Pardoe, Surviving Executor of L. M. Kinnersley of J. Kinnersley v Price
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1847 |
| Date | 01 February 1847 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 1266
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 16 L. J. Ex. 192. Referred to, Edwards v. Lawndes, 1852, 1 El. & Bl. 89. Distinguished, Sansom v. St. Leonard, Shoreditch, 1869, L. R. 4 C. P. 654. For former proceedings see 11 M. & W. 427; 13 M. & W. 267.
[451] pardoe, Surviving Executor of L. M. Kinnersley, Executrix of J. Kinnersley v. PRrCE, Clerk to the Trustees under a Turnpike Act, 5 Viet Feb. I, 1847.- By a local turnpike act, the trustees were to apply all monies received by them by virtue of the act, upon the roads included in the act: 1st, in paying the expenses of and incident to the obtaining of the act; 2ndly, in paying and discharging any interest which might, from time to time, be owing in respect of money which might have been borrowed on credit of the tolls authorised to be taken by former acts, thereby repealed; 3rdly, in keeping the roads in repair; 4thly, in paying and discharging any interest on money which might thereafter be borrowed on the credit of the tolls; Bthly, in reducing and discharging the principal monies borrowed on the credit of the tolls authorised to be taken by the former facts; and, lastly, in reducing and discharging the principal monies which should thereafter be borrowed, &c.-Held, that a mortgagee of the tolls authorised to be taken by the former acts, had not a right of action against the trustees for money had and received, for the arrears of interest due to him, although it appeared that the expenses of obtaining the act had been paid, and that the trustees had in their hands sufficient money for the payment of suoh arrears of interest. [S. C. 16 L. J. Ex. 192. .Referred to, Edwards v. Lowmkx, 1852, 1 El. & Bl. S9. Distinguished, Ransom v. Si. Leonard, Shoreditch, 1869, L. E. 4 C. P. 654. For former proceedings see 11 M. & W. 427 ; 13 M. & \V. 267.] Debt. The first count of the declaration was for money received by the said trustees for the use of the plaintiff', as the personal representative of James Kinnersley ; arid the second count was for money due on an account stated by the trustees with the plaintiff' as executor. The particulars of demand stated the action to be brought to recover the sum of 430, being arrears of interest at 5 per cent, per annum, from the 1st of January, 1805, on 200 lent by the said James Kinnersley to the trustees of the Kington turnpike trust, prior to 1802 ; and that the plaintiff also claimed the same sum as the amount of tolls received by the trustees, and applicable to the payment of arrears of interest due to the plaintiff, as representative of James Kinnersley, and also on an account stated. The defendant pleaded the general issue, and the Statute of Limitations, which the plaintiff traversed, and issues were joined thereon. The cause came on to be tried, before Lord Dentnan, C. J., at the Summer Assizes for Hereford, in L845, and a verdict was found for the plaintiff for 430 aud costs, subject to the opinion of the Court upon the following case :- By the act of parliament of the 5 Viet, which came into operation on the I 1th of Jdly, 1842, it is enacted, that all monies which shall be received by the said trustees, by virtue of this act, upon the roads included in this act, shall be applied as follows, that is to say, first, in paying and discharging the expenses of obtaining and passing this act, or incident thereto ; secondly, in paying and discharging [452] any interest which may from time to time be owing in respect of any money which may have been borrowed on credit of the tolls authorised to be taken by the said former acts hereby repealed; thirdly, in paying the expenses of improving, maintaining, and keeping in repair such roads, and in putting this act into execution with reference thereto; fourthly, in paying and discharging any interest on money which may hereafter be borrowed on the credit of the tolls to be taken on the said roads; fifthly, in reducing, paying off, and discharging the several principal sums which have been borrowed on the credit of the tolls authorised to be taken by the said former acts hereby repealed; and lastly, in reducing, paying off, and discharging all principal (4) This rule was made absolute in Trinity Term, on the ground now stated by the Court. 16 M. &W. 458. PARDOE V. PRICE 1267 sums of money which may hereafter be borrowed, and which shall be due and owing on the credit of the tolls to be taken on the said roads. The plaintiff, on the trial of the cause, put iu a special case atated in a former action between the same parties, a copy of which, signed by the respective attornies, is annexed to the present case ; (a) and further proved, that the annual statements of accounts produced from the office of the clerk of the peace, mentioned therein, were forwarded to the clerk of tho peace by the clerk of the trustees, pursuant to the statute, and also those for the...
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