Wooster v. Van Vechten — 10 Johns. 467

Majority

p. 473

Wooster against Van Vechten.

NEWYORK,

Oct. 1813.

Headnote

The proviso oí* the act (sess. 28. e. 55. s 9.) ex» empting from, toll,for passing the bridge over the ¿¡chuñarte kill, “ all persons drawing firewood tbrtheii" own family use,” extends as well to a person drawing his firewood at one time with the assistance of his neighbours and others hired for the purpose, as if he himself drew but one load i7i one day.

IN ERROR,, on certiorari, from a justice’s court. Van Vechien brought an action against Wooster, before the justice, for money had and received to the use of the plaintiff. The defendant below was a toll-gatherer, and he proved that the sum of 3 dollars, demanded by the plaintiff) was paid to him as a pledge, or by way of indemnity, for the toll of certain sleighs, passing on a certain day, over the bridge across the Schoharie creek, near the court-house, employed by the plaintiff in drawing firewood; and .fnat the toll had been previously demanded by the defendant. The plaintiff proved that when the defendant demanded the toll, the plaintiff questioned his right, and the defendant said he had express directions not to let the plaintiff pass that day with the sleighs, without his paying toll; upon which the plaintiff paid 3 dollars; that the plaintiff on that day had a “ bee” for drawing firewood; and the wood was drawn into his yard. It did aot appear to

p. 474

whom the land from whence the wood was taken belonged. fl was objected by the defendant, that the 3 dollars had not been demanded of bh~, before the suit was cornmeuved The justice gave judgment for the pl~intifF below for three dollars, and the costs.

The proviso in the act under which the toll was demanded, (Act, sess. 28. c. 55. s. 9.) exempts from the payment of toll, “ all persons drawing firewood for their own family use.3’ It was proved that toll was demanded for the sleighs in the employment of the plaintiff below, drawing firewood; and that the plaintiff had that day what was termed in that part of the country a “ bee," for drawing firewood; and that the wood was taken into his yard. The act will extend its exemption to a person drawing his firewood at one time, with the assistance of his neighbours and others, hired for the purpose, equally as if only one load had been drawn by him, in one day. The fact that the wood was for the family use of the plaintiff, is necessarily to be inferred from the testimony in the case; the three dollars, therefore, which had been delivered by the plaintiff to the defendant, to meet the defendant1,'' demand for toll, was so much money had and received to the plaintiff’s use; and the judgment of the court below was correct and just.

Judgment affirmed»