14 Pa. 162 | Pa. | 1850
The opinion of the court was delivered, by
— It is true, that in the cases of the Turnpike Co. v. Rrown, 2 Pa. Rep. 462; Same v. Dorman, 3 Watts 126, and another not yet reported, it was held the law will not imply an assumpsit to pay tolls, from the mere user of a turnpike road, for the reason that the charters of turnpike companies furnish them with a summary remedy for the collection of tolls. To found an action at law, for the recovery of such dues, an express undertaking to pay is necessary. Rut what better evidence of such an undertaking can be furnished, than a defendant’s written acknowledgment of indebtedness, on account of tolls, such as was here given in evidence. If it be not a promissory note, it is, at least, proof of a debt, upon which an action may be maintained: Hay v. Hyde, 1 Chip. 214; and as, in this instance, there could be no doubt, apart from an express undertaking, the jury might well infer it from the acknowledgment of indebtedness. Resides, it was evidence of an account stated between the parties, which is in the nature of a new promise, upon a sufficient consideration: Hulmes v. DeComp, 1 Johns. Rep. 36, and was therefore properly admitted under the count, on an account stated, which, though not a proper form of declaration to recover a single sum due by express contract, may well answer to cover a demand ascertained to be due from former transactions: 1 Ch. Pl. 391; Tassey v. Church, 4 W. & Ser. 144. Now it is not to be doubted such a promise will amount to an agreement to pay pre-incurred tolls. The doctrine of the cases, excluding implied assumptions, has been carried far enough for safety and convenience. We are not to push it to the absurdity of rejecting legitimate proofs of an arrangement for payment, or to require other and stronger evidence of agreement than is deemed sufficient in other cases.
The defendant is then liable, in some form of action, for the amount ascertained by the “due bill,” which is the only sum in
But is not the action, in its present form, maintainable on another ground ? The instrument sued is given to the company by its corporate name. There is nothing in the law to prevent this, though the sequestrator may become immediately entitled to have the avails for distribution. But what is there to prevent him from enforcing it, in the name of the party to whom it was formally given ? Were it a promissory note, not negotiable, there could, I take it, be no question of this. Yet, like a promissory note, it may be made the foundation of an action, when, it seems to me, a like form of action may be adopted; the sequestrator being considered as equitable assignee.
The defendant’s attempt to defalk the debt due to him from the company, was rightly repelled, for the reason given below, that the accruing tolls, after the appointment of the sequestrator, were dedicated, by law, to the payment of all the debts, pro rata, and no creditor could be permitted to sweep the whole, by way of set-off or otherwise. This direction is fortified both by reason and authority. The statutory provision is, that the nett proceeds of the sequestered property, shall be distributed amongst all the creditors of the corporation, according to the rule established in individual insolvencies; and that rule excludes preferences. Bainod v. Pelori, 2 Pal. 43.
Judgment affirmed.