
    Daniel W. Dulaney and Thomas W. Dulaney vs. Peter B. Starke and Samuel F. Butterworth.
    Where the assignees of a turnpike road company sue for tolls for passing over their road, it is not necessary to make profert in the declaration of the grant of franchise, the transfer, and the authority to exact toll; they are all matters of evidence.
    D. sued S. & B. to recover tolls for the passage of their stages over the turnpike road of D.; the declaration alleged, that S. & B. were indebted to D. for certain tolls due for passage on and over the turnpike road of D., which had been duly granted by an act of the legislature of the state of Mississippi to G. and by G. transferred toD. ; S. & B. demurred to the declaration and the court sustained the demurrer : Held, that the declaration was good, and the demurrer should have been overruled.
    Error from the circuit court of Lowndes county; Hon. Hendley S. Bennett, judge.
    This was an action of assumpsit, brought by Daniel W. Du-laney and Thomas W. Dulaney, partners, trading under the' name and style of Daniel W. Dulaney & Son, against Peter B.. Starke and Samuel F. Butterworth, partners, under the name and style of Starke & Butterworth, to recover tolls alleged to be-due the plaintiffs, for the passage of the defendant’s stages over a turnpike road. The declaration contained two counts; the’ first averred that on the 2d day of July, 1842, the defendants were indebted to the plaintiffs “in the sum of one thousand and fourteen dollars, for divers tolls and duties due, and of right payable, by the said defendants to the said plaintiffs, for the passage of drivers, wagons, stages and horses, of the said defendants, at their special instance and request, on and over the-turnpike road and through the turnpike gate of the said plaintiffs ; which said turnpike had been before that time duly granted by an act of the legislature of the state of Mississippi, in such case made and provided to Grabel and Grant Lincecum, and which had also before that time been transferred and assigned to the said plaintiffs, and of which the said plaintiffs were thereof lawfully possessed, and on account thereof rightfully entitled to have and demand of and from the said defendants, for the passage of their said wagons, stages, and horses, as aforesaid, at their request aforesaid, the said sum of one thousand and fourteen dollars; and being so indebted, and in consideration thereof,” &c. The second count was substantially the same as the first, the only difference being an averment in the second, that the turnpike “ had been duly granted by an order of the board of county police of Octibbeha county, (they having jurisdiction of the same, and lawfully authorized so to do) to a certain James Jones, and by him duly transferred and assigned to the plaintiffs,” instead of averring that the grant was made by an act of the legislature of the state of Mississippi to Grabel and Grant Linceeum, and transferred and assigned by them to the plaintiffs. The defendants demurred to the declaration, and assigned the following causes of demurrer, to wit:
    “ 1st. Duplicity and multifariousness.
    “2d. The title to the turnpike road is not sufficiently set out in the narration.
    
      “ 3d. It does not appear that the conveyances or transfers of said incorporeal hereditament were by deed.
    “ 4th. This narration shows no title to said turnpike in the plaintiffs, nor any authority to charge tolls for crossing the same.
    “ 5th. The narration does not set out the nature and terms of the grant from the state; nor from the county of Octibbeha; nor the rate of tolls which they are authorized to charge by said grants.
    
      “ 6th. The narration shows no cause of action against the defendants, and is informal and altogether insufficient.”
    The court sustained the demurrer, and ordered the declaration to be dismissed, to reverse which, the plaintiff now prosecutes this writ of error.
    
      Jack, for plaintiffs in error.
    The question involved is, when a franchise has been duly granted to charge tolls, is the person lawfully in possession, claiming the right, and with whom the defendant contracts, compelled to show title, by deed, before he can maintain action for the tolls; or is the allegation that the plaintiffs were in possession under the grants, and rightfully entitled to have the tolls, sufficient 1 We think that the averment of the grant of the franchise by the proper authority, and that the plaintiffs were lawfully possessed under the grantees and entitled to the tolls, and that the defendants are indebted at their special instance and request, are sufficient and all that ought to be alleged or proved to sustain the action. For the correctness of these views, I refer the court to the principle that possession or qualified right, is sufficient to sustain trespass or trover, {Harris v. Neioman, 5 How. R. 654,) and for a stronger reason, would support the action of assumpsit on the contract of the party, and I ask that the decision sustaining the demurrer be reversed and the cause remanded.
    
      W. P. Harris, for defendants in error.
    It is difficult to determine whether the pleader intended to rely upon the possession or the title of the plaintiffs; but in either case, the allegations in the declaration are insufficient.
    The rules of pleading require that the declaration should contain the facts on which the plaintiff’s right of action depends. If it arises upon contract, the contract should be stated; if upon a legal liability, independent of contract, the circumstances which create such liability should be set out. 1 Chitty PI. 291, 302.
    The decisions relied on to support the declaration, perhaps establish what is an anomaly in pleading, that indebitatus as-sumpsit for tolls, customs, fines, &c., though title must be proved, it need not be alleged; but giving to these decisions the authority claimed for them, they do not relax the rule above laid down. They amount, in effect to this, that the plaintiff need not state the interest which he has in the franchise, and in right of which he demands tolls, &c.
    The interest which a particular individual may have in a franchise is not, however, the foundation of the liability of the public to pay tolls.
    
      Such liability does not depend upon who for the time being may be in possession' of a franchise, or the particular title by which such possession may be supported. It depends upon whether such franchise has a legal and authorized existence, or in other words, whether by legislative grant, or by leave from any tribunal, capable of conferring it, such franchise has been established, or an exclusive right against the public conferred. The one relates to whether tolls can be demanded at all; the other to the question whether the individual suing is the one to whom the tolls are due. The decisions alluded to, may relieve a party from defining the interest or title by which he claims such tolls to be due to him, but they do not relieve him from laying the foundation for a suit against the defendant.
    I insist, therefore, that the plaintiff should have averred that the franchise had been legally established; the simple averment that the right to take tolls was granted by the legislature is not sufficient; if the grant ought to have been stated it was necessary to set it out in its terms. Stephen on PI. 329.
    The same may be said of the count in which it is stated that the right to demand tolls was conferred by the police court; the order should have been fully set out. 1 Saund. 298. And even then, it would remain to be shown that the board of police can establish a franchise; the power to regulate the rate of tolls does not include the power to grant franchises.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an action of assumpsit, brought to recover tolls alleged to be due from the defendants in error, to the plaintiffs, for the passage of their stages over a turnpike road, for the space of three years. There was a demurrer to the declaration, which was sustained in the court below, and judgment rendered for the defendants.

The plaintiffs claim under a transfer of the franchise from the original grantees. Several causes of demurrer are assigned, part, only, of which need be considered. The second cause states that the title to the turnpike is not sufficiently set out; the third, that it does not appear that the transfer was by deed; and fourth, that no title to the turnpike is shown, nor any authority to charge tolls.

The declaration contains two counts; the first alleges that the defendants were indebted to the plaintiffs for certain tolls, due for passage on and over the turnpike road of the plaintiffs, which had been duly granted by an act of the legislature of the state of Mississippi to G. & G. Lincecum, and by them transferred and assigned to the plaintiffs.

The second count is substantially the same, except that it alleges that the franchise was granted by the board of police of Octibbeha county, they having jurisdiction of the same, and being lawfully authorized so to do.

We cannot perceive any valid objection to this declaration. It is, in all respects, as full as the forms contained in the books. There is no necessity that the transfer should be by deed. The grant of franchise, the transfer, the authority to exact toll, are all matters of evidence. It is no more necessary to make pro-ferí of them in the declaration, than it is to set out the title papers for land in an action for its use and occupation.

The judgment is reversed and cause remanded.  