Weymouth v. Penobscot Log Driving Co.

Walton, J.

This is an action against the Penobscot Log Driving Company, and John Ross, trustee; and the only question is whether the trustee is chargeable. We think he is. He discloses that he owes the log driving company $4170.34, and we can find no valid reason for holding that he is not chargeable.

It is said that he ought not to be charged because his indebtedness is for tolls for driving his logs; and that, by the organic law of this corporation, all money due for tolls is appropriated to the payment of the expenses of driving, and can not be lawfully used for any other purpose.

*44We fail to .find any thing in the organic law of this corporation to sustain this proposition. It would have some support if the charter had remained as originally enacted; for it then limited the amount of tolls to a sum sufficient to pay the expenses of driving logs, and provided that if more should be collected the balance should be refunded. But it seems to have been early discovered that this was an inconvenient limitation; and, in 1865, the charter was amended by an additional act declaring that the company " may assess a toll not exceeding two dollars per thousand feet, board measure, on all logs and lumber of the respective owners, which may be driven by them, sufficient to cover all expenses, and such other sums as may be necessary for the purposes of the companyand the act further declares that all acts and parts of acts inconsistent therewith, are repealed. This act invests the corporation with new powers. Its tolls are no longer limited to the expenses of driving logs. Within the limits named, they may be made large enough to meet • all legal liabilities of the corporation.

And such has been the understanding of its officers. Mr. Moore, clerk and treasurer'of the corporation, testifies that'"in every drive that has been made the intention of the directors has been to assess enough for making the drive, and then something more to pay the debts.” And Mr. Strickland, one of the directors, testifies that the sum so added has been ten, fifteen, and twenty cents per thousand feet, board measure.

And Mr. Boss testifies that the tolls for which he is trusteed in this suit include fifteen and twenty cents per thousand feet more than sufficient to cover the expenses of driving.

It is not, therefore, true that the trustee’s indebtedness is for an assessment made for the sole purpose of defraying the expenses of the drive of which his logs were a part. It is an assessment largely in excess of such expenses. And made so intentionally, for the very purpose of providing for the general indebtedness of the company. And there is nothing in the organic law of this corporation or the acts of its officers to justify the court in holding that this assessment is appropriated to the payment of one *45debt of the corporation more than another. It is a debt due absolutely, and the amount is certain. We cannot doubt that such a debt is attachable.

Trustee charged for ‡4170.34.

Appleton, C. J., Dakfoutii, Virgin and Syuionds, JJ., concurred. Peters, J., did not sit.