delivered the opinion of this Court:
By the Act of 1812, ch. 78, the appellant was incorporated with authority to make a turnpike road from the District of Columbia to the city of Baltimore. By the 16th section of the Act, the company was authorized to charge the tolls specified therein, as a compensation for their expenditure in establishing the road.
It cannot he doubted that the Legislature, in making this grant, sought to promote the public convenience "by the increased facility of travel incident to such an improvement; and the company, in accepting the grant, obliged itself to establish the road to effect this object, and keep the same in repair, in accordance with the requirements of the 18th section of the Act of incorporation.
True it is, that by the 26th section, provision is made for the punishment of the company and its agents, if it shall neglect to keep the road in good and perfect repair; yet it is manifest that this provision was intended to apply only to-temporary neglect, and cannot ho held to deprive the State of its sovereign power to annul a grant, when the purposes of it have failed through the positive or negative act of the party upon which the grant was bestowed, and when by a proper, legal proceeding, the Court having jurisdiction shall determine, upon evidence, the issue-lor the State. In 23 Wendell’s R., 244, the Supreme Court of New York said: ££But it is a rule of almost universal application, that if a statute fixing a penalty for an offence, do not either expressly or by necessary implication, cut off the common law prosecution or punishment for the same of-fence, it shall be taken to intend merely a cumulative remedy. ’ ’
It was contended by the appellant, that the Legislature, in bestowing the power granted in the 81st section of the Act, could not, through any tribunal, impair a demise made in- view of the grant. This proposition is clearly *288erroneous. In 8 Peters, 287, it is laid down, that “a corporation, by the very terras and nature of its political existence, is subject to dissolution by a surrender of its corporate franchises, and by a forfeiture of them for wilful mis-user and non-user. Every creditor must be presumed to understand the nature and incidents of such a body politic, and to contract with reference to them. And it would be a doctrine new in the law, that the existence of a private contract of the corporation should force upon it a perpetuity of existence contrary to public policy, and the nature and objects of its charter.”
We have confined ourselves thus far to the consideration of the privileges, immunities and liabilities of the appellant under the Act of 1812.
The company continued to enjoy these privileges and immunities, undisturbed, until the institution of the suit in this case, under the provisions of the Act of 1860, ch. 326.
By this Act, the State’s Attorneys therein named were directed to institute proceedings in the name of the State against the appellant, to ascertain whether its charter and corporate powers and franchises ought, by reason of nonuser or abuser of those powers and franchises, to be declared vacated and annulled. To carry into effect this Act, a writ of scire facias was issued out of the Superior Court of Baltimore city, in the name of the State as plaintiff, against the appellant as defendant.
To this writ the appellant appeared and pleaded the nine ' pleas mentioned in the record. The appellee demurred to the first seven pleas, moved the Court that the eighth be stricken from the record, because it was not filed within the time required by the rules of Court, and joined issue on the ninth.
The Court sustained the demurrer, and granted the plaintiff’s application to strike out the 8th plea. The defendant then filed a plea to the jurisdiction of the Court, *289alleging in its plea that tlie action instituted was a criminal information, and shoulcj have been instituted in the' Criminal Court of Baltimore city. -To this plea the plaintiff also demurred, and the Court sustained the demurrer.
At the trial of the cause, upon the ninth plea of not y witty, the defendant toot six exceptions to the ruling of the Court. The first, to the admissibility of the evidence of Michael Waterman. The second, to the proposal of the plaintiff to offer evidence to show a want of repair of the defendant’s road, in parts thereof lying outside of the limits of the city of Baltimore. The third, to the admissibility of evidence of a want of repair of defendant’s road, existing more than a year before the commencement of this suit. The fourth, to the refusal of the Court to allow the defendant to ask the witness, Bittenlioiise, the questions stated in this exception. The fifth, to the refusal of tlio Court to allow the defendant to offer the evidence mentioned in this exception, to rebut the evidence offered by the plaintiff to maintain the issue on her part. And the sixth, to the plaintiff’s prayer granted by the Court.
Upon the rendition of the verdict by the jury, the defendant moved in arrest of judgment; which motion the Court overruled, and entered judgment for the plaintiff, as stated in the record, including costs.
As to the plaintiff’s demurrers, we deem it proper to say, that to the proposition of lav*' stated by the appellant, that a general demurrer to a plea confesses all the facts in the plea, must bo added the qualification that they be well pleaded. 7 H. & J., 372. 2 H. & G., 143. Upon a general demurrer, the Court will render judgment against the party which commits the first error in pleading. 1 H. & G., 471. 10 G. & J., 27. And as the demurrers, according to the well established rule, carry us up to the first fault, wo must resort in this case to the scire facias, to see if there be a sufficient cause of action stated to entitle the *290appellee to recover. If so, our attention is next directed to tbe pleas, and we are to determine whether any or all of them are sufficient in law to entitle the appellant to judgment thereon.
In reference to the motion in arrest, we find that in the case of Charlotte Hall School vs. Greenwell, 4 G. & J., 416, the Court said: “The motion in arrest of judgment serving, in some measure, the office of a demurrer, we must consider that the whole record was brought to the view of the Court. The motion in arrest of judgment must be governed by the principles of a demurrer.”
The plaintiff, relying on its demurrers to the defendant’s pleas, and the defendant on its pleas and motion in arrest, so far as the pleadings are concerned, has induced us to set out the above ingredients of a general demurrer and motion in arrest, that we may correctly dispose of this case,, so far as it is affected by these proceedings.
Does the scire facias in this case, being in the nature of an original action, set out a substantial cause of action, and with such certainty that the defendant is fully informed of the grounds on which the plaintiff seeks to recover? Our opinion is, that it does. The scire facias sets forth the obligation of the defendant under the Act of incorporation, and expressly charges a violation of this obligation, and the mode and manner in which it* was violated; and, in the language of the Act, seeks to ascertain whether the charter and corporate powers and franchises of the defendant ought not, by reason of non-user and abuser of said powers and franchises, to be declared vacated and annulled. The writ fully discloses the plaintiff’s cause of complaint, and affords the defendant the opportunity of defense, of which it has availed itself fully in its several pleas.
We shall next consider whether the writ of scire facias was the appropriate remedy to obtain the object intended by the Act of 1860, eh. 326. Of this, we think there can *291be no doubt. In the case of The Canal Co. vs. The Rail Road Co., 4 G. & J., 121, 122 ; in the case of the Regents of the University vs. Williams, 9 G. & J., 425; and. in Angell & Ames on Corporations, 743, 3rd-American Edition; scire facias was held the appropriate remedy in a case like this. But it was contended by the appellant, that as the Act of 1860 prescribed no form of proceeding, and the Act of 1832, ch. 306, which did prescribe the proceeding by scire facias, was repealed by the Code, the Superior Court, if it could entertain jurisdiction, was restricted to the ascertainment, “whether the charter and corporate powers and franchises of the President, Managers and Company ought, by reason of non-user or abuser of such powers and franchises, to be declared to bo vacated and annulled,” without power to enter judgment upon the ascertainment.
The answer to this is, not only that the appellant prays judgment in every plea, if sufficient to bar the plaintiff’s action, but it could not be deprived of its charter, except upon full hearing and judicial judgment of forfeiture. The theory of the appellant would render the Act of 1860 nugatory. And if the Legislature passed a law predicated upon the ascertainment, declaring the charter of the appellant annulled and forfeited, it might be exercising judicial functions contrary to the Constitution and Bill of Eights, about which, however, we need express no opinion. The Act of 1832, though prescribing the mode of proceeding by scire facias, created no new remedy, but was merely declaratory of the law as it then was, and its repeal hy the Code, took no jurisdiction from the Courts of Common Law, hut left that jurisdiction undisturbed.
Testing the appellant’s pleas hy the rule, that the facts set out in them must he well pleaded, we do not find that those in the first and second pleas offer a legal defence to the allegations charged in the appellee’s writ of scire facias, if those allegations are sustained hy competent evi*292clence to justify the jury in finding for the plaintiff on the issue of not guilty. The State, through its legislative department, may have impaired the value of -the franchise of the appellant by the Acts mentioned in those pleas, yet it was damnum absque injuria. It was a misfortune. See Baltimore & Ohio R. R. Co. vs. Washington & Baltimore Turnpike Road, 10 G. & J., 392. Charles River Bridge vs. Warren Bridge, 11 Peters, 420. The Acts of the Legislature by no means released the appellant from the fulfilment of its obligation unde}: its charter. It was still enjoying the privilege of charging tolls upon its road, and was bound to render a full equivalent to the community to justify the chatge,
As to the allegation in the scire facias, that the appellant failed to keep the bridges over the streams crossing the turnpike road in good order and repair, it is no sufficient answer to say, that the 13th section of the Act of 1812, giving power to erect bridges, was permissive only, and not mandatory. If the bridges were an essential part of the road, and the road was impassable without them, it was a part of appellant's duty, having erected them, to keep them in repair. See 23 Wendell’s Rep,, 259.
As to the third and fourth pleas, and the facts therein stated, it may be true that the Act referred to was passed, recognizing the corporate existence of the appellant, and admitting that the road was then maintained and kept in sufficiently good order and repair, and that during the whole of the year next preceding the commencement of this suit, it was kept in as good order and repair as it was when the Act of 1839 was passed; - or, as in the fourth plea, that the State, by the Acts of the Legislature, and the'conduct of its officers, admitted that until 1858, the turnpike road was kept in sufficiently good order, and while in that condition, was enabled to make the agreement stated in this plea, and in consequence of this agreement and sale *293of stock, tlie road was put in better order during the year next preceding tlie commencement of this suit than it was at the time of the agreement to purchase. Yet it cannot be successfully "contended that the State, though tacitly waiving, during the time above stated in these pleas, the enquiry into the condition of tlie road, deprived itself of the right to ascertain whether the appellant had been guilty of non-user or abuser of its franchises, and to direct that ascertainment to he made in view of the requirements of the Act of incorporation, which was the true and only standard of the appellant’s responsibility. •
Notwithstanding the Act of 1833, mentioned in the fifth plea, and the privilege to charge tolls on steam carriages, the resolution of the company to contract for tlie loan of money upon the security of the tolls, and though the appellant may have applied all tlie tolls (as stated in the seventh plea) to the repair of the road, yet the conclusion arrived at by this Court, in reference to the third and fourth pleas, is equally applicable to the fifth and seventh; and as to the sixth, our opinion of that may he found in our review of the rights of the appellant under the 31st section of the Act of 1812.
We are of opinion that the action of the Superior Court was right in striking out the eighth plea, if it was not filed within the time prescribed by the rule of Court, and we must presume that tlie Court acted in conformity with its own rule, in the absence of the rule from this record. See Cherry vs. Baker, 17 Md. Rep., 75.
Whatever might be said of the conduct of tlie appellant, in delaying to file 'the tenth plea until the decision of the Court upon the demurrers and plea of limitations, we are at liberty to presume, that as the appellant joined issue on the demurrers, it took the chance of a judgment in its favor on some one or all of them, and we doubt not, if the Court had so decided, no exception would have been urged *294as to its jurisdiction. But apart from this, in our opinion, the proceeding under the scire facias, in all its stages, in this case, is essentially a civil action, and within the cognizance of the Superior Court, that Court having civil common law jurisdiction, under the Constitution of the State.
We proceed to consider the appellant’s several exceptions :
As to the first exception, the rule is, where evidence is offered to the Court, who are to determine whether the witness is interested, if it appear to the Court that he is not, though he thinks himself interested, he shall be sworn. See 6 H. & J., 172. In view of this rule, we think that Wartman was a competent witness.
The proposal to offer evidence to the jury, as mentioned in the second exception, could not be objected to by the appellant on the ground stated in this exception; because the road was an unit, and the evidence should be co-extensive with the limits of it, as established by the Act granting the charter.
The third exception presents the question of limitation, and involves the construction of the 10th section of the 57th Article of the Code.
Conceding that a defence under that provision of the Code may be availed of under the general issue, without being specially pleaded, but without so deciding, still we are of opinion that the provision of the Code referred to, does not apply to a proceeding like this. Although the result of a decision on the scire facias, against the defendant, will involve a forfeiture of its franchise, yet it cannot be said that this is a suit for a fine or forfeiture, within the meaning of this section of the Code. A reference to the original Act of 1777, ch. 6, containing the same provisions as that found in the Code, will show the meaning of the *295Code, and that the appellee was not confined to evidence of want of repair within the year.
The refusal of the Court to allow the appellant to ask the questions of the witness, Eittenhouse, stated in the fourth exception, was correct. The contemplated speculations of the witness, in the event of the' condemnation of the road, were wholly irrelevant to the issue before the jury-
The appellee having offered evidence tending to show the wilful neglect of the appellant in keeping its road in repair, the appellant sought to rebut this evidence with the evidence stated in the fifth exception. Upon the objection of the appellee to this evidence, the Court sustained the objection, and we think correctly. All the facts relied on by the appellant, in this exception, might tend to prove an inability to keep the road in repair, and yet its responsibility was not removed by such inability. The objection made by the appellant to the charge of wilful neglect, in our opinion, is misconceived. The. term does not, in this case, imply criminality, but must be construed to mean permissive, voluntary neglect.
We see no objection to the ruling of the Court in granting the appellee’s prayer mentioned in the sixth exception. The prayer submits to the jury to find whether the appellant had failed and neglected to maintain and keep its road, or parts thereof, and the bridges over the streams crossing the road, also in good order and repair, and whether the same were maintained in the manner prescribed by tfio Act of 1812, ch. 326, and incorporates info the prayer the very requirements of the Act as the subject of enquiry for the jury. We therefore sustain the ruling of the Superior Court upon all the exceptions taken by the appellant.
Having approved of the action of the Court upon the demurrers, in which we regarded the applicability of the scire facias to this case, and also the sufficiency of the al*296legations set out in the writ, we deem it unnecessary to say anything in reference to the motion in arrest of judgment.
( Decided December 17th, 1862.)The judgment must be affirmed.
Judgment affirmed.