*74The opinion of the Court was by
Shepley J.The act of 1835, c. 194, § 5, provides for the appointment of a fishwarden by the commissioners for the counties of Hancock, Penobscot, and Waldo. And that “it shall be the duty of such fishwardens, or any two of them jointly [or in case of refusal or neglect of such court to appoint, or of any fishwarden by them appointed to discharge the duties assigned by this act] of any one of them as soon as may be after the tenth day of May, annually to examine, if there be sufficient passage or fishways.” And the fishwarden or wardens, who may be entitled to act, are required to give the notice. By this act the duties cannot be performed by one warden unless there be a neglect by others either to appoint or to perform the duty. The additional act of 1836, published with the Special Laws, c. 181, § 1, makes “ all persons required by the provisions of the act to which this is additional to open and construct good and sufficient passage ways for fish,” liable to a penalty for refusing or neglecting to comply with the order, “ after being duly notified by any one or more of the county fishwardens appointed agreeably to the provisions of the act, to which this is additional.”
The design probably was, that the notice should be given by “ any one or more” as one or more of them should be entitled to act by the provisions of the act of 1835. If however it should be regarded as authorizing one to give the notice in all cases, it does not authorize one in all cases to perform the important duty of judging of the sufficiency, and of prescribing the dimensions of the fishways. On the contrary it imposes the penalty only on those, who neglect or refuse to open passage ways being required to do so “ by the provisions of an act to which this is additional.”
The case does not shew, that the commissioners in the other counties neglected to appoint wardens; or that the wardens neglected their duties.
The counsel for the plaintiffs contends, that it is to be presumed, that the warden acted correctly, and that no others were appointed. Where two are required to act except in *75certain cases, the law does not presume, that the case contemplated by the exception exists, but the contrary. And the facts authorizing the warden to act in a case within the exception must be proved, before the duty is shewn to have been legally imposed. To enable the plaintiffs to recover, they should have proved, that one was authorized within the exception in the act to perform the duty.
Verdict set aside and new trial granted.