as when the toll had been paid, a return of the money cannot be had, for the want of the public notice, it follows, that the want of the notice is no defence after an implied promise to pay, arising out of the fact of passing the ferry with a knowledge, no matter how obtained, of the rates of ferriage. He charged the jury, that the intention of the Legislature was to apprise persons passing a ferry of the rates to which the law subjected them, and thus to guard against imposition. Now here is a plain substitution of the knowledge of the defendant, and the morality which ought to have governed him, for the precedent condition required by the act. The predicate of the charge is, that the knowledge of the defendant, and his implied assumpsit, constitute the foundation of the action; whereas, the only legal foundation of the plaintiff’s right was the public notice. No express promise was alleged, or proven; but, on the contrary, there was a refusal to pay, for want of the public notice, whilst the mere fact of passing the ferry was admitted, and the absence of all public notice proven, as an estoppel to the action.

The case appears to me as if made to elicit a decision upon the question, whether the public notice is rendered by the act a condition precedent to the right to demand the toll, in a case where there was no agreement whatever, but what follows from the law, and the fact of passing the ferry: and the whole argument turns upon the inquiry, whether the forfeiture was to the State, for not giving the public notice required, or a forfeiture of the right to receive the toll for the same reason. If the former, the action lay; if the latter, the recovery was incompetent. And the decision either preserves, or leaves at varying discretion, and the feelings engendered in every particular case, the wholesome policy of the statute.

Whenever a verdict has been given, consistently with the merits arid moral justice of a case, a resort to the summum jus is not to be regarded as sufficient in a motion for a new trial. In such a case we could merely substitute our own estimate of the facts for that of the jury, inasmuch as we can fix upon no intelligible rule, or principle, which estops the verdict, or which should govern such cases generally; and the verdict stands because we cannot say, per leges, it ought to have been for the opposite party. But whenever the legal right of the plaintiff to recover depends primarily upon a rule of law, or upon the construction of a statute, as in this case, there, any error of law in the instruction given to the jury by the Judge, ipso facto, destroys the verdict, which is consonant to the charge. Now this is the precise case before us. The moment we decide what is the true construction of the act, we destroy the right of the plaintiff, and pronounce the fate of the action. Í cannot therefore assent to a verdict which, although it may have arrived at individual justice, yet violates the positive enactment of the Jaw, and may afford room for the same violation in any other similar case.

Motion refused.  