#### Carrier *against*the P. D. & Company of the Western Branch of the Schoharie Turnpike Road.

(sessTMa.cech. vi'lcd5' thafif with'his^team, shouFci &°áfter ío«d'tura off to pass the ^ on ground ad-anTM apifaen-road," with in-irandtheCom-mgy the a pay-Si forfeit the laTM &cre,f'he fact’ that the •person, after taming off; tra-old public makeSno dif-oniynCquestíon turned*©? ío-«"viewtoavoid paying-toll,

off at aplace little more than half a the gate, it is grout”! °adja-gaté,Within the But?”1”® °f

IN ERROR on *certiorari*to a Justice’s Court. The *Turnpike Company,*sued Carrier, before a justice, for five dollars °f debt, and declared, for that whereas the defendant travelled with a horse in the town of *Sharon,*in the County ^c/iofome, on the turnpike of the Company, and turned off the road, to pass one of the gates on the road, and again éntered on the said road, with intent to defraud the said Company of the toll due to them, &c.; and also that the defendant, heretofore, travelled in the town of Sharon, on said Turnpike, with a drove of cattle, and turned off, to pass one of the gates on the said road, and again entered the said roa& with intent to defraud the said Company, by avoiding *-he Paymenl °f the toll due to them, &c. It appeared that the defendant below, had turned off the / 1 *n*turnpike road in *Sharon,*at the house of *Luther Robinson,*and again entered on the Turnpike, at the house of *Caleb Lamb,*in the same town, with a drove of 262 cattle : that he first entered the turnpike at its western extremity : that ’n turning off at Robinson’s, and again entering it at *Lamb's,*a turnpike gate, which stands a little more than half a mile from *Robinson’s,*ivas avoided. The distance between fío-*binson's*and *Lamb's*house, on the Turnpike, is about four , *11*miles, and by turning off at *R.'s,*and travelling the old road where the defendant, drove his caitle, the distance is 6 or *7*miles. "After the defendant had thus gone round the gate, the toll-gatherer requested him to pay the toll, but he refused, saying that he would go round the gate when he pleased. It appeared that the old road had been used as a public highway above thirty years, and passed through a well-settled country ; that loaded waggons and droves of cattle had frequently passed on that road: the Turnpike was sometimes out of repair, but was then in good order ; and between *Robinson's*and the gate, there were several in-*57iervening proprietors of the land. The justice gave judg-mentfor the plaintiffs below, for five dollars, and costs.

Spencer, Ch. J.

delivered the opinion of the Court. The act (3 *Webs. ed. Laws,*137. sess. 25. ch. 113. s. 7.) provides, “ that if any person, with his team, cattle, &c. shall, after travelling said road, with intention of defrauding said company, by avoiding the payment of the toll due by virtue of this act, such person shall forfeit the sum of five dollars, to he recovered,” &c.

It can never enter into consideration, that in turning off the turnpike, after having travelled it, and again entering upon it, it was by travelling an old road. The act in guarding against teams doing so, must have contemplated that they would necessarily travel on some road. The act intended to guard against the fraud of using the turnpike road, then turning off near a gate, and again entering upon the road, to avoid the toll; and where the facts of turning off the turnpike road and again entering it, concur, the question will be, whether it was done *bona fide,*or to evade the toll. Neither is it material that other persons have been in the habit of doing so. The defendant is to answer for himself, and must show that he had legitimate reasons for leaving the turnpike and again entering thereon, and thereby avoiding a toll gate. It is material in this case, that the defendant travelled two miles further than he would have done, bad he not left the turnpike ; and the circumstance that he had a large drove of cattle is, also, of weight. He inquired about the owner of a heifer, and, ostensibly, with a view to purchase her; but this deserves little notice, as it may have been a mere pretext, and it is not shown that he went round for that purpose. I see no reason to be dissatisfied with the correctness of the conclusion of the justice, from the facts, that the defendant went round the gate with a view to defraud the company of their toll Had the old road been nearer or better, the conclusion, probably, would have been different.

The only remaining question is, whether the defendant turned off on ground *adjacent to the gate.*The word “ adjacent,” means lying close or near; and is used relatively *58to the gates on the turnpike, which are ten miles apart. In the case of the *People*v. *Denslow,*(1 *Caines’ Rep.*180) the Court were called upon to decide whether a gate, erected *eight*chains and fifteen links distant from, was erected, as it ought to have been, *“ near*the dwelling house *oí John Van Hoesen*and it was held to be so. I have no doubt, that the road, little more than half a mile from the gate, ought to be considered as ground adjacent; and the Court are, therefore, of opinion, that the judgment of the justice ought to be affirmed.

Judgment affirmed.