lating the company and fishery, with fines and penalties for the breach of such orders, and for prohibiting the freemen from being engaged in other oyster-grounds, under penalties to be stopped out of the money arising by the sale of the stint of oysters of such freemen. And Lord Ellenborough said: "A by-law giving a remedy by distress for the recovery of the penalty, would be bad. And, is not this worse? The company are not content with levying the fine, but they withhold all share of the profits till the fine is paid. Is not that going vastly beyond the power of merely imposing a penalty for contumacy, with a direction to stop it out of the profits? And there is not any [*26 instance stated which goes beyond that extent. Assuming, therefore, this by-law in other parts of it to be good on general principles, and in conformity with the policy of the original constitution of the company, and I believe it is not an unfrequent by-law, that members of one company shall not be members of different companies,-is not this a penalty upon a penalty? I think there is a great deal in the argument that the inchoate rights of persons acceding to the body are to be taken as subject to the laws to be made for the regulation of the body; but, if there be not any usage to authorize the exclusion of the freemen from all share of the profits until the penalties be paid, it seems to me that this by-law goes too far in that part of it: it is exercising a power beyond that given by law." [MAULE, J.-That case has not much application. A penalty is the imposition upon a man of the payment of a sum of money, or some personal suffering.] In Grant on Corporations, p. 84, the rule is thus stated,- With respect. to the mode of enforcing by-laws by corporations, it has already been observed that the power of enforcing by penalties is part of the power of making by-laws, which is incidental to all corporations, to the development of the objects of whose constitution such power is necessary; and in general the rule is, that a by-law without an express act of parliament, can only be enforced by a pecuniary penalty, which must be certain."(a) [JERVIS, C. J.-Is it not begging the question to call this a penalty?] It is an ex post facto punishment upon the plaintiff, by excluding him from the more remunerative employment of conveying oysters to London. The defendant's own evidence shows that the ancient and customary power of the foreman and jury, was, to make *the absent party stand by for one turn, not to exclude him in [*27 the manner here insisted upon. In The King v. Tappenden, 3 East, 186, a by-law (in this same manor) altering the qualification of persons to be taken as apprentices by the members of a corporation, in order to acquire their freedom by servitude, was held not to be warranted by a custom in such body which claimed by prescription to make by-laws regulating the number of persons to be taken appren

(a) Citing Gee v. Wilden, 2 Lutw. 1320, Bosworth v. Bryden, 7 Mod. 459, 2 Stra. 1112, and Leathley v. Webster, Sayer, 251.

VOL. XV.-6

D2

tices, the court saying that the by-law was bad, as being a restriction of the qualification under the custom. Upon these grounds, it is submitted that the pleas were not proved, and that the orders in question were invalid.

Baddeley (with whom was Montagu Chambers), contrà.-Independently of the defence set up by the fifth and sixth pleas, the evidence adduced on the part of the plaintiff fails to sustain his declaration. The plaintiff was bound to set forth the orders distinctly and clearly according to their legal effect; and, if there were anything to qualify them, he was bound to set forth the qualification, and to show that he was not affected by it. This he has not done. The declaration alleges that it is, amongst other things, by the orders and regulations of the company provided that all such freemen or members as should have boats should work for the company, in regular turns, unless that he or his boat should be incapable of doing the business, that is to say, each man, being so capable, should succeed him who worked last as he should. stand in the company's list,-alleging as the only qualification of the custom, the fact of the boat or its owner being insufficient or incapable. It is somewhat remarkable, that, considering the extensive powers of the foreman and jury, confirmed as they are by the act of parliament, the declaration entirely ignores their existence. [JERVIS, C. J. -The objection you are now *urging is in the nature of a vari*28] ance. Ought it not to have been taken at the trial? It is somewhat like the old case of a declaration against a non-freeman for trading, omitting to state a qualification of the custom, which enables the widows of freemen to trade.] Upon this special case, the court must deal with the whole record, and with the facts as stated: and it is immaterial whether a particular point was raised at the trial or not. Upon the second issue the plaintiff was bound to prove the orders and regulations upon which he has declared. In this he has failed. He ought to have introduced the qualification in the order of the 29th of July, 1797, of the powers of the foreman and jury, with reference to the provisions contained in the order of the 31st of July, 1790. The order of the 29th of July, 1797, recites that of the 31st of July, 1790, and qualifies it thus, that nothing in the said recited orders contained was meant or intended to deprive or hinder, or shall deprive or hinder, the foreman and jury of this company, or the major part of them assembled on the company's affairs, from exercising at all times their ancient and accustomed discretionary powers of regulating the business of the said company, by postponing or setting aside the turn of any of the tenants of this manor and hundred in doing any business of the said company, for reasons appearing to the said foreman and jury, or the major part of them, to be satisfactory, expedient, or proper for that purpose." Here is an order and regulation of the company, made at a water-court, with reference to those very things the infringement of which the plain

tiff makes the subject of his declaration. The order of 1797 applies a principle of interpretation to the order of 1790: it introduces a new element for the consideration of the court. The declaration should either have set out the orders in hæc verba, or should have stated them strictly according to their legal effect, with any exception or proviso which *qualifies the party's rights or liabilities under them. The [*29 rule is well laid down in 1 Chitty on Pleading, 7th edit. pp. 312, 317, and also in the case of Griffin v. Blandford, Cowp. 62, and Vavasour v. Ormerod, 6 B. & C. 430 (E. C. L. R. vol. 13), 9 D. & R. 597 (E. C. L. R. vol. 22). In the first of these cases, the defendant (in replevin) avowed the taking under an ancient custom that time out of mind the lord of the manor, upon the death and alienation of every tenant, was entitled to the second best beast; if but one, then to that one beast; and, if no beast, then to a compensation in lieu thereof. The custom was proved, but with an exception of mesne seigniories, burgage tenures, and alienations to the use of the alienees and their heirs and it was held, that the custom was not set out as proved, there being nothing in the plea which went to show that burgage tenures and mesne seigniories were excluded. And in Vavasour v. Ormerod, Lord Tenterden says: "If an act of parliament or a private instrument contain in it, first a general clause, and afterwards a separate and distinct clause which has the effect of taking out of the general clause something which would otherwise be included in it, a party relying upon the general clause in pleading may set out that clause only, without noticing the separate and distinct clause which operates as an exception. But, if the exception itself be incorporated in the general clause, there the party relying upon it must in pleading state it with the exception; and, if he state it as containing an absolute unconditional stipulation, without noticing the exception, it will be a variance. This is a middle case. Here, the exception is not in express terms introduced into the reservation, but by reference only to some subsequent matters in the instrument. The words are, except as hereinafter mentioned.' And the clause thereinafter mentioned must be considered as an exception in the general clause, by which the rent is reserved: and then, according to the *rule above laid down, the plaintiff [*30 ought in his declaration to have stated the reservation and the exception. Not having done so, I am of opinion that the variance is fatal." So, here, the plaintiff ought to have set out the order which qualifies that on which he relies.

Then, the plaintiff has, by the form in which he has alleged the orders, given them a drift and application which are inconsistent with the right of action upon which his claim is founded. He has chosen to confine the orders as to turns to a particular department of the trade, viz., the dredging and catching oysters; and then he goes on to allege an exclusion from his turn for dredging and catching oysters: but the

evidence proved nothing of the kind. [JERVIS, C. J.-There is no question saved for us upon not guilty; and the second plea does not raise this point.] The third plea does. [CRESSWELL, J.-There is no question presented for our decision upon the third plea.] That difficulty may be obviated by an amendment. [JERVIS, C. J.-The points are presented for our opinion by consent of the parties. They are bound by what they have consented to. This point is not open to the defendant.]

Then, as to the orders of the 12th and 19th of July, 1852, upon which the defendant relies in his fifth and sixth pleas. Upon these the case presents but little difficulty. That the foreman and jury have a right to make orders for the regulation of the trade of the company, is clear. This power is expressly recognised by the statute 3 Vict. c. lix. That statute, in s. 1, recites that there is and hath been time out of mind. a considerable oyster-fishery in the manor and hundred of Faversham, in the county of Kent, and the arms of the sea near thereunto, situate, &c.; that there is, and from time out of mind hath been, a certain company, in the nature of a prescriptive corporation, called or known by the name of The Company or Fraternity of Free *Fishermen and Dredgermen of the Manor and Hundred of Faver*31] sham, in the county of Kent,' and the freemen or members of the said company have bred, laid, dredged for, caught, had, and taken oysters and oyster-brood in the waters and creeks within the said fishery, exclusive of all other persons, the said company paying in consideration thereof a yearly sum of 23s. 4d. to the lord of the said manor and hundred of Faversham for the time being; that certain courts called water-courts of the said manor and hundred have time out of mind been held before the steward of the said manor and hundred, on Saturday next after Easter, and on Saturday next after Lammas Day, in every year, at which courts the members, or the majority of the members, of the said company or fraternity then present have made orders, rules, and regulations for the government and management of the said company, and for imposing and levying fines and penalties on the members of the said company for the breach or nonobservance of such orders, rules, and regulations; and at a court holden on Saturday next after Easter, or in pursuance of orders then made, persons qualified according to the usages and customs of the said company have been heretofore admitted to the freedom of the said company: and that the said fishery is maintained and preserved at a very considerable yearly sum of money by the said company, and the said fishery is of great benefit to the public as well as to the said company; and it is expedient that further power should be granted to the said company, to maintain and preserve the same, than they now possess, and that the time for holding the water-courts for the said manor and hundred should be altered; and it is desirable that further powers should

[*32

be granted to the said company; but the several purposes aforesaid cannot be effected without the aid and authority of parliament." It then goes on to enact that the several persons at present composing The Company or Fraternity of Free Fishermen and Dredgermen of the Manor and Hundred of Faversham, in the County of Kent,' and all other persons who shall hereafter be free of the said fishery, shall and may have and exercise all the powers and authorities now vested in and belonging to and now used and exercised by the said company, and also shall have and exercise all such other powers and authorities as are hereinafter given or mentioned." The 2d section provides for the holding of general annual courts, and the election of a foreman, treasurer, secretary, and twelve jurymen, and that such foreman, treasurer, secretary, and jury for the time being shall have the management and regulation of the said fishery, and of the affairs of the said company, in the same manner, and to the same extent, as the foreman, treasurer, bookkeeper, and jury of the said company had theretofore had the management and regulation thereof. The only question is, whether the orders made by the foreman and jury on the 12th and 19th of July, 1852, were in excess of their power. It is submitted that they were not, and moreover that they were fair and reasonable. It was clearly reasonable to require notice from freemen having boats, of their readiness to be employed in carrying the produce of the fishery to market; and, if the foreman and jury might lawfully suspend for one turn those who neglected to give notice, they might suspend them for a longer period. Primâ facie they were acting within the scope of their authority and jurisdiction, and therefore the maxim "Omnia præsumuntur legitimè facta, donec probetur in contrariam" applies; and the rule is the same whether the act done is the act of a court or of a corporation. Many reasons might readily be suggested why a regulation of this sort should be reasonable in this particular trade. The competition is great, and the season limited. It is essential that the company should [*33 *be provided with boats sufficient for the conveyance of the oysters to market: and this cannot be done on the instant. The exclusion from a turn, for default of notice, is not in the nature of a penalty; nor is it like the case of the exclusion of a commoner from the exercise of his commonable rights: it is a mere regulation for the benefit of the general body. In Bosworth v. Hearne, 2 Stra. 1085, a by-law that no drayman or brewer's servant should be abroad in the streets of London with his dray or cart after one o'clock in the afternoon, under the penalty of 20s., was held good, inasmuch as "it was only a regulation of trade, of which the city was the best judge; and it was enough that it did not appear unreasonable in itself." It is said that this practice of requiring notice from the owners of boats was not in force until 1850. But that circumstance in itself will not make it unreasonable. Nor is it a ground of objection that the order was not made at a water