The ASSUMPSIT for tolls. Plea, non-assumpsit. The plaintiff is farmer of the tolls on the Totness turnpike road collected at Teign-bridge gate in the parish of Highwich in the county of Devon, and on the 3d of February, 1815, the defendant passed along the turnpike road, for the space of one mile, and through the gate, with a cart drawn by two horses, and was then solely employed in carrying materials for rebuild ing Teign-bridge, which is situate in the Totness turnpike road, between Newton Abbott and the city of Exeter. Teign-bridge is a county bridge, and had been directed to be rebuilt by an order of the justices assembled at the general quarter sessions of the peace for the county, The plaintiff demanded of the defendant a toll of 1s., being the legal and accustomed toll for a cart drawn by two horses, for the said cart and two horses then driven by defendant passing through the said gate, which the defendant refused to pay. The question for the opinion of the Court was, whether under these circumstances the defendant was liable to the toll.. The case was argued by Hutchinson for the plaintiff, and Denman for the defendant, but the Court in giving judgment, stated most of the arguments which were VOL. II. (a) This case was argued at Serjcants' Inn. E used, Friday, A bridge is not a highway within the meaning of the 13 G. 3. c. 84. s. 60., by which carriages employed in carrying materials for the repair of any turnpike road or public highway, are ex empted from toll; and there fore toll is payable for a carriage em ployed in carrying materials for the repair of a bridge along a turnpike road. 1818. OSMOND against WIDDICOMBE. used, and which turned only on the construction of the particular clause of the act. They have therefore been omitted. BAYLEY J. The question in this case is, whether a person carrying materials for the repair of a bridge along a turnpike road, is exempted from the payment of toll, and that depends upon the construction of the stat. 13. G. 3. c. 84. s. 60. That clause states, "that no toll shall be collected or received at any toll-gate, for or in respect of carriages solely employed in `carrying materials for the repair of any turnpike road or public highway, or for going to such employment, or returning after having been so employed." The argument in favour of the exemption is, that a bridge is a public highway within the meaning of this section. It is, however, to be observed, that long before this act of parliament passed, there existed separate systems of laws applicable to bridges and to highways; and in addition to these, several turnpike acts had been passed. The stat. 22 H. 8. c. 5. imposed the burden of the repair of bridges on the county, the 13 G. 3. c. 78. related to parochial highways; and the 13 G. 3. c. 84., which passed in the same session, applied to turnpike roads, so that it appears these were all distinct subjects of legislative provision. Now, if it had been intended to include bridges in this exemption, one should have expected that, like turnpike roads and highways, they would have been expressly mentioned. Besides it must be recollected, that the damage done to a turnpike road from the carriage of materials for the repairs of bridges, would from the very nature of those materials, be greater than that arising from the carriage of those necessary for the repair of a road, and so a heavier burden burden would be taken from the larger body, the inhabitants of the county, and thrown on the parish or the trustees of the road. The 43 G. 3. c. 59. throws some light upon the subject, for the first section of that act empowers the surveyors of bridges, to get materials for the repair of bridges in the same manner as surveyors of highways, under the 13 G. 3. c. 78. The lelegislature, therefore, seem to have considered a bridge as distinct from a highway, and as not included in that term, as used in the highway act. I am therefore of opinion, that as the legislature has treated bridges and highways as distinct and separate subjects of legislative provision, that the former do not come within the term highway, used in this clause of exemption; and therefore that there must be judgment for the plaintiff. ABBOTT and HOLROYD Js. concurred. Judgment for Plaintiff. 1818. OSMOND against WIDDICOMBE. MAXWELL against JAMESON. (a) ASSUMPSIT for money paid, &c. by plaintiff for use of defendant. At the trial before Wood Baron, at the Northumberland assizes, 1817, a verdict was found for the plaintiff for 187. 2s. 3d. subject to the opinion of the Court on the following case. Friday, One of the makers of a joint and several promissory note, after the same had be come due, gave his bond to the holder for the amount; but before the com mencement of the action no money was actually paid on the bond: Held that, until he had paid money upon the bond, he could not maintain an action for money paid, in order to recover contribution against any of the other makers of the original note. (a) This case was argued at Serjeants' Inn. 1818. MAXWELL against JAMESON. On the 9th August 1814, Maxwell, Jameson, and two others gave the following promissory note to Batson and Co. who were bankers at Berwick-upon-Tweed: "Six weeks after date we jointly and severally promise to pay to Messrs Batson and Co. or order at the Tweed Bank here the sum of 70l. for value received." On the 10th March 1816, Maxwell took up the note in question giving his own bond to Batson and Co. for the amount conditioned for payment on the 29th day of September 1816. No money was, however, in fact, paid by the plaintiff to Batson and Co. either on account of the bond or the note, before the commencement of this action. The question for the opinion of the Court was, whether, under the circumstances, this action for money paid to the defendant's use could be maintained. Reader, for the plaintiff. The question in this case is, whether the plaintiff, having only given a bond, can be said to have paid money, so as to entitle him to call upon the defendant for contribution in this form of action. And it is not distinguishable from Barclay v. Gooch (a), where, though no money actually passed, but a note only was given, yet the Court held it to be a sufficient payment, because the party who might have enforced payment, accepted the note as money. Israel v. Douglas (b) is also an authority to shew that this form of action may be maintained without any money having actually passed between the parties. The case of Taylor v. Higgins (c) may perhaps be urged as an authority against this doctrine, but there the bond was (a) 2 Esp. N. P. C. 571. (b) 1 H. Bl. 239. (c) 3 East, 169. given by a third person. And as the original debt, which was also on a bond, was not extinguished, and no money was paid, no action, as for money paid, could on that account lie. But in this case the original debt is actually extinguished by the bond, and therefore the bond is, in fact, so much money paid to the defendant's use, since the person to whom the debt is due, elects to take the bond in lieu of actual payment. The question too in Taylor v. Higgins arose on an affidavit to hold to bail, where the Court requires the cause of action to be stated with great accuracy. Richardson, contrà. This action is not maintainable: if any action lie, it must be for money paid; but as no money has, as yet, been paid, the action cannot now be sustained. Barclay v. Gooch is a mere nisi prius decision; but even in that case, the payment was by a promissory note, which is often treated as money in the ordinary transactions of business. A bond, however, stands on a different footing; because that is simply a security for a debt, and cannot be considered as cash. And this distinction was taken in Taylor v. Higgins, for that case did not turn on the question whether the giving of the bond operated as an extinguishment of the original debt, but whether it amounted to payment. The case of Israel v. Douglas proceeded entirely on the ground of consent. There A. was indebted to B. and B. to C., and it was agreed between all three that C. should take A. as paymaster; there it was held that an action would lie against A. because he had agreed to hold the money which he owed to B., to the use of C. An equivalent for money is not however, in all cases, considered as money; thus stock is not so considered, Nightingal v. Devisme, E 3 1818. MAXWELL against JAMESON. |