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New MORTGAGEES. Orig. SECT. IIII
ART.I.
Mortgagees in possession of Turnpike Tolls, shall, within 14 days
after written notice from any 5 Trustees, render to them
or to any person of their appointment mentioned in such
notice, an account in writing of all receipts of disbursements
by themselves or on their behalf (not before accounted for <hi rend='superscript'>a</hi>)
respecting the Road: or on omission (without reasonable
excuse verified on Oath <hi rend='superscript'>b</hi>) shall forfeit £10 to the benefit of the Road or suffer
imprisonment for not more than 3 Months.
Observations
a This clause tho' omitted, as may be seen, in the original
of this Article, is inserted in the instance of Tollgatherers
& Surveyors: if material, it should have been inserted in
both places; if not, in neither.
b This corresponds with the new provision proposed by Sect. I
Art . . . It is however a question liable to some doubt whether
it were better an indultive clause of this nature should
be notified to the party indulged, or not: if it be not,
the honest is left exposed to anxiety; if it be, the dishonest
is put upon the invention of excuses.
But now suppose they have kept no account, & are therefore
incapable of giving any - What is to be done with
them then? notice; default... conviction: notice again, default
again, conviction again. This circle taking each twice somewhat more than a fortnight to accomplish, may be repeated somewhat
less than 26 times in a year: that is, the utmost penalty, if no allowance be made for Sundays, nor for the time that must
be given by the Justice's summons to shew cause, (which cannot be issued till after the 14 days are expired) will amount to somewhat
less than £260 a year for everlasting. By this they may be great losers; but they may also be great gainers: for upon these
terms, for any thing that is here provided to the contrary, the Gate's their own.
Where a penalty (as here is fixed & the mischief & temptation fluent; there is but one possible point at which the
first can be in 'due proportion to either of the other two.
+ To be recovered & c
if no one is mentioned in particular, any one may inform: but as the penalty is appropriated to the benefit of the
Road, nobody will inform but some person order'd by the Trustees; & one is as good as another.
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ART. II
Mortgagees receiving Turnpike-Tolls after satisfaction
of the Sum lent with Interest & Costs shall forfeit the
double of such surplus received with treble Costs of Suit.
Observations
What if a Mortgagee, out of some pique or other, "keeps
possession of the Tollgates" against the Trustees, but receives
nothing? When I began to read of these words, I thought
that this case had been meant to be provided for: nor
did I perceive them to be mere tautology till I found
all the punishment a man was to have for it, was
to be the paying of such a number of times what he
had received.
There are two prime sources, say the Moralists,
of iniquitous (as indeed of all other) actions; the concuspicible
appetite, & the irascible: a Law that opposes a bar to only one of them, must consequently be imperfect.
This Law is indeed abundantly imperfect: It supposes that the persons it speaks of may keep possession of the Tolls themselves:
& then they are to pay God knows what. This runs glib & makes a shew upon paper: but whence then is to come
the evidence?
It is plain therefore that there must go something more than what we have yet seen, to the effectivelly guarding against
the mal-administration of Mortgagees. The only expedient I can think of for it, is as follows:
"That evidence may not be wanting, Mortgagees of Turnpike Tolls shall not receive them in person, but by Tollgatherers appointed by the
Trustees.
"Such Tollgatherers shall cause to be enter'd and a Book an account of each days receipt separately; on pain of
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SECT. XLII.
42 Mortgagee taking Possession of any Toll-gate, to account upon Oath for the Monies received and expended;
And be it enacted, That all and every Mortgagee and
Mortgagees that hath or have taken or been in Possession,
or shall hereafter take and be in Possession, of any Tollgate
or Bar, set up or erected on any Turnpike Road,
shall, within Fourteen Days after he, the, or they, shall
have received Notice in Writing, from the Trustees or
Commissioners of such Turnpike Roads, or any Five of
them, render upon Oath, to be administered v. Sect. I. Art. New and taken
by and before One Justice of the Peace, or any One
Trustee or Commissioner of such Turnpike Road, an exact
Account in Writing, to such Trustees or Commissioners,
or to any Person appointed by them, or any
Five of them, to be named in such Notice, of all Monies
received by such Mortgagee or Mortgagees, or by
any other Person or Persons, for his, her, or their Use
and Benefit, or by his, her or their Authority, at such
Toll-gate or Bar, and what he, the, or they, have
expended in keeping the same; and in case he, the, or
they, shall neglect to render such Account, when required
in the Manner herein directed, he, the, or they, shall severally
forfeit and pay to the said Trustees or Commissioners,
for every Refusal, Neglect, or Omission, to render
such Account, the Sum of Ten Pounds; to be recovered + if no one is mentioned in particular, any one may inform: but as the penalty is appropriated to the benefit of the
Road, nobody will inform but some person order'd by the Trustees; & one is as good as another.
by the said Trustees or Commissioners, or any
Five or more of them, or by the Treasurer or Clerk to
the said Trustees or Commissioners, in a summary Manner,
before One Justice of the Peace ; v. Sect. the last - New which when recovered,
shall be applied to the Use of the respective Road or Roads whereon such Toll-gate or Bar shall be
placed.
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SECT. XLIII.
And keeping Possession, or receiving the Tolls, after his Debt, Interest, and Costs are paid,
And be it further enacted, That if any such Mortgagee
or Mortgagees shall keep Possession of any Toll-gate or
Bar, by him, her or themselves, or by any other Person
or Persons on his, her or their Behalf, and receive
the Tolls or Duties thereat, and such Mortgagee or
Mortgagees shall have received the full Sum or Sums of
Money due on their respective Mortgage or Mortgages,
is to forfeit Double the Sums so received, and the Interest thereof, with Costs; such Mortgagee or
Mortgagees shall forfeit and pay, as a Penalty, to the
said Trustees or Commissioners, Double the Sum or
Sums of Money he, the, or they, shall have received
over and above the Sum or Sums of Money due as
with Treble Costs of Suit; aforesaid, with treble Costs of Suit; to be recovered
by the said Trustees or Commissioners, or by the Treasurer
or Clerk to such Trustees or Commissioners, by
Action of Debt, Bill, Plaint, or Information, in any
to be applied to the Use of the Road of His Majesty's Courts of Record; which, when recovered,
shall be applied to the Use of the respective
Road or Roads on which such Toll-gate or Bar shall be
placed.
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