Many questions were raised and discussed, in the argument of the present case, which the court have not found it necessary to decide. It is an action against the inhabit- ' ants of the town of Wareham, on a special executory contract, and the claim is to recover damages for the brea», h of it. If the contract on which the action is brought be held to grant any interest or property in the oyster fishery, or any franchise or vested right whatever which has been invaded, the remedy of the plaintiffs must be sought in an action on the case for a disturbance, or by other appropriate proceedings, and against those who caused the disturbance. It is proper therefore to repeat, that this is an action on the contract, as an executory contract, and a non-fulfilment thereof on the part of the town, in which the plaintiffs seek to recover damages for the loss sustained by such nonfulfilment
*445One ground of defence was, that if this instrument, which is extremely guarded and cautious, contained any stipulation that the town should perform any act, it was not averred or proved that the town have failed or refused to do such act, and so there was no such breach or non-fulfilment as would enable the plaintiffs to maintain this action. This agreement on the part of the town is certainly much more in the nature of a grant, lease, or release of right, or other executed contract, than an executory undertaking to do any act; and such stipulation, if found at all in it, must arise from implication, and as something incident to a benefit or right granted, and not in terms. But if the town had no interest or property in the subject, and no legal authority, as a corporation of very limited powers, to make such an executory contract, then the vote passed by the inhabitants, purporting to vest power in a committee, was unauthorized and void, and the undertaking of the committee, professing to bind the town, was merely void. This is the first question ; and if it appears that the contract was not the binding contract of the town, it becomes unnecessary to consider another question, which was largely discussed, namely, whether there was any such implied stipulation, what was its legal effect and operation, and whether any violation of it had been averred and proved.
By the common law of England, the property of the coasts, bays, and arms of the sea, and of the fishery therein, was in the king; but in trust, as to fisheries, for all the king’s subjects, except when otherwise especially granted ; so that in effect such fisheries were regarded as common to all the king’s subjects. 9 Petersd. Ab. (Amer. ed.) 451, 452. By the colony charters, this right of the crown was transferred, with the territory and jurisdiction, to the colonies, for the use and benefit of the inhabitants. This vested the power in the colonial governments to make laws, to regulate and protect this, as one of the common rights of the inhabitants. It is not necessary to examine all the acts upon this subject. None can be found, which vests an exclusive right of the property in the oyster fisheries in towns, in their corporate capacities. If there had been, no further regulation would have been necessary; because the laws which *446secure all other rights of property would have been sufficient to enable towns to manage and defend such fisheries. In one case it has been decided that the town had no such property in the shad and alewife fisheries. Randolph v. Braintree, 4 Mass. 315.
Still the laws recognized some rights of the inhabitants of towns; as the celebrated colony ordinance of 1641, (Anc. Chart. 148,) which secured free fishing and fowling, but limited the privileges thereby secured to householders, and to such free fishing and fowling, within the limits of their respective townships. Such regulations obviously gave the privilege, rather to the inhabitants of townships, personally and respectively, than to the town in its corporate capacity ; and rather as a common privilege, than as a right of property. It was also under this limitation ; “ unless the freemen of the same town, or the general court, have otherwise appropriated them.” This therefore, the earliest act on the subject, recognizes the right of fishing, as a common right, and the authority of the colonial government to regulate it. And this was regulated by the provincial acts mentioned in the fifth section of St. 1795, c. 71. These acts were revised and repealed by the last mentioned statute. The preamble to this statute recites, that “ oysters and other shell fish have long been considered the property of the towns ; ” but the same preamble speaks of them as “ common property,” which requires some further special provisions. And the statute proceeds to make regulations, which secure a right to all the inhabitants severally, and vests in the selectmen certain powers of granting permits. By this act, taking all its parts together, we are of opinion that whatever right vested in the inhabitants of towns was a qualified right, and subject to be regulated by the general court; and that the whole subject was thereby regulated, and nothing remained for towns, in their corporate capacity, to do. The same provisions were reenacted by Rev. Sts. c. 55, §§ 11, 12. They are, that the selectmen “may give permits in writing to any person, to take oysters from their beds, at such times, in such quantities, and for such uses, as the said selectmen shall think reasonable, and shall express in their said permits ; and every inhabitant, without such permit, may take oysters for the use of his family.” And *447all persons are prohibited from taking oysters otherwise^ under a penalty.
Whether, under these statute provisions, the selectmen have authority to take money or valuable consideration for permits, or, in other words, to sell the right to take oysters ; or, if they have such power and exercise it, whether they are not to be regarded as trustees for the town, and bound to account to the town for the proceeds, it is not necessary to decide in this case, and we give no opinion.
But the court are of opinion, that the selectmen, in giving permits under the authority thus conferred on them, are not the agents of the town, subject to be directed, restrained or controlled by its votes. They act under an authority conferred on them by statute, to be executed according to their own judgment, and do not act ministerially, according to the will of the town, expressed by its votes. It is like the authority given to selectmen, by other statutes, to lay out town ways; under which it has been held, that a vote of the town, directing them to lay out a particular town way described, is irregular and void. Kean v. Stetson, 5 Pick. 492.
We are therefore of opinion, that whatever right the inhabitants of towns have to the oysters in the natural beds within their limits, beyond the right of the inhabitants severally to take them for the use of their families, is not an absolute property or franchise, capable of being transferred to others by the town, in its corporate capacity, but is a qualified right, to be sought through the selectmen, executing a statute power; that such a transfer of the fishery, and the power of making contracts respecting it, is not within the jurisdiction of towns, nor one of the corporate powers conferred on them by law. The supposed contract, therefore, upon which this action is brought, was one which the town of Wareham had no authority, as a corporation, to make, and the town is not bound by it.
In regard to the sum of five hundred dollars, as it appears that it was received by the treasurer and went to the use of the town, and was so received in advance, upon a consideration which has failed, it must be regarded as money had and *448received by the town to the plaintiffs’ use; and therefore the action for that sum will lie. No special demand was necessary. Where there is a debt, a duty to pay money presently, not dependent upon any condition or contingency, an action may be brought to recover it, without a previous demand.
If the defendants would have avoided the inconvenience of having the suit, on the other points, conducted at their expense, and of having to pay the costs, in consequence of their liability for this sum of five hundred dollars, they should have brought the money into court, at the commencement of the suit, when a small amount of costs had accrued.
With the plaintiffs’ consent, the verdict may be amended, to stand as a verdict for $500, with interest from the date of the writ, and judgment may be entered upon it; otherwise, the verdict is to be set aside and a new trial granted.