1860. SORT v. HUDSON. respondent. The respondent is a carman and proprietor of vans on contract or job. The appellant is the collector of tolls at the Norland Toll Gate. On the day named in the summons, the respondent's van and two horses were hired to remove some household furniture from Hammersmith to London. John Kinton, a carman in the employ of the respondent, was sent from London with the van to remove the furniture, and on his arrival at the Black Lion Toll Gate, which is in the same district as the Norland Gate, with the van empty, the collector demanded and received ninepence being the toll payable for a van drawn by two horses. A ticket denoting the payment of the toll was given to Kinton. On the same day Kinton returned with the van and horses through the Norland Gate, the van being then loaded with the said furniture, when he produced the ticket to the appellant and claimed to be exempt by reason of the previous payment. The appellant insisted on the toll being paid. The roads are regulated by the 7 Geo. 4, c. cxlii., “An Act for consolidating the trusts of the several turnpike roads in the neighbourhood of the metropolis north of the River Thames ;" and 10 Geo. 4, c. 59, "An Act to amend" the said Act "for consolidating the trusts of the several turnpike roads north of the River Thames," &c. The tolls now payable on the road are those provided for by the 17th and subsequent sections of the 10 Geo. 4, c. 59. The 18th section divides the roads into districts for the purpose of collecting toll. The case then set out the 25th and 28th sections of the 10 Geo. 4, c. 59 (a). (a) Section 25 provides, "That when the toll by this Act authorized to be taken shall have been once paid in either of the aforesaid districts, for or in respect of any horse or other beast, cattle or other stock, no further toll shall be demanded or taken during the same EASTER TERM, 23 VICT. The 6th section of the 7 Geo. 4, c. cxlii., extends the powers and provisions of the General Turnpike Acts (except so far as the same are by that statute varied, altered or repealed), to all the roads mentioned in the schedule to that Act annexed. The respondent contended that toll having been paid for the van at the Black Lion Gate, on its journey to remove the furniture, he was exempt, under the 25th section, from the payment of any further toll on that day at any toll gate within the district in question. The appellant insisted that he was justified in demanding and taking a second toll upon the return of the van, on which occasion the horses came within the 28th section as drawing "a van conveying goods for pay, hire or reward." Whereupon the magistrate determined that the appellant was guilty of the said offence, and convicted him, upon the ground that he was not justified in demanding a second toll on the same day for the said van and horses; the said van not being a stage coach, van, caravan, waggon, or other carriage carrying goods for pay, hire, or reward, within the meaning of the 28th section. If the Court shall be of opinion that the appellant was day (except in the cases hereinafter mentioned) for or in respect of the same horse or other beast, cattle or other stock, at any other gate or bar within the same district, or on returning or repassing through the same gate or bar." Section 27 provides, “That no horse or other beast drawing any post chaise or other carriage returning with any person or persons therein, and passing through any of the said gates or bars, in any of the said districts, shall be exempt from toll, unless a ticket be produced denoting the toll by this Act authorized to be taken, Section 28 provides, "That the 1860. SHORT v. HUDSON. 1860. SHORT v. HUDSON. EXCHEQUER REPORTS. not entitled to take the second toll, the conviction to be confirmed; if not, the conviction to be quashed. Huddleston, for the respondent.-The question is, whether the owner of a van hired to remove furniture, who has paid toll on passing through the tollgate, must pay a second toll when the van comes back on the same day loaded. It appears from the 25th and 28th sections that the scheme of the Act is, that when toll shall have been once paid no further toll shall be demanded during the same day, but where a vehicle passes backwards and forwards, earning money both ways, toll is payable on each occasion of passing. Joyce (with whom was Levy), for the appellant.-The respondent was carrying the goods of his employer for hire. [Pollock, C. B.-He was not carrying goods for hire, the hirer paid for the use of the whole van, and could carry what he pleased in it; the owner of the van was in no sense a carrier of goods.] The magistrate appears to have considered that this case was decided by Reg. v. Ruscoe (a), but that arose upon a different statute in which the language is not the same as in that now under consideration. POLLOCK, C. B.-I am of opinion that the decision of the magistrate is perfectly correct. I can well understand his holding that this van was not within the 28th section, not being in the nature of a stage coach. But it appears to me that there is a clearer and better ground on which the case may be put, viz. that this van was not a carriage conveying passengers or goods for hire or reward. The 28th section appears to me to apply only when the vehicle conveys passengers or goods, and a charge is made for the passengers (a) 8 A. & E. 386. or goods. Where the charge is made not for the goods but for the entire carriage, to be used (of course according to the contract) at the pleasure of the hirer, the case does not fall within the 28th section. The conviction must therefore be confirmed. MARTIN, B.-I think it clear that the respondent was not subject to a double toll under the 28th section. The van was let out for the purpose of bringing a load of goods from Hammersmith. The context shews that the legislature treats the carriage in such a case as the property of the hirer. I think that the decision of the magistrate and the reasons he gives for it are right. BRAMWELL, B.-I am of the same opinion. If Mr. Joyce's argument were well founded a postchaise going and returning would be liable to double toll. But the 27th section shews that it would be exempt, and qualifies the exemption. WILDE, B.-I am of the same opinion. I entirely agree with the Lord Chief Baron that, in order to make the 28th section applicable, the carriage must be conveying passengers or goods, and the money must be payable in respect of the conveyance of the passengers or goods, and not in respect of the hire of the carriage itself. Conviction affirmed. 1860. SHORT v. HUDSON. THE ATTORNEY General v. LOSCOMBE and HINE. INFORMATION in equity to obtain from the defend ants, the executors of the will of C. W. Loscombe, deceased, the payment of the duty in respect of a legacy of 14,000%, bequeathed to C. W. Loscombe by the will of Sir Clifton Wintringham, and which sum, with interest thereon, was received by the said C. W. Loscombe in his lifetime. On the 28th of March, 1787, by a certain indenture (being the settlement made previously to the marriage of Clifton Wheat and Josepha Newton): after reciting, as the fact is, that the said Sir Clifton Wintringham had by a certain bond bound himself to Charles Mellish and Sir W. Chambers in the sum of 32,000l., for the payment by himself, the amount and invest it, and pay the proceeds to C.W. during the joint lives of C. W. and J. N., and to the survivor during the life of such survivor; and then, subject to trusts in favour of their issue, which never took effect, in trust to assign the said sum of 16,000l., and the funds wherein the same should be invested, to himself, his executors, &c., for his and their own use. By his will "in case the said sum of money on bond, or any part thereof, should revert into the residuum of his estate at any time, pursuant to the limitations in the settlement," Sir C. W. "bequeathed all the said sum of 16,000Z, to such of his trustees as should be then existing, in trust that they should pay thereout the sum of 14,000l. to L. After the death of Sir C. W. a suit in Chancery was instituted, in which L. was plaintiff and A. W. (the surviving executrix of Sir C. W.), C. W. and J. N. his wife, the trustees aforesaid, and other persons, were defendants. The bill stated that A. W. was possessed of personal estate more than sufficient to satisfy all the testator's debts and funeral expenses; that all the debts, except that of 16,000l. and one other, were paid; and prayed (inter alia) that the will of Sir C. W. might be established, and the trusts of it performed. By her answer A. W., the surviving executrix, admitted the facts stated, submitted that the will might be established, and the trusts thereof carried into execution, and that she was willing to account. A. W. paid into Court monies sufficient to satisfy the 16,000l. She died in 1805. By an order of the Court of Chancery, dated the 4th of July, 1807, reciting that the Master had reported that the 16,0007. was a specialty debt due from the estate of Sir C. W. to the trustees, and that it was prayed that so much Bank annuities as would make up the sum of 16,000l. might be carried on to an account to be entitled "The Account of C. W.;" and that the interest thereof might be paid to C. W. during his life, or until the further order of the Court; it was ordered that so much 31. per cent. bank annuities, as the Master should find to be of the value of 16,000l., should be carried over in trust in the said cause, L. v. W., "The account of C. W;" and the Accountant General was to declare the trusts thereof accordingly. In pursuance of this order, in November, 1807, a sum of 28,7021. 16s. 3d. Bank annuities was carried over by the Accountant General in the said cause to "The account of C. W." At the date of the order both C. W. and J. N. were alive, but the former died on the 17th of July, 1807. J. N. received the dividends on the 16,000. until her death in 1848, when L. received the 14,000Z. Held, that the legacy to L. was "delivered, paid, satisfied or discharged" by the payment into Court and investment of the money in 1807, and consequently that no legacy duty was payable under the 55 Geo. 3, c. 184, schedule, part 3. |