The opinion of the court was delivered by
Redfield, J.
I. However defective was the service of this process, we think the'appearance of the defendant by counsel, at the first term the cause was entered in court, and suffering a general continuance for that and the succeeding term, is a waiver of all dilatory pleas, and of all objection to the service of the writ. State v. Richmond, 6 Foster (N. H.), 232; Huntly v. Henry et al. 37 Vt. 165.
The defendant’s plea does not aver or claim, that the writ was not properly served, but that the defendant being a foreign corporation, existing and doing business under the laws of New Hampshire, and having no franchise, business, or property in this state, the courts could not take or have jurisdiction of the person of the defendant, or the subject-matter of this suit. The replication avers that the defendant is the owner of land in this state, on which the western abutment of the defendant’s bridge stands ; [177]*177and the injuries complained of, occurred by reason of insufficiencies in that part of defendant’s bridge situate on said land in this state. Whether the facts averred in the replication are essential to the exercise of jurisdiction by the courts of this state, is not material, as we think the replication is quite sufficient for the plea. It has often been held that the courts of this state may take jurisdiction of foreign corporations, when properly impleaded in such court. Day v. Essex Co. Bank, 13 Vt. 97; Hall v. Vt. & Mass. R. R. Co. 28 Vt. 409; March v. Eastern R. R. Co. 40 . H. 557. The latter case shows a thorough examination, and is a very satisfactory statement, of the law. A voluntary and general appearance in an action, not only gives jurisdiction to the court, of the parties, but cures any defect or irregularity in the service of the process. Huntly v. Henry, supra. In State v. Richardson, Bell, J., says: “ The party who had not been duly summoned, is always and everywhere, understood to waive his exceptions, if he appear and suffer a general continuance on plea in bar, or in any way submits his case to the judgment of the court, without at once making his objection at the earliest opportunity.” See also Carpenter v. Minturn, 65 Barb. (N. Y.) We think the court had jurisdiction of the defendant and subject-matter of the suit.
II. We think it not doubtful that the court had the power to allow the amendment of the plaintiff’s declaration, as was done ; and no exception lies to the manner its discretion was exercised. Gen. Sts. 267, § 41. Montgomery v. Maynard, 38 Vt. 454; Willis v. Averill, 24 Vt. 283.
III. The testimony of Goodwin was properly excluded. Having testified that he could not describe the condition of the bridge at the time of the injury, it is evident he could not compare that state with its condition three years afterwards. How far a witness, without knowledge of the essential facts, shall be permitted to speculate in conjectural comparison, is, mainly, within the discretion of the court. The witness, possessing no means, could probably shed no light; and in excluding his testimony we discover no error.
[178]*178IV. The more important inquiry relates to the liability of the defendant for damages occasioned by the insufficiency of the road, or bridge, at the place of injury. This defendant had its artificial being by an act of the legislature of New Hampshire, and could not, strictly, have corporate being outside the jurisdiction of that state. Its strict corporate functions exist and are to be exercised there. But “ there seems no question but a corporation may act by its directors, agents, and servants, beyond the limits of the sovereignty that created it.” 1 Redf. Railw. 57. If the liability of the defendant were limited by the western boundary of the state of New Hampshire, then, a traveller who had paid his toll, and thereby obtained the guaranty of the corporation for safe passport across its bridge, would be without remedy for injuries received by reason of the insufficient repair of the- western end of the main bridge, because the place of injury was outside the jurisdiction of New Hampshire, and within that of Vermont. And that would relieve the. defendant from the duties imposed by contract with the traveller, implied by taking toll; because it occupies, and cannot discharge its functions without occupying, a portion-of the soil of Vermont, The defendant has constructed its bridge, in part, within the jurisdiction of this state, and used it for toll-paying travellers for near forty years, without challenge from any source, and with the implied assent of the sovereign authority of this state. As between the corporation and the traveller, it is not important whether the former had the legal title to the land, and lawful right to construct the bridge, as it has done. It must perform its contract with the traveller, who has paid his toll for the guaranty of safe passage across the river upon defendant’s bridge.
The Boston, Concord & Montreal R. R. Co. was created by act of the legislature of New Hampshire, yet that corporation has extended its railway some one hundred rods into this state, without chartered right, and has carried passengers and freight over that portion of its railway for some twenty years. Although this state has the sovereign right to prevent that corporation from operating its railway within this state, yet reason, justice, and all analogy, would require that such corporation should, like other [179]*179persons, perform tbe duties which it assumes. In McCluer v. Manchester & Lawrence R. R. Co. 13 Grey, 124, the defendant corporation, created by act of the legislature of New Hampshire, received goods to carry from some point in Massachusetts to Manchester, N. H., and the goods were lost in Massachusetts by negligence of the carriers. The defendant alleged in defence, that it had no legal capacity to contract, or to become responsible, as carriers, without the limits of New Hampshire. The court, Hoar, J., held otherwise, and said: “ They were in actual possession and use of the road, without obstruction from the Commonwealth, and they received the plaintiff’s property, and agreed that it should be safely kept, and transported to its destination. ' It is no answer to a breach of that agreement to deny the validity of their own contract.” So this defendant, for a consideration, agreed to give safe passage to the plaintiff, across Connecticut River, upon its bridge ; and if the plaintiff was injured by the actionable negligence of the defendant in maintaining its structure for such safe passage, we see no good reason in law or morals, why defendant should not be responsible, though the locus in quo may be in Vermont.
V. It is further insisted that the injury occurred not only without the jurisdictional limits of New Hampshire, but in and upon tho highway legally established by authority of this state in tho town of Newbury.
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The opinion of the court was delivered by
Redfield, J.
I. However defective was the service of this process, we think the'appearance of the defendant by counsel, at the first term the cause was entered in court, and suffering a general continuance for that and the succeeding term, is a waiver of all dilatory pleas, and of all objection to the service of the writ. State v. Richmond, 6 Foster (N. H.), 232; Huntly v. Henry et al. 37 Vt. 165.
The defendant’s plea does not aver or claim, that the writ was not properly served, but that the defendant being a foreign corporation, existing and doing business under the laws of New Hampshire, and having no franchise, business, or property in this state, the courts could not take or have jurisdiction of the person of the defendant, or the subject-matter of this suit. The replication avers that the defendant is the owner of land in this state, on which the western abutment of the defendant’s bridge stands ; [177]*177and the injuries complained of, occurred by reason of insufficiencies in that part of defendant’s bridge situate on said land in this state. Whether the facts averred in the replication are essential to the exercise of jurisdiction by the courts of this state, is not material, as we think the replication is quite sufficient for the plea. It has often been held that the courts of this state may take jurisdiction of foreign corporations, when properly impleaded in such court. Day v. Essex Co. Bank, 13 Vt. 97; Hall v. Vt. & Mass. R. R. Co. 28 Vt. 409; March v. Eastern R. R. Co. 40 . H. 557. The latter case shows a thorough examination, and is a very satisfactory statement, of the law. A voluntary and general appearance in an action, not only gives jurisdiction to the court, of the parties, but cures any defect or irregularity in the service of the process. Huntly v. Henry, supra. In State v. Richardson, Bell, J., says: “ The party who had not been duly summoned, is always and everywhere, understood to waive his exceptions, if he appear and suffer a general continuance on plea in bar, or in any way submits his case to the judgment of the court, without at once making his objection at the earliest opportunity.” See also Carpenter v. Minturn, 65 Barb. (N. Y.) We think the court had jurisdiction of the defendant and subject-matter of the suit.
II. We think it not doubtful that the court had the power to allow the amendment of the plaintiff’s declaration, as was done ; and no exception lies to the manner its discretion was exercised. Gen. Sts. 267, § 41. Montgomery v. Maynard, 38 Vt. 454; Willis v. Averill, 24 Vt. 283.
III. The testimony of Goodwin was properly excluded. Having testified that he could not describe the condition of the bridge at the time of the injury, it is evident he could not compare that state with its condition three years afterwards. How far a witness, without knowledge of the essential facts, shall be permitted to speculate in conjectural comparison, is, mainly, within the discretion of the court. The witness, possessing no means, could probably shed no light; and in excluding his testimony we discover no error.
[178]*178IV. The more important inquiry relates to the liability of the defendant for damages occasioned by the insufficiency of the road, or bridge, at the place of injury. This defendant had its artificial being by an act of the legislature of New Hampshire, and could not, strictly, have corporate being outside the jurisdiction of that state. Its strict corporate functions exist and are to be exercised there. But “ there seems no question but a corporation may act by its directors, agents, and servants, beyond the limits of the sovereignty that created it.” 1 Redf. Railw. 57. If the liability of the defendant were limited by the western boundary of the state of New Hampshire, then, a traveller who had paid his toll, and thereby obtained the guaranty of the corporation for safe passport across its bridge, would be without remedy for injuries received by reason of the insufficient repair of the- western end of the main bridge, because the place of injury was outside the jurisdiction of New Hampshire, and within that of Vermont. And that would relieve the. defendant from the duties imposed by contract with the traveller, implied by taking toll; because it occupies, and cannot discharge its functions without occupying, a portion-of the soil of Vermont, The defendant has constructed its bridge, in part, within the jurisdiction of this state, and used it for toll-paying travellers for near forty years, without challenge from any source, and with the implied assent of the sovereign authority of this state. As between the corporation and the traveller, it is not important whether the former had the legal title to the land, and lawful right to construct the bridge, as it has done. It must perform its contract with the traveller, who has paid his toll for the guaranty of safe passage across the river upon defendant’s bridge.
The Boston, Concord & Montreal R. R. Co. was created by act of the legislature of New Hampshire, yet that corporation has extended its railway some one hundred rods into this state, without chartered right, and has carried passengers and freight over that portion of its railway for some twenty years. Although this state has the sovereign right to prevent that corporation from operating its railway within this state, yet reason, justice, and all analogy, would require that such corporation should, like other [179]*179persons, perform tbe duties which it assumes. In McCluer v. Manchester & Lawrence R. R. Co. 13 Grey, 124, the defendant corporation, created by act of the legislature of New Hampshire, received goods to carry from some point in Massachusetts to Manchester, N. H., and the goods were lost in Massachusetts by negligence of the carriers. The defendant alleged in defence, that it had no legal capacity to contract, or to become responsible, as carriers, without the limits of New Hampshire. The court, Hoar, J., held otherwise, and said: “ They were in actual possession and use of the road, without obstruction from the Commonwealth, and they received the plaintiff’s property, and agreed that it should be safely kept, and transported to its destination. ' It is no answer to a breach of that agreement to deny the validity of their own contract.” So this defendant, for a consideration, agreed to give safe passage to the plaintiff, across Connecticut River, upon its bridge ; and if the plaintiff was injured by the actionable negligence of the defendant in maintaining its structure for such safe passage, we see no good reason in law or morals, why defendant should not be responsible, though the locus in quo may be in Vermont.
V. It is further insisted that the injury occurred not only without the jurisdictional limits of New Hampshire, but in and upon tho highway legally established by authority of this state in tho town of Newbury. After the bridge was built in 1834, the highway was laid and established to the west end of the bridge, described in the survey as follows: “Beginning at the westerly end of the planking on the main bridge over Connecticut River, (it being understood and agreed that the proprietors of said bridge always keep in repair the wharfing by them made.)” From the main timbers resting on the abutment of the bridge, was an inclined platform, made fast by spikes to the main structure, about four feet wide; the roof of the bridge extended over it; it was constructed as a part of the original structure in 1834, and has been maintained by the defendant for the use of toll-paying travellers ever since ; and without this or some similar provision, it is evident that travellers could not pass and repass with facility or safety; the bridge was imperfect without it. This bridge [180]*180having been constructed with this inclined platform as a part of the structure, and having been used by defendant for near forty years as the means of transit from the highways of New Hampshire to those of Vermont, it would be no unnatural use of language, to limit the highway to the western line of this inclined platform. But if conceded that the highway was established to the planks of the main bridge, and that such inclined platform was on or over the highway as established by law in this state, it would be no obstacle to the plaintiffs’ right of recovery. As between the defendant and the town of Newbury, the former had assumed to maintain and keep in repair the whole wharfing at the western abutment of the bridge, extending a rod or more west of the inclined platform where plaintiff was injured. The defendant had used this apron of its bridge for forty years, as a part of the apparatus for the safe passage of travellers, and claimed and received pay for its use. The traveller who has paid toll, has defendant’s contract that its apparatus for crossing the river is in safe condition. The defendant is required to do what it has, for consideration, promised to do, and what it has exercised the right to do for so long a time that prescription has put to rest all question of the right, unless the sovereign state should interfere. To allow the defendant to allege in excuse its incapacity to make the contract, would be, as Judge Hoar well says in 13 Gray, supra, “ like an inn-keeper sued for lost luggage, alleging in defense, that his landlord was without legal title, and therefore he was keeping inn without legal right.” In Davis v. Lamoille Plank Road Co., it appeared that the defendant had occupied in constructing the plank road, the established highway in the town of Stowe; and by contract between said town and the plank road company, the latter had assumed to keep the road in safe condition, and protect the town from damages for an insufficient road. The corporation defended on the ground that the town was alone liable. The court, Redfield, Ch. J., say: “ If it could be maintained (which we think it could not) that the town of Stowe was liable for giving up its highway before the defendant had built a proper plank road, it would not excuse the defendant after opening their road and taking toll.”
[181]*181The duty of maintaining the bridge in such condition as to assure reasonable safety to travellers, does not arise from the provision of the charter ; but, as the same learned judge says in the last case, “ The liability to pay tolls is a consideration for the undertaking on the part of the corporation to furnish a safe road for the use of the traveller as an equivalent. It is the same in principle as any other contract where service is performed for pay. There is an implied undertaking, resulting from the law applicable to such subjects, that the person undertaking sucli service, whether it be a natural or artificial person, shall perform it faithfully.”'
An eminent public man in this state, now deceased, as town auditor, rejected the claim of the overseer of the poor for the burial of a'jtown pauper, on the ground that the statute provided only for the support and not the burial of the poor; for the living and not the dead. There could be no exception to his logic; but when practically applied to the service required and the duties enjoined, its good sense is less conspicuous.
The corporation was authorized by its charter to build a bridge, and nothing more; but when it is considered that the end and purpose of the grant was, to afford a safe transit for teams and travellers from the highways of New Hampshire to and upon the highways of this state, and that the defendant constructed this appendage under the roof of the bridge, and made it fast to the main structure, and maintained and used it and invited travel over it for pay, and that for forty years, as a means of transit from New Hampshire to the highways of this state, as against the toll-paying traveller the defendant should be held responsible for the reasonable safety of the means provided for such passage.
We find no error, and the judgment of the county court is. affirmed.
Pierpoint, Ch. J., and Barrett, J., dissented upon the fourth, and fifth points in the opiniop,