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.