Hearsey v. Pruyn , 7 Johns. 179 ( 1810 )

Spences, J.

delivered the opinion of the court. The first section of the act of the 29th of March, 1809, (sess. 32. c. 189.) gives a toll for crossing the bridge, of 12 1-2 cents for every burthen wagon drawn by two horses, &c. The second section declares it to be lawful for the president and directors to mitigate the rates of toll to the inhabitants of the city of Schenectady, passing the bridge on foot, horseback, or in carriages of any description, not loaded, (500 pounds weight, exclusive of passengers, to constitute a load, to be determined by the opinion of the collector,) and also all mail, regular- and extra stages, owned in said city, all wagons and sleighs employed in carrying firewood into the first and second wards of said city, passing either way, and on all loaded wagons belonging to the inhabitants of said city, passing said bridge, in their ordinary work on their lands or farms, or going to- or from mills, or" going to market with the produce of their farms, or returning therefrom, provided, that the toll demanded as above, shall not be more than one half the rate established by that act.

This section, though obscurely worded, is, 1 think, to be construed thus, when taken in connection with the proviso; all the inhabitants of the city of Schenectady, passing the bridge on foot, on horseback, or in any carriage, the load on which, exclusive of passengers, shall be under 500 pounds weight, to be determined by the collector, are liable to pay not more than one half the rates of toll established by the act; and with respect to stages owned in the city, all wagons and sleighs employed in carrying firewood into the first and second wards, passing either way, and all loaded wagons belonging to the inhabitants of the city, passing the bridge in their ordinary work on their lands or farms, or going to or from mills, or going to market with the produce of their farms, or returning therefrom, are exempted by the act from paying more than one half the rates of toll, without reference to the weight of the loads. The discretion vested in the president and directors, to mitigate the „ „ r . . ’ . . ° rates oí toll, may or may not be exercised by them, m reducing them less than half, but in the cases specified, they cannot legally exact more than half the toll established by the act.

The plaintiff below was going to and from his sawmill,.at the time the full toll was exacted, and it has been made a question, whether a saw-mill comes within the - description in the act, u of going to and from mills.” It appears to me, that these terms include mills of every . description, and I cannot perceive why saw-mills should not be deemed to ansWer the description as fully as gristmills, or any other mills. The evidence offered by the plaintiff beloxv, I also think was sufficient to enable thejury to decide, that he came within the exemption granted by the act. At all events, it cannot be said that there was-no evidence of the fact, that when the full toll xvas exacted, the plaintiff beloxv was going to and from his mill.

The second and third points may be considered together. The law is, I believe, xvell settled, that an action may be sustained against an agent, who has received money to which the principal had no right, if the agent has had notice not to pay it over; and, in some cases, the - faction has been sustained where no notice was given, if jt appears that the money has not actually been paid over. (1 Chitty, pl. 25. Cowp. 565. 4 Burr. 1985. Ld. Raym. 1210. 4 Term Rep. 553. Stra. 480. Bull. N. P. 133.)

It is insisted, that .the right to the toll taken is a franchise, and that it cannot be tried in an action against the agent; and in Sadler v. Evans, (4 Burr. 1985.) Baron Perrott recognised the- doctrine, “ that the right to an inheritance should not be tried in an action for money had and received, to be brought against the receiver.” Lord Mansfield, in delivering the opinion of the court, * does not sanction that principle, though the court ap« proved of the general principles adopted at the trial; his lordship said, “ he kept clear of all payments to third persons, but where it is to a known agent: in which case, the action ought to be brought against the principal, unless in special cases, as under notice or malafide.”

I am of opinion, that in this case there was that notice ; when the toll was paid the plaintiff below called on a witness, in the presence of the defendant, to take notice that the toll was overcharged. This was sufficient to put the defendant on his guard, and implied that he meant to seek redress.

There was an objection to the justice’s admitting a private act to be read from a newspaper. This objection would be fatal, did it not appear that the defendant read an exemplification of the same act. We are asked to go back to the point of time when the motion was made for a nonsuit; this we cannot do, but must judge from the whole record, and though the admission of the evidence was illegal, the defendant removed the objection by reading the exemplification# It has been frequently ruled here that a party may thus commit himself by legalizing what was before illegal.

The judgment below must be affirmed.

Judgment affirmed.