dissented and delivered the following opinion :
I had occasion to examine the principle on which the first 24 of these replications are founded, in The People v. The Bristol and Rensselaerville Turnpike Company.* They each deny that the road was, at any time, either before or after the award of the commissioners and the governor’s license, in some particular or particulars which they select, constructed or finished as the general turnpike acts requires. See the actas revised, 1 R. S. 584, 2d ed. I came to the conclusion there, that none of the deficiencies imputed, as existing anterior to the award, can be regarded, or have any operation as a ground of forfeiture ; the state being estopped by the award, &c. to aver that they ever had existence.
[ *214 ] *1 also thought, in the case cited, that according to the true construction of the general act, after the road is accepted by the state as complete, the company are not required to continue it, on pain of forfeiting their charter, in the exact condition by measure and shape, &c. required in the original construction; and that, if the road be afterwards kept in a reasonable state of repair, their duty is discharged; though I do not mean to say that the directions of the statute, in respect to the mode of construction, are to be entirely disregarded, in estimating what shall be deemed a proper state of repair. I think the replications, when they speak of a time after the company began lawfully to take toll, should, like an indictment for a nuisance, state either that the road had not been kept in repair according to the duty of the company, or that it was suffered to be out of repair, or had become inconvenient in some particular, contrary to that duty, stating wherein. It cannot be denied that, as it is their duty to construct, so they should continue mile-stones or posts, also guide-posts as required by the 21st and 22d sections of the statute, and, no doubt, negligence in this respect may be insisted on, as a ground for dissolving the corporation; but it can not be, that they are absolutely bound, at all times, and against all hazards,-to keep the road thus furnished. Should they decline to replace or repair sqch convenient things, in a reasonable time, after having notice that they were destroyed or defaced, that might be set down as a violation of duty. But an issue on the naked allegation, that the company had not, during all or any part of a given period, kept up a certain condition of things, must be found against them, if it skmld appear that, at any moment, or in any small particular, they had come short o'f it. To be full, the answer must be affirmatively : “ We have, during the whole and every part of the time, maintained such and suctf erections, or kept the facing of gravel at such'a depth,’-’ &e. and all this irrespective of neglect. Whereas if the state bfe put to charge that the omission was wilful or negligent, or contrary to duty, an issue would be formed as well upon the legal quality of the omis*215sion, us upon the act itself. Why should not the state be required so to reply, that the *defendants may plead not guilty, and [ *215 ] put the attorney general to make out a wrongful or negligent violation of duty ?
But all this is, just now, no way material, if I am right with regard to the effect of the award, &c. The replications admit these awards, and by claiming to go behind them are bad. Being ill in this respect, can they be sustained for any part ? They may be if divisible, as against a demurrer to the whole. Douglass v. Satterlee, 11 Johns. R. 16.
Thu fifth replication here is also defective for the same reason that the tenth is so in The People v. The Bristol and Rensselaerville Turnpike Company. The 5 th avers that where the road was not of full width, it was not furnished with a fender, &c. without stating that a fender, &c. was in fact any where required by the circumstance of the road being narrow.
Several other replications are, I think, in part or in whole, open to simikr objections. To instance one, the sixth: it cannot be complained that guide boards were omitted at intersecting roads, without a distinct averment that there were, in fact, places of intersection. The facts which go to make up the condition of which the supposed duty arises, should be set out with all the exactness of pleading required in an action for a penalty. Sutherland, J. in The People v. The Manhattan Co., 9 Wendell, 378, 5.
The eleventh, seventeenth and tiventy-ihird replications are obnoxious to the same objections with the fifth.
But a general answer to the whole twenty-four replications is, I think, to be found in the statute of May 13, 1836, which provides that the time for completing the road “ is hereby extended to the first day of November, A. D. 1839.” This information was filed before that day, viz. in January, 1839. The information and the twenty-four replications, therefore, do no more than complain of the road being incomplete at a time when the company were in no wise bound to have it completed. The act does more than merely to recognize their existence as a corporation; it, in effect, declares that they shall continue such and be excused from *com- [ *216 ] pleting their road, for several months after the information was filed. Any failure in this respect is certainly not a substantive ground of forfeiture, however it might be when connected with the fact of receiving toll; but no such complex ground is taken by any replication. Each must contain a perfect ground of forfeiture,in itself. It relates to, and is but an essential incident of, the information; but it is an essential incident for the purpose of explaining and fortifying the information and overturning the plea. If it present, whether alone or in connection with the plea, a case showing the information to have been premature, it is bad; and both the replication and informationmust fall together.
The effect of the amendatory statute is, I think, the same with regard to the matter alleged in the twenty-fifth replication, which complains of taking *216toll before any license was obtained from the governor, and before the act of 1836 was passed. A statute expressly giving time to complete the road, is equivalent to a renewal or confirmation of the original charter. All old of-fences are done away. This is so in the nature of things. To recognize a forfeiture incurred before the statute was passed, would defeat it altogether. The twenty-sixth replication is, moreover, equivocal as to the time it means to complain of; and I think, on the established rules of construction, must be considered as open to the same objections as the twenty-fifth It complains of taking excessive tolls after the time alleged in the plea that the defendants were licensed to erect gates in respect to the said part of the road alleged in the plea to have been firstly constructed. The license pleaded in respect to the part first constructed was obtained before the act of 1836, and the receipt of excessive toll, though after that, might still have been prior to the statute of 1836 ; and in cases of doubt the construction should be most strongly against the pleader. To escape the regenerating consequences of the statute, it was clearly necessary to show, by express averment, that any offence, whatever it might be, claimed as a cause of forfeiture, was committed after the statute passed. The statement of the day, viz. the 10th of August, 1838, though subsequent to the [ *217 ] time of obtaining *the first license, which was in 1834, cannot be received as a discriminating averment. The day is entirely immaterial ; it is usually considered mere matter of form, even in charging a crime. Proof may accordingly be given of an offence committed either before or after it. The People v. Van Santvoord, 9 Cowen, 655. There are exceptions to the rule, it is true, as where the day makes an essential part of the crime, or is pleaded as matter of description. But the taking of more toll than is allowed by the act might as well have been on some day before as after the statute of 1836.
This replication (the 26th) is also substantially defective for extreme generality and uncertainty in setting out the matter on which it relies. The averment is that the company took from A. B. C. more toll than they were legally entitled to, viz. more than after the rate of six cents for every score of sheep, &c. (literally copying the whole tariff of tolls from the statute,) for every ten miles, and in the same proportion for a shorter distance and less number of miles, and this the attorney-general is ready to verify, &c. The replication does no more than if it had referred to § 5 of the act of 1831, (the section prescribing the amount of tolls,) and then had said the company took from certain persons more toll than the section allowed. The whole is, in short, saying that the defendants took more toll from certain persons named than was allowed by law; whereas the replication should'have pleaded facts, viz. that a certain amount of toll was taken, going on and stating such specific act or acts of taking excessive toll, as were claimed to be a violation of the statute rate, A declaration upon a statute cannot stop with say*217ing generally that the defendant acted contrary to it, without showing wherein ; and the same rule is applicable to the replication in question. The replication in the case of the City of London, was of taking toll without any right, yet a certain sum per annum was mentioned. Where the charge is for taking excessive toll; the averment should be still more particular. An indictment for extortion against a sheriff, for taking too much by *way [ 218 ] of mileage, is analogous; the strictness of which may be seen in 2 Chit. Cr. Law, 292, note, Amer. ed. of 1836.
I have taken it, that, on the reason of the thing, the act of 1836, forgave all previous offences, and virtually declared the defendants a sound corpora, tion from that time. Much less was held sufficient to work this consequence as to a bank, in The People v. Manhattan Company, 9 Wendell, 351, 381. There statutes directing the public funds to be deposited in the defendants’ bank, and to be continued by the comptroller, on payment of interest, were held to be sufficient. It is not competent for the state to answer that it did not know of previous forfeitures. If that were so, it should at least have been added in the replication, by way of avoiding the statute. But I deny that the state can avoid the effect of a statute waiver or pardon of this kind, by setting up ignorance or fraud. The very object is to waive, at all events, every flaw which may be supposed to have intervened by reason of any omission or irregularity. Such a statute should be holden equivalent to a judgment against the state, on verdict, or confession by the attorney general; and I take it the legislature always mean that this kind of statute should have that effect. See per Sutherland, J. in The People v. Manhattan Company, 9 Wendell, 381, 2. The remarks of the learned judge, it is true, are, in that case, founded upon the circumstance of the state itself being a stockholder, voting for officers, and thus indirectly participating in the direction of the bank, during all the time when the offences complained of were committed. For these reasons, he thought the state should be es-topped. But who ever heard of a legislative amnesty or pardon being avoided for ignorance or fraud, and the consequences of the crime being visited on the offender in the face of it ? Such a plea was, I believe, sometimes set up and acted upon in avoidance of general pardons, by weak and wicked princes, in the dark times of English history. Men were thus brought to the block, with a royal amnesty in their pockets, under pretence that the monarch had been surprised into forgiveness, by his subjects concealing from him the number or enormity of their, transgressions; and, for aught I know, * Great Britain may still retain such a head of bar [ *219 ] barous policy in her code, though I imagine she would be very cautious in exercising it, unless upon her distant and depressed colonies. But even there a legislative amnesty could, I suspect, hardly be impeached under such a pretence. The objection may be predicable against state patents, grants or contracts, but to allow it against a statute passed for the pur*219pose of keeping a corporation on foot, or other statute operating as a general amnesty or a waiver of forfeitures, would be in all cases to violate the intent of the legislature.
The remaining four replications allege certain acts of taking toll, which may perhaps be taken as showing by express averment to have been done after the time, as fixed in the plea, when the last of the governor’s licenses was granted. That time was after the passing of the statute of 1836. These replications set forth various specific instances in which the company demanded and received, as the replications insist, more than at and after the rate of toll allowed by their charter ; e. g. in the 27th replication, as to four wheeled waggons, more than at and after the rate of twelve and a half cents for every ten miles, or in the same proportion for a shorter distance or less number of miles, viz. six cents for every three and three-fourth miles, whereas they were not, for this, entitled to more than four and eleven-sixteenths cents. Again in the 28th ; the complaint is that they took, for one horse waggons six cents for five miles, whereas they were entitled to only six cents for ten miles ; and so of the 29th and 30th, in respect to toll for other vehicles. In short, these four last replications insist, in effect, that the passenger is bound, to pay, at whatever gate he passes, the toll allowed by the charter, only at the rate of his actual travel, after entering upon it, not according to the general rate of toll imposed for each gate according to its'distance from another gate.
By the general turnpike act, 1 R. S. 587, 2d ed. § 33, the governor is to permit the erection of so many gates on the road reported to him as shall be sufficient for the collection thereon of the tolls authorized by law. This is but a repetition of the powers, conferred by the statute of 1807, [ *220 ] § 6, Continued in the revisal of 1813, § 6. The gates may of course be distant from each other more or less than ten miles. Then comes the charter in question, Sess. Laws of 1821, p. 49, § 5, which provides that this company may erect gates, &c. and demand and receive certain rates of toll for every ten miles, and in the same proportion for a shorter distance or less number of miles. The replications leave it to be taken as admitted that this proportion was fixed according to the distance of the gates, and merely find fault that it was not limited to the distance of actual travel, as five, three, one mile or half a mile. Such a construction would leave every traveller to estimate his own toll and make it utterly impracticable for the toll-gatherer to perform his duty. It would lay him open to continual imposition. On a clause similarly framed, therefore, in Stuart v. Rich, 1 Caines, 182, it was held that the words, and so in proportion for [any greater or ] lesser distance, should be applied to the distance of the gates, not of actual travel. There is no pretence that the defendants have not been'governed by that construction ; having established gates with proper general rates of toll at each, accordingly as their distance may be ten miles or less from each other.
*220But admitting that such a construction of this particular charter were erroneous, it would be quite rigorous to insist on the total forfeiture claimed, without even averring that the company acted knowingly, wrongfully, or in breach of their trust. Surely the receiving of too much toll under an honest mistake of right is not enough. The toll-gatherer or company would, in such ease, no doubt be liable civiliter, to refund the money improperly exacted. So might any trustee be made liable in various ways civiliter, as for a mispayment to a wrong person, or on wrong principles. But this is quite different from a general forfeiture of the trust, or even accountability to the principal or cestui que trust on the ground of negligence. An auctioneer or broker fails to consummate a sale by reason of a doubt upon the statute of frauds, Hicks v. Minturn, 19 Wendell, 550 ; an attorney mistakes on a question of doubtful practice, or the like, Reeve’s Rom. Rel. 373 ; they would not be liable even in an action by the principal for negligence. A trustee *commits a like mistake ; shall he therefore forfeit his office ? [ *221 ] Should not the attorney general, therefore, be put to say here, as was done in the case of the city of London, cited with regard to this question, in The People v. lhe Bristol and Rensselaerville Turnpike Company, that the taking of the toll was toilf ul and in breach of trust ? I am not prepared to admit that the naked fact of taking too much toll shall forfeit the charter. A bank, by mistake or misconstruction of law, takes more interest than is allowable by law ; its charter is not therefore gone. In Slee v. Bloom, 5 Johns. Ch. R. 381, Chancellor Kent admits that, according to The Commonwealth v. The Union F. & Mar. Ins. Co. 5 Mass. R. 230, a corporation would incur a forfeiture of its charter by omitting to collect subscriptions to its stock. But would this be so, if the failures were owing either to misapprehension of law or fact, or any unavoidable impediment in the way of collection ?
A similar question was examined by Sutherland, J. in The People v. The Manhattan Company, 9 Wendell, 373; and his conclusion was, that in order to show a ground of forfeiture for non-feasance, the attorney general was bound to state all such facts as were material to pul the corporation in default ; and he cites cases on pleading justifications in actions for libel, as illustrating the degree of strictness required. In the case before him, the fault alleged was that the defendants had not complied with a condition subsequent, by which they were bound to furnish water to the city of New-York, for the use of such citizens as were willing to agree for and take the same. It was held necessary to show that some one, at least, was willing and desirous, and gave notice that he was so, and made a request to be supplied with water; and that the company disregarded such notice and request. He said the case was of a penal character, in which the forfeiture of most valuable and important franchises was sought to be established; and added *221Com. Dig. Plead, (c. 76,) with several other books exemplifying the strictness required in declaring for penalties.
But it is unnecessary to pursue the inquiry on the form of the [ *222 ] replications; for I think there cannot be a serious doubt *that the case of Stuart v. Rich, applies. I concede that a corporation wilfully and knowingly taking a toll not due, or more than it ought, under pretence of its corporate powers, incurs a forfeiture of its charter, whatever other remedies may lie for the offence ; but such a case has not been made out by the replications in question.
On the whole, I am of opinion that there should be judgment for the defendants on the demurrers, to all the .replications. But my brethren differing from me except as to the fifth, eleventh, seventeenth and twenty-third replications, there must be judgment for the people on the demurrers to all the others.
Judgment accordingly.
See next case in this volume.