Bridgewater and Utica Plank Road Co. v. Robbins. elude the gate by false pretenses, or by setting at defiance the demands of the gate keeper, by passing through the gate by one artifice or another without payment-acts all injuriously affecting the private interests of the plaintiff. IV. Whether the passage of the gate was forcible and fraudulent, or either, was a question of fact for the jury, and they have found for the plaintiff, and therefore the judgment will not be disturbed. V. There was no question made on the trial, that the act of 1855 repealed the section of the statute which imposes the penalty recovered, and it cannot now be made, for that reason. (Willard v. Bridge, 4 Barb. 361, 363.) (1.) The defendant moved for a nonsuit, but it was only on the ground that there was no evidence to show that the defendant forcibly or fraudulently passed the gate. (2.) He passed the gate when prohibited at the time from passing, without payment of toll. The gate itself was notice of the condition. The gate keeper demanded it. That demand, in such cases, is clearly a demand of payment as a condition to going through. It is saying, "Sir, you must pay the toll before you can pass." (3.) The refusal to pay, under the circumstances, and driving through, is saying, more potently than by words, I shan't pay, and if you stop me from going through, you must do it by force, and urges his horses to drag him through. This would be forcibly passing, no matter who tended the gate. (4.) What would not be intimidation or force under one set of circumstances, would be under other circumstances. VI. The act of 1855 does not purport to, and does not, repeal § 55, 1 R. S. 719. It does not profess to provide a penalty for forcibly or fraudently passing a gate. (1.) It provides for a case i 55 did not provide for, i. e. a case where there was no force, &c. (2.) A large penalty was designed to be given when there was force or fraud. (3.) It will be seen that the whole act of 1855 was designed to make certain acts penal, not before such, and to repeal any provision of law authorizing any such acts. VII. The exception to the justice's charge points out no par Bridgewater and Utica Plank Road Co. v. Robbins. ticular ruling excepted to, and is therefore too general to be available for any purpose. He submitted the question of force or fraud to the jury. And on what was necessary to constitute force, his charge was particularly sound and clear, and is sustained alike by common sense and authority. (8 Cowen, 229 and 232.) By the Court, W. F. ALLEN, J, The evidence of the gate keeper of the plaintiffs showed that on the 25th of May, 1855, the defendant passed through the gate on the plaintiffs' road, near Bridgewater, and on being requested to pay toll, declined, saying that he ought not to pay toll as the road was bad, but would do so if Mr. Bushnell said he must. On the 29th of May he again passed through, and was told that Mr. Bushnell said he must pay toll; to which, so far as appears, no reply was made, but the defendant passed on without paying toll. On each occasion the gate was open, as it was habitually in the day time, and was not opened by him or any one else to admit of his passage. By law a penalty of $25 is imposed upon every person who shall "forcibly or fraudulently pass any gate on any turnpike or plank road, without having paid the legal toll." The statute imposing this penalty was originally enacted in reference to, and for the benefit of, turnpike corporations, and was by a subsequent act made applicable to plank road companies formed under the general act of 1847. (1 R. S. 588, 57. Laws of § 1849, p. 375, § 5.) The act is penal, imposing a penalty or forfeiture for the benefit and protection of a private corporation and in derogation of common right, and may not, therefore, be extended by construction to cases within the mischief intended to be remedied, but which are not within the words of the statute. The act which subjects an individual to the penalty must be both within the letter and the spirit of the act imposing it; that is, the offense must be clearly and specially described in the statute. While in the construction of penal as of other statutes, the intention of the legislature must govern, that intention is to be collected from the words employed, and the words must receive an interpretation according to their plain and natural Bridgewater and Utica Plank Road Co. v. Robbins. sense the sense in which they are ordinarily used. (The United States v. Wiltberger, 5 Wheat. 76.) The question before us is, whether there was any evidence to be submitted to and passed upon by the jury, of a "forcible or fraudulent passing" of the gate of the plaintiff, within the statute imposing the penalty. The terms "forcible and fraudulent" must be held to have been used in their ordinary sense. Actual force or actual fraud, as distinguished from constructive force or fraud, was intended. Every passage without the consent of the toll gatherer, and without the payment of the legal toll, would be in one sense forcible, as being done against his will, and fraudulent, as an act in fraud of the rights of the company; but it cannot be presumed that these very common and well understood words were used in this somewhat refined and very unusual sense. The words were designed to specify the particular wrongful passing, without the payment of toll, which should subject an individual to the penalty. Upon any other construction the words were useless, as qualifying the sentence and limiting the penalty to a particular class of offenders. The act of the defendant was rather a non-feasance than a malfeasance. It consisted in an omission to pay the toll. Indeed he was not forbidden to pass the gate, and no effort was made, even by words, to prevent his passing until he should pay the toll; and a mere non-feasance cannot be considered as forcible. In general, by force is understood unlawful violence; but acts may be forcible which are perpetrated by means of actual violence, or threats of personal injury to another. (Coke Lit. 161, b. 3 Thomas' Coke, 543, 4. People v. Rickert, 8 Cowen, 226. Willard v. Warren, 17 Wend. 257.) This point is decided by The Columbia Turnpike v. Woodworth, (2 Caines, 97,) in which it was held that a similar clause in the act incorporating the company had in contemplation only forcible and violent passages, and that simply riding through a gate, without paying toll, did not subject the party to the penalty. There is no pretense that the defendant used any trick, artifice or cunning to secure an opportunity of passing the gate, or that he took any measures to circumvent, cheat or deceive the agent of Bridgewater and Utica Plank Road Co. v. Robbins. the plaintiff in charge of the gate. He found the gate open and rode through, and no effort was made by word or deed to stop him. It was true he was asked to pay toll, and did not comply with the request, and was thereby guilty of that constructive and very technical fraud of which every person is, in contemplation of the law, guilty who voluntarily refuses to perform his legal duties. He is liable to an action for the non-performance, but cannot in all cases be convicted of an assault and battery, or charged with having committed an act vi et armis, or punished as a cheat, or charged with an actual fraud. We have a legislative construction of the statute under review, in the act of 1855, (Sess. Laws, p. 874, § 3,) by which a penalty of ten dollars is imposed upon any person who shall pass any turnpike or plank road gate without paying the toll required by law, and with the intent to avoid the payment thereof. This was designed to remedy an omission in the former act and provide for cases not within its letter or spirit, and imposed a lesser penalty for an offense less aggravated in its character than those before provided for, and this act would not have been necessary if the statute, under which this action is prosecuted, will bear the construction claimed for it. Under the act of 1855 the defendant can be convicted, if the intent to avoid the payment of toll can be fixed upon him. But there was no evidence of a forcible or fraudulent passing of the gate, and the judgment of the county court and of the justice must therefore be reversed. [ONONDAGA GENERAL TERM, October 7, 1856. Pratt, Bacon and W. F. Allen, Justices.] 22b 670 31ap386 NIPPER VS. GROESBECK. Where both the subscribing witnesses to a will testified that they saw the testatrix sign the will, and that they became subscribing witnesses at her request; and one of them stated that a short time before the testatrix signed it, it had been put into her hands to read; that she read it, and then requested some one else to read it; and that S. then read it aloud, in the presence of the testatrix and the witnesses; that about an hour afterwards the testatrix requested to have the will brought, that she might sign it, and on its being brought she signed it, the subscribing witnesses attaching their signatures, upon her suggestion and at her request; and the other subscribing witness testified that after the reading of the will, the testatrix said "bring me the will, and I will write my name;" that after her signature had been completed, and those of the attesting witnesses had been attached, she declared she was glad it was done with and off her mind; and the will was thereupon folded up and handed to G. for safe keeping; Held, that this was a valid publication and execution of the will. THIS HIS was an appeal by George Nipper, from a decree of the surrogate of the county of Oswego, admitting the will of Mary M. Nipper, deceased, to probate. The material facts appear in the opinion of the court. R. H. Tyler, for the appellant. D. H. Marsh, for the respondent. By the Court, BACON, J. The requisites to the due exccution of a will, in this state, as prescribed by the statute, (2 R. S. 124, 32, 3d ed.) are very familiar, and are in substance, 1st. A subscription by the testator at the end of the will; 2d. The making or acknowledgment of such subscription in the presence of the attesting witnesses; 3d. A declaration by the testator, at the time of subscription or acknowledgment, that the instrument is his will; and 4th. The signatures of two attesting witnesses, at the testator's request. It will not be doubted, I think, that all these requisitions have been complied with in the case before us; unless it be the third, which requires what is technically known as the publication of the will; and that is the only important question in this case. If the will has been |