Bartlett v. Crozier

Spencer, J. delivered the opinion of the court. This is a writ of error to the common pleas of Washington; and the error relied on is, that the declaration contains no cause of action. The declaration sets forth, in substance, that Bartlett was duly chosen and qualified, according to law, an overseer of highways, for district number fourteen in the town of Salem, and took upon him the office ; that disregarding his duty in that behalf, and wholly neglecting the same, he wilfully suffered a certain bridge in said district, and on a public highway therein, to be and remain, for the space of three months, broken, dangerous, and unfit to be travelled over, he well knowing the premises ; and that during that time Crozier was driving a certain mare whereof he was possessed over the said bridge, and by reason of Bartlett's wilful negligence as aforesaid, in not repairing said bridge, the said mare fell through the same and broke her leg, whereby, &c. This is the substance of all the counts. To these the defendant pleaded not guilty. The jury found him guilty, and assessed the plaintiff’s damages. [254] The broad question is, whether a public officer, who wilfully neglects his duty, is responsible to any individual who suffers damage and loss in consequence of that neglect ? A preliminary objection deserves first to be disposed of., It is insisted that it is not averred that the commissioners of the town had done their duty in providing materials for the repair of the bridge, nor taken the steps required of them; and that it is not alleged that the defendant below had the means of making the necessary reparation. It is a settled rule, that if the issue joined be such as necessarily required, on the trial, the proof of facts either imperfectly stated or omitted, and without which it is not to be presumed that the court would direct, or the jury give the verdict, such defect or omission is cured by the verdict. (1 Saund. 228. a.) The declaration charges a wilful" neglect of duty on the part of the overseer, and this presented the very gist of the inquiry; it would not have been a wilful neglect of duty* or any neglect at all, if the default in repairing the bridge could have been attributed to the commissioners, or if the overseer had not the means in his hands to repair it,, or if he had been ignorant of the want of repair, unless the ignorance was culpable ; and we must now consider it as established by the verdict that there was an omission of duty on the part of the overseer, or else the verdict could not have een given. There can be no doubt, under the act to regulate high-v that it is the duty of the overseer of highways to rep he bridges within his particular district. (2 R. L. 270. § 3. 28.) All, therefore, that has been urged as to the duty to repair roads by the owners of the adjoining land, at common law, is entirely, inapplicable. It is a general principle of law, that wherever an individual has " sustained an injury, by the misfeasance or nonfeasance of an officer, who acts, or omits to act, contrary to his duty, the law affords redress by an action on the case adapted to the injury. Lord Kenyon, in the case of Russell v. The Men of Devon, (2 Term. Rep. 671.) admits, that an action will lie by an individual for an injury sustained by omitting to repair a road, against any other individual bound [255] to repair it, though he did not think the action lay at common law against the county. Without multiplying references, the principle on which this action rests, was recognized by this court in the case of Townsend v. The Susquehannah Turnpike Company, (6 Johns. Rep. 90.) That was an action founded on an injury done the plaintiff in the loss of a horse, by reason that one of the bridges of the corporation was so ruinous as to fall, when the plaintiff was crossing it with his horses. The court held that the action was sustained, on the ground that the corporation was bound to bestow ordinary care in the construction and repair of their bridges. The duty of the corporation in that case was an implied one, resulting from their ownership of the road, and the reception of toll. In the present case, the duty results from the acceptance of an office, that it shall be well and faithfully executed; and whoever suffers from its unfaithful execution, must have his remedy. It stands on the same principle as actions against ministerial officers for their neglect to execute their offices, to the injury of another; as against a sheriff for not serving a writ, or against an inn-keeper for refusing to receive and accommodate a traveller. Judgment affirmed, [258] the indemnity of the sheriff, and to save him harmless. (Barry v. Mandell, 10 Johns. Rep. 563. Tillman v. Lansing, 4 Johns. Rep. 45. M'Elroy v. Mancius, 13 Johns. Rep. 121.) Is not the surety equally bound ? Can he avail himself of the circumstance of the prior voluntary escape ? It is sufficient that he executed the bond voluntarily, and for a good consideration. The deed imports a sufficient consideration, and is binding, unless shown to be illegal and void. The surety cannot urge that his principal was exempted from the arrest, for he might waive that exemption. (Leal v. Wigram, 12 Johns. Rep. 88.) Admitting that Lawrence might avoid the bond for duress ; yet the surety in a bond cannot avail himself of such a ground of defence. (Huscombe v. Standing, Cro. James, 187. 5 Comyn's Dig. 644. Plead. (2 W. 19.))