Buncombe Turnpike Co. v. Allen

after stating the case as above, proceeded as follows: In looking into the several acts of assembly, under which the defendant claims the grant of turnpike privileges, it seems that the several terms of years therein mentioned, expired at the close of the year 1831. The defendant having now no pretence to keep up a toll-gate across any of the roads, it is unnecessary for us to'make any decision on this part of the case, as it is admitted that the gates put up by the defendant have not been kept up since the filing of this bill.

Secondly, we do not see any ground upon which the plaintiffs have a right to ask an account against the defendant. The defendant may have improperly exacted tolls from the public, but there is nothing in the bill which shows that he has ever received or abstracted one cent of tolls which by law and right belonged to the plaintiffs. The plaintiffs have always received their full amount of tolls from travellers according to the rates which they had established. The circumstance that the company were induced to lower their rate of tolls in consequence of the alleged encroachments, and illegal acts of the defendant, might perhaps have been taken into consideration in an action on the cáse at law ; but it is no reason for an account in this Court for re*118ceiving or abstracting the plaintiffs’ tolls. The decree of his Honor is therefore affirmed with costs in this Court.

Per Curiam! Decree affirmed.