Cole

— The plaintiff is a turnpike road company organized under the act of May 12, 1853 (p. 169), as amended by the act of April 27, 1857 (p. 280), and the action is to recover tolls for the use of its road. One of the defenses is that the board of supervisors of the county in which the road is located has never “fixed and prescribed” the place at which any toll-gate on said road shall be erected, nor by any valid order of the board has authorized a toll-gate to be erected ■ and it is contended, first, that tolls can be collected only at gates erected at places “fixed and prescribed” by the board; and second, that by erecting a toll-gate at a place not so fixed and prescribed the company has forfeited its corporate rights. It appeared in evidence that the board of supervisors fixed the rates of toll, and by an order entered in its minutes authorized the company “to establish toll-gates at such places as the directors of the road may designate on the line of said road.” But before this order was entered, the company had erected a toll-gate near the western end of the road, and has ever since maintained it, being the only toll-gate on the road.

Section 18 of the act of 1853, as amended…