I do hereby certify that the foregoing affidavit, together with the copy of the instrument of writing, are true and correct copies of the originals on file in my office.

Witness my hand and seal the Tenth day of July, 1912.

E. M. Harry,

Justice of the Peace, 415 Swede St., Norristown, Pa.

In the October issue we hope to be able to publish a sketch of the life of John Binns, Esq., Author of "Binns' Justice," and if we should be fortunate enough to secure his portrait, we shall also be pleased to insert the same.

Dublin and Souderton Turnpike Co. v. Cope

In the absence of a promise to pay toll, a turnpike road company cannot recover same by suit, but is compelled to resort to the remedy of having its toll gatherer prevent passage by closing gate.

A justice of the peace has no jurisdiction of a suit to recover toll unless the defendant promises to pay and fails to do so. In order to sustain the judgment of the justice, his jurisdiction must clearly appear from the record.

JURISDICTION

J.P.--RECORD

J.P.-COLLECTION

OF TOLL

TURNPIKE COMPANIES CLOSING GATE.

No. 23, May Term, 1912, C. P. of Bucks County.

Certiorari.

Grim & Grim, Attorneys for Plaintiff.

Hiram H. Keller, Attorney for Defendant.

Opinion by Ryan, J., September 3, 1913.

OPINION AND DECREE OF THE COURT.

The justice's transcript shows that a summons was issued against the defendant at the instance of the plaintiff, which was duly served and returned. It contains the following record of the hearing: "Now, April 22nd, 1912, Parties appear. J. D. Ribble for the Plaintiff, and Defendant Hiram Cope and his Attorney Hiram H. Keller appear de bene esse on the ground that the justice is without jurisdiction in this case, the Plaintiff's claim is ten cents (.10) for toll which was demanded and not paid by the Defendant. Plaintiff J. D. Ribble sworn, says that Hiram Cope the defendant within thirty days prior hereto drove over Turnpike of Plaintiff from Blooming Glen to the Creamery in Hilltown Township, said distance being less than a mile,

Dublin & Souderton Turnpike Co. v. Cope

that he took at least five trips within said time, that under the Act of April 30th, 1879, P. L. 35, Plaintiff is entitled to recover for every mile in length or fraction of a mile whether passing through a gate or not. Defendant did not testify." The justice afterward entered judgment for the plaintiff for ten cents and costs of suit. The exceptions filed by the defendant to the record aver that it does not show any jurisdiction in the justice to entertain the said suit. It does not appear from the record whether the defendant in travelling the plaintiff's turnpike the distance mentioned, to wit, "from Blooming Glen to the Creamery in Hilltown Township" passed through a toll-gate. If he did pass through a gate without paying the toll demandable, having neither acted fraudulently nor violated an express promise to pay toll in doing so, no suit would lie for said toll, but the company would be compelled to resort to the remedy of having its toll gatherer prevent his passage through the gate, at the time, by closing it. Turnpike Co. v. Brown, 2 P. & W., 462; Turnpike Co. v. Stoever, 2 W. & S., 551; Turnpike Co. v. Martin, 12 Pa. 361; Kidder v. Boom Co., 24 Pa., 193; Kerr v. Turnpike Co., 17 C. C., 659.

The Act of April 19, 1850, P. L. 518, which has been cited, is a local act, relating to turnpike roads in the county of Philadelphia. It therefore has no application here. If the defendant promised to pay the toll but failed to do so, an action against him to recover it could be maintained. Beeler v. Turnpike Co., 14 Pa., 162; Kidder v. Boom, supra. It does not appear that he did so promise. The claim for the toll is based on the provisions of the Act of April 30, 1879, P. L. 35, which amends the Act of April 29, 1874, P. L. 85, and imposes toll rates "for every mile in length or portion of a mile (travelled) whether passing through a gate or not, of said road" etc. This act does not provide any remedy for the collection of toll in either case. In the first