But the statutes of hue and

some means by which they may be sued. cry furnish an argument to shew that the present action cannot be maintained. The obligation to make hue and cry subsisted at common law; 2 Inst. 172; or at least by the statute of Westminster 1st, 3 Ed., 1, c. 9; which was prior to the statute of Winton, 13 Ed. 1, st. 2, c. 6, by which the inhabitants of a hundred were subjected to an action.1 But if the hundred had been liable to a civil action by the common law or the statute of Westminster, which raised the duty, the statute of Winton would have been nugatory. But it was only on the ground of the hundred's not being liable before that time that the Legislature made them responsible in a civil action. The consequence of permitting these sort of actions to be maintained deserves the serious attention of the Court, since it must necessarily lead to a multiplicity of actions. ...

Gibbs, contra. The general principle is, that where one person receives an injury by any other person or persons omitting to do what by law he or they are bound to do, he may maintain an action on the case to recover satisfaction for the damage he has received in consequence of that omission. In the present case the county were bound to repair this bridge; they omitted to do so; and the plaintiffs received a particular injury by that omission. . . . It has been said that great injustice might have been done to those who are not inhabitants of the county at the time that this injury was sustained, by making them responsible for the injury of their predecessor; but that objection would apply with equal force to the action on the statutes of hue and cry as to this.

Lord KENYON, C. J. If this experiment had succeeded, it would have been productive of an infinity of actions. . . . The question here is, Whether this body of men, who are sued in the present action, are a corporation, or qua a 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 purpose. But it has been said that this action ought to be maintained by borrowing the rules of analogy from the statutes of hue and cry; but I think that those statutes prove the very reverse. The reason of the statute of Winton was this: As the hundred were bound to keep watch and ward, it was supposed that those irregularities which led to robbery must have happened by their neglect. But it was never imagined that the hundred could have been compelled to make satisfaction, till the statute gave that remedy; and most undoubtedly no such action could have been maintained against them before that time. Therefore when the case called for a remedy, the Legislature interposed; but they only gave the remedy in that particular case, and did not give it in any other case in which the neglect of the hundred had produced any injury to individuals. And

1 [For this rule, see Nos. 414, 415, post.]

when they gave the action, they virtually gave the means of maintaining that action; they converted the hundred into a corporation for that purpose. But it does not follow that, in this case, where the Legislature has not given the remedy, this action can be maintained. ... Therefore I think that this experiment ought not to be encouraged; there is no law for supporting the action; and there is a precedent against it in Brooke: though even without that authority I should be of opinion that this action cannot be maintained.

ASHHURST, J. It is a strong presumption that that which never has been done cannot by law be done at all. . . . However there is no foundation on which this action can be supported; and if it had been intended, the Legislature would have interfered and given a remedy, as they did in the case of hue and cry. Thus this case stands on principle: but I think the case cited from Brooke's Abridgment is a direct authority to shew that no such action can be maintained. . . BULLER, J., and GROSE, J., assented.

Judgment for the defendants.

405. LYME REGIS v. HENLEY

HOUSE OF LORDS. 1834

1 Bing. N. C. 222, 2 Cl. & F. 331, 37 Rev. Rep. 125

THIS action was brought by Henley, the plaintiff below, against the defendants below, for the non-performance of certain repairs directed by their charter, whereby special damage had been incurred from the sea. . . The cause came on to be tried before LITTLEDALE, J., at the spring assizes for the county of Dorset, in 1828, when the jury found a verdict for the plaintiff below, on the first count of the declaration, with £100 damages, and were discharged from giving . . The defendants below thereany verdict upon the other counts. upon brought a writ of error in the Court of King's Bench, where the judgment of the Court of Common Pleas was affirmed. See 3 B. & Adol. 77.

Upon that judgment the present writ was brought; on the ground, 1. That no liability, by reason of tenure, was created by the charter of Charles I, nor is any alleged in the pleading: Rex v. Kerrison, 1 M. & S. 435.

2. That there is no authority for the liability here claimed; the cases cited by the Court of King's Bench, in giving judgment in this case, relating to liabilities by reason of prescription: Paine v. Patrich, Carth. 191; of tenure: 12 Hen. 7, fol. 18; or of acts of parliament: Rex v. Inhabitants of Kent, 13 East, 220; Rex v. Inhabitants of Lindsey, 14 East, 317; Rex v. Stoughton, 2 Saund. 157; and not to any liability arising from acceptance of a grant from the king.

For the plaintiff below, it was contended, that every breach of

public duty or neglect of what the party is bound to perform, working wrong or loss to another, is injurious and actionable: Sutton v. Johnstone, 1 T. R. 493; Russell v. Men of Devon, 2 T. R. 667. . . . By the charter granted to the defendants below, the king wills that the plaintiffs shall repair the sea walls; they accept the charter, and by their acceptance the words of the king enure as a covenant by the defendants below: Bret's case, Cro. Jac. 399. They neglect their duty, by which the plaintiff below sustains serious loss, and this gives him a right of action against them. . .

The opinion of the judges was now delivered by

PARK, J. The question proposed by your Lordships for the opinion of the judges is as follows:

The declaration in an action on the case against a corporation states, that before committing the grievances by the defendants, the king, by his letters patent duly sealed, did give, grant, and confirm to the corporation and their successors, the borough or town of Lyme Regis,

willing that the corporation . . . all and singular of the building, banks, sea-shores, and all other mounds and ditches within the said borough, . . . or situate between the said borough and the sea, and also the said building called the pier-quay, or the cob, at their own costs and expenses thenceforth from time to time for ever should well and sufficiently repair, maintain, and support, as often as it should be necessary or expedient. . . . It then proceeds to state . . . that a building, bank, or sea-shore within the borough,

were a pro

tection and safeguard, and still of right ought to be so, to the plaintiff's messuage and land aforesaid, and then hindered the sea from flowing upon and over that messuage and land. . . . A breach is then assigned that the corporation wrongfully permitted the said buildings, banks, sea-shores, and mounds, to be out of repair, for want of due, proper, and necessary repairing of the same, by means of which the plaintiff's house and land was inundated and injured. After a verdict upon a plea of not guilty, is this declaration good, and does it disclose a sufficient cause of action by the plaintiff against the corporation?

In order to make this declaration good, it must appear, first, that the corporation are under a legal obligation to repair the place in question; secondly, that such obligation is matter of so general and public concern that an indictment would lie against the corporation for non-repair; thirdly, that the place in question is out of repair; and lastly, that the plaintiff has sustained some peculiar damage beyond the rest of the king's subjects by such want of repair. The third and last requisites are admitted to be averred in this declaration, and with sufficient words, at least after verdict. The doubt in this case arises on the first and second requisites.

1. With regard to the first, it is argued that the corporation have not by acceptance of the charter stated in the declaration incurred any legal obligation whatever as to the repair of the place in question.

... Looking at the words of the charter, as stated in this declaration, we are of the opinion that it does cast upon the corporation an obligation to repair, which they, by accepting the charter, have adopted.

2. The second requisite is, in truth, that upon which this case wholly turns, viz., that the obligation must be of so general and public concern that an indictment will lie for the breach of it. . . . The next question which arises is, whether the keeping up the sea defences of the town or borough is matter of general and public concern. . . Here we think that the allegations of the declaration, as applied to the subject-matter, do by reasonable intendment show that the buildings, banks, mounds, and ditches in question were part of the defences and safeguards of the town and borough against the encroachments of the sea, and particularly of that part of the town and borough in which the plaintiff's property is situated. The declaration, therefore, shows a charter casting an obligation on the corporation to do repairs of general and public concern.

many

It is however, further urged, that whatever engagement the corporation may be under as between them and the crown, so as to render them liable either to a forfeiture of their charter, or any other proceeding by the crown, yet that no stranger can take advantage of such engagement and maintain an action. It is admitted that if their liability arose by prescription, they would be indictable, and also an action would lie for special damage, as in The Mayor, &c. of Lynn v. Turner, Cowp. 86; Churchman v. Tunstal, Hardr. 162; Payne v. and other authorities. Partridge, Show. 255, Carth. 191, If then the origin be legal, how can it be important when it took place? We do not go the length of saying that a stranger can take advantage of an agreement between A and B, nor even of a charter granted by the king, where no matter of general and public concern is involved; but where that is the case, and the king, for the benefit of the public, has made a certain grant, imposing certain public duties, and that grant has been accepted, we are of opinion that the public may enforce the performance of those duties by indictment, and individuals pecuniarily Judgment affirmed. injured, by action. . . .

406. BLOOMINGTON v. BAY

SUPREME COURT OF ILLINOIS. 1867

42 Ill. 503

WRIT of error to the Circuit Court of McLean County; the Hon. JOHN M. SCOTT, Judge, presiding. The facts sufficiently appear in the opinion of the Court.

Messrs. Williams & Burr, for the plaintiff in error.

Messrs. Tipton & Benjamin, for the defendant in error.

Mr. Justice BREESE delivered the opinion of the Court. This was an action on the case brought in the McLean Circuit Court, by James M. Bay against the city of Bloomington, to recover damages for an injury alleged to have been occasioned to the plaintiff, by a defective sidewalk in that city. The declaration contains five counts, the first alleging that the city, at the time when, etc., and previous thereto, was incorporated, and as such city had the right, under its charter, to build or cause to be built, sidewalks along its streets, to keep the same in repair, etc., and that it did, prior to the 5th day of January, 1866, under and by virtue of its charter, take possession of it, and control over, the sidewalk on the east side of East Street, between Washington and Front Streets, and that on the 9th day of January, 1866, a plank, a part of such sidewalk, was so loosely lying as to make it dangerous for persons to pass along and upon such sidewalk, and avers that the defendant, well knowing, etc., permitted it to remain so, and that on that day plaintiff was passing along such sidewalk with ordinary care, and was then and there necessarily and unavoidably thrown down by the raising of the locse plank above mentioned, and avers that his left wrist was put out of joint, and the large bone fractured, of which he became sick, lame, etc. . . . The cause was tried by a jury, and a verdict rendered for the plaintiff for four hundred and twenty-five dollars. . . . The cause is brought here by writ of error.

The counsel for the plaintiff in error insist there is no such liability upon the corporation, unless it is created by express statute, or under its charter, or from immemorial custom, and if any exist in this case, it must arise under the charter of the city. It is insisted that the city charter places this liability upon the lot owners abutting the sidewalks. The charter on this subject gives to the city authorities power to open, alter, abolish, widen, extend, establish, grade, pave, or otherwise improve and keep in repair, streets, avenues, lanes, and alleys, and to require the owners of any lot or piece of ground to lay a good and substantial sidewalk along any street or alley passing such lot or piece of ground, in such manner as the council may provide. Laws of 1861, page 110, § 7. From this it results (so the plaintiff's counsel contend), that the liability is not on the city, but upon the owner of the lot, and if a party injured has an action against any one, it must be against such owner, and not against the city. They insist that the utmost liability imposed upon the city is, if a sidewalk be necessary, to order the owner of the lot abutting on it to make it, and if he fail so to do or to keep it in repair when made, to compel him to do so by some legal proceeding. . . .

1. The charter of the city of Bloomington, giving control over the streets to the authorities of that city, also imposed upon them the duty of keeping them in repair, and, as sidewalks are a part of the street, a like duty is imposed to keep them in repair. The fact, that