— The plaintiffs were incorporated in 1819, for the purpose of erecting and maintaining a toll bridge across the Androscoggin river, between the towms of Lisbon and Durham; and they soon after erected a bridge in conformity to the terms of their charter; and exacted and received toll, as therein provided, of those who passed the bridge, until it was carried away by a freshet. It was again rebuilt, but of a less width that twenty-five feet. It was, however, of the same width as the former. The toll provided for in the charter, was granted with sundry provisos; one of which was, that, in case the bridge should be rebuilt, in whole or in part, it should be twenty-five feet wide, the first having been authorized to be built of the width of twenty-two feet.

This was a grant of a franchise. It was accepted by the plaintiffs. The right to it vested in the grantees, subject to a condition subsequent, and not precedent. It formed a contract between the State and the plaintiffs. Although the right had vested, the State might resume it, if the plaintiffs should not perform the conditions upon which the grant was made, or should abuse the. privileges granted. Had the defendant a right to pass the bridge free of toll, because the last erection was no wider than the former ? Generally speaking no one but the grantor, in a case like the present, would have a right to resume a grant. He might waive the performance of a condition, or think proper to overlook a misuser of the privileges granted. If, however, the reservation or condition was with a view to the particular interest of individuals, they might *305avail themselves of the breach, as in the case of there being no toll board exhibited to view, with the rates of toll on it; or the closing of the gate when no toll-gatherer was present to receive the toll. But grants are often made by the Legislature upon conditions, such as individuals, not parties to the grant, could have no right to avail themselves of. Suppose the grant in question had been made upon condition, that a certain portion of the toll should be paid into the treasury of the State, annually, and there had been an omission to comply with the condition; no individual could refuse to pay his toll, on passing over the bridge, on that account. A great variety of regulations might be introduced into a charter, which would not be for the particular accommodation of individuals, the non-observance of which would afford them no ground of complaint; or authorize them to treat the grant as inoperative. The grantor in such case would alone have authority to interfere or not at his option. A regulation, as to how wide a bridge shall bo, is of this description. The defendant was not; particularly interested in having the bridge built twenty-five,, instead of twenty-two, feet wide. A width of twenty-two feet was sufficient for his accommodation. The Legislature so determined, and every one else could have seen that it was so, when the first bridge was built. The Legislature, doubtless, contemplated, that many years would elapse before it would become necessary to rebuild the bridge ; and that, during that time, the width of twenty two feet would be amply sufficient for the accommodation of the public. It happened, however, to be but about two years before the rebuilding, by reason of a providential occurrence, became necessary. Who can believe, in such case, that the Legislature would have deemed it reasonable to hold the plaintiffs bound to rebuild, otherwise than they did, particularly, when it is seen that by an act passed in* 1846, they released the plaintiffs from the liability to rebuild* it more than twenty-two feet wide ?

As to there having been no choice of officers, since 1838,. the statement, from the court below, is, that, “ on the 29th Dec. 1845, the corporation, having always been in the habit *306of taking toll, and having a gate, and a board exhibiting the rates of toll, as prescribed by law, the respondent, having no particular exemption from the payment of toll, and at a time when the toll-gatherer was attending to his duty, passed the bridge, with an intent to avoid the payment of the legal toll, though the toll was demanded of him, when within two or three rods of the gate, by the toll-gatherer.” The corporation, therefore, must be believed to have had a toll-gatherer, at the time the defendant passed over the bridge, and that he was present at the time and demanded the toll. Whether he was elected or appointed before or since 1838, is immaterial. It was not for the defendant to question the legality of his appointment. His agency must be believed to have had the sanction of the plaintiffs, or they would not have kept him there constantly demanding and receiving toll. Payment to him would have been a discharge to the defendant; and in fact it does not appear, that the defendant at all questioned his authority. The case finds, that he had determined to pass without paying the legal toll.

The action was properly brought in the county of Lincoln, if the statement in the writ be true. The plaintiffs, in their writ, are styled “ a corporation established by law in Lisbon •in our county of Lincoln.” This fact is not traversed by a plea in abatement. The cause went to trial in the court below upon a plea to the merits. The statement in the writ therefore must be taken to be true. And being so to be taken the point raised, as to this matter, was not open to the defendant!

Thus we have disposed of the three first points raised, in the court below, in favor of the plaintiffs, which renders the consideration of the remaining point there raised unnecessary.

Defendant defaulted.

dissenting.

I am not satisfied with the conclusion. The bridge .was less than 25 feet. Dow much less the case does not state. It was the bridge of 1837, which was 22 feet. It was the bridge *307of 1839 or 1840 over which the defendant passed, and it was less than 25 feet.

The condition is subsequent to the act of incorporation, but precedent to the right of taking toll. The erection of a sign board is of course to be subsequent to the passage of the act, but precedent to the right to take to31.

The corporators, by acceptance of the charter, acquire the right to do what is granted, but if the right to take toll depends upon something to be done, after the acceptance of the charter, the thing to be done is a condition precedent. In Fales v. Whiting, 7 Pick. 225, the defendant was sued for forcibly passing the gate ; a way de facto for 20 years, but not lawfully laid out. If a requisition of a general law must be a pre-requisite to taking toll, it surely must be so, if it is also required in the charter. The location of a gate is not of more importance, than the width of a bridge. But where it is located, in a place different from that prescribed in the act, assumpsit for tolls, which must have accumulated on credit, cannot be maintained. Griffin v. House, 17 Pick. 432; People v. Dinslow, 18 Johns. R. 396; 1 Caines, 180; Commonwealth v. Heare, 2 Mass. R. 102; Nichols v. Bertram & al. 3 Pick. 342.

These cases proceed upon the idea, that the terms of the act of incorporation must be complied with, before any right exists to take toll. Nothing is said about conditions. The amount of it is, the Legislature say to it, if you will do and perform certain things, you are empowered to take toll. The power to take toll follows the doing what is granted. If what is granted to be done is not done, the right does not accrue.

That a want of compliance, with the act of incorporation and the provisions of law, is a matter to be settled between the corporation and the government, is a doctrine applicable to those acting in a public capacity and to municipal corporations. But it is not suggested by the Court, in either of the cases cited, as applicable to the right to take toll. What can be put as more strongly illustrative of the law, than what is said in these *308cases, as to the location of the toll house. Unless it is in the place prescribed, there is no power to exercise the franchise.

If a charter to a rail road prescribes the track to be six feet wide, and it is made but three feet, can the toll be collected ? or a canal to be 50 feet wide, and it is made but 20, can the toll be collected ?

If one departure may be made from the law, how many may be made, and what protection from imposition have the community, if they must wait until the charter is revoked ?

If the defendant had denied their right to take toll, they might deny his right to pass, and refuse to permit it, and if he had persisted, perhaps have maintained trespass, but this action assumes the right to take toll, and unless it exists, the action fails.

Commonwealth v. Worcester Turnpike Corp., 3 Pick. 327, does not appear to militate with the cases cited. The defendants were not allowed to set up their own want of duty in defence.