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 renire 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. N ERROR to the Circuit Court of the United INS States for the District of Columbia. The case is stated by the court. Mr. R. J. Brent, for plaintiff in error. 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, etc. No notice is taken in the verdict or judgment of the plea of property. The plea of property in replevin is a good plea in bar of the action. It is true, the plea in this case is not in due form, and might have 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 [*98 out of the plaintiff; and prima facie, therefore, he is not in condition to maintain the action. 12 Wend. 30, 34, 35. 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 Messrs. Badger, Jas. M. Carlisle and W. the said plaintiff. Under this plea, it was com 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 in arrear, under special circumstances stated, concluding with a verification. 3. Like avowal for rent due and in arrear generally. The plaintiff replied to the first avowry, no rent in arrear and unpaid. No notice is taken in the pleadings of the second avowry. This latter plea is good either in abatement or bar. and the party is entitled to a return without 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. Cas. 137; 3 Den. 590; Pringle v. Phillips. 1 Sand. 292. Plea of property in one of several plaintiffs and Hill & D. 426. a stranger is good. 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 Ñ. 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, i cannot be given in evidence. Dickson v. Mathers, Hemp. 65; Whitwell v. Wells, 24 Pick. 25; Dover v. Rawlins, 2 M. & Rob. 544. petent 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 the plaintiff, and hence he is not entitled to the 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 Property in defendant or a stranger may be pleaded with non cepit, and defendant may have a judgment on either issue. Cooper v. Bakeman, 32 Me. 192; Cummings v. Gann, 52 Pa. St. 484; Smith v. Morgan, 8 Gill. 133; Sprague v. Kneeland, 12 Wend. 161. It The general issue in replevin is, unless otherwise by statute, non cepit, which puts at issue merely the taking and detention. It is a plea in bar. admits the property in the plaintiff, and there can be no judgment for defendant for damages, nor for a return to him under it. 1 Chitty on Pleading, 490, 1 Str. 507; Seymour v. Billings, 12 Wend. 286; McFarland v. Barker, 1 Mass. 153; Smith v. Snyder, 15 Wend. 324; Ely v. Ehle, 3 N. Y. 506; 1 Addison on Torts (Wood's ed.) 829; Vose v. Harris, 12 Ill. 378; Rowland v. Mann, 6 Ired, 38; Carrol v. Hart, 19 Ark. 237; Bourk v. Riggs, 38 III. 320; Vickery v. Sherburne, 20 Me. 34; Harper v. Baker, 3 T. B. Mon. 421. 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 of property in plaintiff, and under it defendant may show property in himself. Dillingham v. Smith, 30 Me. 370; Heeron v. Beckwith, 1 Wis. 17: Scudder v. Worster, 11 Cush. 573; Gibson v. Mozier, 9 Mo. 256; Ashby v. West, 3 Ind. 170; Loomis v. Foster, 1 Mich. 165; Child v. Child, 13 Wis. 17. 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., Plffs. in Err., v. WILLIAM HART, Jr. (See S. C. 1 Black, 38, 39.) | August, 1859, returnable to the ensuing Decem- 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 be Writ of error, when to be returned—how served, cause it provided for a division of profits, with when attorney is dead. 'bring up the case. A writ of error which was not returned during the term to which it was made returnable, fails to A service of a citation on the attorney or counsel of the proper party is sufficient, but the executrix of the counsel on record is not the coun sel of her testator's client. Nor is one to be regarded as the counsel of a party, merely because he had been the partner of such parties' counsel, who is deceased. The courts can know no counsel in a cause, except those who regularly appear as such on the record. Where the citation was not served on the party or his counsel, the cause is not brought into this court, agreeably to the act of 1789; and the writ must be dismissed. out putting either partner under any responsibility for the suits conducted by the other. The courts can know no counsel in a cause except those who regularly appear as such on the record. The citation not being served on the party as his counsel, the cause is not brought into this court, agreeably to the Act of 1789; and the writ must, therefore, be dismissed for want of jurisdiction. Writ of error dismissed. ROGER C. WEIGHTMAN, Plff. in Err., v. Motion filed Dec. 30, 1861. Decided Jan. 13, THE CORPORATION OF WASHINGTON. 1862. (See S. C. 1 Black, 39-53.) IN ERROR to the Circuit Court of the United 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 term to which it was made returnable, and failed, therefore, to bring up the case. A second writ of error was taken by the defendant below in 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 u bridge constructed by the corporation, and which venient for travel; the court instructed the jury it was bound to keep in repair, and safe and conthat, 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 discre tionary, 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 lie against the Corporation, at the suit of an individual, for the failure on its part to perform such a duty. 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 perform the duty are placed at the disposal of the Corporation, or are NOTE. Bridges, different kinds, legislative pow er 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 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 unskiifulness in its performance. Corporations, like individuals, are liable for the negligent and unskilful acts of their servants and agents, whenever those acts occasion special injury to the person or property of another. Hutson v. City of New York, 5 Sandf. 297, citing 7 Johns. 439; 7 Wend. 474; 2 Hill, 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 Cor Where a bridge is placed under the sole control and management of a corporation, by its charter,poration are the considerations on which it has, 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 perform the duty enjoined. The City of Providence v. Clapp, 58 U. S. 161, and other cases on the subject, considered. Argued Jan. 2, 1862. Decided Jan. 13, 1862. IN ERROR to the Circuit Court of the United States for the of Columbia. This action was commenced in the court below by Weightman to recover damages for injuries 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. Messrs. Jos. H. Bradley, Badger and J. M. Carlisle, for plaintiff in error: 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; Delmonico v. City of N. Y. 1'Sand. 222; Mayor, etc. 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 granting 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. at all seasons 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, etc. 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. Rex v. 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 toll. 3d. Those built by private individuals and surrendered or dedicated to the public. Inhab. etc. of Yorkshire, 2 East, 342; Rex v. Inhab. etc. of Northampton, 2 M. & S. 262; Rex v. Devon, Ry. & 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; 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, ་ by accepting the charter, undertaken to discharge the duties and burdens imposed on it, as conditions of the enjoyment of those franchises. accepted by a majority of the grantees, or perFirst. No charter is of any effect until it is sons who are to be incorporated under it. Grant, Corp. 18, and cases and note; Rutter v. Chapman, 8 Mees. & W. 36, 85. It must be accepted, without condition, as it is granted. Wilcox, Mun. Corp. 30; Ang. & Ames (3d ed.), ch. 2, § 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. Ib.; 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. Ib. 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 charged with the execution of a specific duty, for the benefit of the public and of individuals, and means are in the same or some other instrument put into its hands, adequate to its full performance, it may be compelled to perform Fletcher v. Peck, 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. Co. v. Jones, 4 Rich. 459; Hall v. Boyd, 14 Ga. 1; Towles v. Justices, etc., 14 Ga. 301; Wright v. Nagle, 48 Ga. 367; Erie City v. Schwingle, 10 Harr. 384; Indianapolis v. McClure, 2 Cart. 147; Meadville v. Erie 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, etc. v. Macon, etc. 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, 8 Fost. 195; State v. Boscowen, 8 Fost. 195; Rogers v. Kennebec & P. R. R. Co. 35 Me. 319; Wis. Riv. Imp. Co. v. Lyons, 30 Wis. 61. Legislative authority is necessary: 1st. Where stream is navigable. 2d. Where state owns bed of the stream. 3d. Where the right to take tolls is desired. Fort Plain Br. Co. v. Smith, 30 N. Y. 44; see Com. v. Breed, 4 Pick. 460. To erect a toll bridge over a navigable stream forming a boundary between two states, the concurrent legislation of both states is necessary. Pres. etc. 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. it, and will be responsible to individuals injured | a public bridge, and so alleged. It spans a n by its negligent or improper performance of it. igable stream, and one abutment only is with Mayor of Lynn v. Turner, Cowp. 86; Grant, the corporate limits. The power is not grant Cor. 501; Henley v. Mayor of Lyme, 5 Bing. 91; as a private franchise. No toll can be exact S. C. 1 Bing. (N. C.) 222, in error; 2 Clark & nor can the Corporation derive from the brid F. 354, by all the Judges; Mayor of New York any advantage or emolument whatever. T v. Furze, 3 Hill, 612; Mayor of Albany v. Cun- power and its correlative duty are imposed liff, 2 N. Y. 165; Lloyd v. City of N. Y. 5 N. Y. the legislature upon a public municipal C 369; City of Pittsburg v. Grier, 22 Pa. 64; The poration, as an auxiliary in the work of gover Mayor of Baltimore v. Marriott, 9 Md. 160, ment, and over such a Corporation the legis 178; The City of Memphis v. Lasser, 9 Humph. ture has at all times, as the guardian of t 761, and the cases under the preceding points. public interests, the absolute control. Su corporations, unlike private corporations, ca not sustain their existence or powers upon t ground of contract between them and the leg lature, which may, at its discretion, alter abolish. 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 Law, 1791, ch. 45, § 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, from public considerations and for public purposes exclusively, and is not responsible for the nonfeasances or misfeasances of sub-agents necessarily employed. The nature of the power is public, and its object is the benefit of the public. The bridge is The acceptance of bridges dedicated to the public will not be presumed till they are proved to be of public utility. Rex v. Inhab. etc. 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 particar bridges. Hawk. P. C. C. 77, § 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. Buckinghamshire, 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. In the United States the duty of repairing bridges is regulated by state statute and is generally imposed on towns or counties. Lobdell v. New Bedford, 1 Mass. 153; Norwich v. Comrs. 13 Pick. 60; Lewis v. Litchfield, 2 Root, 436; State v. Franklin, 9 Conn. 32; State v. Compton, 2 N. H. Dartmouth College v. Woodward, 4 Whea 518, 536; Ang. & Ames, Corp. § 31. The duties of private corporations rest contract. The grant or charter may be a cepted or refused. But public municipal co porations are established for the purposes government, and do not depend on acceptan of charter. Ang. & Ames, Corp. § 81. It is not denied that a public municipal co poration may hold franchises or other propert in relation to which it is to be regarded as private company, and subject to the respons bilities attaching to that class of institution Bailey v. The Mayor, etc. of N. Y. 3 Hil 531, 540; S. C. on error, 2 Den. 434; Moodala v. The East India Co. 1 Br. Ch. 469. But as regards the power under consideratio here, it has not a single element of privat ownership, but stands on precisely the sam footing as the powers of the Corporation ove the streets of the city, which powers, it is jud cially settled, are exercised by the Corporatio as agent of the public. Smith v. Corp. of Wash. 20 How. 135, 148 Van Ness v. Corp. of Wash. 4 Pet. 232. No principle of law is better settled than tha public agents are not responsible for the mis feasances or nonfeasances of those whom they are obliged to employ. To such cases the doc trine of respondeat superior does not apply. 513; Bardwell 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, etc. T. Co. 6 Vt. 496; Townsend v. Susq. R. R. Co. 6 Johns. 189; Tolland v. Wellington, 26 Conn. 578; Linton v. 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 establish its usefulness public long enough to though repaired by it under protest, is a public State v. bridge, and the town must repair it. Compton, 2 N. H. 513; Wilson v. Jefferson, 13 Iowa, 181. It is held in Pa. that in the absence of specia! obligation or statute, the obligation to repair rests on the county, city or borough in which the bridge is. Meadville v. Erie Can. Co. 18 Pa. St. 66; Broomall's Appeal, 75 Pa. St. 173. Story, Ag. $8 319-322; Hall v. Smith, 2 Bing. | held on condition that they would repair or do 156; Harris v. Baker, 4 Maule & S. 27; Lane certain acts. So with the case from Carthew v. Cotton, 1 Ld. Raym. 646; Whitfield v. Lord and Shower cited by Park, J., in the latter Le Despencer, Cowp. 754; Duncan v. Findlater, case, where the agreement was implied from the 6 Cl. & F. 903, 910; Dunlop v. Munroe, 7 nature of the franchise granted, namely: the Cranch, 242, 269; Schroyer v. Lynch, 8 Watts, privilege of keeping a ferry. 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, argumenti 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. Dunlop v. Munroe, 7 Cranch, 242, 269; Bishop v. Williamson, 11 Me. 495, 506. What has been said as to the assumed neglect of the commissioner applies equally to the committee by whom the plan was adopted, if neglect can be imputed to them under this declaration and the evidence. 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 public 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, 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. 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, 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 of its officers to enforce an ordinance prohibiting swine running at large. So, also, in Griffin v. The Mayor, etc. of N. Y. City, 9 N. Y. 456; in Hutson v. Mayor, etc. of New York, 5 Sand. 303, 304. 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 identical 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 absurd 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. According to the transcript, the action was trespass on the case, and was brought by the plaintiff, to recover damages against the Cor |