1861. INGLE V. WALLACH. Pleadings in replevin-traverse of property in plaintiff evidence under-what a mistrialomission of similiter-omission cured after verdict. The plea of property in replevin, is a good plea in bar of the action. The form is, to plead property in the defendant or in a stranger, traversing property in the plaintiff, which traverse raises the material issue to be tried; the averment of property in the defendant or a stranger being by way of inducement. Either plea constitutes a good defense, because it shows property out of the plaintiff; and prima facie, therefore, he is not in condition to maintain the action. Under the plea, that the goods and chattels in the declaration mentioned are not the property of the said plaintiff, it is competent for the defendant to prove property in himself, or in a stranger. Where the record shows that the plea of property has not been tried or found by the jury, there has been a mistrial below, for which the judgment must be reversed, and the case sent down and a new venire ordered. The similiter to the plea of property, is now regarded as matter of form, and its omission does not affect its validity. The omission to join issue upon a second avowry, or to notice it in the finding of the jury or in the judgment of the court, is cured after verdict. Argued Dec. 19, 1861. Decided Jan. 6, 1862. in arrear, under special circumstances stated, The plaintiff replied to the first avowry, no The jury found a special verdict, that no rent was due or in arrear upon the issue joined on the first avowry, and assessed the damages; and judgment was given that the plaintiff recover the goods and chattels, and have a return of the same, &c. No notice is taken in the verdict or judgment of the plea of property. The plea of property in replevin is a good in this case is not in due form, and might have plea in bar of the action. It is true, the plea been held defective on demurrer; but it is good in substance. The form is to plead property in the defendant, or in a stranger, traversing property in the plaintiff, which traverse raises the material issue to be tried-the averment of property in the defendant or a stranger being by way of inducement. Either plea constitutes a good defense, because it shows property out of the plaintiff; and prima facie, therefore, he is not in condition to maintain the action. IN ERROR to the Circuit Court of the United Wend., 30, 34, 35. States for the District of Columbia. The case is stated by the court. Mr. R. J. Brent, for plaintiff in error. Messrs. Badger, Jas. M. Carlisle and W. S. Cox, for defendant in error. Mr. Justice Nelson delivered the opinion of the court: This is a writ of error to the Circuit Court of the United States for the District of Columbia. The action was replevin, brought by the plaintiff below, Wallach, against the defendant, for taking certain goods and chattels of the plaintiff from a house called the Avenue House, situated in the City of Washington. The defendant pleaded: 1. That the goods and chattels in the declaration mentioned were not the property of the plaintiff. 2. Avowed the taking, by way of distress, for rent due and avowry. 2 Lev., 92; 1 Salk., 94; Harrison v. McIntosh, 1 Johns., 380; Marsh v. Pier, 4 Rawle, 283; Rogers v. Arnold, 12 Wend., 36. Defendant must, in plea of property, whether in himself or another, traverse plaintiff's right to possession. Rogers v. Arnold, 12 Wend., 30; Prosser v. Woodward, 21 Wend., 205; Curtis v. Jones, 1 How., App. Ca., 137; 3 Den., 590; Pringle v. Phillips, 1 Sand., 292. Plea of property in one of several plaintiffs and a stranger is good. Hill & D., 426. Under such a plea, the defendant may show legal title to the property, no matter how it was derived. O'Connor v. Union Line, &c., Co., 31 Ill., 230. Plea of property puts plaintiff upon proof of his right to the property. McIlvaine v. Holland, 5 Harr., 10. Upon plea of property, if each succeeds in part, each is entitled to costs. Field v. Post, 38 N. J. Law, 346. The substantial matter upon the plea of property at issue is the plaintiff's right to the property and his right of possession. Upon the issue the plaintiff holds the affirmative and must sustain his rights or fail in the action. Pope v. Jackson, 65 Me., 162; Atkins v. Byrnes, 71 Ill., 326; Peake v. Conlan, 43 Iowa, 297; Reynolds v. McCormick, 62 Ill., 412; Kennedy v. Clayton, 29 Ark., 270. Unless property in the defendant is pleaded, it cannot be given in evidence. Dickson v. Mathers, Hemp., 65: Whitwell v. Wells, 24 Pick., 25; Dover v. Rawlins, 2 M. & Rob., 544, See 1 BLACK. 12 The plea in this case avers the fact directly, by stating that the goods and chattels in the declaration mentioned are not the property of the said plaintiff. Under this plea, it was competent for the defendant to have proved property in herself, or in a stranger, as this would have tended directly to support the issue; and if the defendant had sustained her plea, and proved property out of the plaintiff, she would have been entitled to a return of the goods and chattels without an avowry, as it would appear the plaintiff, at the time, had no right to take or detain them. As this plea of property is a good bar to the action, and as the record shows it has not been tried or found by the jury, there has been a mistrial below, for which the judgment must be reversed, and the case sent down, and a new venire ordered. There is a good bar to the action remaining untried, and not yet found for Property in defendant or a stranger may be pleadment on either issue. Cooper v. Bakeman, 32 Me., ed with non cepit, and defendant may have a judg192; Cummings v. Gann, 52 Pa. St., 484; Smith v. Morgan, 8 Gill., 133; Sprague v. Kneeland, 12Wend., 161. The general issue in replevin is, unless otherwise the taking and detention. It is a plea in bar. It by statute, non cepit, which puts at issue merely be no judgment for defendant for damages, nor for admits the property in the plaintiff, and there can a return to him under it. 1 Chitty on Pleading, McFarland v. Barker, 1 Mass., 153; Smith v. Sny490; 1 Str., 507; Seymour v. Billings, 12 Wend., 286; der, 15 Wend., 324; Ely v. Ehle, 3 N. Y., 506; 1 AdIll., 378; Rowland v. Mann, 6 Ired., 38; Carrol v. dison on Torts (Wood's ed.), 829: Vose v. Harris, 12 Hart., 19 Ark., 237; Bourk v. Riggs, 38 Ill., 320; 3 T. B. Mon., 421. Vickery v. Sherburne, 20 Me., 34; Harper v. Baker, If the taking is established, it follows from the admission of property in plaintiff that it was wrongful. Van Namee v. Bradley, 69 Ill., 299; Hopkins v. Burney, 2 Fla., 42. Where the general issue is "not guilty," every material fact is put in issue, including the question show property in himself. Dillingham v. Smith, of property in plaintiff, and under it defendant may 30 Me.. 370: Heeron v. Beckwith, I Wis.. 17; Scudder v. Worster, 11 Cush., 573; Gibson v. Mozier, 9 ter, 1 Mich., 165; Child v. Child, 13 Wis., 17. Mo., 256; Ashby v. West, 3 Ind., 170; Loomis v. Fos the plaintiff, and hence he is not entitled to the | term to which it was made returnable, and failed, judgment rendered in his behalf in the court below. It appears that the similiter was not added to the plea of property; but this is now regarded as matter of form, and its omission does not affect its validity. The omission to join issue upon the second avowry, or to notice it in the finding of jury or in the judgment of the court, is cured after verdict. There is, also, a second plea by the plaintiff to the first avowry, which issue has not been noticed in the verdict, or on the record; but as the finding of the first issue rendered the second immaterial, the omission, in this respect, is not important. Judgment reversed, venire de novo. SAMUEL S. BACON ET AL., Piffs. in Er. V. WILLIAM HART, JR. (See S. C., 1 Black 38-39.) therefore, to bring up the case. A second writ of error was taken by the defendant below in August, 1859, returnable to the ensuing December Term of this court. The citation under this latter writ was directed to William Hart, Jr., and served, according to the marshal's certificate, on Mary Hart, widow and executrix of William Hart, Sr., who died after the judg ment, and on J. D. Stevenson, his former law partner. A service of the citation on the attorney or counsel of the proper party is sufficient; but the executrix of the counsel on record was not the counsel of her testator's client. His character and duties as counsel did not devolve on his own personal representative after his death. Nor is Mr. Stevenson to be regarded as the counsel of William Hart, Jr., merely because he had been the partner of William Hart, Sr. We cannot notice law partnerships or other private relations between members of the bar. This may have been a partnership, solely because it provided for a division of profits, without putting either partner under any responsibility for the suits conducted by the other. The courts can know no counsel in a cause except Writ of error, when to be returned-how served, those who regularly appear as such on the rec when attorney is dead. ord. Motion filed Dec. 30, 1861. Decided Jan. 13,1862. THE CORPORATION OF WASHINGTON. ERROR to the Circuit Court of the United (See S. C., 1 Black, 39-53.) IN States for the Northern District of Califor- Instructions to jury-court should not take case nia. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Northern District of California, and it appearing to the court that there has been no citation in this cause, pursuant to the provisions of the Judiciary Act of 1789, it is, thereupon, on the motion of Mr. Stanton, now here considered, ordered and adjudged by this court, that this cause be and the same is hereby dismissed, for the want of jurisdiction. Per Mr. Chief Justice Taney. We have looked into this record, and find that the writ of error must be dismissed. The action was in the nature of an ejectment, and brought to recover possession of land. The plaintiff below was William Hart, Jr., a citizen of New York, residing at Manilla. His counsel in the cause was William Hart, Sr. In March, 1858, judgment was rendered by the court for the plaintiff. In October of the same year a writ of error was sued out, returnable on the first Monday in December next thereafter, and service of the citation was on the 9th of October admitted by William Hart, Sr. But this writ of error was not returned during the from jury, unless there is no evidence-municipal corporations, when liable for negligence for not repairing bridge. In an action to recover damages against a corporation, for personal injuries from the falling of a bridge constructed by the corporation, and which it was bound to keep in repair, and safe and convenient for travel; the court instructed the jury that, upon the whole evidence, the plaintiff could not recover, and the plaintiff excepted. Where there is no evidence to sustain the action, or one of its essential elements, the court is bound so to instruct the jury. But where there is evidence, tending to prove the entire issue, although it may be conflicting, the court should not give an instruction which shall take from the jury the right of weighing the evidence and determining its force and effect. Municipal corporations are invested with certain powers, which, from their nature, are discretionary, and although it is the duty of such corporations to carry out the powers so granted and make them beneficial, still an action on the case will not vidual, for the failure on its part to perform such lie against the Corporation, at the suit of an india duty. NOTE.-Bridges, different kinds, legislative power may grant rights to erect; duty to repair. A bridge is a building erected across a river, ditch, valley, or other place otherwise impassable, for the convenience and benefit of passengers. At common law a footway for man and beast is essential. The water must also flow under it but not at all seasons But where a specific and clearly defined duty is enjoined, in consideration of the privileges and immunities which the Act of Incorporation confers and secures, and the means to beform the duty are placed at the disposal of the Corporation, or are within its control, it is clearly liable for injuries to person or property arising from the neglect to perform the duty enjoined, or from negligence and unskillfulness in its performance. Corporations, like individuals, are liable for the negligent and unskillful acts of their servants and agents, whenever those acts occasion special injury to the person or property of another. Where a bridge is placed under the sole control and management of a corporation, by its charter, the burden of repairing or rebuilding the bridge is imposed upon it, if ample means also are placed at its disposal or within its control, to enable it to The City of Providence v. Clapp, 58 U. S., 161, and perform the duty enjoined. other cases on the subject, considered. Argued Jan. 2, 1862, Decided Jan. 13, 1862. This action was commenced in the court be ing licenses; by holding and owning property, and receiving the rents, issues and profits of real estate, to be employed by the corporate authorities in the support and execution of this, among other duties with which it is charged; Hutson v. City of New York, 5 Sand., 297, citing 7 Johns., 439; 7 Wend., 474; 2 Hili, 619; 6 Hill, 463, and cases under the other points; And by reason thereof, it is responsible for any injury resulting from its negligence in performing this special duty. 4. The franchises thus granted to the Corporation are the considerations on which it has, by accepting the charter, undertaken to discharge the duties and burdens imposed on it, as conditions of the enjoyment of those franchises. First. No charter is of any effect until it is accepted by a majority of the grantees, or persons who are to be incorporated under it. low by Weightman to recover damages for in-. juries sustained by him from the falling of a bridge. The Circuit Court instructed the jury that the plaintiff could not recover. The plaintiff excepted, and brought the case to this court. The case is fully stated by the court. 1. The terms employed in the clause of the 13th section of the Charter of 1820 (3 U.S.Laws, 590), are mandatory, and impose on the Corporation the duty to keep in repair and rebuild the bridge in question, when necessary. Mason v. Fearson, 9 How., 248. 2. The duty thus imposed on the Corporation is absolute and purely a ministerial duty. It involves no discretionary exercise of political or legislative power, and is precisely such as might have devolved upon an individual. Storrs v. City of Utica, 17 N. Y., 104; Del monico v. City of N. Y., 1 Sand., 222; Mayor, &c., of Albany v. Cunliff, 2 N. Y., 165; Erie City v. Schwingle, 22 Pa., 384; Rochester Lead Co. v. City of Rochester, 3 N. Y., 467. 3. The charter has provided the most ample means to enable the Corporation to discharge this duty, by the imposition of taxes and grant of the year nor under all arches or parts of it. | Whart. Lex. 114; Bouv. Law Dict., tit. Bridges; Prop. of Bridges v. Hoboken L. Co., 2 Beas., 504; 1 Bish. Cr. L.. sec. 183; Rex v.Derbyshire, 2 Q.B., 745; 2 Gale & D., 97; 6 Jur., 438; Freeholders v. Strader, 18 N. J. (Law), 108; Enfield Toll B. Co. v. Hart., &c., Ry. Co., 17 Conn., 56. A private bridge is one constructed for the use of one or more private individuals, and does not lose this character though it may occasionally be used by the public. Rex v. Bucks, 12 East, 203. Grant, Corp., 18, and cases and note; Rutter It must be accepted, without condition, as it is granted. Wilcox, Mun. Corp., 30; Ang. & Ames (3d ed.), ch. 2, sec. 7. It was long ago held that even the inhabitants of a town could not be incorporated without the consent of the major part of them. 1b.; and see cases in note, and in 8th Mees. & W., 36. Second. The intention of the grant is to confer some advantage upon the grantees. lb. It “is, in fact, in the nature of a contract between the government and its subjects, the latter of whom undertake, in consideration of the privileges bestowed, to do what the government is interested in having done." Ib.; Conrad v. Trustees of Ithaca, 16 N. Y., 161; Weet v. Trustees of Brockport, 16 N. Y., 161, note; and see the cases under the next point, and opinion of the court, 15 Barb., 440, 441, and 8 Barb., 645. 5. The line of demarcation between these duties, which are immediate parts of, or incident to their political powers, and those which are purely and absolutely ministerial, is not always well defined, and may sometimes give rise to doubt; but it may safely be affirmed, that when a municipal corporation is distinctly 10 U. S. (6 Cranch), 128; Erie City v. Swingle, 22 Pa. St., 384; Central Br. Corp. v. Bailey, 8 Cush., 389; Central Br. Corp. v. Sleeper, 8 Cush., 324; Jones v. Keith, 37 Tex., 394; S. C. R. R. Co. v. Jones, 4 Rich., 459; Hall v. Boyd, 14 Ga., 1: Towles v. Justices, &c., 14 Ga., 301; Wright v. Nagle, 48 Ga., 367; Erie City v. Schwingle, 10 Harr., 384; Indianapolis v. McClure, 2 Cart., 147; Meadville v. Érie Can. Co., 6 Harr., 66; Harrell v. Ellsworth, 17 Ala., 576; Damariscota T. Br. Co. v. Cutter, 1 Red., 357; State v. Milo, 2 Red., 57; Mayor, &c., v. Macon, &c., R. R. Co., 7 Ga., 221; Strong v. Dunlap, 10 Humph., 423; State v. Gilmanton, 14 N. H., 467; Schuylkill Br. v. Frailey, 13 S. & R., 422; 6 S. & R., 229; State v. Canterbury, & Fost.. 195; State v. Boscowen, 8 Fost., 195; Rogers v. Kennebec & P. R. R. Co., 35 Me., 319; Wis. Kiv. Imp. Co. v. Lyons, 30 Wis., 61. A public bridge is one which forms part of the highway over which the public have a right to pass with or without toll. There are three classes of them: 1st. Those belonging to the public and built by public authority at public expense. 2d. Those built by companies or individuals over which all persons have a right to pass on payment of a fixed Legislative authority is necessary: 1st. Where toll. 3d. Those built by private individuals and sur-stream is navigable. 2d. Where State owns bed of rendered or dedicated to the public. Rex v. Inhab., the stream. 3d. Where the right to take tolls is de&c., of Yorkshire, 2 East, 342; Rex v. Inhab., &c., of sired. Fort Plain Br. Co. v. Smith, 30 N. Y. 44; see Northampton, 2 M. & S., 262; Rex v. Devon, Ry. & Com. v. Breed, 4 Pick., 460. M., 144; Piscataqua Br. v. N. H. Br., 7 N. H., 59; Callender v. Marsh, 1 Pick., 432; Chas. Riv. Br. v. Warren Br., 7 Pick., 344; S. C., 36 U. S. (11 Pet.), 539; 1 Camp., 26, n. The legislative power may grant the right to erect a bridge. Flanagan v. Phila., 42 Pa. St., 219; Piscataqua Br. v. N. H. Br., 7 N. H., 35; Fletcher v. Peck, To erect a toll bridge over a navigable stream forming a boundary between two States, the concurrent legislation of both States is necessary. Pres., &c., v. Trenton Br. Co., 13 N. J. Eq., 46; Dover v. Fortsmouth Br., 17 N. H., 200; Middle Br. Corp. v. Marks, 13 Me., 326. The acceptance of bridges dedicated to the public charged with the execution of a specific duty, | from public considerations and for public purfor the benefit of the public and of individuals, poses exclusively, and is not responsible for the and means are in the same or some other instru- nonfeasances or misfeasances of sub-agents necment put into its hands, adequate to its full essarily employed. performance, it may be compelled to perform it, and will be responsible to individuals injured by its negligent or improper performance of it. Mayor of Lynn v. Turner, Cowp., 86; Grant, Cor., 501; Henley v. Mayor of Lyme, 5 Bing., 91; S. C., 1 Bing. (N. C.), 222, in error; 2 Clark & F., 354, by all the Judges; Mayor of New York v. Furze, 3 Hill, 612; Mayor of Albany v. Cunliff, 2 N. Y., 165; Lloyd v. City of N. Y., 5 N. Y., 369; City of Pittsburg v. Grier, 22 Pa.. 64; The Mayor of Baltimore v. Marriott, 9 Md., 160, 178; The City of Memphis v. Lasser, 9 Humph., 761, and the cases under the preceding points. 6. The bridge thus constructed by the Corporation was its property, which it could take down and dispose of at its pleasure. One end of it rested on soil beyond its municipal jurisdiction, if the whole bridge was not also beyond it, and the Corporation, in its political character, could have no control over it. Yet it was bound to repair and rebuild it out of its corporate funds, and it was responsible to anyone receiving special damage, if it became a public nuisance, from the manner in which it discharged that duty. Bailey v. The City of New York, 3 Hill, 531; S. C., 2 Den., 433. Having constructed it, the Corporation had no discretionary power as to keeping it in repair. Wilson v. Mayor of New York, 1 Den., 595; The Mayor of New York v. Furze, 3 Hill, 612; Kilty's Laws, 1791, ch. 45, sec. 1. It follows, if the evidence in this case shows a specific duty imposed on the Corporation by its charter, and means to perform that duty, a negligent performance by the Corporation or its agents, and an injury to the plaintiff arising from such negligence, that the plaintiff is entitled to recover in this action, and the judgment of the Circuit Court should be reversed. Mr. W. D. Davidge, for defendant in error: The defendant in error is invested with the power over the bridge as agent of the public, will not be presumed till they are proved to be of public utility. Rex v. Inhab., &c., of Yorkshire, 2 East, 342; Dygert v. Schenck, 23 Wend., 446; Williams v. Cummington, 18 Pick., 312; Requea v. Rochester, 45 N. Y., 129; 6 Am. R., 52. At common law all public bridges are,prima facie, repairable by the county. It may, however, be shown that others are bound to repair particular bridges. Hawk. P. C. C., 77, sec. 1; 2 Inst., 701; Rex v. W. R., of Yorkshire, 2 Burr.. 2594; 2 W. Bl., 685; Lofft, 358; 2 East, 342; Rex v. Salop, 13 East, 95; Reg. v. Southampton, 14 Eng. L. & E., 116. A bridge to be repairable by the county must, however, be built in the highway, common to all subjects and over water flowing in a channel, between banks more or less defined, although such channel may be occasionally dry. Rex v. Kent, 2 East, 342; Rex v. Northampton, 2 M. & S., 262; Rex v. Devon, Ry. & M., 144; Rex v. Buckinghamshite, 4 Camp., 189; Rex v. Oxfordshire, 1 Barn. & Ad., 289; Rex v. Derbyshire, 2 Q. B., 745; Rex v. Trafford, 1 Barn. & Ad., 874; 8 Bing., 204; Rex v. Whitney, 4 Nev. & M., 594; 7 C. & P., 208. The nature of the power is public, and its object is the benefit of the public. The bridge is a public bridge, and so alleged. It spans a navigable stream, and one abutment only is within the corporate limits. The power is not granted as a private franchise. No toll can be exacted, nor can the Corporation derive from the bridge any advantage or emolument what ever. This power and its correlative duty are imposed by the Legislature upon a public municipal Corporation, as an auxiliary in the work of government, and over such a Corporation the Legislature has at all times, as the guardian of the public interests, the absolute control. Such corporations, unlike private corporations, cannot sustain their existence or powers upon the ground of contract between them and the Legislature, which may, at its discretion, alter or abolish. Dartmouth College v. Woodward, 4 Wheat., 518, 536; Ang. & Ames, Corp., sec. 31. The duties of private corporations rest on contract. The grant or charter may be accepted or refused. But public municipal corporations are established for the purposes of government, and do not depend on acceptance of charter. Ang. & Ames, Corp., sec. 81. It is not denied that a public municipal corporation may hold franchises or other property, in relation to which it is to be regarded as a private company, and subject to the responsibilities attaching to that class of institutions. Bailey v. The Mayor, &c., of N. Y., 3 Hill, 531, 540; S. C. on error, 2 Den., 434; Moodalay v. The East India Co., 1 Br. Ch., 469. But as regards the power under consideration here, it has not a single element of private ownership. but stands on precisely the same footing as the powers of the Corporation over the streets of the city, which powers, it is judicially settled, are exercised by the Corporation as agent of the public. Smith v. Corp. of Wash., 61 U. S. (20 How.), 135, 148; Van Ness v. Corp. of Wash., 4 Pet., 232. No principle of law is better settled than that v. Jamaica, 15 Vt., 438; Schoolbred v. Charleston, 2 Bay, 63; Sampson v. Gooikland Justices, 5 Gratt., 241; State v. Boscowen, 8 Fost., 195; Hill v. Supervisors of Livingston, 12 N. Y., 52. Bridges owned by corporations or individuals are repairable by them. Heacock v. Sherman, 14 Wend., 58; Com. v. Newburyport Br., 9 Pick., 142; Perley v. Chandler, 6 Mass., 453; Dygert v. Schenck, 23 Wend., 446: Waterbury v. Clark, 4 Day, 198; Sawyer v. Northfield, 7 Cush., 490. Towns and owners must preserve their bridges in such strength as will support the ordinary business of the locality where they may be. This duty extends to abutments. Richardson v. Royalton, &c., T. Co., 6 Vt., 496; Townsend v. Sysq. R. R. Co., 6 Johns., 189; Tolland v. Wellington, 26 Conn., 578; Linton y. Sharpsburg Br., 1 Grant's Cas., 414; Sussex v. Strader, 3 Harr., 102; People's Br. v. Hoboken L. Co., 10 N. J., 504. A bridge built by an individual, and used by the public long enough to establish its usefulness though repaired by it under protest, is a public bridge, and the town must repair it. State v. CompIn the United States the duty of repairing bridges ton, 2 N. H., 513; Wilson v. Jefferson, 13 Iowa, 181. is regulated by State Statute and is generally_im- It is held in Pa. that in the absence of special obposed on towns or counties. Lobdell v New Bed-ligation or statute, the obligation to repair rests on ford, 1 Mass., 153: Norwich v. Comrs., 13 Pick., 60; the county, city or borough in which the bridge is. Lewis v. Litchfield, 2 Root, 436; State v. Franklin, 9 Meadville v. Erie Can. Co., 18 Pa. St., 66; Broomall's Conn., 32; State v. Compton, 2 N. H., 513; Bardwell | Appeal, 75 Pa. St., 173. public agents are not responsible for the mis feasances or nonfeasances of those whom they are obliged to employ. To such cases the doctrine of respondeat superior does not apply. Story, Ag., secs. 319-322; Hall v. Smith, 2 Bing., 156; Harris v. Baker, 4 Maule & S., 27; Lane v. Cotton, 1 Ld. Raym., 646; Whitfield v. Lord Le Despencer, Cowp., 754: Duncan v. Findlater, 6 Cl. & F., 903, 910; Dunlop v. Munroe, 7 Cranch, 242, 269: Schroyer v. Lynch, 8 Watts, 453; Boody v. U. S., 1 Wood. & M., 151, 170: White v. City Council, 2 Hill, S. C., 571; Supervisors of Albany Co. v. Dorr, 25 Wend., 440. It may be urged that it is not sought here to hold the Corporation responsible for the neglect of its official subordinates, but for neglect in the appointment of them. But admitting,argu menti gratia, that, for such neglect, the superior would be liable, there is no evidence to show that the commissioner lacked capacity. Moreover, it has been settled by this court, that, under an allegation framed as here, evidence of neglect in making the appointment or of not properly superintending the subordinate, is not admissible; but that for such neglect a recovery can be had only, if at all, upon a declaration specially framed to meet the particular kind of negligence relied on. The cases of Mayor of Lyme v. Turner, Cowp., 86; Henly v. Mayor of Lyme, 5 Bing., 91; and S. C., 1 Bing. (N. C.), 222, are cases of contract, where the grantors of franchises or property, held on condition that they would repair or do certain acts. So with the case from Carthew and Shower cited by Park, J., in the latter case, where the agreement was implied from the nature of the franchise granted, namely: the privilege of keeping a ferry. The English books are filled with indictments for neglect to repair; but no instance can be found of an action when the duty to repair was created by statute for the benefit of the public, and was irrespective of franchise or other private advantage. 3. But again: It is sought here to hold a municipal corporation, acting pro bono publico, responsible not only for its own neglect to repair, but also for that of its officer in failing to observe the ordinance for the inspection of the bridge. In Fowle v. Common Council, 3 Pet., 409, the action was brought to recover damages for the nonfeasance of an officer of a municipal corporation in failing to take a bond from an auctioneer, as required by an ordinance. But this court held the corporation not responsible. In Levy v. The City of N. Y., 1 Sand., 465; it was held, that the city was not bound for an injury sustained in consequence of the neglect What has been said as to the assumed neglect of its officers to enforce an ordinance prohibitof the commissioner applies equally to the coming swine running at large. So, also, in Griffin mittee by whom the plan was adopted, if neg. v. The Mayor, &c., of N. Y. City,9 N. Y., 456; lect can be imputed to them under this declara in Hutson v. Mayor, &c., of New York, 5 Sand., tion and the evidence. 303, 304. Dunlop v. Munroe, 7 Cranch, 242, 269; Bishop v. Williamson, 11 Me., 495, 506. But another, and an equally conclusive, answer to the pretensions of the plaintiff in error, is found in the nature and legal character of the object upon which the power in question is to be exercised; and it will be contended: 2. That at common law no action lies against public municipal corporations, or quasi corporations created for public purposes, or against other public officers, for neglect to repair a pub lic bridge or highway, unless that obligation to repair rests on tenure, prescription or contract. The only remedy is by indictment. City of Providence v. Clapp,58 U.S.(17 How.), 161, and cases cited, p. 162. In Bro. Abr., tit. "Surle case," pl., 93. It is said, that if a highway be out of repair, so that a horse be mired and injured, no action lies "car est populus et sere reforme per presentment." In Russell v. The Men of Devon, 2 T. R., 667 (the leading case upon the subject), the precedent in Brooke was cited and approved, and it was held that no action lay to recover satisfaction for injury done to a wagon in consequence of a bridge being out of repair. In Riddle v. The Prop. of the Locks, etc., 7 Mass., 169, Parsons, Ch. J., took the same distinction between corporations created for the benefit of the public, as part of the government of the country, and those created for the benefit of the corporators; and held, that the former are liable only to information or indictment. See Mower v. Leicester, 9 Mass., 247; Young v. Comm's of Roads, 2 Nott & McC., 555; Com. Dig. Chemin, H, 4 B. 3; Bartlett v. Crozier, 17 Johns., 439: Morey v. The Town of Newfane, 8 Barb., 645; White v. City Council, 2 Hill, S. C., 571; Haskell v. Inhab. of Knox, 3 Me., 445. 4. If an action lies at all, it is only where an indictment could be maintained. The declaration assumes that the duty of the defendant in error, to repair, is indentical with that of a private corporation or individual, in relation to its own property. No notice is averred of the want of repairs, nor are the facts requisite to support an indictment. The consequences of holding a public municipal corporation or other public officer to the strict responsibility resting upon individuals and private companies, acquiring and using property for their private enjoyment and profit, must be apparent, especially as regards a bridge or highway open at all times to the public. The rigid rule applicable to individuals and private companies, flows from their exclusive rights over their own property; and such a rule can never be applied when the same rights do not exist, as in the case of a bridge or highway. It seems absurb to compel public corporations or other public officers to guarantee the condition of bridges and highways at all times, irrespective of circumstances. Hence the wisdom of the rule of common law, that no private action lay. And where legislation has been resorted to, as in the New England States, the responsibility is not absolute, but made to depend upon special conditions prescribed by the respective statutes, but here the responsibility would be absolute, and, it may be added, ruinous. Mr. Justice Clifford delivered the opinion of the court: This is a writ of error to the Circuit Court of the United States for the District of Columbia. |