accidentally destroyed by fire without any fault or negligence on his part.'

§ 435. Declarations and Admissions of Officers as Evidence. The acts of the officers of municipal corporations in the line of their official duty, and within the scope of their authority, are binding upon the body they represent; and declarations and admissions accompanying such acts as part of the res gesta, calculated to explain and unfold their character, and not narrative of past transactions, are competent evidence against the corporation. But if the declarations of the officers are not made as a part of the res gestæ, or at a time when they are engaged in the performance of their duties, they are not admissible in evidence against the municipality.3 If

the statements or admissions relate merely to past transactions, they fall within the rule that they are not a part of the res gestæ, and are inadmissible.1

§ 436. Personal Liability for Non-feasance of Public Duty. In considering the liability of a municipal officer for his acts or conduct, a distinction has sometimes been drawn between grievances which are founded upon a failure or omission to perform a duty, i. e., non-feasance, and negligence or tortious conduct in the manner of performing his duty, i. e., misfeasance or malfeasance. In many of the States the rule is adopted that for mere non-feasance of a public duty, an officer is not impliedly liable to any person sustaining injury therefrom. For mere non-performance of a

2

the declarations or admissions relate are not admissible. Jordan v. Lisbon School Dist., 38 Me. 164; Mitchell v. Rockland, 41 Me. 363; Blanchard v. Blackstone, 102 Mass. 343; State v. Olsen, 55 Minn. 118.

1 Smyth v. Bangor, 72 Me. 249; Hudson v. Charleston, 97 Me. 17; Dartmouth v. Lakeville, 7 Allen (Mass.), 284; Weeks v. Needham, 156 Mass. 289; Burgess v. Wareham, 7 Gray (Mass.), 345.

which is to show knowledge of or notice to the person making them, and in support of that claim two decisions of the Appellate Division are cited (Shaw v. Potsdam, 11 N. Y. App. Div. 508; Vandewater v. Wappinger, 69 N. Y. App. Div. 325). It may be that declarations of a village official as to the condition of a highway, made not only before the occurrence on which it is sought to charge the village with liability, but sufficiently long before to Admissibility to establish knowledge have made it the duty of the village, or notice of defect. Declarations of an with the knowledge which the declaraofficer charged with the care of streets, tion imports, to repair the highway, are &c. made when acting in the perform- competent evidence. In such a case a ance of his duties and caring for the declaration would not be competent streets, are admissible to show that as an admission, but as evidence of the the municipality is chargeable with state of the knowledge of the person knowledge or notice of defects therein. making the declaration. Such was Hofacre v. Monticello, 128 Iowa, 239, the case in Shaw v. Potsdam, 11 N. Y. 246; Bond v. Biddeford, 75 Me. 538. App. Div. 508. The knowledge of the But when made after the occurrence officer or agent after the transaction is of the accident, they have been held to of no materiality whatever and his be inadmissible. Yordy v. Marshall declaration then made of his previous County, 86 Iowa, 340; Weeks v. Need- knowledge is as purely hearsay as a ham, 156 Mass. 289. But the contrary declaration of any previous act. The view has been adopted in a few cases. doctrine of Vandewater v. Wappinger, Mt. Morris v. Kanode, 98 Ill. App. 373; 69 N. Y. App. Div. 325, is manifestly Radichel v. Kendall, 121 Wis. 560. In erroneous and cannot be upheld." Fox v. Manchester, 183 N. Y. 141, rev'g Declarations made after the expiration 100 N. Y. App. Div. 512, the court held of the term of the person making them that declarations of officers of a are not admissible even for the purpose municipality after the event, were not of establishing knowledge or notice. admissible for the purpose of showing Adkins v. Monmouth, 41 Oreg. 266. knowledge or notice. Cullen, C. J. after referring to the rule that declarations of officers to be admissible must be made in the discharge of their official duties, said: "It is contended, however, that a different rule applies to declarations the only object of

2 Harvey v. Dewoody, 18 Ark. 252; Pruden v. Love, 67 Ga. 190; American Print Works v. Lawrence, 21 N. J. L. 248; s. c. 23 N. J. L. 590, 600; Ramsey v. Riley, 13 Ohio, 157; Stewart v. Southard, 17 Ohio, 402; Foster v. McKibben, 14 Pa. St. 168;

public duty, relating strictly to public as distinguished from municipal duty, no action lies unless given by statute against either the municipality or the officers upon whom the public duty is placed, although the non-performance may result in damage to an individual.1

§ 437. Personal Liability for Non-feasance; Rule in New York. - In contradistinction to the rule stated in the previous section the courts of New York have adopted a rule which practically eliminates any distinction between non-feasance and misfeasance, and makes public and municipal officers liable in personam to persons suffering special damage for both non-feasance and misfeasance. It is the settled rule of that State that when one assumes absolute and perfect duties and is vested with the powers of a public office and an individual sustains a special injury by his misfeasance or non-feasance in negligently acting or omitting to act contrary to that duty, the law gives redress to the injured party by an action adapted to the nature of the case. But to entitle the plaintiff to

upon it." Citing Hill v. Boston, 122 Mass. 344, 361. See post, chapter on Actions and Liabilities, where this case and others are considered and commented on.

Riddle v. Proprietors of Locks & Canals, 7 Mass. 169; Mower v. Leicester, 9 Mass. 247; Johnson v. Somerville, 195 Mass. 370; 81 N. E. Rep. 268; Russell v. Men of Devon, 2 Term R. 667. See also Hill v. Boston, 122 Mass. 344; cited and commented on post, chapter on Actions and Liabilities (§ 965 of 4th ed.).

Parks v. Greenville, 44 S. Car. 168; Young v. Edgefield Road Com'rs, 2 Nott & McC. (S. Car.) 537; Bates v. Horner, 65 Vt. 471; Alvord v. Barrett, 16 Wis. 175; Gates v. Young, 82 Wis. 272; Kempster v. Milwaukee, 103 Wis. 421; Harris v. Baker, 4 Maule & Selw. 27. See chapter on Actions and Liabilities, post, where the subject is more fully considered. Public duty as used in the text means some duty purely public and in respect of which the corporation receives no profit or special advantage. It has been suggested that the exemption which 2 Adsit v. Brady, 4 Hill (N. Y.), 630; municipal officers may claim for mere Shepherd v. Lincoln, 17 Wend. (N. Y.) non-feasance is similar in nature and 250; Robinson v. Chamberlain, 34 extent to the exemption which the N. Y. 389; Fulton Fire Ins. Co. v. law confers upon municipal corpora- Baldwin, 37 N. Y. 649; Hicks v. Dorn, tions in respect thereof. In Moynihan 42 N. Y. 47, 53, aff'g 54 Barb. 172; v. Todd, 188 Mass. 301, 303, Knowlton, Hover v. Barkhoof, 44 N. Y. 113; C. J., said: "The principal ground on which public officers find exemption from liability for negligence in the performance of their official duties in certain cases, is the same as that which relieves cities and towns and other agencies of the government from a liability to individuals for a failure to perform similar duties. Unless under some special statutory provision, a public officer can have no greater exemption from such a liability than is granted to a city or town which neglects to perform the public duties imposed

Johnson v. Belden, 47 N. Y. 130, 131, aff'd 2 Lans. (N. Y.) 433; Clark v. Miller, 54 N. Y. 528, aff'g 47 Barb. 38; French v. Donaldson, 57 N. Y. 496, aff'g 5 Lans. (N. Y.) 293; Bennett v. Whitney, 94 N. Y. 302; Bryant v. Randolph, 133 N. Y. 70, 76; Beardslee v. Dolge, 143 N. Y. 160; Wright v. Shanahan, 149 N. Y. 495, 502; Smith v. Wright, 24 Barb. (N. Y.) 170; Connors v. Adams, 13 Hun (N. Y.), 427; Bostwick v. Barlow, 14 Hun (N. Y.), 177; Piercy v. Everill, 37 Hun (N. Y.), 360. See also Litchfield v. Bond, 186

recover the wrongful act of the officers sued must have caused special injury to the person or estate of the plaintiff, and not merely individual injury to him as one of the public.1

§ 438. Individual Liability for Failure to repair Streets and Highways. The rule that a municipal officer is not liable for an omission to perform a public duty or a duty in respect to which discretion and judgment are conferred upon him, is well exemplified in the cases which have arisen in attempts to make officers, charged with the duty of maintaining and repairing streets and highways, personally liable in damages for injuries sustained through defects therein resulting from a failure to properly maintain them. In many States the view has been adopted that a statutory duty imposed upon a public officer to maintain or repair streets and highways is a public duty, or that in any event it involves judgment and discretion in its exercise, and under the general principles set forth above the officer is not individually responsible for an omission to perform his duty to repair in the absence of a statute expressly subjecting him to such liability. But in New York the courts have adopted the rule that

N. Y. 66, rev'g 105 N. Y. App. Div. 229. 2 Gray v. Batesville, 74 Ark. 519; For the application of this rule to Lynn v. Adams, 2 Ind. 143; White v. failure of officers to repair streets and Phillipston, 10 Met. (Mass.) 108, 110; highways, see § 438, post, where the Benjamin v. Wheeler, 8 Gray (Mass.), conflict and uncertainty which appears 409; Moynihan v. Todd, 188 Mass. 301, in the earlier decisions is noted, 303; McConnell v. Dewey, 5 Neb. 385; Fulton Fire Ins. Co. v. Baldwin, 37 Waldron v. Berry, 51 N. H. 136; N. Y. 649. Under this principle con- Freeholders of Sussex v. Strader, 18 tractors with the State or municipality N. J. L. 108, 118; Dunlap v. Knapp, who assume, for consideration re- 14 Ohio St. 64, 68; McKenzie v. Chovin, ceived, by covenant expressed or 1 McMul. (S. Car.) 222; Young r. implied to perform a public duty are Edgefield Road Com'rs, 2 Nott & McC. liable in case of neglect to perform (S. Car.) 537; Thornton v. Springer, 5 such covenant to a private action at Tex. 587; Daniels v. Hathaway, 65 the suit of party specially injured by Vt. 247. More fully, post, chapter on such neglect, and such contract enures Actions and Liabilities, to which the to the benefit of the individual who is reader is referred. interested in its performance. Robinson v. Chamberlain, 34 N. Y. 389; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; Johnson v. Belden, 47 N. Y. 130; Little v. Banks, 85 N. Y. 259; aff'd 20 Hun (N. Y.), 143; Cook v. Dean, 11 N. Y. App. Div. 123; Weber v. Buffalo Ry. Co., 20 N. Y. App. Div. 292. More fully as to the rule stated in the text, its limitations and application, see post, chapter on Actions and Liabilities, to which in this connection the reader is referred.

East River Gaslight Co. v. Donnelly, 93 N. Y. 557.

Illinois. In Tearney v. Smith, 86 III. 391, it is said that the work of constructing or repairing a public highway is a ministerial act, not judicial, and that the commissioners of highways are individually liable for negligence in doing the work. To the same effect, Harris v. Carson, 40 Ill. App. 147: Skinner v. Morgan, 21 Ill. App. 209. But in a later decision of the Supreme Court of this State, it was held that the highway commissioners of a town were not liable for omitting to construct a rail along a bridge in consequence whereof plaintiff's horses and wagon were injured. The court said: "Attention is

when an individual sustains a special injury by non-feasance of a public officer who contrary to his duty wrongfully omits to act, the law gives redress to the injured party by action adapted to the nature of the case. Applying these principles the courts have held that officers who are charged with the duty of keeping highways and bridges in repair and who have funds sufficient to enable them to perform that duty, are individually liable to a person specially injured in consequence of their neglect. The