was in order that it might be sued as a legal entity in cases where previously actions were maintainable only in the name of the board of supervisors. pervisors were executing a certain public duty, imposed upon them as the proper public agents in that particular civil division of the state, and that the county could not be subjected to a private action for injuries occurring in, or by reason of, the performance of the work. I do not think it is consonant with the reason of the rule of law which concedes to the sovereign power in government an exemption from liability that a private individual may have a right of action against those who have but exercised a lawful power which was vested in them by the legislative body for the publicconvenience and welfare, and not for any private benefit of the corporate body. The appellant's counsel attacks the reason ing which distinguishes between counties and chartered municipal corporations in respect to their liability for corporate acts, as being unsubstantial and artificial, and he is able to cite us to some observations by text-writers to that effect. The distinction is none the less real, however, because processes of reasoning might lead to the conclusion that the two classes of corporations should be placed upon a par in their attributes and incidents. The distinction rests upon established conditions of state government, which must endure until the legisla ture expressly changes them. It has not unfrequently been the case that statutes have so far modified some common law condition, under which we were governed as a society, as to subject what remained of it to criticism similar to that now indulged in, but the rule is firmly established that the common law has been no further abrogated by a statute than is to be understood from the umistakable import of the language used. Bertles v. Nunan, 92 N. Y. 152, 44 Am. Rep. 361, presents an interesting discussion, in point, under that head. The conclusion I have reached after a careful consideration of the subject is that in the work of construction of this bridge the board of suwhere the injury would not have happened if there had been sufficient railing, the liability was allowed, but on this there is some little conflict, and a case in Indiana held that where the horse was frightened at the defective bridge and over-nedy v. Cecil County Comrs. 69 Md. 65. turned the buggy a recovery was denied. The judgment appealed from should be affirmed, with costs. Bartlett and Martin, JJ., dissenting: Where the duty to construct a highway or bridge is imposed by law upon a county, we see no reason why, in case of negligence and consequent injury to the citizen, there should be any substantial difference as to liability between counties and cities, as the former, like the latter, are now municipal corporations. The county, in the performance of this duty, is clothed with a special power, not intrusted to it as a political division of the state in the exercise of the sovereign power for the benefit of all citizens, but strictly in the interest of the municipality. mules did not necessarily imply any negligence or culpability on the part of the plaintiffs, and it was error to direct the attention of the jury to this sole inquiry without considering anything else. Ken And the fact that the conduct of the horse might Under an Oregon statute, providing for an ac- have been one proximate cause of an injury from tion against the county for injuries to the rights the failure to have railings on a bridge would not of plaintiff arising from some act or omission, a prevent the county from being liable if its neglicounty was liable where a horse became fright-gence was also a proximate and concurring cause ened because a plank was broken, and caused the other horse to go over a bridge which was unprotected. Eastman v. Clackamas County, 32 Fed. Rep. 24. And under a statutory hability to travelers from defective bridges a recovery was had where a horse was frightened by a hole in the bridge, and backed the buggy over into the stream below, and there were no banisters or railings. There was no question made in the case as to the proximate cause being fright. Cook v. De Kalb County, 95 Ga. 218. Where the plaintiff's horse took fright and backed her buggy off the approach to a bridge which had no guards or railings, the county was liable if the chairman of the board of county commissioners had notice of the defect and it was a county bridge. The question of contributory negligence was one for the jury, and the court did not discuss the question of fright. Nemaha County Comrs. v. Allbert (Kan. App.) 51 Pac. 307. Where plaintiff attempted to cross a small bridge which was out of repair, and his mules became frightened, and he was injured, an instruction that if the accident was caused by the fright of the mules the verdict must be for the defendant, unless the fright was caused by a defect in the road manifestly calculated to frighten horses of ordinary gentleness, and the defendants by the use of ordinary care and diligence might have known of the same in time to repair it, was erroneous in stating that the plaintiff was not entitled to recover under any circumstances unless the fright of the mules was caused by failure of duty on the part of the defendants. It was said that the fright of the of the injury. Parke County Comrs. v. Sappenfield, 6 Ind. App. 577, 10 Ind. App. 609. A county was liable for injuries resulting from a defective county bridge, where a hole in the bridge was covered by a stone which frightened plaintiff's horses, and there were no barriers on the approaches to protect the same. Moreland v. Mitchell County, 40 Iowa, 394. And a county was liable where a horse wasfrightened at a pile of rocks on a road, and backed the buggy over an unprotected approach to a bridge, where the fall of the horse and the accident were simultaneous. Rohrbough v. Barbour County Ct. 39 W. Va. 472. So, a county was liable for injuries caused by failure to keep a bridge in repair where a horsewas frightened at a crooked log placed at the corner of the bridge to keep the earth from washing away, and there was no railing. Sullivan County Comrs. v. Sisson, 2 Ind. App. 311. So, where the horse shied and death was caused by want of a railing over a county bridge, a recovery was allowed, in Shelby County Comrs. v. Blair, 8 Ind. App. 574. In Boone County Comrs. v. Mutchler, 137 Ind. 140. it was said that a county was liable where plaintiff's horse was frightened at a hog in a ditch on a free gravel road, and backed the buggy over the side of the bridge where there was no railing. The court said: "It is quite certain that the injury in this case would not have been caused had there been proper guards upon the bridge. And if it be conceded that the fright of the horse and the defect in the bridge were concurrent causes of the injury, INDIANA SUPREME COURT. BOARD OF COMMISSIONERS OF JAS APPEAL by defendant from a judgment of PER COUNTY, Appt., v. the Circuit Court for Newton County in favor of plaintiff in an action brought to re John L. ALLMAN, Admr., etc., of Reuben cover damages for the death of plaintiff's in P. Ryan, Deceased. (142 Ind. 572.) 1. Counties, being subdivisions of the state and instrumentalities of government ex ercising authority given by the state, are no more liable for the acts or omissions of their officers than the state. 2. A county is not liable by implication for damages caused by negligence of its officers in respect to keeping bridges in repair, where the county commissioners have no power to appropriate county funds for that purpose except when and so far as the road district is unable to make the repairs, and there is no statute giving a right of action against the county for its negligence or that of its commissioners, or authorizing the use of county funds to pay damages caused thereby. 3. It is the duty of the court to overrule a decision or series of decisions if clearly incorrect either through a mistaken conception of the law or through misapplication of the law to the facts, if no injurious results would follow from their overthrow. (November 25, 1895.) both present and active in the result, yet, as neither party was to blame for the fright of the borse, and as the appellant was alone to blame for the defect in the bridge, it is quite evident that the appellant cannot escape responsibility. Fulton County Comrs. v. Rickel, 106 Ind. 501; Shelby County Comrs. v. Sisson, 2 Ind. App. 311." But a county was not liable for injuries caused by a horse becoming frightened at a pile of lumber on a road and running away, as the county was not liable for defective roads. Ahbett v. Johnson County Comrs. 114 Ind. 61. In Fulton County Comrs. v. Rickel, 106 Ind. 501, it was held that a county was not liable for injuries caused by a horse becoming frightened at a plank standing upright in a bridge, as an injury caused by the horse's fright was not the proximate result of a breach of duty, and no greater duty is imposed | upon counties in respect to bridges than that of using ordinary care and diligence to make and keep them safe for travel. In this case the frightened horse caused the carriage to upset and there was no question made as to defective railing, but fright of the horse at the defective bridge seems to have been the cause. And a county was held not liable for injuries caused by a runaway team to a foot passenger on account of failure to erect proper barriers over a long and narrow county bridge in a large city, where the bridge was a solid stone bridge in good repair erected fifty years previous and sufficiently adequate at that time. It was further held that the commissioners were not negligent in anticipating that horses would become frightened on a wagon road and injure foot passengers; also that Pa. act February 18, 1870 (Pub. Laws, 191), providing that the commissioners of L. county are authorized to erect foot sidewalks adjoining the stone bridge at the expense of the county, was discretionary and not mandatory, for which there would be no liability. Lehigh County v. Hoffort. 116 Pa, 119, 19 W. N. C. 363. See also 47 L. R. A. 480. testate which was alleged to have been caused by a bridge which defendant had allowed to become defective. Reversed. The facts are stated in the opinion. Messrs. S. P. Thompson and Stuart Brothers & Hammond, for appellant: While the statute makes it the duty of the county board to cause the bridges of the county to be kept in repair, the county is not liable for injuries caused by defects in such bridges for the reason that there is no statute imposing such liability. Cones v. Benton County Comrs. 137 Ind. 404; Bailey v. Lawrence County, 5 S. D. 393. The rule of stare decisis cannot properly be invoked as a reason for following the line of decisions which hold counties liable in such cases. Certainly no one would have a right to incur a risk to his person from a defective bridge on the strength of decisions holding the county liable in such cases. The fact that he did so would be a most conclusive reason why he could not recover. 23 Am. & Eng. Enc. Law, p. 36. If the deceased knew, as he is presumed in the absence of an averment to the contrary to In South Carolina there is a statute imposing a liability, but where the proximate cause of the accident was the fright of a horse the county would not be held liable. Brown v. Laurens County, 38 S. C. 282. A county was not liable under a statute requiring roads to be kept in good repair, where a horse was frightened by two calves coming out of the bushes, and backed over a steep bank. There was some evidence to show that the plaintiff was guilty of contributory negligence. Smith v. Kanawha County Ct. 33 W. Va. 713, 8 L. R. A. 82. And under a statute imposing a liability for roads and bridges being out of repair a county was not liable where plaintiff attempted to cross a landslide on the road, and his horse ran away, as the driver was reckless. Phillips v. Ritchie County Ct. 31 W. Va. 478. And where a horse was being driven on a buggy across a public bridge, and as he put his fore feet on the bridge became frightened by a large hole under the bridge, and, backing, threw the buggy over the edge of the approach to the bridge, and the timbers there, being rotten, gave way with the rocks and rolled down upon the plaintiff and injured him, no recovery could be had, as the injury was not received because of the hole under the end of the bridge, but from the fright of the horse. Mason v. Spartanburg County, 40 S. C. 390. Under S. C. act, 1874, Gen. Stat. § 1087, providing that any person who shall receive injury in his person or property through a defect in the repair of a highway, causeway, or bridge, may recover in an action against the county, a county was not liable where a mule, drawing a buggy, became frightened at a placard advertisement on a bridge, and backed against the railing, which gave way and the vehicle was thrown over the bridge, and the commissioners as soon as they knew of the placard had it removed. Nor was it error to ask the jury, "Would a prudent man have driven his mule across the bridge, with two ladies in his buggy, with the sign staring him have known, of the dangerous condition of the approach as described, and attempted to cross it on a load of hay, as averred in the complaint, and met with his death by the wagon slipping off the grade, which was so narrow on top as to be dangerous for travelers and persons to pass and drive over,” he was guilty of such contributory negligence as precludes a re covery. Jonesboro & F. Turnp. Co. v. Baldwin, 57 Ind. 86; Indianapolis v. Cook, 99 Ind. 10; Morrison v. Shelby County Comrs. 116 Ind. 431; Wilson v. Trafalgar & B. County Gravel Road Co. 83 Ind. 326: Albion v. Hetrick, 90 Ind. 545, 46 Am. Rep. 230; Kiest v. Goshen, 42 Ind. 339; Wabash, St. L. & P. R. Co. v. Johnson, 96 Ind. 40: Gosport v. Evans, 112 Ind. 133; Horton v. Ipswich, 12 Cush. 488; Lake Shore & M. S. R. Co. v. Pinchin, 112 Ind. 592; Ohio & M. R. Co. v. Walker, 113 Ind. 196. A county, like a state, is not liable for the negligence of its agents and officers, unless made liable by a statute. Morris v. Switzerland County Comrs. 131 Ind. 285: Vigo County Comrs. v. Daily, 132 Ind. 73: Smith v. Allen County Comrs. 131 Ind. 116; Cones v. Benton County Comrs. 137 Ind. 404; Parke County Comrs. v. Wagner, 138 Ind. 609; Vermillion County Comrs. v. Chipps, 181 Ind. 56. 16 L. R. A. 228. The county is only liable when a bridge is so out of repair that it is in fact not what its appearance indicates. In this case the width of the bridge and its in the face?" This was not a charge on the fact within the provisions of the Constitution, art. 4. § 26, as the violation would be in the judge deciding a fact about which there was a dispute, and so instructing the jury. Acker v. Anderson County, 20 8. C. 495. d. By negligence of employee. Counties are not liable to travelers for injuries caused by negligence of employees, in the absence of a statute imposing such liability. So, the county commissioners were not liable for an 'injury sustained by a person driving on the county road by reason of a tree falling upon him through the negligence of a laborer employed by the road supervisors, under Md. act 1876, chap. 354, authorizing the appointment of a road supervisor by commissioners, who fix the price paid by the supervisors, but do not contract with the laborer. It was held that a laborer employed by the supervisor was not the servant of a county commissioner. Arundel County Comrs. v. Duvall, 54 Md. 350, 39 Am. Rep. 393. And where a cart driven negligently by a convict of the chain gang collided with plaintiff's buggy the county was not liable. Va. Code 1873, chap. 45, § 13. providing that counties may sue and be sued, did not impose any liability, as this provision applied to contracts. Fry v. Albemarle County, 86 Va. 195. And under S. C. act 1874 (Gen. Stat. 1087), providing liability for defective highways, causeways, and bridges, a county was not liable for loss of a wagon and mule from the sinking of a ferry boat. as this was not within the terms of the statute. Chick v. Newberry and Union Counties, 27 S. C. 419. II. Injuries to other persons. In the absence of a statute counties are not liable for personal injuries caused by reason of negligence in the construction or maintenance of public buildings. approaches, their relative height from the ground and the stream, were matters of the original plan, survey, and estimate. The plan was adopted by the board as one in its opinion suitable to the width of the highway, the banks of the stream, the extent of the travel, and all the circumstances; and this political determination of the board cannot certainly be changed at the behest of the circuit court or a pe it jury of another county. The liability must be limited to one class of persons also, to wit, travelers using due care in entering upon and passing over the bridge needing repair. O'Connell v. Lewiston, 65 Me. 34, 20 Am. Rep. 673; Mauch Chunk v. Kline, 100 Pa. 119, 45 Am. Rep. 364; Schaefler v. Sandusky, 33 Ohio St. 246. 31 Am. Rep. 533; Taylor v. Yonkers, 105 N. Y. 202, 59 Am. Rep. 492. Messrs. R. W. Marshall, Cummings & Darroch, and Brown & Hall, for appellee: In Parke County Comrs. v. Wagner, 138 Ind. 609, the court uses the following language: "We are unable to recede from the position of this state upon the question [liability of counties for defective bridges], since that position has been so often assumed that it has become a part of the law of the land,' and if hereafter departed from it must be by legislative direction," and in support of this proposition cites the following cases: Vigo County Comrs. v. Daily, 132 Ind. 73; Vermillion County Comrs. v. Chipps, 131 So, a county was not liable for personal injuries sustained by reason of the defective construction of its court-house, and the failure to keep it properly lighted at night. It was said that the question is similar to that of liability for a county bridge but that the doctrine of the liability of a county would not be extended. A distinction was made that under the Iowa Code, § 303, the board of supervisors are empowered to build and keep in repair the necessary buildings, and this imposes an involuntary duty to provide a place for holding court. But under the Code, § 303, subd. 18, providing that the board of supervisors shall have power to provide for the erection of bridges which may be necessary to keep the same in repair, the counties are not absolutely required to build any bridge, and when they elect to build a bridge there is a duty incurred which renders them liable for negligence. Kincaid v. Hardin County, 53 Iowa, 430, 36 Am. Rep. 236. And a county was not liable for injuries caused to a witness in attendance upon court who was injured by reason of negligence in not properly lighting the stairway in the court house. It was held that Ohio act March 12, 1853. § 7 (Swan's Rev. Stat. 181), providing that the boards of commissioners in the several counties shall be capable of suing and being sued, did not constitute or declare the county or the board of county commissioners a body corporate, and made no provision for claims against the county for torts. Hamilton County Comrs. v. Mighels, 7 Ohio St. 109. And a county was not liable where the plaintiff, then but eight years old, was injured while attending a school exhibition in the county court house, and fell from the veranda, which had no railing. It was said that a county is not liable for an injury arising from its neglect, or even its positive act, unless the liability is imposed by statute. Sheppard v. Pulaski County, 13 Ky. L. Rep. 672. In holding that a county was not liable for damages for personal injury caused by negligence in Ind. 56, 16 L. R. A. 228; Morris v. Switzerland County Comrs. 131 Ind. 285; Smith v. Allen County Comrs. 131 Ind. 116; Fulton County Comrs. v. Rickel, 106 Ind. 501. This court has frequently had occasion to sustain the doctrine of stare decisis. Monks, J., delivered the opinion of the court: This was an action by appellee to recover damages for the death of his intestate, caused, as is alleged, by a defective approach to a bridge over a watercourse. This action was commenced in Jasper county, and the venue Stout v. Grant County Comrs. 107 Ind. 343; Hale v. Matthews, 118 Ind. 527; Fowler v. Wal-changed to the court below. To the com lace, 131 Ind. 349. The approaches to a bridge are a part of a bridge, which it is the duty of a county to keep in repair as a part of the structure itself. Huntington County Comrs. v. Huffman, 134 Ind. 4; Driftwood Valley Turnp. Co. v. Bartholomew County Comrs. 72 Ind. 228; State, Winterburg v. Demaree, 80 Ind. 519; Shelby County Comrs. v. Deprez, 87 Ind. 509; Elliott, Roads & Streets, 24. It is the duty of counties to keep the bridges of the counties in repair, and for failure to do so damages may be recovered for injuries. House v. Montgomery County Comrs. 60 Ind. 580, 28 Am. Rep. 657; Driftwood Valley Turnp. Co. v. Bartholomew County Comrs. 72 Ind. 226; Shelby County Comrs. v. Deprez, 87 Ind. 509; Madison County Comrs. v. Brown, 89 Ind. 48; Howard County Comrs. v. Legg, 93 Ind. 523, 47 Am. Rep. 390; Allen County Comrs. v. Bacon, 96 Ind. 31; Porter County Comrs. v. Dombke, 94 Ind. 72; Patton v. Montgomery County Comrs. 96 Ind. 131; Vaught v. Johnson County Comrs. 101 Ind. 123; Knox County Comrs. v. Montgomery, 109 Ind. 69; Howard County Comrs. v. Legg, 101 Ind. 479; Wabash County Comrs. v. Pearson, 120 Ind. 426; Sullivan County Comrs. v. Sisson, 2 Ind. App. 317. the care and control of a court-house, it was said that counties are involuntary corporations organized as political subdivisions for governmental purposes, and not liable for the negligence of its agents unless made so by statute. It was further said there may be little distinction between the duties in regard to bridges and public buildings, but the rule as to bridges would not be extended. Vigo County Comrs. v. Daily, 132 Ind. 73. plaint, which is in one paragraph, appellant demurred, for want of facts, which was overruled. An answer of general denial was filed. The cause was tried by a jury. A special verdict was returned, and over a motion for a venire de novo, a motion for judgment in favor of appellant on the special verdict, a motion for a new trial, and a motion in arrest, judg: ment was rendered against appellant for $6,000. Appellant assigns as error the action of the court in overruling the demurrer to the complaint and the motion in arrest of judg ment. Appellant earnestly insist that "there is no liability by counties for injuries caused by the negligence of its officers in constructing or in repairing, or failing to repair, bridges over watercourses, for the reason that there is no statute imposing such liability; the overwhelming weight of authority is to the effect that the duty imposed upon counties to keep bridges in repair does not carry with it an implied liability to answer in damages for injuries sustained from defective or unsafe bridges, and that such liability can only arise from express statutory enactment; that the case of Cones v. Benton County Comrs. 137 Ind. 404, in effect overruled the former holdings of this court in Mass. 169, 5 Am. Dec. 35. it was said: "These are in the books sometimes called quasi corporations. Of this description are counties and hundreds in England; and counties, towns, etc., in this state. Although quasi corporations are liable to information or indictment, for a neglect of a public duty imposed on them by law, yet it is settled in the case of Russell v. Devon County, 2 T. R. 667, that no private action can be maintained against them for a breach of their corporate duty, unless such action be given by statute." In Eastman v. Meredith, 36 N. H. 284, 72 Am Dec. 302, which was an action against a town for personal injuries from a town hall, it was said that "towns and other municipal corporations, includ For damages caused by maltreatment of a person committed to jail by the ordinary preparatory to being sent to the lunatic asylum, under Ga. Code, § 1864. providing for proceedings to confine a lunatic at the instance of third persons a county, was not liable. It was said that the injured person must sue the jailor, sheriff, or those who mal-ing counties in this state, have power, for certain treated him while in jail. Wilson v. Fannin County, 74 Ga. 818. In this case his limbs were so badly frozen that one leg had to be amputated, and the toes on his other foot were frozen off. For injuries caused by negligence of the super intendent and building committee appointed by the county board to erect a court-house, where the building fell and killed one of the men, and it was not alleged that the defendants were owners of or had exclusive control of the building, or that the defendants had any power over the plans of the building or the character of the material to be furnished, a recovery was denied because there was no statute imposing a liability. Hollenbeck v. Winnebago County, 95 Ill. 148, 35 Am. Rep. 151. In Hill v. Boston,122 Mass. 344, 23 Am. Rep. 332, in a city case it was said of earlier cases that they "bave ever since been considered as having established in this commonwealth the general doctrine that a private action cannot be maintained against a town or other quasi corporation, for a neglect of corporate duty, unless such action is given by statute." In Riddle v. Proprietors of Locks & Canals, 7 purposes, to hold and manage property, real and personal; and for private injuries, caused by the improper management of their property as such, they have been held to the general liability of private corporations and natural persons that own and manage the same kind of property." (This was not only a dictum, but it is questionable whether this doctrine was ever applied to any county in New Hampshire.) 2. On account of escape from prison. Counties are not liable for escape of prisoners in the absence of a statute imposing a liability. In some states there is such a statute and the early Ohio cases affirmed an implied liability, but these cases were overruled. Under the Connecticut statute providing that if any person lawfully committed to gaol shall break such gaol and make his escape, by.reason of the insufficiency of such gaoi, the damages sustained by persons by reason of such escape shall be paid by the county, and that nothing in this act shall hinder any person from recovering damage of the Niles Twp. Highway Comrs. v. Martin, 4 Mich. 557: Adams v. Wiscasset Bank, 1 Me. 361, 10 Am. Dec. 88; Mitchell v. Rockland, 52 Me. 118; Altnow v. Sibley, 30 Minn. 186, 44 Am. Rep. 191; Dosdall v Olmsted County, 30 Minn. 96, 44 Am. Rep. 185; Sussex County Chosen Freeholders v. Strader, 18 N. J. L. 108, 35 Am. Rep. 530; Cooley v. Essex Chosen Freeholders, 27 N. J. L. 415; Young v. Commissioners of Roads, 2 Nott & M'C. 537; Farnum v. Concord, 2 N. H. 392; Eastman v. Meredith, 36 N. H. 284, 72 Am. Dec. 302; Morey v Newfane, 8 Barb. 645; Heigel v. Wichita County, 84 Tex. 392, 31 Am. St. Rep. 63, and note on pages 65 and 66; Ensign v. Livingson County Supers. 25 Hun, 20; Albrecht v. Queens County, 84 Hun, 399; Smith v. Carlton County Comrs. 46 Fed. Rep. 340; Barnes v. District of Columbia, 91 U. S. 540, 23 L. ed. 440; Bailey v. Lawrence. County, 5 S. D. 393; Cooley, Const. Lim. 6th ed. 301; 1 Dill. Mun. Corp. $ 25, 26; 2 Dill. Mun. Corp. $$ 996, 997, 999; 4 Am. & Eng. Enc. Law, pp. 364-367, and notes: 15 Am. & Eng. Enc. Law, pp. 1143, 1144, and cases cited in note; 1 Beach, Pub. Corp. § 734; Tiedeman, Mun, Corp. § 325. By common law, the inhabitants of a county were required to repair bridges over watercourses. Carroll County Comrs. v. Bailey, 122 Ind. 46, 48; State v. Gorham, 37 Me. 451; State. Whitall, v. Gloucester County Chosen Freeholders, 40 N. J. L. 302; State v. Hudson County, 30 N. J. L. 137; Rex v. Oxfordshire, 16 East, 223. Yet it is settled law that counties were not liable at common law for injuries caused by their negligence in failing to keep such bridges in repair. Cones could not have got out unless he had had assistance from some person outside. Paul v. Tolland County, 2 Root, 196. such cases." It must be admitted that the de- | cided weight of authority in such cases is as stated by appellant. From the numerous de cisions to the effect claimed, we cite the following: Cones v. Benton County Comrs. 137 Ind. 404; Smith v. Allen County Comrs. 131 Ind. 116: Morris v. Switzerland County Comrs. 131 Ind. 285; Vigo County Comrs. v. Daily, 132 Ind 73; Hollenbeck v. Winnebago County, 95 Ill. 148, 35 Am. Rep. 151; Templeton v. Linn County, 22 Or. 313, 15 L. R. A. 730; Manuel V. Cumberland County Comrs. 98 N. C. 9; White v. Chowan County Comrs. 90 N. C. 437, 47 Am. Rep. 534; Wood v. Tipton County, 7 Baxt. 112, 32 Am. Rep. 561; Brabham v. Hinds County Supers. 54 Miss. 363, 28 Am. Rep. 352; White v. Bond County, 58 Ill. 297, 11 Am. Rep. 65; Hedges v. Madison County, 6 Ill. 567; Lorillard v. Monroe, 11 N. Y. 392, 62 Am. Dec. 120; Askew v. Hale County 54 Ala. 639, 25 Am. Rep. 730; Granger v. Pulaski County, 26 Ark. 37; Downing v. Mason County, 87 Ky. 208; Reardon v. St. Louis County, 36 Mo. 555; Swineford v. Franklin County, 73 Mo. 279, Clark v. Adair County, 79 Mo. 536; Gilman v. Contra Costa County, 8 Cal. 52, 68 Am. Dec. 290, and note on pages 294 and 295; Barnett v. Contra Costa County, 67 Cal. 77; Scales v. Chattahoochee County, 41 Ga. 225; Marion County Comrs. v. Riggs, 24 Kan. 255; Fry v. Albemarle County, 86 Va 195; Watkins v. Preston County Ct. 30 W. Va. 657; Woods v. Colfax County Comrs. 10 Neb. 552; Hamilton County Comrs. v. Mighels, 7 Ohio St. 109; Baxter v. Winooski Turnp. Co. 22 Vt. 123, 52 Am. Dec. 84; Ward v. Hartford County, 12 Conn. 404; persons or out of the estate of such persons who sball break or be aiding or assisting in breaking the gaol or who shall escape, a county was liable for an escape, and it was no defense that the escape was effected through the aid of persons outside, or that the plaintiff could have sued those aiding, where they were insolvent, and plaintiff had no knowl-capes from prison through the insufficiency of the edge of them at the time of this suit, and it was not shown that the prisoner had an estate, or that the prisoner was recaptured after suit, or that detention would not avail plaintiff. Clark v. Litchfield County, Kirby, 318. [Note by reporter: "This decision was afterwards reversed in the supreme court of errors."] And the county was liable for the escape of a debtor by reason of insufficiency of the gaol, under the Connecticut statute providing that if any person lawfully committed to any gaol shall break such gaol and make his escape, the county shall pay all damages. Dutton v. Litchfield County, 1 Root, 450. So, a county was held liable for special damages caused by the escape of a prisoner through the insufficiency of the "gaol" on execution of the debt. Staphorse v. New Haven County, 1 Root, 125; Hawley v. Litchfield County, 1 Root, 155; Dennie v. Middlesex County, 1 Root, 278; Murray v. Bishop, and Smith v. County Treasurer, 1 Root, 357. In Sheldon v. Litchfield County, 1 Root, 158, it was said that an action against a county for a prisoner escaping through insufficiency of the gaol was under a statute. And the county was liable under special damages for the insufficiency of a gaol, whereby a party who had been imprisoned for debt made his escape. Williams v. New Haven County, 2 Root, 23. But a county was not liable for the escape of a prisoner confined for horse stealing, where it was shown the gaol was sufficient, and the prisoner In Ward v. Hartford County, 12 Conn. 404, it was said that the only case in which provision is made for redress against a county is where a debtor es gaol. "The creditor, by an application to the county court, may procure an order for payment of his debt. [Conn.] Stat. 256, title 42, § 24." A mandamus was held to be not the proper remedy for a sheriff to hold the county liable for dam. ages which he was compelled to pay for an escape. under a ca. sa. owing to the insufficiency of the jail. Governor, Haygood, v. Clark County Inferior Ct. Justices, 19 Ga. 97. But it was further held in this case that a county was not liable for the escape of a prisoner under a ca. sa. owing to the insufficiency of the jail. It was said that a county is a corporation of the municipal kind or it is not, and if it is a municipal corporation it is not liable for the conduct of the inferior court in not providing a more efficient jail, where it is not shown that they have funds to make it more secure, and a municipal corporation is not liable for the acts or omissions of its officers. The court held that if it was not a municipal corporation it could not have an agent. Governor, Haygood, v. Clark County Inferior Ct. Justices, 19 Ga. 97. In Haygood v. Inferior Ct. Justices, 20 Ga. 845, on the return of this case to the lower court an amendment setting up that the justices of the inferior court had funds on hand sufficient to repair the jail was denied, and it was held that the sheriff could not recover as he was the legal custodian of the jail, and if it was unsafe it was wrong for him to imprison the debtor there, and if the jail was wholly insufficient it was the same thing as if there |