
    EVANS against NEWKIRK.
    
      OS CERTIORARI.
    Penalty for detaining or receiving more than lawful toll, from travelers, applies not to persons exempt.
    Evans, the plaintiff in certiorari, was the defendant below; he was keeper of the toll gate for the Newark turnpike company. This action was brought against him by Newkirk, to recover a penalty of ten dollars under the 7th section of the act incorporating that company, for taking more toll than the rates allowed by law. Newkirk considered himself exempted from paying toll, on the ground that was going about the usual business of his farm, he owning a piece of meadow several miles from his house, which he was' going to with his wagon and horses, when he was stopped by the toll gatherer and made to pay toll: some difficulty occurred in ascertaining from the justices’ record, the facts sufficient for the court to determine the question which was intended to be raised, to wit, the extent of • the words in the turnpike acts, exempting from toll “ persons passing to or from Ms common 
      
      business on his farm; ” but leaving that point undecided, the court was of opinion that in case the plaintiff [*] below was correct in his construction of the act, and brought himself fully within it, yet, that the section giving the penalty in question would not embrace his case, and that he had mistaken his remedy; that if he was wholly exempt from paying toll by reason of his coming within the provision of the act made in favor of persons passing to or from their common business on their farms; that in such case the road was free to him, and he would have the same remedy against the toll-gatherer for detaining him, as he would have against any other person who should stop and detain him on the road without legal authority, and extort money from him. [329] That the penalty was given against the toll-gatherer for unnecessarily delaying or hindering any traveler, or receiving more toll than was by the act allowed, and did not embrace the case of the plaintiff below, supposing that he wras right both in law and fact, and
    Reversed the judgment.
    
      M’ Whorter, for plaintiff.
     