Bartlett v. Crozier — 17 Johns. 439

Majority

p. 345

Moses Bartlett, plaintiff in error, against William Crozier, defendant in error.

Headnote

No civil action wiH |⅛ asains* ovevseev of highways,at the “"/⅛ injury’which he ⅛»® sustained, m the neglect of the a ⅛ repair: nS-, effmfSfn-ers of highways, ihougii, it such private action would he at all, it would be against them; but the party injured can sue for the -penalty only, imposed by the statute (sess. 36. ch. 35. 2 ¿V. R. L. '270. 1 Rev. Stat. 501. 503.) for each neglect, or breach of duty.

If. however, a civil action would lie, at the suit of the person injured by a bridge out of repair, it must be on the statute, and the declaration ought to state specially the cause ofaction arising under the statute/ and every fact requisite to enable the court to judge whether there has been a breach of duty, it is not enough to state, generally, that the defendant was an overseer of highways, and wilfully neglected his duty, and suffered the bridge to remain out of repair, whereby the plaintiff’s horse fell through, and broke his leg, &c. And such a declaration is not aided by a verdict ; for though a title defectively set out may be cured by verdict, yet a verdict will not cure a total defect of title.

THIS was an action on the case, originally commenced in .he Court of Common Pleas of the county of Washington. v o The declaration set forth, “ for that whereas all overseers of highways are bound, by the laws of the land, to repair and keep in order the highways within the several districts for which they shall be elected overseers: and whereas the said M. B. on the oth ot April, 1814, at the annual town-meeting, held at the hotel, in the village of Salem, in the town of^[1] Salem, in the county of, &c., was duly elected an overseer of highways for the said town, for the district known and distinguished by the name of district No. 14, in the said town of S., and dur

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ing the term of one year from the said 5th of April; and on the same day and year aforesaid, at, &c. took, &c. the oath required of him, as overseer as aforesaid, by the act, &c., which oath, &c. was afterwards, to wit, on the 7th of April, &c. duly filed in the office of the town clerk of the said town of yet the said Moses, being such overseer, well knowing the premises, but wrongfully and injuriously intending to injure the said W. €’., and not regarding his duty in that behalf, as overseer of district No. 14, but wholly neglecting the same, negligently and wilfully suffered and permitted a certain bridge, in the said district, and on a public highway, in said district, to be and remain for a long space of time, to wit, for the space of three months, to wit, from the 1st of January, 1815, to the 1st of April, 1815, broken, shattered, dangerous, and wholly unfit to travel over, to wit, at, &c. he, the said M. B., being such overseer as aforesaid, during all this time, well knowing the said bridge to be so broken, shattered, dangerous, and wholly unfit to travel over as aforesaid ; and whereas, afterwards, to wit, oil the 13th of February, 1815, the said W. C. was possessed of a certain mare of great value, to wit, the value of 100 dollars, and was then and there driving the said mare over the said bridge, whereby, by reason of the wilful negligence of the said M. B., in not repairing the said bridge, the said mare of the said IV. C. fell through the said bridge, and thereby broke her leg, and was greatly wounded, &c., by means of which, &c. she became and was of no use or value to the said W. C., and he, the said W. C., has been put to great charges and expense of his moneys in and about the feeding, keeping, taking care of, and endeavoring to cure the said mare, in the whole-amounting to a large sum of money, to wit, the sum of 100 dollars, &c. The second count was similar to the first, alleging that the defendant, not regarding in any wise his duty as overseer of highways as aforesaid, did not repair, or cause and procure the said road and bridge to be repaired, &c., by reason whereof an action hath accrued to the said W. C., &e. *The third count was similar to the second, except that it stated that the mare was driven by a servant of W. C. The defendant pleaded not guilty, and a verdict having been found for the plaintiff, on which the Court of Common Pleas gave judgment, the cause was brought, by a writ of error, to the Supreme Court; and the error assigned was, that the declaration was insufficient in law to maintain the action.

The Supreme Court affirmed the judgment of the Court of Common Pleas, and from this judgment of affirmance a writ of error was brought, returnable in this court.

The chief justice stated the reasons of the judgment in the court below, for which, vide 15 Johns. Rep. 250 —255.

Crary. for the plaintiff

in error. 1. At the common law

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there is no remedy by action, at the suit of an individua], for not repairing a bridge; the only remedy is by indictment against the county. If the action is intended to be on the statute, the statute must be referred to and rehearsed. (I Roll. Abr. 49. 1 Com, Dig. Action upon the Statute, (G.) (A. 3.) 5 Com. Dig- Fleader, (C. 76.) Cole v. Smith, 4 Johns. Hep. 197. Newcomb v. Butterfield, 8 Johns. Rep. 342 . Bigelow v. Johnson, 13 Johns. Rep- 429 . Jacob's Law Diet. Highways, III.) If there is no reference to the statute, it is waived ; and if the action is at common law, it cannot be supported by statute. An overseer of highways is not an officer known at the common law. And there is, at common law, a distinction between highways and bridges. The town, or parish, are bound to repair the highways, unless some individual is bound to repair, by prescription or by tenure. But in case of bridges, if no particular person is bound by prescription, or ralione tenures, r<> keep them in repair, the whole county must repair them; and the remedy, in either case, is by presentment or indictment. (2 Inst. ⅜)0, 701. 3 Com. Dig. Chernin, B. 2. B. 3. Cro. Car. 365. 1 Lord Raym. 715. 4 Burr. 2510. 5 Burr. 2700. 5 Term Rep. 499. 1 Bsp. N. F. Hep. 147. Balt. J. 26.) An action on the case will not lie by any individual against the inhabitants of the county, for an injury ^sustained in consequence of a bridge being out of repair. (Bro■ Abr. tit. Action sur le Case, pi. 93.) ■ In the case of Russel v. The Men of Devon, (2 Term Rep. 667.) the Court of K. B, said, there was no precedent for such an action, and that, on the ground of the very great inconvenience, it ought not to be maintained. Ashhurst, J., observed, “but it has been said, that there is a principle of law on which this action may be maintained, namely, that where an individual sustains an injury, by the neglect or default of another, the law gives him a remedy. But there is another general principle of law which is more applicable to this case, that it is better that an individual should sustain an injury, than that the public should suffer an inconvenience.” Then, what would be the inconvenience and extreme hardship, if this action against an overseer could be maintained ? The overseer of highways is compelled to accept the office, under a penalty of twelve dollars and fifty cents ; (2 N. R. L. 125. sess. 36. ch. 35. s. 10. 1 Rev. Stat. 505.) but if he is to be made liable to the action of every individual who may be injured, in consequence of a road or bridge being out of repair, who would not prefer paving the penalty ? Could any person be found willing to accept such an office ? The office is created by the statute, which prescribes the duties, and imposes penalties for a neglect of them ; but it gives no action for damages to any individual, and the right of action cannot be implied.

2. In all actions against an officer, whether at common law, or by statute, the declaration must state the particular duty,

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and the neglect of it. The declaration, in this case, states merely that the defendant was appointed an overseer of highways ; it does not aver that he had any duty to perform, unless, as overseer, he was bound to repair the bridge at his own expense. By the statute, (2 iV. it. L. 2/0. sess. 36. ch. 33. j jRet>. Slat. 505.) the overseers have nothing to do with bridges; they are, when directed by the commissioners of highways, to warn all persons assessed to work on highways, to collect fines, &e., and to execute all such orders of the commissioners of the town to which they belong, as shall be given to them in conformity to law. (Sect. 1, 2, 3. 5, 6, 7, 8, 9, 10. 14.) Until, then, the commissioners have *taken the steps pointed out by the statute, there is nothing to be done by the overseers, who are subordinate to the commissioners. It does not appear from the declaration, that any directions were given by the commissioners to the appellant, relative to this road or bridge ; nor that he had any authority to compel any assistance ; he was without power and without duty.. In Freeman v. Cornwall, ( 10 Johns. Rep. 470 .) the court pid, that the defendant was not answerable, in a private suit, for any error of judgment, as an overseer of highways; but only in the cases provided for % the statute, which subjects him to a penalty. (Bouton v. Reilson, 3 Johns. Rep. 474 .) If there was no right of action at common law, before the statute, there can be no remedy but under the statute, and the penalty only, for a breach or neglect of duty, can be recovered. (Almy v. Harris, 5 Johns. Rep. 175 . Jones v. Estis, 2 Johns. Rep. 379 . Rex v. Robinson, 2 Burr. 805. Rex v. Royal, 2 Burr. 832. 834. 1 Com. Dig. Action on the Statute, C.)

Again; in all actions against an officer, it is necessary to state, that he is an officer, what it was his duty to do, and that he has neglected or violated his duty. (5 Com. Dig. tit. Pleader, 2 O.) Now, the declaration in this case does not state what was the duty of the appellant, but merely that he was an overseer of highways, and that, not regarding his duty, he negligently suffered the bridge to be out of repair. Such a general averment is not sufficient. The presumption of law is, that every officer does his duty. Where the law presumes an affirmative, the plaintiff must aver and prove the negative. (1 Sound. 228. c. 1 Chit. PI. 226. 2 East, 192.) By the statute, the power to raise money to repair roads and bridges is given to the commissioners of highways ; they are to apply the fines and penalties to the repairs of roads and bridges. The overseers have nothing to do with bridges, except, «'here moneys have come into their hands, out of the fund raised by the commissioners, from fines and commutation money. The respondent should have averred and shown, that the appellant had the means in his hands of making the repairs to this bridge.

It seems to have been presumed by the court below, that

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what was required by the statute to charge an overseer, was ^proved, merely because the declaration stated, that the defendant was an overseer, and had neglected his duty ; but before that presumption could legally exist, it ought to have been shown, that the action was brought on the statute ; otherwise, that fact is first to be presumed, and, then, that the duty required by the statute has not been performed.

3. But it will be said, that all these defects and omissions in the declaration are cured by the verdict. If so, then, if the plaintiff should obtain a verdict, it would stand, though the declaration contained no cause of action at all.

'.Che case of Townsend v. The Susquehannah Turnpike Company ( 6 Johns. Rep. 90 .) is not applicable; an overseer cannot be considered as the owner of the road, and entitled to take toll.

Foot, contra,

admitted, that if a party had no right or remedy at common law, he could not resort to the remedy given by statute, without referring to the statute. The third, section of the act relative to highways, (2 N. R. L. 270. 1 Rev. Stat. 501. 503.) points out the duty of the overseers; they are required to repair and keep in order the highways within the several districts for which they shall be elected, to warn all persons assessed to work on the highways to come and work when required by the commissioners, to collect all fines and commutation money, and to execute all such orders of the commissioners, as shall be given by them in conformity to law. By the thirteenth section, they are to receive moneys for that purpose, and to account in writing to the commissioners for the same. If any road or bridge is directed by the commissioners to be repaired, it is the duty of the overseers to see that the repairs are made. Now, the declaration alleges, that the appellant was an overseer of highways of the town, and being such overseer, well knowing the premises, but wrongfully and injuriously intending to injure the said W. C., and not regarding his duty in that behalf, as overseer, &e., but wholly neglecting the same, negligently and wilfully suffered and permitted the bridge to be out of repair, &c., whereby the mare fell, &c.

To support the declaration, it was necessary for the *plaintiff below to prove, at the trial, that the defendant was overseer, that the commissioners had directed the bridge to be repaired, and had supplied him with money for the purpose, and that he neglected to have the repairs done, &c. Now, after verdict, the court will intend, that all those facts were proved, for the issue joined, necessarily required the proof of them. (1 Chit. PI. 402. 1 Saund. 228. a. note 1. and cases there cited. 1 Johns. Rep. 276 .)

Then the main question arises, supposing all these things to have been proved, and found by the verdict, is the overseer

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answerable to the party injured, by his neglect of duty, in an on the case ? It is said, that the duty is created bv the statute, which gives only a penalty ot ten dollars tor a breach of that duty. Suppose1 the commissioners had given the overseer 300 dollars, for the purpose of repairing a bridge, anc] |1(3 neglected to do it, and applied the money to his own use, and a horse should fall through the bridge and be killed, would not the owner of the horse have a right of action against the overseer, for an injury caused by his wilful neglect of duty ?

The cases decided in England are not applicable here. There, it is not the duty of individuals, except by prescription or tenure, to repair roads and bridges, but of counties, towns, and, parishes at large, (2 Term Rep. 106—111.) so that the person injured cannot sue any particular person, nor can he bring his action against the county, town, or parish, as they are not corporations, but is compelled to proceed by indictment. Here the duty «' imposed on certain individual officers. In the kiwi v. The Men of Devon, (2 Term Rep. 667—673.) Lord Ki nijon admits, that “ an action would lie by an individual for an injury which he has sustained against any other individual who is bound To repair.” We rely on the well settled principle of the common law, that where it is the duty of a particular person to do a certain act, and in consequence of his neglect to do the act, another sustains an injury, an action lies. The duty of the overseer, it is admitted, is created by the statute, and we complain that, by his wilful neglect to perform that duty, we have suffered an injury.

*Crary, in reply,

said, that no case had been cited or shown, in which an action of this kind had ever been maintained. In England, by the stat. of 2 and 3 PA. & Mary, c. 8., surveyors of highways were appointed, who were bound to accept the office, under a penalty, and whose duties were like those of the overseers of highways under our statute; yet no case is to be found of a suit against these officers by any individual, for an injury suffered in consequence of a neglect of duty. The statute imposes no duty for the neglect of which an action will lie at common law. No man could be found to accept the trust, if he were liable to such an action.

The objections, on the part of the plaintiff in error, to the judgment, may be included in the two following, viz.:

1. That no action will lie against an overseer of the highways, at the suit of any private individual, for not repairing a public bridge.

2. If such action can be sustained, in any case, yet that, in this' case, no cause of action is stated in the declaration, and it is bad after verdict.

Though the sum in controversy is small, yet the principle

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involved in the case is important, and may deeply affect every part of the community.

1. I have examined the act to regulate highways, (sess. 36. eh. 33. 1 Rev. Stat. 501. 505.) to discover the power and duty of the overseer, and the responsibility to which he maybe subjected.

The 1st section makes it the duty of the commissioners of highways to give directions relative to the repairing of the roads and bridges within their respective towns, and to cause to be kept in repair the highways and bridges, and to require the overseers, as often as they shall deem necessary, to warn the assessed to work on highways, to come and work thereon, with such implements, carriages, cattle, and sleds, as the commissioners shall direct.

The 3d section makes it the duty of the overseers of highways to repair and keep in order the highways, within their road districts, to warn all persons assessed, to come and work when required by the commissioners, to collect all fines %nd commutation money, and to execute all such orders of the commissioners of the town as shall be given by them in conformity to law.

From these two sections, it would seem, that the overseer is a mere, subordinate agent to execute the orders of the commissioners of highways, and that his duty, so far, consists principally in warning persons to work, and in collecting fines and commutation money. It is, indeed, said to be the duty of the overseers to repair and keep in order the highways, but the first section had already made it the duty of the commissioners to give directions relative to the repairing of roads and bridges, and to cause the highways and bridges to be kept in repair. It cannot have been intended to be the equal and concurrent duty of the commissioners and the overseers to do the same thing; for their orders and acts might interfere and come in collision with each other. All the powers of the overseers must, therefore, be taken to be subordinate to, and under the superior control of, the orders of the commissioners, whom they are bound to obey. It is further to be observed, that the duty of the overseers in these two sections is confined to the highways, and it is the commissioners alone who are directed to keep in repair bridges as well as highways. The overseers have no concern with bridges erected over streams, except so far as they are directed generally to execute the orders of the commissioners.

The 5th section directs the overseers to deliver to the commissioners lists of the persons in their road districts, liable to work on the highways, and the commissioners are to assess the number of days each man is to work, and return the lists to the overseers. And if the assessment should not be sufficient, the overseers are then authorized, in the 6th section, to make another assessment.

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The 8th section directs commutation money to be paid to the overseer; and the 9th section provides, that the overseer shall make complaint to a justice of all persons who shall not, without due excuse, work according to notice ; and the fines to be collected for such defaults are to be paid to the overseer, and this commutation money, and these fines, *the overseer is to expend in improving the roads and bridges in his district.

This is the only part of the act which gives the overseer any power or direction as to bridges. He is to expend the commutation money and fines which came into his hands, on the roads and bridges; and even this expenditure must, no doubt, be under the direction of the commissioners, who are specially charged with that duty; and they may, by the 11th section, direct this money to another object, by directing the overseers to buy an iron scraper for the use of the road district. Again; by the 13th section, the overseers are annually to account to the commissioners, of the persons who have worked, and the number of days, and of those who have commuted or been fined, and of the manner in which the fines and commutation money have been expended, and they are directed to pay the unexpended moneys over to the commissioners, who are to apply it in making and improving the roads and bridges. The overseers are liable to a penalty of five dollars for neglecting to account, and by the 14th section, they are liable to a penalty of ten dollars, for every neglect of duty under the act. The commissioners recover these penalties, and are to apply them in making and improving the roads and bridges in the town.

Here, again, the commissioners, are to apply the moneys on the roads and bridges; and it is a fact well worthy of notice, that whenever the repairing of bridges is mentioned in the act, it is always in reference to the duty of the commissioners, except in the single case of moneys arising from fines and commutation. From the general provisions, and the whole policy of the act, there seems to be no doubt, that even those moneys are to be expended on the roads and bridges tinder the orders of the commissioners. The superintendence and control of the overseers, as well as the general charge and duty of repairing bridges, rest with the commissioners. Thus, also, by the 31sf section, the commissioners are to account annually to the supervisors for all the moneys received from fines and commutations, or otherwise, and to report the improvements which have been made, or which are necessary to be made, on the roads and bridges; and the moneys which the board of supor-visors shall #direct to be raised in any town for those purposes, are to be paid to the overseers of highways on the order of the commissioners. And again ; in the 33d section, if the erection or repair of a bridge becomes an unreasonable burthen on any town, the supervisors are to raise a requisite sum from the county, to be paid over to the commissioners of the town.

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In short, it appears, from a careful examination of the several provisions of the act, that the commissioners, and not the overseers, of highways, are the responsible persons in respect to the erection or repair of bridges. The overseers have nothing to do with bridges, but in the single instance in which they receive fines and commutation money, or other money, under the order of the commissioners. In every other part of the act, the duty of repairing bridges and expending money for that purpose, is expressly vested in the commissioners. The overseers were intended to be chiefly confined to highways. They are to warn the people to work with their implements and teams on the highways. The construction or repair of bridges is a distinct business. It is an act in which the people summoned to work with their implements and teams, are not supposed to be skilled. Bridges cannot be made or repaired without money to purchase materials, as timber, plank, and iron ; and when the act speaks of the application of money, it is uniformly to roads and bridges. The overseers are under the orders of the commissioners, even in the very section in which it is declared to be their duty to repair the highways: and they are subject to a penalty for neglecting or refusing to do any service under the act enjoined on them by the commissioners; and who are even to supply vacancies among the overseers occasioned by death or otherwise.

My conclusion, from this analysis of the act, is, that with respect to bridges, at least, if not to highways, the commissioners. and not the overseers, are the persons properly responsible to the public. With respect to bridges, the duty of the overseers (if any duty they have on that subject, independent of the orders of the commissioners) is to apply the moneys they may receive from commutation and fines (when not directed otherwise) in improving the roads and %ridges. It is not bridges alone, but roads and bridges; and how much shall be applied to each distinct object, or whether all to one, and none- to the other, must rest in the judgment and discretion of the overseer.

Such a limited and precarious duty in the reparation of bridges cannot, as I apprehend, afford ground for a private action against the overseer, from any and every person who may happen to be injured by a bad bridge within his district.

When the law renders a public officer liable to special dam ages for neglect of duty, the cases are those in which the services of the officer are not uncompensated or coerced, but voluntary and attended with compensation, and where the duty to be performed is entire, absolute, and perfect. Here is no absolute duty in the overseer to repair bridges. The most that can be said is, that if he should happen to have money in his possession, arising from such an accidental source as fines and commutation, and the commissioners shall not have di

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rected otherwise, that then he may apply it in improving the r°ads and bridges. The duty is. at all events, very imperfect, and depending on contingencies for its creation, and resting muc^ on discretion in its performance. The record, in this case, does not inform us what particular bridge was out of repair, nor what expense was requisite to improve it. It only says, that a certain bridge, in the town of Salem, was “ broken and shattered.” It may have been one of the bridges over the Batten Kill, a large, and, at times, a very impetuous stream, and we can hardly suppose a case under the statute, in which the overseer of a road district was under such a clear and certain duty to repair a broken and shattered bridge over such a stream, as to be legally chargeable with all damagi - to any amount, that travellers might sustain by reason of the bridge.

Another reason why the repair of bridges must and ought to belong to the commissioners, is, that each overseer is confined to his own district, and these districts are created by the commissioners, and they alone can appropriate the moneys arising under the act in such a manner, as to render the bur-then of repairing the bridges fair and equal upon all the inhabitants of the town.

#If a private suit will lie in any case, for the recovery of damages occasioned by a broken bridge, I should suppose that the commissioners of highways are the only persons to be sued. Their duty is to give directions relative to the repairing of the roads anal bridges, and to cause to be kept in repair the highways and bridges. This seems to be a general duty applicable at all times, and in all places; yet, when we come to read the details of their duty, we perceive that it does not exist absolutely, but arises only when the commissioners have money in hand, from forfeitures and penalties, or which has been paid over to them under the direction of the supervisors. Except in one case, the commissioners have a discretion to apply the money upon the roads and bridges ; their duty does not go further than to the expenditure of those particular moneys, and they may expend it upon the roads and bridges, or upon either of them, as they shall deem best. The only case in which money is to be exclusively applied to bridges, is when the supervisors raise, money on the county at large, for some particular bridge or bridges, and then the appropriation must be specifically applied to such bridge. And though the question, whether the commissioners might not be liable to a private suit, is not now before us, I should rather be inclined to think, that the objection to such a suit applies to them as well as to the overseers. There is no certain, stable, absolute duty in the case. It is not like the case of an individual bound by a private statute, or by a certain tenure, to keep a road or bridge in repair, nor like the case of turnpike companies. There, the duty is perfect, and binding

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at all times, and is founded on a valuable consideration. The roads and bridges must, at all events, be kept in repair, according to ordinary diligence. It is a condition of the grant. The duty is not casual or contingent, but inevitable. In the case, however, of these commissioners and overseers, the duty depends upon a train of circumstances ; it is very indefinite, and is varied and regulated by their discretion. There is not that precision and certainty of duty, that ought to make them responsible to individuals to any extent, and for any damage. The law has not supplied them with the pecuniary means, or armed #them with the coercive power requisite to meet and sustain such an enormous and dangerous responsibility.

The argument to be drawn from the English law, on this subject, is very strong against the right of action. There are officers, under the English law, equally as under ours, charged with repairing the roads and bridges ; they have existed, and been known from ancient times, and yet there is no case in the English books, nor any precedent under our colony government, of any such private action ; this affords a very strong presumption, that no such action will lie.

No man at common law, says Lord Coke, (2 Inst. 701.) was bound to repair a bridge, unless he was charged with that duty under some condition of tenure or prescription. The duty of repairing bridges belonged to the county ; and the remedy at common law, for not repairing a public bridge, was by presentment or indictment, in order to avoid multiplicity of suits. (2 Inst. 701. Cro. Car. 365. Com. Dig, tit. Chemin. B. 3. 2 Black. Rep. 685 . Andrew’s Rep. 101. 285.) The first English statute on the subject is the 22 II VIII. c. 5., by which the general sessions of the peace were authorized to inquire into, hear, and determine, all annoyances of bridges broken, and to inflict pains on such as were charged to make and mend the bridges ; and this remedy the sessions were to apply, as the K. B. had been used to do. The statute further provided, that if a bridge was within any city or corporate town, the inhabitants thereof should make and repair it; and if not, that then the inhabitants of the shire or county should do it; and the inhabitants were to be assessed by the sessions, for money necessary to make or repair the bridges; and the sessions were to appoint two surveyors to receive the money, and see that the bridges were repaired, and to account to the sessions.

Here we find, as early as the time of king II VIII., officers appointed, analogous to our commissioners or overseers of highways, whose duty it was made to receive moneys and repair the bridges : and yet there is no trace of any private action having ever been brought against these surveyors. It was made a question, at Sergeant’s Inn, long after this act #of II. VIII., who ought to repair bridges and highways, and how they should be compelled; and it was held, that as to bridges, the county was chargeable with the reparation of them, and that

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the statute of 22 II VIII. was but an affirmance of the common ^aw 011 that point: but it was observed, that if a person was entitled to take toll for passing the bridge, he was bound to repair it, for he had the toll for that purpose, et qui sentit com-moaum, senlire debet et onus, bo, a man, or a corporation, might be bound to repair a bridge, by reason of some tenure or condition in their grant of land ; or if it was a private road over which B. had a passage, B. might have his writ de ponte reparando. But, except in such special cases, it was a county burden, both as to bridges and highways, and the remedy was not by suit against the surveyor or justices, but by presentment or indictment against the county, or against some individuals thereof, for and in the name of all the rest, (2 Inst. 701. Popham, 192, 13 Co. 37. s. 7.) .

The next English statute on the subject, was the 2 and 3 P. &f M. ch. 8. which related to highways only, and directed the constables and churchwardens of each parish to call the inhabitants together annually, to choose in each parish, two surveyors and orderers for mending highways, who were bound to assume the trust, under a penalty of twenty shillings, and who were to direct and order the persons to be appointed to work on certain days, to be named by the constables and churchwardens. The statute then directs the mode and manner of the work, and prescribes penalties for default, and the moneys arising from fines and forfeitures, were to be bestowed upon the highways.

This statute contains the outline and substance of our own act; and yet no private suit was ever brought against these surveyors and orderers, for damages arising from neglect of duty.

The statute of 1 Ann. 1. c. 18. continued the act of 22 II. VIII. with some alterations, and, among other things, it directed the general sessions of the peace to appoint treasurers to receive and apply, under their direction, the moneys assessed and collected for repairing bridges ; and *all fines and forfeitures were to be appropriated for the same purpose.

The statute of 13 Geo. III. c. 78. reduced all the former laws on the subject of highways into one act, and by it the sessions were to appoint a surveyor of highways for each parish with a salary, and ample superintending powers relative to the highways. The system of English law on the subject now is, that the care of repairing the roads belongs to each parish, and that of bridges devolves upon the county, unless the county or parish can throw the onus on some individual, by reason of tenure or prescription. But neither the surveyors, in respect to highways, nor the surveyors or treasurers, in respect to bridges, are held responsible to individuals for the damages which they may sustain by means of the bad or decayed state of the roads or bridges. The remedy, in both cases, is by indictment at the suit of the king, or for the penalty prescribed

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by the statutes; and I apprehend that no good reason can be assigned why the overseer or commissioner should be liable to a private suit under our act, or at common law. and yet that the surveyor of highways, under the English laws, who is charged with a similar duty, should not be liable. The same rules or principles of law are applicable to both cases.

In the case of Russell v. The Men of Devon, (2 Term Rep. 667.) an attempt was lately made in England to recover, in a private suit, damages suffered in consequence of a bridge being out of repair, and the attempt was to charge two of the inhabitants of a county in behalf of all the rest. But it was held by the K. B., that no civil action lay against the inhabitants of a county for an individual injury, in consequence of a breach of their public duty. The county was not a corporation for that purpose, and had no corporate fund. The court referred to the case of 5 Edw. IV. fo. 3. mentioned in Bro. tit. Action sur le Case, pi. 93. as being good law, in which it was held, that if a highway be out of repair, so that a horse be mired and injured, no action lies by the owner against him who ought to repair it, for it is a public matter, and ought to be reformed by presentment. This case, then, is an authority equally to show, that no private suit will lie in a case of a broken bridge, *which is to be repaired by the county, or of a bad road, which is to be repaired by the parish. And when the judges admitted that an action would lie by one individual, for an injury sustained by neglect or default, against any other individual who was bound to repair a bridge, they certainly did not allude to the surveyor, or other public officer entrusted with that duty. They must have alluded to such cases as those mentioned by Lord Colee, in which an individual, or a corporation, may be bound to repair a private bridge, or a public bridge, by reason of tenure or prescription, or the grant of the toll.

We have every reason to presume, that our legislature did not intend to charge the officers, entrusted with the superintendence and repair of the public roads and bridges, with any greater responsibility, by private suit, than the penalty given against overseers for neglect of duty. If that had been their intention, and if they had meant to introduce a new rule on the subject, I think the law would and ought to have been explicit. To sustain añ action, at this day, against all former practice, is taking these officers by surprise. We have had our commissioners and overseers of highways, from the first settlement of the colony; and the weight and responsibility of the trust must have been understood and settled in public opinion, according to the English law. In 1691, the freeholders of each town were directed, by statute, to choose annually surveyors and ordcrers of the work for amending highways. The very names of the officers, we perceive, were borrowed from the statute of Philip & Mary. Afterwards,

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there were colony road acts for almost every county. Thus, by an act in 1732, the inhabitants of Suffolk county were to mend their highways, under the orders and directions of the commissioners or overseers of highways; and, by acts, in 1744, and 1745, and 1750, each town in the other counties, in the southern district, together with Dutchess, Orange, and Albany, were to keep the roads in repair, and the commissioners were to direct the overseers to warn the people to work; and if the overseers thus neglected to see the roads and bridges mended, they were liable, for every neglect, to a penalty of 40 shillings, which was to be applied towards repairing *the same. Under this colonial usage, founded on the English statutes, we derive our present code of highway regulations; and it differs from the English in this particular, that with them, the care of bridges belongs to the county, but with us, it belongs to each town, subject, however, to county aid. when •the burthen on the town might be too great.

My conclusion, therefore, is, that the only private action against the overseers, is the one given by the act, which is for the penalty of ¾⅜ 10, arising on every breach of duty, and which may be repeated, again and again, for every neglect. But it is with some distrust and reluctance that I have arrived at this conclusion, inasmuch as I am obliged to differ from the opinion of a tribunal, for which I entertain the most entire respect.

2. But, if I am mistaken on this point, and it should be considered by this court, that an action will lie, in certain cases, by an individual against an overseer of the highways, for not repairing a bridge, then 1 am of opinion, on the second point, that the declaration in the case does not set forth a sufficient cause of action ; and it is a defect which is not cured by verdict, but is bad upon a writ of error.

The duties of the overseer are all created and prescribed by the act regulating highways, and if an action will lie, it must be founded upon a breach of the duties there enjoined. The declaration ought to have stated specially the cause of action arising under the statute. It ought to have stated specially every fact requisite to enable the court to judge whether there has been a breach of duty. This appears to be a sound and well settled rule of pleading in actions founded upon statute. (Com. Dig. tit. Action upon Statute, G. If A. 3. Com. Dig. tit. Pleader, C. 76. 4 Johns. Rep 193 . Cole v. Smith. 1 Johns. Hep. 402. Morrell v. Fuller. 8 Johns. Rep. 218 . S. C. 8 Johns. Rep. 342 . Newcomb v. Butterfield.)

The declaration in this case states, generally, that the overseer neglected his duty, and wilfully suffered a bridge to remain broken, by means of which the plaintiff sustained an injury. This was not enough. There is no special duty charged, nor are the facts stated from which a breach of *duty is to be inferred. The mere fact, that the defendant was an overseer of highways, and that a bridge within his road district was out "

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of repair, gives no right of action. If the overseer had no money, arising either from fines or commutation, and no order, or if he had a contrary order, in respect to the bridge, from the commissioners, he was not guilty of a breach of duty, though he did wilfully suffer the bridge to remain out of repair. He was under no obligation, simply because he was overseer, to repair the bridge. Ííis obligation, if any, arose from the means which he had in his power, and from which alone the law deduced his duty. But the declaration does not state the means, and, therefore, it lays no foundation for the duty. This objection strikes me as fatal. The overseer ought to have had an opportunity, by pleading, to traverse the facts creating his particular and special duty to repair the bridge, but the plaintiff deprived him of that opportunity by omitting to state any such facts. Nor will it be sufficient to say, that the facts creating his duty must have been shown upon the trial, and that we are now, after verdict, to presume so. The court are never to presume a cause of action, even after verdict, when none appears. A title defectively set out may be cured, but not a total defect of title. (1 Salk. 364. 3 Wils. 275. 3 Burr. 1728.) Suppose the declaration had only stated, that it was the defendant’s duty to repair a certain bridge, and that, by the neglect of such duty, the plaintiff had lost a horse, but had omitted to state how it, was his duty, and had not even stated him to have been an overseer, would that have been sufficient? Yet we might, with equal reason, presume, in that case, as in this, that the duty, whatever it was, or from whatever quarter it arose, must have been made out at the trial, or a verdict could not have been rendered. Stating the defendant to be an overseer, without saying more, is not stating the duty. The word overseer might as well have been omitted, because an overseer is not, merely as such, and by virtue of his office, bound to repair a bridge. He is only bound, under special circumstances, occurring while he is in office ; arid it is those special circumstances that create the duty, and not the office, by itself. There must be the office, and there must be the ♦money, and they both must concur to create the duty, and the absence of the one is just as fatal to the right of action as the absence of the other.

The rule, on this subject, is well stated by Lord Ch. B. Gilbert, (Hist. C. PI. 139.) when he says, that “ if any thing essential to the plaintiff’s action be not set forth there, though the verdict be found for him, he cannot have judgment, because, if the essential part of the declaration be not put in issue, the verdict can have no relation to it, and if it had been put in issue, it might have been found false. And such matter, as is the foundation of the action, not being alleged, there is no ground for the judgment; as if an action of trespass be brought by a master for beating his servant, and it does not sav, per quod servitium amisit, this is ill after verdict.

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Whatever is essential to the gist of the action, and cannot be cured by verdict, are such substantial facts as must be kid, so that the defendant may traverse them distinctly, if he pleases; for, as he may traverse the whole, so he may traverse each substantial part, in order to put the weight of the cause Up0n any thing that will put an end to it.”

On the other hand, those defects, or omissions, in pleading. which are cured by the verdict, are those necessary circumstances which are implied by law, and which inevitably follow from the substantial fact charged. Thus, where it is pleaded, that land was assigned for (lower, it is not necessary to say it was by metes and bounds, for that follows of course, as included in a lawful assignment; and where it is pleaded that the sheriff' made his warrant, it is presumed to have been under seal, for it could not have been a warrant if it was not; and if a man avers he is heir to A., the death of A. is implied, for there could be no heir if he were living.

There are some important cases to which I may refer, as a further and more full and complete illustration of these distinctions.

In Rushton v. Aspinal, (Doug. 679.) the suit was against the endorser of a bill of exchange, and the declaration stated, that the acceptor had accepted, and, according to his accept-anee, on request, had refused to pay, of all *which the defendant had notice on the day of the date. This was a mistake in the pleading, for the bill was payable in three months after date. On error to the K. B., alter verdict, it was contended, on one side, that the facts of the demand and notice were circumstances, without which the jury would not have found for the plaintiff, and it must now be presumed that they were proved to have been made at the proper time. But to this it was replied, that if the rule be carried so far, a writ of error could never be supported in any case after verdict. The court would intend, that facts imperfectly stated had been completely proved, but they never could presume, that a material fact, which was not at all stated, had been proved. Lord Mansfield, in giving the opinion of the court, in favor of reversing the judgment, observed, that in looking into the cases, he found the rule to be, that where the plaintiff had stated his ground of action defectively or inaccurately, the circumstances requisite to complete the title so imperfectly stated, must be proved at the trial, and it is a fair presumption, after verdict, that they were proved. But if he omits to state his title, it need not be proved, and there is no room for presumption. That in the case before him, it was not requisite to prove either a demand on the acceptor, or notice to the endorsor, because they were not laid in the declaration, nor were they circumstances necessary to any of the facts charged. He referred for illustration to the case of Hitchin v. Stevens, (2 Show. 233.) where the grant of a reversion was stated without attornment;

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but as the attornment was a necessary ceremony to give effect to the grant, it was presumed to have been proved. He referred, also, to the case of Buxendin v. Sharp, (2 Salk. 662.) where the plaintiff declared, that the defendant kept a bull that used to run at men, but the scienter having been omitted in the declaration, it was held bad after verdict, for the action would not lie unless the owner knew of this quality in the bull; and it was not to be intended to have been proved at the trial, because it was not charged.

it appears to me, that the declaration, in the present case, is more thoroughly defective than in any of the cases which have been mentioned. It is only stated, that the defendant, %ot regarding his duty as overseer, did not repair the bridge ; but there is no fact charged, to show that it was his duty more than the duty of any other man. It might as well have said, that, being supervisor, or commissioner, or justice, or constable, he disregarded his duty, and suffered the bridge to remain broken. There is nothing in the statute to make it his duty to repair bridges, unless he happens to receive moneys by fines or commutation, or under the order of the commissioners, and no such fact is charged; and it being a substantive fact by itself, and not necessarily implied in the fact charged of his being an overseer, it is not to be presumed to have been proved.

The case of Spieres v. Parker, (1 Term Rep. 141.) is another pertinent decision on this subject. It was an action of debt under the statute of 19 G. 2. for a penalty for impressing a seaman, and the declaration contained an averment, that the seaman had not deserted from his majesty's ship Diamond. A motion was made in arrest of judgment after verdict, on the ground, that the declaration ought to have followed the statute, and averred, that the seaman had not before deserted from any of his majesty’s ships of war. The objection prevailed, and Mr. J. Bailer observed, “ that nothing was to be presumed after verdict, but what was expressly stated in the declaration, or what was necessarily implied from the facts which were stated.” He said he knew of no decision against that rule, and he gave a familiar instance of an exception to it, in the case of a feoffment pleaded without livery, where the livery is implied, because it was a necessary part of a feoffment. He made similar remarks in the subsequent case of Bishop v. Hayward, (4 Term Rep. 470.) in which he said, that “ we were bound to look at the title which the plaintiff himself had stated, beyond which no presumption could be admitted. The cases of presumption are, where the plaintiff has stated a case defective in form, but not where he has shown a title defective in itself, and on the face of it.”

For these reasons, as it appears to me, the declaration did not state any facts requisite to show, that the overseer was bound to repair the bridge, and that, consequently, the judgment is erroneous, even admitting that the overseer #might,

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under certain circumstances, be responsible in a private action for neglect of duty.

January 10th.

In either view of the case, then, whether we look to the nature of the action, or to the manner in which the party has stated his complaint, I am of opinion, the judgment is erroneous, and ought to be reversed.

This being the unanimous opinion of the court, it was thereupon ordered and adjudged, that the judgment of the Supreme Court be reversed, &c.

Judgment of reversal.