case smith against shepherd Tolltraverse tollthorough turntoll and toll for  murage may exist by prescription and may he distrain for in v in regid but a  justification without say fordistress nomin severity be have ante Ro Rep Inst  Mod side Jones Mod Mod lev Ven lev Kel palm Mod Wilf bunb burr burr Cowp term  Rep b r trespass for the take of one hundred sheep at meltonmowbray in regius  way ibidem the defendant to all except one plead not guilty and quoad that  hepleaded that Lord herkley be seize of the manor of meltonmowbray in  meltonmowbray aforesaid and that he and all those c have use from time whereof  c to have toll videlicet twopence for every twenty sheep of any stranger bring  or drive per el trans the say will by any stranger and if he be deny by any  such stranger iving they per et trans the say will then they have use time  whereof c to distrain for the say toll one sheep so drive and allege in fact  that two hundred and twenty sheep of the plaintiff be a stranger and not  inhabit there be drive by one Ludfield per el trans the say will by the  plaintiff command and because he refuse to pay this toll he that one sheep to  take in hand et to lead away and detain until the toll be pay et hoc c it be  hereupon demurrer in law and it be move first that this plea be not good for  the matter for this toll be claim as a tollthrough which can be claim by any  prescription for it be against law and in oppression to the people and to that  purpose be cite assize second although he may prescrihb to have this toll yet  he can prescrihe to distrain for it in v id RegTd for that be against the  statute of marlbridge a and in proof thereof vouch Edward pl Edward pl Richard  avowry Edward pl that where a lord distrain in a highway the tenant may have  trespass or may make rescous and against a statute one can prescribe as Henry  pl and dyer but this exception be not allow for it be hold that this statute  do not intend but for distress for rend or service and not for those thing  whereof no distress can he but in the highway three it be move that this plea  be not good for the manner of the plead first because the custom be allege to  he that if the sheep of any foreigner he drive through a toll shall he pay and  if it he deny by any foreigner who drive they through that a distress may he  take croak Elizabeth and it be not aver that he who drive they through be a  foreigner but only that the master be a foreigner say on allocatur for the  drive of the servant be the drive of the master and if he he a foreigner that  suffice second because he justify quod to take in hand el to lead away and do  not say by distress nomin severity for otherwise he can justify And this be  hold by the whole court to be a material exception for otherwise it meet not  with the prescription for the matter it be move for the defendant that  tollthrough may he well take by prescription for it be one of the toll which  the law allow and as a tolltraverse be where toll be claim for go over the  proper soil of another man so througbtoll be for passage through a will and  both be by prescription and notwithstanding the opinion of Thorpe in ass it  have be always allow to be good as appear Edward and Edward toll pound Henry  pl and bro quo warranto it be hold that turntoll be Allowable and Henry pl  toll be take by those of Gloucester for pa sage by the river and this be by  prescription and allow and that a distress miaht he take for it wherefore  c Popham one may have tolltraverse by prescription and so he may have  tollthrough but it ought to be for some reasonable cause which must he show  videlicet that he be to maintain a causewa that or to repair a way or a bridge  or such like and a Henry c see Bac Abr croak Elizabeth er p the queen at this  day may grant such toll be but a petite thing in respect it shall he a great  benefit or ease to the people for the repair of a dangerous way or the like so  a prescription to have a toll for murage be good because it be to repair the  wall of a will whereto the people may fly in time of war but here for that  there be not any cause allege so as it may appear to the court to have a  lawful commencement he conceive the plea to he ill gawdy and Clench hold the  plea to he well enough notwithstanding for be by prescription the cause  thereof can by intendment he know why it hegan but in respect it may have a  lawful beginning it be well enough without show it but gawdy doubt upon the  reason of the case ass whether such a toll may he claim b prescription Fenner  deliver not any opinion herein but for the default in the plead it be adjudge  for the plaintiff see the same cape in more report otherwise Parker ms