#### SAMUEL & B. W. NEWLAND vs. THE BUNCOMBE TURNPIKE COMPANY.

Where the question was whether tolls were paid by an individual to a public Turnpike Company, between the 22d of September, 1834, and the 1st of September, 1835, where the collector during that period had kept no books and was now dead ; the circumstances, of his having collected toll from the individual just before the commencement of that period, that during that time, on a contest between the company and the individual, the company directed him to close the gates unless the toll was paid, that the individual was bound to convey the public mail over that road and that the successor of the deceased collector immediately on his coming into office, collected tolls — were evidence to be left to the jury, and in the opinion of this Court sufficient evidence, to shew that the tolls had been paid during that disputed period.

A payment of tolls on a public turnpike road cannot be said to be voluntary and not compulsory, when it was made by the party to enable him to obtain a passage over the road for the United States Mail, which he was bound to carry, and to keep his property from being taken from him by distress.

Appeal from the Superior Court of Law of Rutherford County at Fall Term 1843, §his Honor Judge Dick presiding.

This was an action of assumpsit to recover back money, alleged to have been improperly paid to the Company by the plaintiffs. The plaintiffs alleged that they were contractor to carry the United States’ Mail in four horse stages from Ashville, N. C. to some point in the State of Tennessee, com-*373■meneing on the 1st of January, 1834, for the term of four years, and that, to do so, they had to pass over the defendant’s turnpike road; that, during the term aforesaid, they were citizens of the County of Buncombe, and, as such, had a right, under the charter granted to the defendants, to pass their stage over the road without paying toll; that they had been compelled for a number of years to pay a large amount of toll, and this action was brought to recover it back. The plaintiffs then examined one *John C. Roberts,*who stated, that he was gate keeper for the defendants from the 1st of September, 1835, to the 13th of September, 1837 ; that he was directed by the defendants to exact one dollar and fifty cents from the plaintiffs for each time they passed over the road with the mail stages; that he did so, and received from the plaintiffs, during the said term, the sum of seven hundred and eighteen dollars and eighty one cents. This witness further stated, that a man by the name of Son-ills kept the gate in 1834 and up to Sept., 1835, and that Sorrills was dead. The plaintiffs then proved by *Jackson SorriUs,*that his father was gate-keeper in 1834 and part of *1835;*that in the Spring of 1834 he heard his father demand payment from B. W. Newland, one of the plaintiffs, who was then driving the stage and Newland paid him $1 50cts; that his father told Newland, that he had orders from the company to demand a dollar and an half for each time the stage passed. The plaintiffs then proved by .another witness, that they resided in Ashville, Buncombe County, from May, 1834, till sometime in 1838. The witness also proved, that they run their stage over the turnpike road six times a week. The plaintiffs then offered in evidence a copy of a resolution, entered on the books of the defendants, on the 6th of October, 1834, in the following ■ words, to wit,

“ *Resolved,*That the President and Directors of the Buncombe Turnpike Company are authorised to close the gates of this company against the mail stage, the week after the sitting of the next Superior Court of this County, and the Company will support and sustain them in any costs and *374damages that may accrue in either law or equity by so do-Íllg” .

. The plaintiffs then proved, that they continued to run their stage over gai(j roa(j; sjx times each week during the years 1834, 1835,1836 and 1837. The defendants then introduced a witness by the name of Moore, who deposed, that in the year 1830 he had a conversation with Samuel Newland, one of the plaintiffs, in which Newland stated, that he wished to come to some arrangement with the company about tolls, and, if he could not do so, he would become a citizen of Buncombe County, and would then have a right to travel the road without paying tolls. The plaintiffs then examined a witness, who stated, that in 1833, Samuel Newland, one of the plaintiffs, lived in Morganton, and, as he understood, removed to Ashville.

The defendants denied that the plaintiffs ever were citizens of Buncombe County ; and contended that, if they did reside in Ashville in the years 1834, 1835,1836 and 1837, they had done so with the intention of defrauding the company of their tolls, and not with the *bona fide*intention of becoming citizens of the County of Buncombe; *secondly,*that the privilege given' by the charter of the company to the citizens of Buncombe County does not authorize any citizen of the County to run a mail stage on the said road, free of toll; *thirdly,*that the money, if paid at all, was paid by the plaintiffs voluntarily, and therefore they could not recover it back; *fourthly,*that the order of the company above set forth was no evidence, that the defendants had collected more money than was proven by the witnesses, Roberts and Sorrells;before stated.

The Court charged the jury, that, if the evidence satisfied them, that the plaintiffs were citizens of the County of Buncombe in May 1834, and so continued up to the bringing of - this action, they were not liable to pay toll for running their mail stage over the road of the defendants — that, if they further believed from the evidence, that the defendants required them to pay toll and they did pay it, it was not such volun-*375iary payment as would bar their recovery in this action. The court further charged the jury, that, if they believed the plaintiffs were citizens of Buncombe, during the time aforesaid, and the defendants had collected tolls from them as alleged, the plaintiffs were entitled to recover whatever sums of money they had paid for tolls between the 22d of September, 1834, and the 22d of September, 1837, the day" of the issuing of their writ; that, if they believed the evidence of John C. Roberts, it was proved that $718 81 cts.-had been paid to the defendants. If the plaintiffs had proved to their satisfaction, that they had paid tolls from the 22d of September, 1834, to the 1st of September, 1835, they would be entitled to recover what they had so paid, and with interest, if they thought proper to allow it.

The jury, under these instructions, found for the plaintiff. The defendants moved for a new trial, because the jury had given damages for tolls alleged to have *been*paid by the plaintiff from the 22d of September, 1834, to 1st of September, 1837. A new trial being refused, and judgment • rendered pursuant to the verdict, the defendants appealed.

*Badger*for the plaintiff.

*Alexander*for the defendants.

Ruffin, C. 3.

As the charter to the defendants exempts the citizens of Buncombe from the payment of tolls, and the jury have found the plaintiffs to have been citizens of that county during, the whole period involved in this controversy,-the plaintiffs were not liable for the sums they paid.

It was, however, objected on the trial, that, although the money was not doe to the company, the plaintiffs could not recover it back, because they had paid-it without suit, and voluntarily.- But this objection the counsel very properly abandoned here. The payment was- not voluntary, that is,as payment of a debt admitted to be due and willingly-made ; but it was made as a means of obtaining a passage on the road for the mail, which the plaintiffs were obliged to carry,, and of keeping their property from- being taken from *376them by distress ; and so was compulsory, and without con-^deration. *Snowden v Davis,*1 Taunt. 359.

The remaining objection is, that there was po evidence to be left to the jury, that the plaintiffs had paid, the tolls between the *22d*of September, 1834, and the 1st of September, 1835. But vye think, although there was no direct testimony of the collector, who received the money for that period, as there was in relation to the time between the 1st of September, 1835, and September, 1837, yet there were good circumstances, tending to establish the payment to the satisfaction of any reasonable mind, and indeed, all, that, in the actual state of the case, could be expected from the plaintiffs. The defendants’ collector for that time was dead, and it'did not appear that any accounts were *kept of the persons*from whom tolls were received. It could not be expected that the collector would give a receipt for every daily toll, nor that the plaintiffs would have a witness by to prove such payments. But, to supply the want of such direct evidence, it was proved, that shortly before the commencement of the particular period, the collector, now dead, did collect toll from the plaintiffs, and gave them notice that he was ordered to demand toll every time the coach passed, and that he should do so. Then, to enforce that, without the necessity of suing for the tolls, and, perhaps, from a doubt of the power to distrain and detain the coach with the mail, the stockholders, a few days afterwards, on the 6th of October, 1834, in general meeting, passed a resolution, that the directors should have the gates on the road closed against the plaintiffs ; which must be understood to be, unless they paid the tolls. Then, again, it appeared, that, notwithstanding the warning from the gate keeper and the resolution of the stockholders, the plaintiffs continued to pass six times a week through the period specified; and. .that, immediately thereafter, upon the first coming *in of*a new gate keeper, the collection of the tolls was taken up by him, as a thing of course, and according to an established practice; can it be doubted that the directors and inferior servants of the company complied with the orders given them, and especially, *377that in obedience to the resol ufion of the stockholders, the gates were closed, as a means of compelling prompt pay-meats from the plaintiffs? At all events, it was evidence to the jury, to be weighed by them in connexion with the other circumstances,' and seems fully sufficient. The plaintiffs could not go further back than the 22d September, 1834, to which the court'restricted them, because the writ was issued on the 22d of September, 1837, and the defendants pleaded the statute of limitatations.

Per Curiam. Judgment affirmed.