ance as distinguished from non feasance. It is like the case of one who lawfully digs a pit in the highway and puts a temporary bridge over it for public passage. Such a one is bound to use care in constructing and maintaining the temporary bridge.

The same distinction prevails in Massachusetts, where it has been held that at common law neither cities, counties, nor towns were liable for mere nonfeasance to a person injured by a defective highway.

Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332 and cases cited.

But the liability for misfeasance has been repeatedly enforced.

Doherty v. Braintree, 148 Mass. 495; Waldron v. Haverhill, 143 Mass. 582; Doane v. Randolph, 132 Mass. 475; Hawks v. Charlemont, 107 Mass. 414.

The construction and maintenance of the temporary structure are part and parcel of the general work of reconstruction, and negli gence in such construction and maintenance the county commissioners with a guaranty by bond any person injured may sue on the bond, and, if no guaranty has been taken or the period has expired, may recover damages of the county, an action against a county on the ground that a bond of insufficient amount was taken, was denied. Barbour County v. Horn, 41 Ala. 114.

Where the evidence affirmatively showed that the bridge was not erected by contract of the county commissioners as provided by $ 456, Code 1886, providing that a bond of indemnity shall be required of a contractor building a bridge, and if none is taken the county shall be liable for injuries caused by defective condition, under which the plaintiff sought to fix the liability upon the County, no recovery could be had. Roberts v. Cleburne County (Ala.) 22 So. 545.

In Covington County v. Kinney, 45 Ala. 176, it was held that in cases not under Ala. Rev. Code, $1396, providing substantially as § 1203 for a liability for defective bridges on failure to take a bond from the contractor, counties were not required to keep public bridges in repair, and no liability attached for an injury from a defective bridge built by private subscription, although it was shown that the county bad at one time paid for hauling lumber to repair said bridge, but the repairs were done by citizens gratuitously.

And under Ala. Rev. Code, § 1396, a county was not liable for injuries caused by a defective public bridge, where the bridge was not erected by a contract with the court of county commissioners, and was not such a bridge erected under the provisions of the Code as required the county to keep it in repair. Sims v. Butler County, 49 Ala. 110.

And in Barbour County v. Horn, 48 Ala. 649, it was said there was no liability against a county for damages from a defective bridge in the absence of a statute imposing a liability.

And a detached county in which was a defective bridge was not liable for injuries caused by such bridge where it was built by the county from which this county was detached, but there was no statute imposing a liability upon the detached county.

Nolan v. King, 97 N. Y. 565, 49 Am. Rep.

561.

All public corporations are liable for creating nuisances.

Thayer v. Boston, 19 Pick. 511, 31 Am. Dec. 157; Hawks v. Charlemont, 107 Mass. 414.

There is no sound distinction between the sanction of an obligation voluntarily assumed by a public body and that of an obligation which the legislature in the due exercise of its powers has imposed upon it.

1 Thomp. Neg. p. 619; Jones, Neg. of Mun. Corp. $ 59-69, pp. 113-129.

Where a duty to maintain or repair a highway or bridge is imposed by law upon a county, the county will be held liable at common law out of its corporate funds for an injury occasioned to an individual arising from the neglect to keep the bridge or highway in repair.

Mahanoy Twp. v. Scholly, 84 Pa. 136; Newlin Twp. v. Davis, 77 Pa. 319; Rapho & West Hempfield Twp. v. Moore, 68 Pa. 404. 8 Am. Rep. 202; Dean v. New Milford Twp. 5 Watts & S. 545; Anne Arundel County Comrs. v. Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. 730.

In Askew v. Hale County, 54 Ala. 639, 25 Am. Rep. 730, it was said "that a county is not liable to an individual for an injury sustained, because of its failure to exercise a governmental power with which it is clothed, or because it is not exercised in the manner most conducive to the safety of the public, or because of the negligence or unskilfulness of its officers or agents, in the absence of a statute expressly declaring the liability."

Georgia.

In Georgia there is a statute imposing a liability where the bridge is a toll bridge built by the county or a bridge built by contract, if the county fails to take a seven-year guaranty bond, but the county is not liable after the expiration of seven years or for defects existing in other bridges.

So, a county was liable in damages for an injury resulting from a defective bridge where the bridge was built by a contract, and the county failed to take the bond, under Ga. Code, § 671, providing that when a public bridge is let out the contractor must in his bond make a condition to keep it in good repair for at least seven years, although the injury complained of occurred more than seven years after its completion. Mackey v. Murray and Whitfield Counties. 59 Ga. 832. (See Gwinnett County v. Dunn, 74 Ga. 358. This case is in effect overruled by Monroe County v. Flynt, 80 Ga. 489, although not referred to in that case.)

And where a county bad let out a bridge by contract, and bad failed to take a bond of sufficient guaranty, and injury was caused thereby, under Ga. Code, § 691, providing that if no bond or sufficient guaranty has been taken by the ordinary, the county is also liable for damages, it was held that the plaintiff could sue either the county or the contractor. Arnold v. Henry County, 81 Ga. 730.

And where the time covered by the contractor's bond for keeping it in repair had expired, and the county did not make a new contract for that pur

456; Krause v. Davis County, 44 Iowa, 141; Kincaid v. Hardin County, 53 Iowa, 430, 36 Am. Rep. 236; Huff v. Poweshiek County, 60 Iowa, 529; Cooper v. Mills County, 69 Iowa, 350; Hannon v. St. Louis County, 62 Mo. 313; Sims v. Butler County, 49 Ala 110; Jackson v. Greene County Comrs. 76 N. C. 282; Threadgill v. Anson County Comrs. 99 N. C. 352: White v. Chowan County Comrs. 90 N. C. 437, 47 Am. Rep. 534.

The foregoing cases were recently overruled on the ground that by the true construction of the Indiana statute the county was not charged with the repair of bridges, and could not, except in special cases, appropriate county funds to repair them.

Jasper County Comrs. v. Allman, 142 Ind. 573; McCalla v. Multnomah County, 3 Or. 424; Eastman v. Clackamas County, 32 Fed. Rep. 24; Wilson v. Jefferson County, 13 Iowa, 181; Brown v. Jefferson County, 16 Iowa, 339; McCullom v. Black Hawk County, 21 Iowa, 409; Soper v. Henry County, 26 Iowa, 264; Collins v. Council Bluffs, 32 Iowa, 324, 7 Am. pose but undertook to keep the bridge in repair itself. Davis v. Horne, 64 Ga. 69.

And a county was liable for an injury caused by a public bridge being out of repair where such county had failed to take the contractor's bond, under Ga. Code, § 691, providing that if the county authorities fail to take the bond required by § 671 of the Code then the county shall be liable in the place of the contractor, and such bridge was built prior to the passage of the act of 1888, and where the injury occurred by reason of a horse becoming frightened at a hole in the bridge and backing the buggy over into the stream below, there being no bannisters or railings. (There was no question made as to the cause being fright. In this case the bridge was built to connect two counties, and one county refused to co-operate, and the suit was against the county which built the bridge.) Cook v. De Kalb County, 95 Ga. 218.

In Hammond v. Richmond County, 72 Ga. 188, it was said that where the statute provides a liability for counties for failure to take a bond to keep a bridge in repair, a recovery can be had for injuries.

And where a county was liable for injuries caused by a defective bridge, the county commissioners could be compelled by mandamus to pay it. Dearing v. Shepherd, 78 Ga. 28.

In Moreland v. Troup County, 70 Ga. 714, it was held that the right to recover for injury from a defective bridge was not affected by the adoption of the Constitution of 1877, art. 7, § 6, ¶ 2, restricting the taxing power of a county, and a demurrer to the petition on the ground that the injuries occurred after the adoption of the Constitution was overruled.

But a county was not liable for injury caused by want of proper repairs to a public bridge, where there was no allegation that the bridge was erected by letting it out to the lowest bidder, and that no bond was taken from the contractor faithfully to perform his contract and to indemnify for all damages occasioned by the failure so to do and to keep the bridge in good repair for seven years,

In the New England states and in many others it has been held that there is no distinction in liability between the cases of cities, counties, and towns, and that all three classes of corporations are free from such liability at common law.

Farnum v. Concord, 2 N. H. 392; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Mower v. Leicester, 9 Mass. 247, 6 Am. Dec. 63: Brady v. Lowell. 3 Cush. 121; Morgan v. Hallowell, 57 Me. 375; Jones v. New Haven, 34 Conn. 1; Hewison v. New Haven, 37 Conn. 475, 9 Am. Rep. 342; Sussex County Chosen Freeholders v. Strader, 18 N. J. L. 108, 35 Am. Rep. 530; Pray v. Jersey City, 32 N. J. L. 394; Detroit v. Blackeby, 21 Mich. 84, 4 Am. Rep. 450; Winbigler v. Los Angeles, 45 Cal. 36; Taylor v. Peckham, 8 R. I. 349, 5 Am. Rep. 578, Black v. Columbia, 19 S. C. 412, 45 Am. Rep. 785; Young v. Edgefield Dist. Road Comrs. 2 Nott and for such further time as may be embraced in the contract, under Ga. Code, § 691, providing that on failure to take such bond the county is liable. Collins v. Hudson, 54 Ga. 25.

And a recovery was denied where a party was injured by a defective bridge which was built under a contract awarded on May 12, 1888, and a bond was taken, as Ga. act December 29, 1888, did not apply to bridges which had been let out and built before the passage thereof. It was said that before the passage of the act of 1888 counties were not primarily liable for injuries received from defective bridges where they had taken bond as required by law from the contractor. Mappin v. Washington County, 92 Ga. 130.

And under Ga. Code, § 671, requiring, in case of county bridges built by the lowest bidder, that the contractor should give a bond for seven years, and a bond for three years was taken, the county was not liable where the accident occurred before the three years expired, as the contractor was primarily liable. It was said that if the accident had happened after the three years the county would probably have been liable, as in that event the county should be treated as having taken no bond at all under the Code, § 691. Mappin v. Washington County, 92 Ga. 130.

And where there was no contract to build the bridge, and it had been more than seven years since it had been built, and it was a public bridge, and was not under bond, a county was not liable for injuries caused from the same being out of repair. It was held that Ga. Code, December 29, 1888, on the subject of county bridges (Acts 1888, p. 39), was not applicable to any county bridge erected before the passage of the act, and under the prior laws the counties were not liable in a case of this kind. Bibb and Crawford Counties v. Dorsey, 90 Ga. 72; Grays v. Bibb County, 94 Ga. 698.

And a county was not liable for injuries caused by neglect of the proper authorities to repair a bridge where it was not a toll bridge or one built by contract, under Ga. Code, § 709, providing for suit against counties for neglect to keep bridges in

& M'C. 537; Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep. 762; Stilling v. Thorp, 54 Wis. 528, 41 Am. Rep. 60; Hiner v. Fond du Lac, 71 Wis. 74; Arkadelphia v. Windham, 49 Ark. 139

Other courts, agreeing in the proposition that there is no distinction in liability between counties, cities, and towns, hold that they are all equally liable for negligence in the maintenance of public highways and bridges whereby an individual is injured.

Dean v. New Milford Twp. 5 Watts & S. 545; Rapho & West Hempfield Tups. v. Moore, 68 Pa. 404, 8 Am. Rep. 202; Mahanoy Twp. v. Scholly, 84 Pa. 136; Newlin Twp. v. Davis, 77 Pa. 317; Chandler v. Fremont County, 42 Iowa, 58; Wilson v. Jefferson County, 13 Iowa, 181; Anne Arundel County Comrs. v. Duckett, 20 Md. 468, 83 Am. Dec. 557; Jackson v. Greene County Comrs. 76 N. C. 282; House v. Mont gomery County Comrs. 60 Ind. 580, 28 Am. Rep. 657; McCalla v. Multnomah County, 3 Or. 424; Eastman v. Clackamas County, 32 Fed. Rep. 24; Hannon v. St. Louis County, 62 Mo. 313; Sims v. Butler County, 49 Ala. 110. Some classes of duties undoubtedly pertain strictly to the government, such as the furnishing of jails, court houses, and the distribution of public charity.

Alamango v. Albany County Supers. 25 Huo, 551.

Other classes of duties belong to the private repair when the bridge is a toll bridge built by the county, or $ 731, providing that if a bond is not taken from the contractor the county shall be liable for damages, did not apply. Scales v. Chattahoochee County, 41 Ga. 225.

A county was not liable for injuries resulting from a defective bridge where it was not alleged that toll was charged, under Ga. Code, § 669, providing that the ordinary may establish a toll bridge for the benefit of the county; but when toll is charged the county is liable as individuals owing them. Arline v. Laurens County, 77 Ga. 249.

In Arline v. Laurens County, 77 Ga. 249, the cases of Gwinnett County v. Dunn, 74 Ga. 358, and Collins v. Hudson, 54 Ga. 25, were approved.

In Gwinnett County v. Dunn, 74 Ga. 358, it was held that an action did not lie against a county for damages caused by neglect of proper authorities to repair a bridge, where it was not shown that it was a toll bridge or such a one as was built by a contractor, and that there was a failure to take the proper bond of indemnity required by the Code. Following Scales v. Chattahoochee County, 41 Ga. 225, and Collins v. Hudson, 54 Ga. 25.

In Gwinnett County v. Dunn, 74 Ga. 358, it was said that the decisions in Mackey v. Murray and Whitfield Counties, 59 Ga. 832, and Davis v. Horne, 64 Ga. 69, seem to have been made without any reference to Collins v. Hudson, 54 Ga. 25.

In Monroe County v. Flint, 80 Ga. 489, it was held that a county was not liable for injury from a defective bridge although no bond was taken and more than seven years had expired, under Ga. Code, § 671. providing that the contractor must in his bond make a condition to keep it in good repair for at least seven years, as the construction would be that a contractor would be liable and the county would be liable if they failed to take the bond, and the contractor would be liable to keep the bridge in good repair for seven years, and the liability of the county did not extend beyond that. This case virtually overrules Mackey v. Murray and Whitfield Counties, 59 Ga. 832, but does not refer to that case.

and corporate character, such as the maintenance of the New York and Brooklyn. Bridge. Walsh v. New York, 107 N. Y. 220. Or such as the maintenance of public docks.

Mersey Docks & Harbour Board v. Gibbs, 11 H. L. Cas. 686.

Or beacons.

Gilbert v. Trinity House, L. R. 17 Q. B. Div. 795.

The cases in this state holding that towns could not be sued for negligence are put upon the ground that the town is not charged with the duty of repairing highways.

Morey v. Newfane, 8 Barb. 645. See also People, Loomis, v. Little Valley Town Auditors, 75 N. Y. 317.

The artificial reasoning which is used to discharge the county is exhibited in the opinion in Albrecht v. Queens County, 84 Hun, 399.

Mr. Townsend Scudder, for respondent: A county is a corporation of limited corporate capacity and liability, and is under no liability in respect of torts.

1 Dill. Mun. Corp. § 22, 23 et seq; Ensign v. Livingston County Supers. 25 Hun, 21; People, Dwning, v. Stout, 23 Barb 338; Hamilton County Comrs. v. Mighela, 7 Ohio St. 109; Bertles v. Nunan, 92 N. Y. 152. 44 Am. Rep. 361; Fitzgerald v. Quann, 109 N. Y. 441; Northern Transp. Co. v. Chicago, 99 U. S. 635, 25 L. ed. 336; People, Keene, v. Queens County

A county was not liable for damages caused by a defective bridge where the plaintiff by the use of proper care could have prevented the injury. Macon County v. Chapman, 74 Ga. 107. Kansas.

In Kansas it was formerly held that there was no implied liability against counties for failure to keep a bridge in proper condition, but now a statute provides that if the chairman of the board of county commissioners has five days' notice of such defects the county will be liable.

So, a county was not liable for injuries caused from a defective public bridge in the absence of any statute imposing a liability. The court said there is a distinction between the liability of cities and of quasi corporations like counties in this state. Marion County Comrs. v. Riggs, 24 Kan. 255.

Where defects in a county bridge are described by witnesses who have knowledge of the same, and the character and extent of such defects are comprehensible by the ordinary mind, the jury are the judges of the safety of such bridge for travel, and evidence by a witness, even an expert, as to his opinion, is incompetent. Murray v. Woodson County Comrs. (Kan.) 48 Pac. 554.

But a county is only bound to exercise reasonable or ordinary care and diligence in the discovery and repair of defects in its bridges, under Taylor's Kan. Gen. Stat. 1889, ¶ 7134 (Laws 1887, chap. 237). providing that any person who shall without contributory negligence sustain damage by reason of a defective county bridge may recover from the county, where the chairman of the board of county commissioners shall have had five days' notice of such defects prior to the time when such damage was sustained. Murray v. Woodson County Comrs. (Kan.) 48 Pac. 554.

In an action under Taylor's Kan. Gen. Stat. 7134 (Laws 1887, chap. 237), to recover for injuries occasioned by a defective bridge, it must be proved that the chairman of the county board had notice of such defect, and the presumption that another

The maintenance of highways and bridges is a public, not a private, function of government, and for its exercise a county does not incur a liability to an individual.

Maxmilian v. New York, 62 N. Y. 160, 20 Am. Rep. 468; Lloyd v. New York, 5 N. Y. 374, 55 Am. Dec. 347; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332.

A county, in caring for highways and bridges, performs a duty properly belonging to the towns within its limits; a town not being liable for defects in highways and bridges, the county can incur no liability by the performance of this duty.

Hill v. Livingston County Supers. 12 N. Y. 52; Barber v. New Scotland, 88 Hun, 522; Martin v. Brooklyn, 1 Hill, 545; Waldron v. Hav erhill, 143 Mass. 582; Doherty v. Braintree, 148 Mass. 495; Hawks v. Charlemont, 107 Mass. 414; Mower v. Leicester, 9 Mass. 247, 6 Am. Dec. 63; Bigelow v. Randolph, 14 Gray, 541; Chidsey v. Canton, 17 Conn. 475; Reed v. Belfast. 20 Me. 246; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302; Morey v. Newfane, 8 Barb. 645; People, Van Keuren, v. Esopus Town Auditors, 74 N. Y. 316; Hill v. Boston, 122 Mass 344, 23 Am. Rep. 332.

The bridge in question was in the control of member told him will not be indulged. Murray v. Woodson County Comrs. (Kan.) 48 Pac. 554.

Where the evidence showed that the county rebuilt, maintained, and undertook to repair a bridge at the expense of the county, which cost more than $200, the court properly instructed the jury "there is no dispute of the fact that the bridge and approaches in question were built and paid for by the county." Nemaha County Comrs. v. Allbert (Kan. App.) 51 Pac. 307.

The mere fact that the board of county commissioners established a rule that the matter of repairing bridges should be left to the commissioners in whose district the bridge is located did not tend to show whether or not the chairman had actual notice of the defective and dangerous condition of the bridge, and such evidence was properly refused. Nemaha County Comrs. v. Allbert (Kan. App.) 51 Pac. 307.

2 Dill. Mun. Corp. SS 1028-1030; Engel v. Eureka Club, 137 N. Y. 100; Nolan v. King, 97 N. Y. 565, 49 Am. Rep. 561: Pack v. New York. 8 N. Y. 222; Blake v. Ferris, 5 N. Y. 48; Kelly v. New York, 11 N. Y. 432; McCaf ferty v. Spuylen Duyvil & P. M. R. Co 61 N. Y 178; Engel v. Eureka Club, 137 N. Y. 100.

Gray, J., delivered the opinion of the court: Plaintiff's intestate lost his life through the breaking down of the bridge over Newtown creek, and this action was brought to recover damages of the defendants, the county of Queens and the city of Brooklyn, for their alleged negligence with respect to the condition of the bridge. A bridge had long existed over Newtown creek, which was the boundary line between the counties of Kings and Queens; and, pursuant to an act passed in 1892, the boards of supervisors of these counties bad made a contract for its reconstruction. Meanwhile, a temporary foot bridge, for the accommodation of foot passengers during the progress of the work, was erected, and made use of by the public The plaintiff alleges that this temporary bridge was insufficient, out of repair, inadequate for its purposes, and not calculated to bear the strain to which it would be subjected, and that the defendants were

A county was liable for injuries caused to a person by a defect in a bridge, under Mass. Stat. 1794, chap. 30, which provided for imposing one half the expense on said county and the other half on a town, although the officers of the town had always made the necessary repairs, receiving one half of the expense thereof from the county. It was held that both the town and the county would be equally liable, but after verdict nonjoinder of the town could not be set up. Lyman v. Hampshire County, 140 Mass. 311.

Where plaintiff was injured by stepping into a hole on a bridge, and there was evidence that it bad existed for ten years, and that the officers of the county were very frequently on the bridge, it was a question for the jury whether the county might have had notice by reasonable diligence, and whether the injury to the plaintiff might have been prevented by care and diligence on the part of the

Massachusetts.

In Massachusetts there is a statute imposing a liability.

edge of the defect was not conclusive evidence of his negligence. Lyman v. Hampshire County, 140 Mass. 311. Michigan.

negligence in not keeping the same in repair. There appear to be no cases against counties under this statute. Nebraska.

In Nebraska a county was not liable in the absence of any statute, but there is now a liability imposed by statute for injuries caused to travelers from defective bridges.

A county was not liable for injuries caused by a defective public bridge in the absence of any statute imposing a liability. It was said: "Counties were not liable at common law for injuries caused in the manner set forth in the petition in this case, and our statute, in force at the time of the alleged injury, did not change the common-law rule." Woods v. Colfax County Comrs. 10 Neb. 552.

But a county was liable for negligence in failing