
    Ephraim Mower versus The Inhabitants of Leicester.
    No action lies, at common law, against a town tor damages sustained through the 'defect of the highways in such town.
    The declaration was “ in a plea of the case, for that there is a certain post road and public highway, leading from New York to Boston, which passes through the town of Leicester; and the said inhabitants are, and on the 6th day of April last past, were, by law, obliged to keep in repair that part thereof which lies within the said town, with all the causeways, bridges, and sluices, thereon; and * the said Ephraim is the owner and proprietor of a certain public stage-coach, which is constantly passing and repassing over the said highway in the said town of Leicester; which said stage-coach, on the said 6th day of April, was passing on the said highway, within the said town of Leicester; and on the same day there was a certain stone bridge, or sluice, on the said highway, within the said town of Leicester, which was defective, and out of repair, by reason of a large hole between the stones in said bridge or sluice; and the said stage-coach, with the horses therein, being then and there moderately passing and trave'ling over the said bridge or sluice, one of the said horses, being the property of the said Ephraim, and of the value of one hundred and twenty dollars, without any fault or negligence of the driver, by reason of one of his legs passing through the .said hole, suddenly fell, and the said stage-coach pressing violently upon the said horse, he was then and there so severely injured, wounded, and biuised, that he afterwards died by reason of the injury, wounds, and bruises, which he then and there received.”
    The defendants pleaded not guilty, and, upon issue joined by the plaintiff, a verdict was returned for the plaintiff, with one hundred and twenty dollars damages. After which the defendants moved in arrest of judgment.
    
      
      Bigelow,
    
    for the defendants, was about to argue that the action was brought at common law, and that it did not lie; but the Court called on the plaintiff’s counsel to support the action.
    
      Blake and Lincoln for the plaintiff.
    An injury arising from the neglect of a duty enjoined by law, whether on an individual or a corporation, is a good foundation for an action at common law. Towns are, by statute,  enjoined to maintain in good repair all highways within their respective limits; and in case of their neglect of their duty in this regard-, and a special injury happening to an individual in consequence thereof, they 'are made liable to double the damages sustained thereby,  after reasonable notice.
    That an action at common law, for the recovery * of single damages only, will well lie for such an injury, was very candidly acknowledged by the learned counsel for the defendants, in the case of Lobdell vs. New Bedford; 
       although it was his duty in that action to contend that the evidence did not support an action for the double damages given by the statute.
    None of the objections, which prevailed in the action of Russell & Al. vs. The Men of Devon, 
       apply in this case. Here the town are a corporation, created by statute, capable of suing and being sued. They are bound by statute to keep the public highways in repair. They have a treasury, out of which judgments recovered against them may be satisfied. They are called upon to answer only for their own default. The objection that a multiplicity of actions would be the consequence of levying the execution on one or more individuals of the town, can have ím effect here, since it would equally apply to every action against a town or parish ; and yet such actions are every day brought and supported without hearing of this objection. Besides, individuals so situated have their remedy over against the corporation for the sum paid by them, and are not put to their action against each inhabitant for his several proportion, as the case referred to supposes in the case of an English county.
    The provision for recovering double damages in a case of this kind, found in the seventh section of the statute before referred to, which applies after notice to the town, shows plainly the understanding of the legislature, that towns should be liable for fair and adequate damages, though no such notice be given, and that an action therefor well lay at the common law¡
    
      Bigelow for the defendants.
    The case of Russell & Al. vs. The Men of Devon has received the full consideration of this Court in the case of Riddle vs. The Proprietors of the Locks and Canals on Merrimack River, 
       and the Court there expressly put counties and hundreds in England upon the same footing as counties and towns in this commonwealth, *in relation to the question agitated in the case first mentioned, which was similar in principle to the one before the Court in the case at bar.
    A town is not liable to indictment for the insufficiency of roads or bridges, unless negligence be proved ; and they cannot be liable to an action where they are not liable to indictment. But no negligence is charged in this action. If a town is liable to the action of a party for damages sustained by the defect of a highway or bridge, without notice of such defect, then if a sudden flood, or other violent natural cause, should suddenly render a road impassable, the town would be liable, even before sufficient time had elapsed to make the necessary repairs.
    The action was continued nisi for advisement, and at the ensuing November term in Suffolk, judgment was pronounced to the following effect: —
    
      
       1786, c. 81, § 1
    
    
      
      
        Ibid. § 7.
    
    
      
       1 Mass. Rep. 154.
      
    
    
      
       2 D.& E. 667.
    
    
      
      
         7 Mass. Rep. 169.
    
   Curia.

The plaintiff has brought his action against the inhabitants of the town of Leicester, for the loss of his horse, occasioned by the neglect of that town to keep a certain bridge in repair. The action is at common law, without alleging any notice to the inhabitants of the defect in the bridge, previously to the incurring of the damage by the plaintiff. But it is well settled that the common law gives no such action. Corporations created for their own benefit stand on the same ground, in this respect, as individuals. But quasi corporations, created by the legislature for purposes of public policy, are subject, by the common law, to an indictment for the neglect of duties enjoined on them ; but are not liable to an action for such neglect, unless the action be given by some statute. The only action furnished by statute, in this case, is for double damages after notice, dz-c. This question is fully discussed in the case of Russell & Al. vs. The Men of Devon, cited at the bar, and the reasoning there is conclusive against the action,

Judgment arrested. 
      
      
         [From the reasoning of the court, in Russell & Al. vs. The Men of Devon, that case seems to have been decided merely on the ground that no action would lie against the inhabitants of a town, unless given by some statute. If so, it is not very obvious how this decision can have any other tendency than to show that, upon principle, the action may be maintained here. — Ed.]
     