as to one of them, the condition has not been performed, upon which the award was to have its obligatory effect; and here they have stopped short, and have omitted to settle one of the subjects of difference which was stipulated for. This is not like the case where an award being good in part and bad in part, the good part shall not be vitiated, by the arbitrator having also directed something to be done which is superfluous and bad; but, here, the very condition on which the parties submitted to the award has failed.]

1837.

}

Nov. 9. J

OLDROYD

AND ANOTHER V. CRAMPTON AND OTHERS.

Turnpike Tolls-Pleading.

In an action by the plaintiffs, clerks to the trustees of a turnpike road, (brought under the 55th and 57th sections of the 3 Geo. 4. c. 126, for amending the general lams in being for regulating turnpike roads, &c.,) against the defendant, as farmer of the tolls, and his sureties, for non-payment of the rent agreed upon, semble, that the declaration not alleging that the agreement for the tolls was signed by the trustees letting the said tolls, or any two or more of them, or by their clerk or treasurer, and by the one defendant as the lessee or farmer, and by the others as his sureties, or that the said agreement was by deed or under the seals of the trustees, or any of them, is upon special demurrer ill; the 57th section of the statute, by which such particularities are required, appearing to be imperative, not merely directory.

Declaration by the plaintiffs, as clerks to the trustees of the Dewsbury and Leeds turnpike-road, acting under and by virtue of an act of parliament made and passed in the 56 Geo. 3, entitled, 'An act for making and maintaining a road from Dewsbury to Leeds, in the West Riding of the county of York,' complained of Joshua Crampton, J. Crampton, and H. Wilkinson, alleging, that heretofore, to wit, on the 30th of July 1835, at a public meeting of the trustees of the said turnpike-road, duly held by virtue and authority of the statutes in that case made and provided, at Dewsbury, NEW SERIES, VII.-C.P.

in the county of York, the tolls of the several gates, chains, and side-bars erected upon the said turnpike-road, were duly put up and let to farm by auction, by virtue of the powers, and in the manner directed by the statutes in that case made and provided, and the said Joshua Crampton did then and there become and was the last and highest bidder for the said tolls, and was thereupon duly declared the farmer or renter thereof, at the yearly rent or sum of 1,630l., for three years from the 8th of September then next, and the said Joshua Crampton, did then and there produce and tender the said John Crampton and H. Wilkinson to the said trustees, as his sureties, for the payment of the said rent; and thereupon, in consideration of the premises, afterwards, to wit, on the same day and year aforesaid, by a certain agreement then and there made by and between the said trustees in pursuance of the power and authority given to and vested in them, the said trustees by the said statutes, or some or one of them, and of all other powers and authorities, enabling them, on that behalf, and the said defendants, the said trustees, did consent, contract, and agree with the said Joshua Crampton, to let to him, and the said Joshua Crampton did agree to take of and from the said trustees, the said tolls, and all and every the said gates, chains, and side-bars, for the term of three years from the said 8th of September then next, at the yearly rent of 1,6301., payable by twelve equal monthly payments in each year, on the 8th day of each successive month, the first payment thereof to be made on the said 8th of September then next ensuing, and also under and subject to certain other conditions, stipulations, and agreements therein contained; and the said Joshua Crampton, as farmer or renter of the said tolls, and said J. Crampton and said H. Wilkinson, as his sureties, did thereby jointly and severally promise, undertake, and agree to and with the said trustees, that he, the said Joshua Crampton, his executors, &c., should and would well and truly pay, or cause to be paid the said yearly rent or sum of 1,6307., at the time and in the proportions, and in manner thereinbefore limited and appointed for that purpose, and perform and fulfil and

I

keep all and singular the conditions, restrictions, and agreements therein contained, and which, on the part of the highest or last bidder, farmer, or renter of the said tolls were, or ought to be performed; and the said plaintiffs say, that afterwards, to wit, on the said 8th of September 1835, aforesaid, the said Joshua Crampton entered into and upon and took possession of all and singular the toll-houses of and belonging to the said trustees, and then being upon and adjoining to the said turnpike-road, with the appurtenances, by virtue of the said agreement, and then and there became and was interested in, entitled to, and possessed of the said tolls, and all and every the gates, chains, and side-bars of and belonging to the said turnpike-road; nevertheless, the said defendants, not regarding their said promises and undertaking, did not, nor would, after the making thereof as aforesaid, perform, fulfil, nor keep anything in the said agreement contained, on their behalf as aforesaid to be performed, fulfilled, and kept, according to the tenor and effect, true intention and meaning thereof. And the said plaintiffs, in fact, further say, that after the making of the said agreement, and during the said term of three years thereby granted, to wit, on the 8th of September 1836, a large sum of money, to wit, 2717. 13s. 4d., of the rent aforesaid, for two monthly payments thereof, ending on the day and year last aforesaid, became and was due, and still is in arrear and unpaid by the said Joshua Crampton, as farmer or renter of the said tolls, to the said trustees, contrary to the tenor and effect, &c. of the said agreement.

Special demurrer, assigning for causes, that it is not stated, nor doth it in any manner sufficiently appear by the said declaration, whether the said trustees therein mentioned, caused such notice to be given of the time and place of holding the said meeting, whereat it is alleged that the said tolls were put up, and let to farm, as is required by the statute in such case made and provided, to render the said meeting a legal and valid meeting, for the purpose of letting to farm the said tolls; and also, for that the several allegations contained in the said declaration, that the said meeting was duly held, and that the said tolls

were duly put up, and let to farm by auction, are and each of them is too general; and that the plaintiffs ought to have therein set forth such facts as would enable the Court to judge whether the said meeting was duly held, and the said tolls duly put up and let, and whether the several directions given by the said statute, touching the holding of meetings, for the purpose of letting tolls, and the putting up and letting such tolls, were observed and complied with, upon which facts, some certain and definite issue or issues might be taken to be tried by the country; and also, for that it is not stated, nor doth it appear in or by the said declaration, that the said agreement therein mentioned, was signed by the trustees letting the said tolls, or any two or more of them, or by their clerk or treasurer, and by the said defendant Joshua Crampton, as the lessee and farmer thereof, and the said other defendants as his sureties, or that the said agreement was by deed, or under the seals of the said trustees, or any of them, &c. Joinder.

Beavan, for the demurrer.-The plaintiffs here have acted under the 55th and 57th sections of 3 Geo. 4. c. 126, for amending the general laws in being, for regulating turnpike-roads, &c., the 4th section of which, makes the act extend, with a certain exception, to all local acts for making and repairing turnpike-roads (1); and, upon

(1) The 55th section enacts, "That it shall and may be lawful for the trustees or commissioners of every turnpike road, at a public meeting, to let to farm the tolls of the several gates erected upon their respective turnpike roads, in the manner hereafter mentioned, although no express power shall have been given by any act or acts, for that purpose; and whenever tolls shall be let to farm, by virtue of the powers given by this or any other acts of parliament, the following conditions shall be observed: that is to say, the trustees or commissioners shall cause notice to be given of the time and place for letting the same, at least one month before the day to be appointed for that purpose, by affixing the same upon every toll-gate belonging to such turnpike road, and also by insertion thereof in some public newspaper, circulated in that part of the country, and specifying, produced in the preceding year, clear of, &c., and in every such notice, the sum which the said tolls that they will let the said tolls, by auction, to the best bidder, on his producing sufficient sureties for the payment of the money monthly, or otherwise," &c. Section 57: "Provided always, and be it further enacted, that all contracts and agreements to be

general principles, the declaration is bad. The statute by which authority is delegated, must be strictly pursued; and the clauses here appear upon the face of them to be imperative, not directory; and so they must be construed, according to the doctrine laid down in 6 Bac. Abr. Stat. letter G, where it is said, "It is in the general, true, that if an affirmative statute, which is introductive of a new law, direct a thing to be done in a certain manner, that thing shall not, even though there are no negative words, be done in any other manner." Nothing appears here to shew that the directions of the statute have been complied with. Pearse v. Morrice (2), and The King v. the Mayor of Norwich (3), confirm the doctrine. Nor will the words, that the tolls were duly put up, &c. and that the meeting of the trustees of the turnpike road was duly held by virtue and authority of the statutes, &c., avail the plaintiffs, any more than a plea stating that a commission of bankruptcy debitá juris formá emanavit availed the defendant in Tully v. Sparkes (4); and upon the same principle in Lloyd v. Wood (5), where an action was brought, in consequence of a party being attached, such party being then privileged from being attached, the declaration was held bad, for not setting out the nature of the privilege. Everard v. Paterson (6), cited in Williams v. Germaine (7), 9 Rep. 24, 1 Saund. 62, n. c, and Bell v. Nixon (8), are all adverse to the plaintiffs; and they can derive no assistance from that class of cases in which an averment similar to

made or entered into, for farming or letting the tolls of any turnpike roads, signed by the trustees or commissioners, letting such tolls, or any two or more of them, or by their clerk or treasurer, and the lessee or farmer, and his sureties, of such tolls respectively, shall be good, valid, and effectual, to all intents and purposes, notwithstanding they may not be by deed or under seal, any act or acts of parliament to the contrary thereof notwithstanding."

(2) 2 Ad. & El. 84; s. c. 4 Law J. Rep. (N.S.) K.B.21.

(3) 1 B. & Ad. 310; s. c. 8 Law J. Rep. K.B. 359.

that used here has been upheld, such as Nightingale v. Wilcoxson (9), Dudlow v. Watchorne (10), and Patience v. Townley (11).

[TINDAL, C. J.-Is not this within the general rule of pleading, that where many minute particulars are to be alleged affirmatively, one allegation is sufficient? The party here says, this is like a lease executed under a power; and when he has enjoyed all the emoluments and advantages under the agreement, he says the lease is not according to the power.]

It was incumbent on the plaintiffs to shew that they acted under the 57th section of the statute, and within its authority, otherwise a demise of tolls, as being an incorporeal hereditament, should be by deed under seal, whereas this is a mere parol agreement. The defendants, by demurring, have adopted the only course which they could with safety. They could not have traversed, for there was nothing for them to traverse; and if they had done so, and gone to trial, and if the proper averments appeared to be necessarily implied, the defect would, after verdict, have been cured by the statutes of Jeofails (12).

Addison, contrà.-The fallacy in the argument on the part of the defendants, consists in the assertion, that the agree ment could not be valid if it was not signed by the trustees and the other parties, as required by the 57th section of the statute. But it may be good and valid, though not so signed. Tithes, for instance, are an incorporeal hereditament, and a demise of them must be under seal; but when a party has enjoyed the advantages, as in the present case, use and occupation is a common action for the value of the tithes. In like manner, a composition for tithes, not under seal, is good. Neither was it necessary to allege, that the demise here was by deed in writing, upon the same. principle, that it is unnecessary to allege, that a lease by husband and wife was by deed-Wescot's case (13). The cases cited, do not apply. In Pearse v. Morrice, the deed was absolutely void by the statute;

but the agreement is not so here, as there is no local statute to make it void. In Bell v. Nixon, the objection was to the parties. In Lloyd v. Wood, the declaration disclosed no cause of action at all. As to the reference to 9 Rep. 24, that was the case of a quo warranto, in which the defendant should have pleaded in certain, and ought to have shewn a full and perfect title in himself; and it was not sufficient for him to plead that, generally, which comprehended the question, whether his predecessor licitè habuit; but he ought to have alleged what manner of discharge he offered to shew, viz. a release or unity of possession, or other matter of discharge, upon which the Court might judge if it was sufficient or not. Besides, there is a great difference as to the degree of accuracy required in a declaration and a plea.

The COURT, however, were of opinion, that the objection to the declaration, founded on its not setting out that the agreement was signed, as required by the 57th section, was strong, inasmuch, as that section, whatever might be their opinion of the 55th, appeared to be imperative; and they offered Addison leave to amend the declaration, reminding him at the same time, of the advice given by Lord Coke in Lord Cromwell's case (14), viz. "When the matter in fact will clearly serve for your client, take heed you do not hazard the matter upon a demurrer, in which, upon the pleading and otherwise, more, perhaps, will arise than you think of, but first take advantage of the matters of fact," &c.

ship, had a right, by virtue of a custom, to nominate a certain person in holy orders, to be the perpetual curate of the church; and affirmed, that they were the majority of such proprietors for the time being, &c., and had nominated W. C. clerk, as a fit and proper person for that purpose. The defendants, in their plea alleged, that they were the majority of the proprietors of estates for the time being, &c., and did duly nominate one E. P. clerk, as a fit and proper person for that purpose, with a traverse of the plaintiffs being at the time of the nomination of W. C. the majority of the proprietors of estates for the time being. A replication, alleging, that the defendants did not duly nominate E. P. to be perpetual curate, &c., was held ill, inasmuch as it passed by the traverse in the defendants' plea, and traversed the inducement, which was not material.

The declaration stated, that from time whereof the memory, &c., there had been and still was a certain ancient church with cure of souls, situate and being in the township of Boulton, for the use of the inhabitants of the said township, and which church, during all the time aforesaid, had been used and accustomed to be, and of right ought to have been, and still of right ought to be, a perpetual curacy, and which said church also long before the presentation of the Rev. G. H. Woodhouse, as hereinafter mentioned, to wit, on the 1st of January 1720, was, and from thence hitherto had been and continued to be, augmented by the governors of the bounty of her late Majesty Queen Anne, for the augmentation of the maintenance of the poor

the form of the statutes in such case made and provided; that the majority of the proprietors of estates for the time being, situate within the said township, from time whereof the memory of man was not to the contrary, had nominated and presented, and had been used and accustomed to nominate and present, and of right ought to have nominated and presented, and still of right ought to nominate and present, a fit and proper person, being in holy orders, that is to say, in the holy orders of priesthood, to be the perpetual curate of the said church, whenever at any time the same had or should become vacant by the death

of the then incumbent thereof or otherwise, and to present the said person so nominated to the bishop of the said diocese for the time being, in which the said church was situated, to wit, to the Bishop of Lichfield and Coventry, for the purpose of his being admitted and licensed by the said bishop to the perpetual curacy of the said church. It then alleged a presentation of the Rev. G. H. Woodhouse, in 1833, pursuant to the custom, and a vacancy by his promotion to the living of Finningley, in 1836; whereupon afterwards, to wit, on &c., the then majority of the proprietors of estates for the time being situate within the said township, that is to say, the now plaintiffs, who then respectively were, and still are, proprietors of such estates, did nominate W. Cantrell, clerk, then and continually afterwards hitherto being a fit and proper person for that purpose, and in holy orders, that is to say, the holy orders of priesthood, to be the perpetual curate of the said church of Boulton, in the place and room of the said Rev. G. H. Woodhouse, as, under and by virtue of the statute in such case made and provided, it was lawful for them to do, and did then present the said W. Cantrell to the defendant Samuel, he then being Bishop of Lichfield and Coventry, and by whom the said W. Cantrell ought to have been admitted and licensed to the perpetual curacy of the said church.

The bishop and Poole, in their pleas, disclaimed all title in the usual manner, save only the one as ordinary to admit and institute, and the other as presentee of the defendants.

The other defendants pleaded, that before and at the time when it was in the declaration alleged, that the plaintiffs were the majority of the proprietors of estates for the time being situate within the said township, and thence hitherto, they, the now pleading defendants, were and still are, the majority of the proprietors of estates for the time being situate within the said township, and then were, and still are, respectively proprietors of such estates; and that after the said G. H. Woodhouse was so admitted, instituted, and inducted into the church of Finningley, and real possession thereof, as in the declaration mentioned, to wit, on the 16th of February 1836, they, the now pleading

defendants, then being the majority of the proprietors of estates for the time being situate within the said township, and then respectively being the proprietors of such estates, did duly nominate the said E. Poole, clerk, then and continually afterwards hitherto being a fit and proper person for that purpose, and in holy orders, that is to say, the holy orders of priesthood, to be the perpetual curate of the said church of Boulton, in the place and room of the said G. H. Woodhouse, as, under and by virtue of the statute in such case made and provided, it was lawful for them to do, and did then, still being such majority as aforesaid, present the said E. Poole to the defendant Samuel, he then being Bishop of Lichfield and Coventry, and by whom the said E. Poole ought to have been admitted and licensed to the perpetual curacy of the said church of Boulton; wherefore, they, the now pleading defendants, did hinder and prevent the plaintiffs, as in the declaration mentioned, and as the plaintiffs had above thereof complained against the now pleading defendants; without this, that the plaintiffs were, at the time of the said nomination of W. Cantrell, in the declaration mentioned, the majority of the proprietors of estates for the time being situate within the said township, in manner and form as in the declaration was alleged; and of that, the now pleading defendants put themselves upon the country.

Replication-That they, the defendants, except as aforesaid, then being such majority, as in the plea mentioned, did not duly nominate the said E. Poole to be the perpetual curate of the said church of Boulton, in manner and form as the defendants, except as aforesaid, had above, in their plea in that behalf alleged; and that the plaintiffs prayed might be inquired of by the country.

Special demurrer. assigning for cause, that the plaintiffs had improperly traversed matter alleged in the inducement of the plea, when they ought to have joined issue. Joinder.

Wightman, for the demurrer.—The pleading of the plaintiffs is clearly informal. They had no right to pass by the traverse contained in the defendants' plea. This, however, they have thought proper to do, in violation of the well-known rule, that a