
    Benjamin Sault Williams versus Hingham and Quincy Bridge and Turnpike Corporation.
    The remedy by an action at common law against a turnpike corporation, for an injury sustained by an individual in consequence of their neglect to keep their road in repair, is taken away by St* 1804, c* 125.
    No person except one from whom toll is demandable, can sustain an action on that statute for an injury so occasioned.
    The declaration in such an action should state that the plaintiff is a person from whom toll is demandable; and the want of such an averment, or of allegations from which that fact may be inferred, is not cured by verdict.
    The plaintiff was allowed, upon payment of costs, to amend his declaration after verdict, by inserting such an averment, the verdict being set aside and a new trial granted.
    The defendants were summoned to answer to B. S. W. of Hingham &c. in a plea of trespass on the case, for that whereas heretofore &c., by an act made and passed on the 5th of March, 1808, entitled, 6C An Act to establish the Hingham &c. Corporation,” it was among other things enacted, that certain persons &c. should be a corporation &c. for the purpose of laying out, making and keeping in good repair, a turnpike road from &c., and they were thereby authorized &c. to erect a bridge over said Back river, &c., and also to erect a bridge over said Fore river, &c., which bridges, it was and is therein enacted, should be well built, &c., at least twenty-eight feet wide, and should have a railing on each side, &c., and that the said bridges should always be kept in good, safe and passable repair, &c., and after the making of the said act &c., the said corporation, the defendants, did lay out and make a turnpike road, &c., and did build bridges, &c., and thereupon did lay open, and thence hitherto have kept open, the said turnpike and the said bridges thereon, &c., for passengers &c. to go, return, &c., with horses, &c., at their free will and pleasure, paying a certain toll, &c., which the said corporation &c. were &c. authorized to and do receive at certain gates, &c., and the plaintiff says, that before, &c., the said bridge &c. over Fore river aforesaid was not twenty-eight feet wide, as by law &c., but at the draws thereof was &c. only fourteen feet wide, and before and at the time aforesaid there was no sufficient railing &c., but the railing on the sides &c. was weak &c., and the bridge &c. was not in good, safe and passable repair, as by law &c., yet the said corporation, wel knowing &c. the premises &c., did not, nor would, widen the said bridge at the draw thereof, nor make a good &c railing &c., nor would keep &c. the said bridge in good &c repair, &c. By means whereof the said plaintiffs &c., on the 5th day of October, 1824, to wit, at Quincy, &c., being passing with M. S. W. since deceased, then wife of the said plaintiff, and Jerusha C. Cotting, in a certain gig of the plaintiff, drawn by a certain horse, on, along and partly over the same bridge and on the draw thereof, &c., the said horse being frightened, &c., the wheels &c. were pushed by the said horse against the said railing &c., which said railing &c., being weak &c., immediately thereupon &c. gave' way, and the said horse and gig or chaise, with the said plaintiff and his said wife and the said J. C. C. therein, were thereby precipitated &c. into the said river &c., to the damage &c
    Nov. 2d.
    The jury found a verdict for the plaintiff, assessing his damages at 600 dollars
    The defendants moved in arrest of judgment, because the plaintiff had not, in his declaration, alleged that he paid, or offered to pay, to the corporation or their agent, any toll for passing their road and bridges at the time of the injury ; — nor that he was at that time liable to pay any toll for passing them; — nor that the corporation had reasonable and sufficient notice of the defects complained of; — and also because the action was brought at common law, and not upon St. 1804, c. 125.
    
      Cushing, in support of this last ground,
    cited Mower v. Leicester, 9 Mass. R. 247; Wallace v. King, 1 H. Bl. 13; Bartlett v. Crozier, 17 Johns. R. 439; Stowell v. Flagg, 11 Mass. R. 364; Stevens v. Middlesex Canal, 12 Mass. R. 467; and to show that the plaintiff had not made all the allegations necessary to bring his case within the 6th section of St 804, c. 125, which provides that the u corporation shall he liable to pay all damages which may happen to any person from, whom toll is demandable&c., he cited Morrell v. Fuller, 7 Johns. R. 402; Cole v. Smith, 4 Johns. R. 193; Spieres v. Parker, 1 T. R. 141 ; Bishop v. Hayward, 4 T. R. 472 ; Bartlett v. Crozier, 17 Johns. R. 456.
    
      Rand, for the plaintiff.
    An allegation that the plaintiff has paid toll is unnecessary, because it forms no part of his title to damages. If he passed any gate and paid no toll, he is liable to an action for the toll. But it does not appear that he passed any gate, and if he did not, no toll was due, and a payment or tender could not properly be alleged. After verdict it will be presumed, if necessary, that he had not arrived at any gate. But if the allegation in question was necessary, after verdict it will be supplied by intendment.
    Neither was it necessary to allege that the plaintiff was a person of whom toll was demandable. It was not the design of St. 1804, c, 125, § 6, to take away the remedy at common law, nor to repeal any part of St. 1786, c. 81, § 7, which embraces every person. It was intended, in this particular, to give a cumulative remedy. An affirmative statute does not take away the common law. But if it were necessary, it sufficiently appears from the declaration, that the plaintiff was a person of whom toll was demandable. He was travelling in a chaise, from beyond the limits of Hingham, m which town he lived, and not on the Lord’s day ; and all ouch persons are liable by the statute of 1804 to pay toll. If the fact, however, does not appear from the declaration and was necessary to be proved, it will be intended after verdict.
    The cases are numerous showing that after verdict such allegations will be supplied. Hotham v. E. I. Company, 1 T. R. 638; 1 Wms’s Saund. 228 a; Collins v. Gibbs, 2 Burr. 899; East v. Essington, Ld. Raym. 810; Anonymous, ibid. 1060; Hitchin v. Stevens, 2 Show. 234; Wells v. Some, Cro. Car. 240; Palgrave v. Windham, 1 Str. 212; Jeffries v. Watkyns, Carth. 6; May v. King, Com. Rep. 116,
    To the point that an action lies at common law, he cited Riddle v. Merrimack Locks &c. 7 Mass. R. 187. He also contended that eithei an allegation of notice was not nee es » sary, or tliat notice was sufficiently alleged, or that reasonable notice would be intended ; and cited Lobdell v. New Bedford, 1 Mass. R. 153.
    
      April 2d 1827, in Suffolk.
    
    
      J. T. Austin replied.
   Parker C. J.

delivered the opinion of the Court. We have taken much pains to avoid the conclusion we feel ourselves at last obliged to adopt in this case, that judgment cannot be entered on the verdict, for want of a sufficient cause of action alleged in the declaration. It is always unpleasant to arrest the course of judicial proceedings on account of defects which have nothing to do with the real merits of the matter in dispute ; but it is impossible, without a palpable disregard to technical rules, to overlook a fault in the outset of the case, which occurred from inadvertence on the part of him who drew the declaration with abundant care, except in the particular which was seized upon by the adverse counsel, probably not to the eventual advantage of his client, if the. case should be again made out in evidence as it was at the former trial.

The action is brought against the defendants as proprietors of the turnpike corporation, for a very serious injury occasioned by the defective state of the bridge which they are bound by law to keep in a condition safe and convenient for passengers. By the statute of incorporation these defendants are made subject to all the provisions, rules and regulations established by the general turnpike law, (St. 1804, c. 125,) by the 6th section of which the proprietors are made liable to an action by any one from whom toll is demandable, who shall suffer loss or injury by reason of any neglect to keep the bridge in such a state as will secure passengers from accident and injury. It is not anywhere alleged in the declaration, that the plaintiff is a person of whom toll is demandable. It does not therefore appear that he has a right to sustain any action.

The cases in the books seem to be very explicit, that no judgment can be sustained, even after verdict, unless the daclaration shows every fact that is essential to the right of action ; and though this is a technical rule, it is not unsupported by reason, for there will be nothing on record to show that the plaintiff is entitled to any damages, and it cannot be presumed that facts not stated have been proved, unless they are of a nature to be necessarily inferred from those which are alleged. There is nothing in the declaration from which it must be inferred that the plaintiff was liable to a demand of toll, for by the 5th section of St. 1804, c. 125, divers classes of persons are exempt from toll, and there is nothing to make it appear that the plaintiff is not in one of them. It is not merely that his title is defectively set forth, but there is a failure to show any title at all, for by the very statute on which he relies to support his action, it is required that he be a person of whom toll is demandable. The cases of Spieres v. Parker, 1 T. R. 141, and Bartlett v. Crozier, 17 Johns. R. 456, put this matter in a very clear light. He who would entitle himself to an action under a statute, must allege all the facts upon which the statute grounds the action ; and if he fails to do this in his declaration, he cannot have judgment. The case in Term Reports is on a statute which gives a penalty to any mariner who, under certain circumstances, shall be impressed, except deserters from his majesty’s ships. The plaintiff stated his case without alleging that he was not a deserter, and this was held to be a fatal defect. And in the New York case before the Court of Errors, the law on the subject is laid down by Mr. Chancellor Kent with admirable force and perspicuity. Numerous cases of a like nature are cited in Espinasse on Penal Actions, and we cannot find that these principles are not applicable to cases not strictly of a penal statute. See Rider v. Smith, 3 T. R. 766; Co. Lit. 304; Clarke v. Gray, 6 East, 568; Miles v. Sheward, 8 East, 8; 1 Wms’s Saund. 228, note 1; Rex v. Pemberton, 2 Burr. 1035; Spieres v. Parker, 1 T. R. 144; The King v. Hall, ibid. 322; Allan v. Hundred of Kirton, 2 W. Bl. 842; S. C. 3 Wils. 318; Young v. Hundred of Tedcombe, 1 Show. 60; Herne v. Lilborne, 1 Bulstr. 162; Small v. Cole, 2 Burr. 1159; Rushton v. Aspinall, 2 Doug. 679. In civil, as well as penal actions, enough must be stated in the declaration, or must be necessarily inferriblefr°m what is stated, to show a perfect right of action. As in the case of Rushton v. Aspinall, 2 Doug. 679, it is held ^at omission t0 allege a demand on the acceptor of a bill of exchange and a refusal to pay, or notice to the indorser, is incurable by verdict and bad on error.

We have maturely weighed the answers to this objection to the declaration. First, it is said that the plaintiff has a right of action at the common law against the proprietors of the bridge, they being obliged by law to keep it in repair, and receiving a compensation therefor in toll, and therefore being liable for damages to any one who suffers by their neglect of duty ; and it is further said, that the remedy given by the general turnpike law is cumulative, and so does not take away the common law right of action. But for that statute, we think there is no doubt that an action could be maintained at common law ; it is certain, however, that the legislature had the right to restrict the liability of the proprietors ; so that the question is, whether they did not intend to restrict it to those only of whom toll should be demandable. And we think there is no doubt of this intention. The St. 1804, c. 125, enacts the rules and principles by which turnpike corporations thereafter to be established should be governed, in order to have a uniform system for the multitude of corporations then likely to spring up through the commonwealth. The act incorporating the company defending in this action, refers to" the general act for the duties, liabilities and privileges of the corporation. By the 5th section of the general act it is provided, that nothing in the act “ shall extend to entitle any turnpike corporation hereafter established, to demand or receive toll from any person that shall be passing on foot, or with his horse or carriage, to or from his usual place of public worship, or from any person passing on military duty, or from any person residing in the town where the gate may be placed, unless they are going or returning from Deyond the limits of said town, or from any person going to or from any grist-mill, or on the common and ordinary business of family concerns.’ By the 6th section it is provided, that the “ corporation shal’ be liable to pay all damages which may happen to any person irom whom toll is demandable, for any damages which shall arise from defect of bridges or want of repair of said turnpike road ; and also liable to presentment by a grand jury, for not keeping the same in repair.” This must be construed a limitation of the right of action to such persons as are liable for toll, and of course a deprivation of the common law right ol action, from those who are exempt from toll.

The legislature perhaps thought it reasonable, that in com pensation for the loss of toll from pretty numerous classes oí citizens, who might have a right to pass roads and bridges which they neither assisted to build nor contributed to keep in repair, the corporation should be exonerated from liability to those persons, if, voluntarily availing themselves of their right, they should come to damage by accidental defect of the bridge or road. The statute therefore does not furnish a cumulative remedy, but restricts the operation and effect of one previously existing. They therefore who would avail themselves of the remedy given by the statute, must show that they are within the description of those to whom it is given. It is essential to their title, that they should be persons of whom toll is demandable ; and if it is not so averred in the declaration, there is nothing on record by which it can be ascertained that they are entitled by law to damages. It has been said that this is in the nature of an exception or limitation of a right given by statute, and that not being contained in the same section with the affirmative provision, it is matter of defence, and need not be averred in the declaration. We should gladly have availed ourselves of this rule of law, if we could see its application to this case. The cases before cited sufficiently establish the rule, that where an action is given by statute, and in another section, or subsequent statute, exceptions are enacted, the plaintiff need not take notice of these exceptions in his count, but leave it to the defendant to set them up in his defence. But where the exception or limitation is contained in the same section which gives the right of action, the plaintiff must negative the application of them to his ground of action. Here unfortunately the qualification of the right of action is contained in the very section which gives the right. Indeed it is in the nature of a condition precedent to the action, that the plaintiff should Rabie to toll. As the general statute is, by legislative reference, constituted a part of the act of incorporation ol r r this company, the section which gives the right of action, as well as that which provides for exemptions, must be considered in the light of additional sections to this latter act. The very section which gives the action, prescribes the terms upon which alone it is given ; it is to persons of whom toll is demandable. This is part, and an essential part, of their title.

It has been further said, that as the plaintiff is of Hingham, and so styled in the writ, and that as it was not on the Lord’s day that he was passing, and that as he was in a chaise with two females, the several causes of exemption did not exist in his favor. But the answer is, that we must go out of the record for the facts on which he would ground his liability to toll. A Hingham man is exempt if going to mill, or for military purposes, or to his usual place of public worship , and it does not appear by the declaration that the plaintiff was not pursuing some of these objects. We are therefore obliged to arrest the judgment.

Certainly objections which are apparent in the beginning of a cause, but which are passed by until the expense of a trial has been incurred, ought not to be favored ; and we have been very far from favoring this, having taken much pains and spent much time to avoid the force of it, but fruitlessly. From the facts reported in the case it is most manifest, that the plaintiff has sustained a very serious injury, and that he is entitled to, and, unless the evidence should be changed, will receive complete indemnity. The damages recovered were far from being extravagant, probably moderated by the consideration that the proprietors of the bridge had no knowledge of the existing defect. We cannot but hope therefore, that there will be a disposition to settle this controversy without the expense of another suit.

Judgment arrested.

After the foregoing opinion was delivered, Rand moved tor leav 3 to amend the declaration, and cited the following authorities to show that amendments are allowed, at the discretion of the court, in furtherance of justice, at any stage of the proceedings. Rex v. Ellames, Rep. Temp. Hardw. 42; Rex v. Grampound, 7 T. R. 699; Tidd’s Pr. (8th ed.) 754, 770; Wilder v. Handy, 2 Str. 1151; Tomlinson v. Blacksmith, 7 T. R. 132; Halhead v. Abrahams, 3 Taunt. 81; Holland v. Hopkins, 2 Bos. & Pul. 243; Grundy v. Mell, 1 New Rep. 28; Oldershaw v. Thompson, 1 Starkie, 312, 313; Williams v. Pratt, 5 Barn. & Ald. 896; Storer v. Gordon, 2 Chit. Rep. 27; Dartnell v. Gibbs, ibid. 28; Archbold’s Pr. (2d ed.) 268.

The Court gave leave to amend upon payment of costs to the October term, and a new trial was granted. 
      
       See Revised Stat. c. 39, § 42.
      
     
      
       See 1 Chitty’s Pl. (6th Amer. ed ) 255, 256.
     
      
       So where a verdict was set aside and a new trial granted on account of a material variance between the declaration and evidence, an amendment was allowed on the payment of costs. Stanwood v. Scovel, 4 Pick. 422.
     