1787. against SABERY and another. the sum of 1167. 2s., under and by virtue of the said KESTERTON trust; and the said defendants further say, that they the said defendants always have been and are ready and willing to account for the same, and to pay the same according to the form and effect of the said deed poll, to wit, at, &c., aforesaid, and this, &c.; wherefore they pray judgment whether the said J. K. ought to have execution for the residue of the debt and damages aforesaid, against them, &c. Replication. And the said plaintiff says, that by reason of any thing in the said plea above alledged, he ought not to be barred from having execution against the said defendants for the residue of the debt and damages aforesaid, because he says that the estate and effects of the said I. P. have not been fairly accounted for by the said defendants, and a dividend made amongst the said several creditors of the said I. P., parties to the said deed poll, according to the form and effect of the said deed poll, and of the said proviso therein in that behalf contained, but on the contrary thereof the said plaintiff says that after the sealing of the said deed poll by the said plaintiff, and after the death of the said I. P., and before the suing out of the said writ of scire facias, to wit, on &c., aforesaid, &c., a certain large sum of money, to wit, the sum of 500l. of the estate and effects of the said I. P. was in the hands of the said defendants, and that he the said plaintiff then and there requested the said defendants to account for the same, and to make a dividend thereof amongst the said several creditors of the said I. P., parties to the said deed poll, according to the form and effect of the said proviso in the said deed poll in that behalf contained; but that the said defendants then and there refused so to do, and the same remains hitherto in the hands of the said defendants, wholly unaccounted for and undivided amongst the creditors aforesaid, contrary to the form and effect of the said deed poll, and of the said proviso in that behalf made; and this, &c., wherefore he prays judgment, and that he may have execution for the residue of his debt and damages aforesaid, to be levied of the goods and chattels which belonged to the said I. P. at the time of his death, and which are in the hands of the said defendants, to be administered, &c. Demurrer. For that it doth not appear, nor is it alledged in and by the said replication, that the said defendants have received any sum of money for or on account of the said trust in the said deed mentioned, whereby a dividend of five shillings in the pound could be paid to the creditors of the said I. P., who have executed the said deed; and for that the said plaintiff hath not shewn where or when the said defendants refused to make any dividend of, or to pay the money so received by them as aforesaid; nor hath the said plaintiff laid any venue where the said defendants received the said money so alledged in and by the said replication to be received by them as aforesaid, nor is it thereby shewn or alledged for whom or on what account the same is supposed to be received by them, as aforesaid; and for that the said replication is in various other respects informal, defective, and insufficient. Joinder in demurrer. Baldwin, for defendants. This scire facias will not lie against the defendants in the character of administrators. The intestate did every thing he could for the benefit of his creditors, and he was to have his discharge on making an assignment of his property. The intestate by this deed was discharged from his 1787. KESTERTON against SABERY and another. 1787. KESTERTON against SABERY and another. debts; and it would be hard, if for the misconduct of Russell, for plaintiff. The deed in this case did not operate as an absolute release of the plaintiff's claim, but it was merely a covenant on his part not to sue, provided the effects were fairly accounted for by the defendants. The defendants have refused to account, and the covenant is discharged, and the defendants are liable as administrators. He cited Aloff v. Scrinshaw, 2 Salk. 573. Raym. 187, 393, 413. S. C. 1 Show. 46, 47. Comb. 123. Carth. 63. Holt, 619. As to the other point, it would be intended from the averment that the defendants received 5007.; that it was sufficient to satisfy five-shillings in the pound; and if it was not, defendants should have so rejoined. The court were of opinion in favour of the plaintiff, but gave the defendant liberty to withdraw demurrer and rejoin. THE HARRISON against JAMES. HE following was a special case for the opinion of the court, viz. This was an action for money had and received. The defendant pleaded the 66 gene (a) This question will not, in all probability, again occur, as by the 52 Geo. 3, c. 145, sec. 1, it is enacted, "That from and after the 29th "day of September, in the year of our Lord 1812, in every case in which "under any act of parliament for making, widening and enlarging, repair"ing, or otherwise relating to any turnpike road, there is an exemption "from toll or duty in respect of any horse, mule, ass, oxen, waggon, cart, " or other carriage, carrying or drawing any dung, mould, soil, marl, "lime, or compost of any nature or kind soever, for manuring or im"proving the land, or hay, straw, or any other fodder for cattle, such "exemption shall be deemed to extend in respect of every such waggon, "cart, or other carriage, and also in respect to the cattle drawing the same, going empty, or loaded only with implements necessary for more "convenient carriage, or loading or unloading such lading, or returning empty, or with such implements as aforesaid, having been so laden, "notwithstanding the said waggon, cart, or other carriage shall, for the purposes aforesaid, go to or return from any parish or place in which the "said turnpike road does not lie." And by the second section it is provided and enacted, "That for the preventing of frauds on toll collectors, "by carts or waggons passing empty, or loaded only with implements necessary for the more convenient carriage of, or for loading or un"loading manure through turnpike gates, under pretence of going for such "manure, the owner or driver of every empty waggon, cart, or carriage "claiming the exemptions hereby extended, any or either of them, shall "in all cases pay the toll in respect of such waggon, cart, or carriage, "before the same shall be permitted to pass through such turnpike gate; "and that the collector of such toll shall thereupon deliver to such owner " or driver a ticket, to be marked manure exemption,' with the name "" of the gate, and the date when delivered, and the amount of the toll "so paid, all which sam and sums so paid, shall be repaid to the owner ❝or driver of such waggon, cart, or other carriage, upon his or their re"turning on the same day (this part, as to returning on the same day, is " repealed by 53 Geo. 3, c. 82, sec. 3;) with such waggon, cart, or other ❝ carriage, so laden as aforesaid, and producing such ticket; and every "collector of such toll refusing or neglecting to return the same upon the "return of such waggon, cart, or other carriage, and production of such "ticket as aforesaid, shall, for every such offence, forfeit and pay to the "owner of such waggon, cart, or other carriage, a penalty not less than "ten shillings, or more than forty shillings, upon conviction thereof be"fore one or more justice or justices of the peace for the county or shire 1787. HARRISON against JAMES. ral issue. This cause came on to be tried before Mr. Justice Gould, &c. when the jury found a verdict for the plaintiff for the sum of 27. 11s. 8d. subject to the opinion of the court on the following case: that the defendant Wm. James is lessee of the tolls of the Surrey and Susser turnpikes, imposed by the act of 25 Geo. III. That the sums for which the action was brought, were sums of money which had been demanded by the collector of the said tolls, who was the servant of the defendant, and paid by the plaintiff, for going through the said turnpike with an empty waggon for the purpose of fetching grains and dung for the manuring lands in the parish of Battersea, through which parish the roads mentioned in the said statute run; that the said waggons did accordingly respectively return laden with grains and dung for that purpose; that the plaintiff, upon such his return with the said waggons, did at the several and respective times of such his return, demand of the collector of the said tolls the money that he had previously paid for the passing of the said waggon whilst it was empty, and that the said or place where such offence shall be committed, upon the oath of one or "more credible witness or witnesses (which oath the said justice or jus❝tices is and are hereby empowered to administer) ; and if the same shall "not be paid upon such conviction, to commit the person or persons so "offending to the common gaol or house of correction for the said county, shire, or place, for any time not exceeding one month." By the 53 Geo. 3, c. 82, sect. 2, it is enacted, "That from and after "the passing of this act, the owner or driver of any waggon, cart, or other "carriage, laden with manure for land, passing through any turnpike gate, or otherwise passing on or across any turnpike road, shall not be “ liable to pay any toll, nor shall any toll be demanded for such carriage "so laden, or the cattle drawing the same, by reason only of any empty "basket or baskets, empty sack or sacks for more convenient carriage, "ör spade, shovel, or fork, necessary for loading or unloading such ma nure, being in or upon any such waggon, cart, or other carriage, in ad"dition to such manure, if the loading thereof is substantially manure for "land as aforesaid, any thing in any act contained to the contrary there“of notwithstanding.” |