Weightman vs. The Corporation of Washington. be sued, implead and be impleaded, grant, receive, and do all other acts as natural persons." They may purchase and hold real, personal, and mixed property, and dispose of the same for the benefit of the city. Large and valuable privileges also are conferred upon the defendants; and the thirteenth section of the charter provides, in effect, that the defendants shall have the sole control and management of the bridge in question, ***“and shall be chargeable with the expense of keeping the same in repair, and rebuilding it when necessary." Comment upon the provision is unnecessary, as it is obvious that the duty enjoined is as specific and complete as our language can make it; and it is equally clear, that the bridge is placed under the sole control and management of the defendants; and, in view of the several provisions of the charter, not a doubt is entertained that the burden of repairing or rebuilding the bridge was imposed upon the defendants, in consideration of the privileges and immunities conferred by the charter. Most ample means, also, are placed at the disposal of the defendants, or within their control, to enable them to perform the duty enjoined. Whatever difference of opinion there may be as to the other conditions required to fix the liability, on this one, it would seem, there can be none, as the defendants have very large powers to lay and collect taxes on almost every description of property, real and personal, as well as on stocks and bonds and mortgages, and they also derive means for the use of the city from granting licenses, and from the rents and profits of real estate which they own and hold. All the conditions of liability, therefore, as previously explained, concur in this case. It is supposed by the defendants, that the decision of this. court in The City of Providence vs. Clapp, (17 How., 161,) is opposed to the right of the plaintiff to maintain this action; but we think otherwise. Injury had been received by the plaintiff in that case, in consequence of one of the principal streets of the city having been blocked up and encumbered with snow; and the principal question was, whether such an obstruction was one within the meaning of the statute of the State on which the action was founded; and the court held that the city was 1 Weightman vs. The Corporation of Washington. liable. Cities and towns are required by statute, in most or all of the northeastern States, to keep their highways safe and convenient for travellers by day and by night; and if they neglect that duty, and suffer them to get out of repair and defective, and any one receives injury through such defect, either to his person or property, the delinquent corporation is responsible in damages to the injured party. No one, however, can maintain an action against the corporation grounded solely on the defect and want of repair of the highway, but he must also allege and prove that the corporation had notice of the defect or want of repair, and that he was injured, either in person or property, in consequence of the unsafe and inconvenient state of the highway. Duty to repair, in such cases, is a duty owed to the public, and consequently, if one person might sue for his proportion of the damages for the non-performance of the duty, then every member of the community would have the same right of action, which would be ruinous to the corporation; and, for that reason, it was held, at common law, that no action, founded merely on the neglect to repair, would lie. It was a sound rule of law, and prevails everywhere to the present time. Reference is often made to the case of Russell vs. The Men of Devon, (2 Term, 667,) as an authority to show that no action will lie against a municipal corporation in a case like the present; but it is a misapplication of the doctrine there laid down. Suit was brought, in that case, againt the inhabitants of a district, called a county, where there was no act of incorporation, and the court held that the action would not lie; admitting, however, at the same time, that the rule was otherwise in respect to corporations. But whether that be so or not, the rule here adopted has been fully sanctioned in all the English courts. Henley vs. The Mayor, &c., of Lyme, (5 Bing., 91.) It was ruled in the Common Pleas by Best, Ch. J., and the case was then removed into the King's Bench by writ of error, and was then decided by Lord Tenderden and his associates in the same way. Same vs. Same, (3 Barn. & Adol., 77.) Judgment of affirmance having been given in the King's Bench, the cause was removed to the House of Lords by another writ of error, sued out by the same party. Baron Parke Weightman vs. The Corporation of Washington. gave the opinion on the occasion, all of the other judges and the Lord Chancellor concurring. Among other things, he said that, in order to make good the declaration, it must appear, first, that the corporation is 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; and after explaining these several conditions, and showing that the case fell within the principles laid down, he stated that it was clear and undoubted law, that wherever an indictment would lie for non-repair, an action on the case would lie at the suit of a party sustaining any peculiar damage. Mayor of Lyme Regis vs. Henley, (2 Cl. and Fin., 331.) Numerous decisions have, since that time, been made by the courts in this country, approving the rule laid down in that case, and applying it to cases like the present. Erie vs. Schwingle, (22 Penn., 384;) Storrs vs. The City of Utica, (17 N. Y., 104 ;) Conrad vs. The Trustees of Ithaca, (16 N. Y., 159;) Browning vs. The City of Springfield, (17 Illinois, 143;) Hutson vs. The City of N. Y., (5 Sand., S. C. R., 289;) Lloyd vs. The Mayor, &c., of the City of N. Y., (1 Seld., 369;) Wilson vs. City of N. Y., (1 Denn., 595; 2 Denn., 450;) Rochester White Lead Co. vs. The City of Rochester, (3 Conn., 463;) Smoot vs. The Mayor, &c, of Wetumpka, (24 Ala., 112;) Hicocke vs. The Trustees of the village of Plattsburg, (15 Barb., S. C., 427;) Mayor, &c., of N. Y. vs. Furze, (3 Hill, 612.) Contrary decisions, undoubtedly, are to be found, but most of the cases are based upon a misapplication of what was decided in Russell vs. The Men of Devon, to which reference has already been made, and which is certainly not an authority for any such doctrine at the present time. In view of the whole case, we are of the opinion that the charge of the Circuit Court was erroneous, and the judgment is accordingly reversed with costs, and the cause remanded, with directions to issue a new venire. Wabash and Erie Canal vs. Beers, WABASH AND ERIE CANAL vs. BEERS. A decree of the Circuit Court adjudging that the defendant pay a certain sum into court within a limited time, or in default thereof the court will appoint a receiver, is a final decree, from which an appeal lies. Appeal from the Circuit Court of the United States for the district of Indiana. Beers filed his bill in the Circuit Court, averring inter alia that the defendants, as trustees of the Wabash and Erie canal, had certain moneys in their hands, arising from the sales of land and from tolls on the canal; that he, the complainant, had a lien on the proceeds of the land and upon the tolls, of which lien the defendants had notice, but refused to satisfy it. The bill prayed a decree that the defendants pay to the plaintiff the amount so due to him on a day to be named by the court, and that, in default of such payment, the canal be put into the hands of a receiver. The Circuit Court found the facts to be as alleged in the bill, ascertained the amount due the plaintiffs to be $3,755 60, and therefore ordered, adjudged, and decreed that the defendants pay into the clerk's office, on or before November 1, the sum found due; "or, in default thereof, the court will, at the next term of this court, on motion of the complainant, appoint a receiver to take possession of said canal, or some portion thereof, for such time and on such terms as shall be according to the rules of this court, and just and equitable to the parties." Mr. Gillet, for the appellees, moved to dismiss the appeal, and submitted that this was not a final decree, from which an appeal would lie to this court. He cited the Judiciary Act of 1789, sec. 22; Wells vs. Hoag, (7 Paige, 18;) Beebe vs. Russell, (19 How., 283;) Haskel vs. Roul, (1 McCord Ch. Rep., 32;) and argued that the cases of Fagoy vs. Conrad, (6 H., 201,) Perkins vs. Fonnquet, (ib., 206,) Pullem vs. Christian, (ib., 209,) are not opposed to this view. Mr. Usher, for the appellees, opposed the motion, and in United States vs. Babbit. sisted that the decree was final. It is a simple adjudication of the question raised upon the bill, answer, and replication, and it is none the less a final decree because it is coupled with a threat of the court to appoint a receiver in case the defendants shall disobey it. He cited Harney vs. Bronson, (1 Leigh, 108;) Shepherd vs. Starke, (3 Mumford, 29;) Cook vs. Berry, (4 How., Miss., 503;) Larne vs. Larne, (2 Little, 261;) Hynds' Ch., 429; 2 Madd., 243; Newland, 49; 3 Dan. Ch. Prac., 1949. Mr. Chief Justice TANEY. This decree is final. It is decisive of the case made upon the record. It is positive, and not alternative. It leaves no question of right between the parties open for future adjudication. The decree orders the money to be brought into court within a limited time, and the court warns the defendants that if they fail or make default a particular measure will be taken to compel obedience. There is no want of finality here. The motion is denied. UNITED STATES VS. BABBIT. 1. The register of a land office is not entitled to retain a larger sum than three thousand dollars, as commissions for locating military bounty land warrants, under the acts of February 11, 1847; September 25, 1850; March 22, 1852, and March 3, 1855. 2. All fees received by a register, whether for locating military bounty land warrants, or for other services, in excess of the maximum fixed by law, must be paid into the treasury. 3. The second proviso, in the third section of the act of March 22, 1852, which declares "that no register or receiver shall receive for his services, during any year, a greater compensation than the maximum now allowed by law," is not limited in its effect to the section where it is found, but is an independent proposition, which applies alike to all officers of this class. Writ of error to the District Court of the United States for the district of Iowa. The United States brought debt against Lysander W. Babbit |