23 Wend. 221 | N.Y. Sup. Ct. | 1840
The following opinion was delivered by By the general turnpike act of 1807, ch. 38, and the statutes of that year revised in 1 R. L. of 1813, pp. 228, 232, § 9, the governor is required to appoint three commissioners, to view and report to him in writing, whether the road be completed in a workman like manner, according to the true intent and meaning of the act; and, on their reporting in the *affimative, he [ *227 ] is directed to issue a license permitting the receipt of toll. So far as the question of original completion was concerned, the state thus provided a tribunal to settle it. In the case at bar, that tribunal has answered in the affirmative ; the governor, (the agent of the state,) has acted upon the decision, and it is now too late for the people to insist on a review of the question by information in the nature of a quo warranto. There was a judicial inquiry on one of the very points now raised, between the state and
I am aware of the freedom with which informations have been employed to review and set aside the decisions of inspectors of election, in every gradation from the town to the county board. Rut the office of inspectors is merely ministerial. On a given concourse of circumstances, well defined by constitution or statute, they are bound to receive, or'count votes and give certificates of election. They have no more discretion than a sheriff in disposing of real estate upon execution. They may have judicial powers conferred upon them, and then their certificate becomes conclusive. Thus, in South Carolina, a statute provided that the board of managers [inspectors] should not only ascertain the number of votes given at an election for sheriff, but that on the election being contested, they should hear and determine the contest. In such a case the constitutional court of that state adjudged that the decision of the managers was conclusive upon all questions except those which were jurisdictional. Therefore, after inquiring and being satisfied that there was a quorum, the objection to a; want of which was made the on
But bring down the commissioners below the character of magistrates or arbitrators, and admit they are to be taken as the mere ordinary agents of the state, and we then have a case where the state has inspected and accepted the road as complete, and therefore given an express licence to take toll. It is then presented in the character of saying to this company, by one set of agents, “ your road being perfect up to such a time, go on and build a gate and take toll.” This the company do, and then the state comes forward by another agent, the attorney general, who sets up the acts done under the license as a breach of condition, and demands that the charter be forfeited. Against an individual who has given such a license the company could allege it, as an estoppel in pais. That arises wherever one admits a matter with design to influence the conduct of another, who is thus led so to act that a denial will injure him. I do not cite the cases which sanction and illustrate this doctrine. I had occasion to collect most of them in Cowen & Hill’s ed. of 1 Phil. Ev. notes, p. 200, et seq. and see 8 Lond. ed. of Phil. Ev. 378. to 384. The principle, as I now state it, is but a repetition of the rule as laid down by Chief Justice Nelson, in Welland Canal Co. v. Hathaway, 8 Wendell, 483. It is perfectly familiar, and the course taken against the defendants, if allowed, will be a palpable violation of it. The rule applies with just as much force against the state as against an individual. I know the answer comes, for we uniformly hear it in such case, that the state may be defrauded; that it may suppose a state of things to exist, which the defendants knew at the time did not exist. If it were true that the defendants deceived the state agents, that should be shown in the replication. Such a fact would take all force from an estoppel as against any person. On the other hand, if the state agents have knowingly certified an untruth, their knowledge is imputable to their principal, as it would be, had they represented an individual. This would leave the es-
The tenth replication is, I think, obviously defective for reasons peculiarly applicable to itself, and which I will consider before proceeding [ *231 ] to take up the 7th and 8th. The *10th avers that the company never furnished the lower side of the road, where it was not of full width, with a fender or railing, but contains no averment that it was in fact so narrow in any part as to require such deviation from the general mode, of construction. It is only under peculiar citcumstances that the fender or railing is required by any statute, vid. § 5 of the act of 1807; and, in pleading, the condition upon which the company incurred the obligation to make it must be specifically and substantially alleged. Per Sutherland J. in The People v. The Manhattan Co., 9 Wendell 373 to 377. The question also arises on the 10th replication as covering too much time. It insists on the want of a fender, not only after but before the certificate was made to the governor. To the point that being bad in part it is bad for the whole, unless it be di
The seventh and eighth replications are intended to show that the road has not been continued in that precise state of repair which is supposed to be required by the statute. I do not, however, find any particular direction there as to what the continued state of repair should be. By the fifth section, 5 W. S. 53, and 1 R. L. of 1813, p. 232, a certain number of feet is to be bedded with stone, gravel, sound wood or other hard substance, well compacted together, and of sufficient depth to secure a good and solid foundation. Then the road is to be faced with gravel or broken stone, of a depth not less than nine inches, in such a manner as to secure a firm and even surface, rising in the middle by a gradual arch. To secure so much, the next section provides for its ex amination by commissioners, &c. in the manner I have mentioned. So much relates to the mode of original construction. Then the legislature, as if it were too severe to direct an exact continuance of the road in the same condition, and as if it were impracticable to prescribe the particular state of repair in all time to come, forbear to give any farther specific directions on the subject; and *in § 16, 5 W. & S. 57, and [ *232 ] 1 R. L. of 1813, p. 236, provide for insuring a state of general repair, through the award of permanent commissioners, to be appointed for the inspection of turnpike roads. If these, on complaint, shall pronounce that the road is out of repair, it must be thrown open, and-the right to take toll is thus suspended, until a commissioner shall certify that it is restored to a state of sufficient repair. The provisions of the old general turnpike act are substantially re-enacted in the last revisal. 1 R. S. 581, 584, 587, 2d. ed. Whether a forfeiture of the charter can be insisted on, for a mere naked omission to do any particular act of repair not amounting to the violation of a duty specifically enjoined by the statute, admits of very serious doubt. The act concerning informations in nature of a quo warranto, requires the attorney general to institute proceedings by such information when the corporation shall offend against the provisions of a statute creating, altering or renewing it, for illegal misuser, or forfeititure by nonuser, or when it shall exercise a franchise or privilege not allowed by law. 2 R. S. 483, § 39, 2d ed. But the case is brought within none of these provisions, by either the seventh or eighth replication. They would either of them be satisfied by showing that the road had, in a course of several years at any point of time, come short of the precise bedding and facing prescribed for the outset. I do not deny that the statute must be regarded incidentally as pointing out what the permanent condition of the road should be, as that the company should keep up fenders in places requiring them. But it contains no direct enactment that the road shall, in any respect, be continued precisely
A question has also been'started in this and some other causes now under advisemement, and which may as well be considered here, whether, at this day, any act of abuse or non-feasance or any consequences arising from such act can be insisted on as a ground of forfeiture, unless it can be shown to come within the terms of the 39th .section cited. That section contains no negative words, nor does it use language indicating an intent to cut off any of the ancient grounds on which the remedy by information was founded. These were well understood, and had been often recognized by a long series of decisions, from the great case of the City of London, 3 Hargr. St. Tr. 546, down to the time when the revised statutes passed ; and will be found, I apprehend, to embrace not only the same but considerable other ground be. side that on which section 39 makes it the special duty of the attorney general to file an information. This will at once be seen by the language of the modern books.
The grounds of forfeiture sanctioned in the case of the City of London, were an abuse of corporate power, by exacting illegal tolls and presenting a seditious petition to the king, either of which was holden sufficient. In Rex v. Pasmore, 3 T. R. 244, Ashurst, J. speaks generally of an abuse of power and delinquency, as a ground of dissolution. Parsons, Ch. J. says malfeasance or nonfeasance. Commonwealth v. Union Fire and Mar. Ins. Co. 5 Mass. R. 232. Vid. also Willcock on Mun. Corp. 334, § 867 and 868 ; and Ang. & Ames on Corp. 510. Blackstone mentions negligence or abuse of franchises. 1 Black. Com. 485. Non-user or neglect, said Ashurst, J. in Rex v. Amery, 2 T. R. 515, 567. " A corporation may be dissolved, for it is created upon a trust; and if that be broken, it is forfeited,” said the king’s bench, in Sir James Smith’s case, 4 Mod. 53,58, 1 Show. 280, Skin. 310, S. C. [ *234 ] Holt was then chief justice *and participated in this declaration. Again : the city of London held by charter or patent the shrievewick of London and Middlesex ; and in London v. Vanacre, 12 Mod. 270, 271, Lord Holt, speaking on this subject said : “ If they do not make such an election as their letters patent appoint, it is a forfeiture of the franchise; for all franchises are granted on condition
Blackstone, also a disciple of the same revolution, was brought to concede and distinctly to recognize even the practice, as well as the application of the principle, which prevailed in that case. He remasks that for corporate negligence or abuse of its franchises, the regular course is to proceed against the corporation by information, to inquire by what warrant the members now exercise their corporate power ; having forfeited it by such and such proceedings. 1 Bl. Comm. 485. True the question may be still open upon these words, whether you can proceed against it as a corporation eo nomine, or must treat it as actually forfeited, and name its members defendants, in their natural capacity, and *by their baptismal names. [ *235 ] London sought to embarrass king Charles by insisting on the latter form, saying it was absurd to charge the city with usurpation by an information which treated them, in the same breath, both as a subsisting corporation, and as usurping the power to be a corporation. Yet Blackstone plainly hints that the proceeding was in strictness of law, regular. And even Mr. Hallam, notwithstanding the unmeasured terms of reprobation which he justly bestows upon the motives that prompted the measure, does not take upon him seriously to question its legality. 2 Hall Const. Hist, of Engl. 611-612. I will only add that Chief Justice Saunders, one of the ablest jurists of Charles’, or perhaps of any other reign, concurred in the decision, though he did not finally participate in it, having died the day before the judgment was pronounced.
It is too late with us, to question that, for any cause of seizure or dissolution, an information, not a scire facias only, is a proper remedy, or that it may be filed against a corporation as such by its corporate name, according to the case of the city of London. The remedy and the form of pleading in that case, was recognized by this court as correct upon common law
But to proceed with the general grounds of forfeiture: In Slee v. Bloom, 5 Johns. Ch. Rep. 380, Chancellor Kent said, that a corporation can be dissolved for a breach of trust is no doubt the settled doctrine at this day. In Turret v. Taylor, 9 Cranch, 43, 51, Mr. Justice Story said, “ a private corporation, created by the legislature, may lose its franchises by a misuser or nonuser of them ; and they may be resumed by the government under a judicial judgment upon a quo warranto to ascertain and enforce the forfeiture. This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation.” The result of the eases seems to be, that a corporation must come up to all the substantial objects for which it was instituted. If it depart from any one of these, it is guilty [ *236 ] of a breach of trust. It was made a political body on the *implied condition that it should demean itself faithfully and honestly in the use of all its franchises. This principle, with the authorities on which it rests, seems to have been very well considered in the great case of the Chesapeake and Ohio Canal Company v. The Baltimore and Ohio Rail Road Company, lately decided by the court of appeals in Maryland, 4 Gill & Johns. R. 1. The opinion of the court, which was delivered by Chief Justice Buchanan, so far as it is material to the subject before us, will be found at pages 106, and 121. The question was one of nonuser; and the drift of the argument is, that the corporation had not, at any rate, been guilty of a fraudulent or wilful nonuser, or such, at most, as resulted from gross negligence. The words of the chief justice at p. 121, are, “ It may be dissolved by a forfeiture of its charter, through abuse or neglect of its franchises, as for condition broken ; there being a tacit condition in every such grant, that the "corporation shall act up to the end of its institution.” At p. 107, he says, “ nor is it every nonuser that will furnish a sufficient ground for a judgment of forfeiture.” That must, it appears to me, be so in the nature of things. A mere nonuser, or suspension of all action, may be even laudable for a time. This is well illustrated in the Maryland case. To work a forfeiture, there should be sopaething wrong; and not only a wrong, but one arising from wilful abuse or improper neglect. An inability, through misfortune, to answer the design for which the body politic was instituted, is also cause of forfeiture. That, however, is on a distinct reason, not so directly material, and of which it is not necessary to say much. The prosecution before us goes on corporate default, or corporate wrong, which must, I think, be more than accidental negligence, or a mere mistaken excess of power, or a mistake in the mode of exercising an acknowledged power. There must he an abuse of trust somewhat of such a nature as would render a trustee liable to forfeit bis station, on the complaint of his cestui que trust,
The main effort, however, in this and several other causes now under advisement, has been to show that, however wretchedly the corporate trust may have been executed in some particulars, this is, in itself, no cause of forfeiture beyond the immediate department of abuse ; that the offence does not infect the whole body corporate ; but that, in some way, punishment should be limited and proportioned to the single fault or the several faults. On this point, viz. what acts of usurpation or other abuse, non-user or nonfeasance, &c. shall work a total forfeiture of the corporate charter, cases since that of the city of London have not been explicit. No intelligible system of practical doctrine can perhaps be drawn from them ; and while more may be said of the older authorities, they dealt mainly in franchises not corporate. A corporation may be created with all the incidental powers of such a body, powers to elect officers, use a *common seal, collect tolls, &c. [ *238 ] being an entire and indivisible body of itself, a franchise which must stand or fall with any one of its powers, vid. Palmer, 82 and after having been administered for many years, a particular franchise may be added. The latter being forfeited, there may then arise a question whether it be not so obviously distinct that it may be cut away by information, without impairing the main body. This, it seems, may be done. In Rex v. Gregory, 4 T. R. 240, 242, n. (a), Lord Mansfield said, “ every college is a corporation in itself; and altogether, they form one corporation in the university in
The ancient authorities, when looked into on the point of divisibility, and applied to a corporation, must now all be received subject to the case of the city of London. There the taking of an illegal toll was held sufficient to work a total forfeiture of the city charter, with its thousand franchises. Vid. a summary of that case, 2 Show. 263 to 279, marg. page and note (t), Bond. ed. 1794. The entire roll is given in 6 Harg. St. Tr. app. 15 to 39, including at the last page judgment of general and absolute seizure. The corporate *abuse which is to work a forfeiture, [ *243 ] therefore, need not be of any particular measure or extent.
The writ and information were crown remedies ; and in the historical sketch already given, will be seen to have been sometimes pushed beyond their proper bearing against the subject. So far they should be taken with grains of allowance. Sometimes, however, they were unreasonably narrowed in the hands of weak princes; but they have been steadily recognized as in general of most salutary effect in favor of the commonwealth, and in a view to this have been sustained by the courts as important remedies, in nature of writs of right. Comyn’s Dig. Quo Warranto, (A).
That the franchise of being a corporation for one general purpose, as to erect and make profit from a turnpike, to bank, insure, or the like, comes with. in the doctrine which denies that a franchise is divisible, would seem to be quite plain. Indeed, that was hardly denied in the argument of this particular case. But when we came to hear the arguments of The People v. The Hillsdale and Chatham Turnpike Company, post, 254, and The Same v. The Kingston and Middletown Turnpike Company, ante, 193, especially the latter, it was much insisted on that the government could go only by detail, lopping off a branch here and a branch there, in the particular department of abuse ; and above all, it was said that taking excessive toll would not be a cause of general forfeiture, for that, at least, might be severed, and the company cut off from the obnoxious branch, without impairing any of the real franchise. But this I think may be left, to the argument of Sir Robert Sawyer, already quoted, and the judgment rendered against the city of London. Counsel have cited Cruise’s Dig. Tit. 27, Franch. § 89 to 95, Avhich is but a summary of part of the doctrine already noticed in
Another method of redress pointed out in the later arguments, as exclusively applicable, and somewhat insisted on in the first, is that by [ *244 ] private action. We are told that if *the road be too narrow, or ill constructed, or out of repair, or excessive toll be taken, any individual who suffers an injury, may have his action. Townsend v. The Susquehannah Turnpike Co., 6 Johns. R. 90, and The Goshen and Sharon Turnpike Co. v. Sears, 7 Conn. R. 86. Both these cases seem to have gone on statute liabilities of the company; but there is no doubt that an action lies and always did lie against the corporation, for mischief to an individual, arising either from misfeasance or non-feasance. The length of the argument will therefore be readily seen ; and it is quite too much. It seeks to show that there never can be, and never could have been, a writ of quo warranto, or any information in nature of such writ, for an abuse or nonuser of franchises, corporate or otherwise ; for the great complaint always was, that these offences were mischievous to individuals, and yet the public remedy was never questioned on that account. That a statute creating the right to have a bridge with a draw, imposed a penalty for unnecessary delay in raising the draw, was certainly urged as an argument against the delay working a forfeiture, by a very learned court. Commonwealth v. Breed, 4 Pick. 460, 465; and a provision of that kind may, no doubt, be so introduced into such a statute as to indicate a clear intent that it shall furnish the only remedy. But it is a rule of almost universal application, that if a statute fixing a penalty for an offence, do not either expressly or by necessary implication cut off the common law prosecution or punishment for the same offence, it shall be taken to intend merely a cumulative remedy. No case ever held, as a general position, that a right of private action for a misdemeanor, is at all incompatible with the remedy at the suit of the people. The principle now contended for, was urged in London v. Vanacre, 12 Mod. 270, 1. It was held, as we before noticed, that the city must forfeit its franchise of the shrievewick, if it did not elect a sheriff, and compel him to serve. He had refused to serve. Holt said : “ As to the objection that he may be indicted for this refusal, as was the case of Larwood, Sheriff of Norwich, I answer, that will not be sufficient to hinder the for- [ *245 ] feiture of the franchise, for if there *should be a vacancy when the sheriff comes to be sworn, then there will be an obstruction of justice.” The ground was, that a public inconvenience in not exercising the franchise, should work a forfeiture, although there might be another remedy.
I, therefore, agree with the attorney-general, that a single act of abuser or wilful non-feasance in a corporation, may, at the common law, be insisted
This section (39) has before been noticed, hut in reference to some' strictures which were passed upon it in the course of the later arguments, it may be well to examine it more particularly. It provides that an information may be filed by the attorney-general, upon his own relation, on leave granted, against any corporate body, whenever such corporation shall: 1. Offend against any of the provisions of the act or acts, creating, altering or renewing such corporation; or 2. Violate the provisions ¡of any law by which such corporation shall have' forfeited its charter by misuser; or 3. Whenever it shall have forfeited its privileges and franchises by nonuser; or 4. Whenever it shall have done or omitted any acts which amount to a surrender of its corporate rights, privileges and franchises ; or 5. Whenever it shall exercise any franchise or privilege not conferred upon it by law; and it shall be the duty of the attorney-general, whenever he shall have good reason to believe that the same can be established by proof, to file such information in every case of public interest; and also in every other case, if satisfactory security shall be given for costs. In both cases, by section 40, leave is to be obtained from this court or one of the justices of this court; and notice of the motion for leave may be ordered. The statute seems rather intended to declare the duty of the attorney-general, than'any new ground of forfeiture ; and under it we have held that his powers are, in some measure, judicial, that ’is to say, *when he shall pronounce [ *246 j that the public interest does not call for the expense of a state prosecution, the other case, the right of the individual immediately arises. Any one may then peremptorily require him to proceed on securing the costs, and on making out a case satisfactory to the court. One object of the statute was to secure an information at all events. The statute would not, therefore, leave an intermediate class of cases wherein the court might say they are of public interest, although the attorney-general had denied that quality; and so no proceedings be had. The state is estopped by the act of its officer, from insisting that it is a case of public interest, and declining to proceed on that ground. The contrary position would assume, that the attorney-general had not done his duty; that he ought to have proceeded, even without security, which cannot he used as an argument that he shall not proceed at all. This rule was complained of on the argument, as a severe one; but I can not feel that 'a corporation should, generally, be far* ther beyond the reach of prosecution for its offences, of whatever character, than a natural person. As the statute stood on the first revisal, it brought
[ *247 ] *I agree, however with the counsel for the Kingston and Middletown Turnpike Company, that there may sometimes be abuses, such as multiplying points in a prosecution to a vexatious extent. Whether that case be an instance, it is impossible to say; because all the points may be true, and may have been allowed on motion ; they are exceedingly numerous, especially when we add to the number of replications, (thirty in all,) that, as to several of them, each contains within itself as many points as there are replications in the cause. Every inch of the road seems to be assailed on almost every ground that could be thought of; and one of the replications which goes on the claim of excessive tolls is, I have, no doubt, unnecessarily prolix and diversified. It is entirely clear, however, that the court may, either by rule on granting, leave, or on motion by the defendant at any time before trial, restrain the replications to such particular matters as are not only pertinent but shown to be true. We have the same control over this class of pleading as any other ; and it does not follow that because a relator may desire that a violation of all the requisitions of the turnpike act shall be stated in the replications, he may retain the whole on the record. Corrections of such abuses are not unknown even to the old method by writ. Lilly's Abr. Quo. Warranto, B. The author there states this case as having occurred in 22 Car. in B. R. A quo warranto was brought for vexation on forty-eight points $ and the court being moved in it, did order that the prosecutor should waive that quo warranto, and should bring a new one, and therein insist only on three points, but that he might proceed to trial upon his new quo warranto in such time as he might have done upon the old, to the end that he might not be delayed in his proceedings by bringing of the new quo warranto." It was doubtless a series of such cases as this, that produced, in the course of a few years
*I have before shown that the case immediately before us does [ *249 ] not come within the 39th section ; and the same thing is true of other corporate offences, which yet I apprehend form a complete ground of forfeiture. The statute goes to non-users, but many non-feasances do not amount to non-users. The statute does not, in its terms, reach negligences unless they have the quality of being within the first subdivision, viz. offences against some provision of the act or acts creating, altering or renewing the charter, I have already noticed that, after a road has been approved and
Viewing the state of repair as resting on the general duty of the company, I have already noticed wherein the seventh and eighth replications are defective. . They do not show that the company have fallen short of that duty. But in the later arguments it has been strenuously insisted, that admitting a single act of abuse, or a single omission or non-feasance, or a gen- [ *250 ] eral state of non-repair, to be a cause of *forfeiture, such a consequence does not necessarily follow ; that the act, omission or event must be owing to some fault of the corporation, and hence the replications should affix a quality to them, by averring that, at least, they were wilful or negligent. I have already taken some notice of this question. The replica, tions are, in this respect, altogether silent. It is remarkable that they do not contain averments even of such negligence as would be necessary to subject the corporation in a civil action for individual mischief arising from non-repair. In 2 Chitty’s.Pl. 780, Am. ed. of 1828, the averment by the plaintiff against an individual bound to repair is, that he wilfully and unjustly omitted to do so. Formal words, such as vi et armis and contra pacem, can in no case, perhaps, be insisted on. Such words may not be predicable of a corporation, even when it has been guilty of usurpation or other misfeasance ; and they are never introduced in charging mere non-feasance against individuals, unless it be contrary to some statute. Earl of Shrewsbury’s case, 9 Rep. 50. The information is generally in nature of a mere civil suit, and the statute of amendments and jeofails is applicable to all proceedings under it. 2 R. S. 345, 2d ed. § 10. Yet it is occasionally vindictive in its character, and may be followed by criminal punishment. Id. 485, § 48. In some cases of non-feasance, even of a criminal character, I perceive that no. qualifying words are used in the indictmeqt, In Mr. Chitty’s precedents of
In the cause under immediate examination, the seventh replication says, (and I am now supposing that the ground taken might in one view be suffi. cient,) “ You have not, during all or any of the time mentioned in the in. formation, kept good the original bedding of the road and the eighth, “ You have not, during all or any part of that time, kept good the original facing.'' The time mentioned is five years next before the filing of the information, viz. March 20th, 1838. The replications relate to the whole line and the whole required width of the improvements ; and should it appear, on an issue joined, that this company had failed in the course of the whole five years in any part of the whole length or breadth of the road, to maintain an exact mathematical conformity with the directions which governed in its original formation, though the failure arose from inevitable accident, this might be claimed to work a forfeiture of their charter. A deep waggon rut, at any season of the year, for aught I see, would, on the principle taken, work a total disfranchisement. It seems to me that where a single act or omission *is relied on, it should be characterized in pleading as [ *252 ]
To recapitulate : I am of opinion that the fifth and sixth replications, so far as they relate to the original construction of the road, allege causes of forfeiture sufficient in themselves, but ‘that the state is estopped to make such allegations by the award of the commissioner’s and license of the governor. They cannot be sustained, on the ground that they also take in some of the time subsequent to the license being given. I am of opinion that the seventh and eighth replications are bad, as not stating any sufficient ground of forfeiture or dissolution subsequent to the time of the license being given. Though I agree that any wilful or negligent violation of a corporate trust such as taking excessive toll, or suffering a turnpike road to fall [ *253 ] into a state *of bad repair contrary to the duty of the corporation, or any single omission amounting to a breach of trust, would be adequate cause of forfeiture. I am of opinion that the tenth replication is bad, if for no other reason, yet because it does not show that any part of the road was so circumstanced as to require a fender or railing, the want of which alone is assigned as a cause of forfeiture. Circumstances requiring this mode of security for taavellers should be stated, before it can be seen that the duty to adopt it devolved on the company ; and it seems to me also that the particular part or parts of the road where the duty arose and was neglected should have been stated. This replication is moreover obnoxious to the same objections which lie against the others. The defect cannot be predicated of a time anterior to the award and license ; and after that, the question is rath, er one of general repair, than' whether the fender or railing has at all times, been of a particular height, &c.
My conclusion in this case is that judgment should be rendered against the people on all the demurrers.
*The Ch. J. and Bronson, J. concurred as to the seventh and [ *254 ] eighth and tenth replications, but they were of opinion that the license does not conclude the people on this proceeding, for the reasons assigned by the Ch. J. in The People v. The Kingston and Middletown Turnpike Co., and consequently that the fifth and sixth replications are good. The result is judgment on demurrer, for the people on the fifth and sixth replications, and for the^defendant on the seventh and eighth and tenth replications.