Opinion of the Court- REAVIS, J. [20 Wash. there is some conflict of authority at common law as to whether a county is liable for failure to repair, the decided weight of authority is against the right. 1 Thompson, Negligence, § 616, and cases cited; Dillon, Municipal Corporations (4th ed.) § 996. And Judge Cooley, in his work on Torts (2d ed.), *page 622, states that, "at the common law a municipal corporation is not liable to an individual for neglect to keep a highway in repair, whereby he suffers an injury in using it." The leading case exempting counties from such liability, and upon which the cases in this country seem to be based, is Russell v. Men of Devon, 2 Term R. 667. This was an action brought against the inhabitants of the county of Devon for injuries sustained in consequence of a county bridge being out of repair. Two of the inhabitants, for themselves and others in the county, appeared and demurred generally. The demurrer was sustained. The reasons for the judgment were stated by Lord KENYON, C. J.: "But the question here is, whether this body of men, who are sued in the present action, are a corporation or a qua corporation, against whom such an action can be maintained. If it be reasonable that they should be by law liable to such an action, recourse must be had to the legislature for that purposes. I do not say that the inhabitants of a county or hundred may not be incorporated to some purpose; as if the king were to grant lands to them, rendering rent, like the grant to the good men of the town of Islington. But where an action is brought against a corporation for damages, those damages are not to be recovered against the corporators in their individual capacity, but out of their corporate estate; but if the county is to be considered as a corporation, there is no corporation fund out of which satisfaction is to be made." ASHHURST, J., said: Oct. 1898.] Opinion of the Court - REAVIS, J. "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 inconvenience. Now, if this action could be sustained, the public would suffer a great inconvenience; for if damages are recoverable against the county, at all events they must be levied on one or two individuals who have no means whatever of reimbursing themselves; for if they were to bring separate actions against each individual of the county for his proportion, it is better that the plaintiff should be without remedy." states. Manifestly, this reasoning is not applicable to counties now organized in this and most of the other American. While counties are political divisions exercising the functions of local governmental agencies for the state, there are many local municipal powers conferred upon them as such, and they may sue and be sued as corporations, and corporate funds are provided for the payment of judgments against the county, and the manner of the payment of such judgments specified by statute. But our statute expressly meets the suggestion of Lord KENYON, supra, that "if it be reasonable they should be by law liable to such an action, recourse must be had to the legislature for that purpose." Not only is provision made for an action against the county upon contract within the scope of its authority, but an injury to the right of the plaintiff arising from some act or omission of the county. The state of Oregon from an early date had a statute identical in its terms with that in force in this state, and, while such statute existed in that state, it was held to confer a right of action against the county for neglect in allowing bridges to be out of repair. McCalla v. Multnomah County, 3 Ore. 424; and again affirmed in Sheridan v. City of Salem, 14 Ore. 328 (12 Pac. 925). Such a liability against the county is held to exist in Massachusetts (Lyman v. County of Hampshire, 140 Mass. 311, 3 N. E. Syllabus. [20 Wash. 211); in Iowa (Wilson v. Jefferson County, 13 Iowa, 181; Krause v. Davis County, 44 Iowa, 141); in Maryland (Eyler v. County Commissioners of Alleghany County, 49 Md. 257, 33 Am. Rep. 249); in Pennsylvania (Humphreys v. County of Armstrong, 56 Pa. St. 204); in Indiana (House v. Board of Commissioners of Montgomery County, 60 Ind. 580, 28 Am. Rep. 657). Our statute appears to have been taken from Oregon after it had been construed by the courts of that state. We conclude that the injuries to the respondent arose from the omission of the county of Spokane to repair the bridge over which respondent was crossing, and that, under the statutes of this state, the county is liable for such negligence. The judgment of the superior court is affirmed. SCOTT, C. J., and ANDERS and DUNBAR, JJ., concur. GORDON, J., dissents. [No. 2418. Decided October 26, 1898.] NICK ROTTING, Respondent, v. JACOB CLEMAN et al., Defendants, J. H. RAMM, Appellant. PRINCIPAL AND SURETY NOTICE TO SUE - WAIVER PLEADING. where the answer of defendant in an action on a promissory note sets up the defense that he was a surety and that plaintiff failed, on his request, to sue the principal, a reply that after the alleged notice to sue was given by the surety, the latter instructed the plaintiff not to sue upon the note, is sufficient to warrant proof of the waiver. Unreasonable delay in suing the principal at the request of a surety is not shown, where notice to sue was given some time in February and a waiver of the notice given on the third day of the succeeding month. Oct. 1898.] Opinion of the Court-SCOTT, C. J. Appeal from Superior Court, Kittitas County.-Hon. CARROLL B. GRAVES, Judge. Affirmed. E. Pruyn, for appellant. Mires & Warner, for respondent. The opinion of the court was delivered by SCOTT, C. J.-This was an action upon a promissory note given by several parties. The appellant resisted payment on the ground that he was only a surety upon the note, and that, after the same became due, he had notified plaintiff thereof and requested him to institute forthwith an action thereon. The reply contained a denial of the giving of such notice, and also the further allegation: "That after the alleged notice to sue was given by the said defendant Ramm, to the said plaintiff Rotting, defendant Ramm instructed said plaintiff not to sue upon said note, and said defendant Ramm also instructed the firm of H. Remke and Brother, who had and held the said note for collection, not to sue upon the said note, long after the alleged notice to plaintiff to sue was given.' The trial resulted in a judgment for the plaintiff, and defendant Ramm appealed. He first contends that the matter above set forth in the reply was insufficient to constitute a defense or waiver of the notice pleaded in the answer, but we think the allegation was sufficient to warrant the proof. It is next contended that an unreasonable time had elapsed after the appellant gave the notice to sue, whereby he was released, and that no further liability could be incurred by him without a new consideration. Although not specifically so stated in the appellant's brief, we presume this has reference to the time between the giving of the notice to sue and the time of its alleged waiver. But, in any event, there is no foundation for error thereon in the 20 118 24 374 record, as it does not appear at what time the notice to sue was given, other than it was given on the day of February, 1894. This was so found by the jury in their special findings, and the jury also found that on the 3d day of March following the appellant agreed with the plaintiff that suit should not be brought at once, and consented that further time might be given the principal defendant. There was no unreasonable delay shown here. Affirmed. GORDON, ANDERS, DUNBAR and REAVIS, JJ., concur. [No. 2974. Decided October 26, 1898.] THOMAS KINSMAN et al., Appellants, v. CITY OF SPO- QUIETING TITLE -STREET ASSESSMENT AS CLOUD-PLEADING -TENDER. Under Code Proc., § 544 (Bal. Code, § 5521), authorizing an action to quiet title against any one claiming an interest in land adverse to the owner, such an action may be maintained for the removal of a street assessment as a cloud upon title, although the assessment is apparently barred by the statute of limitations. A complaint in an action to remove a street improvement assessment as a cloud upon title, upon the ground that it is barred by the statute of limitations, and also that it was without foundation in the first instance, is not demurrable because it does not allege a tender of the amount of the assessment. Appeal from Superior Court, Spokane County.-Hon. WILLIAM E. RICHARDSON, Judge. Reversed. Stephens & Bunn, for appellants: The statute giving this right of action to the party in possession does not confine the remedy to the case of an adverse claimant, setting up a legal title, or even an |