The opinion of the court was delivered by

This is an action for damages sustained through the insufficiency of the defendants’ road. The plaintiff, at the time the injury accrued, was not intending to pass one of the gates of the company ; and the charter gives the right to recover damages only to those, of whom toll is demandable, and then contains a provision in regard to certain persons, who shall be exempt from paying toll under certain circumstances.* And the question to be determined is, whether the plaintiff was one, of whom toll was demandable, within the meaning of the charter giving the remedy for injuries; and we think he must be so considered.

1. It appears in the case, that the company had actually taken a commutation of him, for passing one of their gates ; and there is no pretence that he was not liable, if he passed the other gates of the company.

2. Then we think, if toll was demandable of him upon the road at all, he must come within the words of the provision; and the *108most that can be said is, that the restriction could, at most, only extend to those persons, who were injured upon a use of the road, which came within the exception, — which the use of the plaintiff at the time of the injury did not, — and even this restriction would be almost absurd, for he must use the road, as the public had provided no other.

And the company, by taking toll of the plaintiff for a gate within five miles of his residence, had departed from the exemption as to toll, and would thereby be estopped to deny, that the plaintiff had a claim to recover damages, when they had actually received toll of him. Judgment affirmed.