and eight councilmen, of prescribed qualifications. By the third section of the act of incorporation, very large power and authority are vested in the city council, and among others, the power and authority "to prevent and remove nuisances," and generally "to provide for the interior police and good government of the city." By this section power is given to said city council to levy taxes for the purposes recited in the preceding section.

We were referred to several cases to show that this action will not lie; all of which will be noticed. The first is Towle v. The Common Council of Alexandria, 3 Pet. 398-410. In that case, the plaintiff brought his action on the case, against the defendant, for damages charged to have been sustained by him, by reason of their failing to take bond and security from an auctioneer, licensed by them for certain years, as alleged, contrary to the statutory duty of the said corporation. To the declaration, a general demurrer was filed, which was sustained. Whereupon, the plaintiff presented a writ of error to the supreme court. Chief Justice Marshall, in delivering the opinion of that court, said: "The common council had granted a license to carry on the trade of an auctioneer, which the law did not empower that body to grant." That "he is not an officer or agent of the corporation, but is understood to act entirely for himself, as a tavern-keeper, or any other person who may carry on business under a license from the corporate body. The injury alleged in the declaration, as the foundation of the action, is the omission to take the bond required by law. Now, if the common council was not required or enabled by law to take a bond, the action can not be sustained." And upon this reasoning the demurrer was held good, and the judgment below affirmed. But the court says in that case: "That corporations are bound by their contracts, is admitted; that money corporations, or those carrying on business for themselves, are liable for torts, is well settled. But that a legislative corporation, established as a part of the government of the country, is liable for losses sustained by nonfeasance by an omission of a corporate body to observe a law of its own, in which no penalty is provided, is a principle for which we can find no precedent. We are not prepared to make one in this case."

In the above case, the point as to the right of the plaintiff to have his action on the case against the corporation does not appear to have been made or decided; but the case went off on the ground that defendants did not appear to be non-feasors, by

omitting to do anything which, by the act of their incorporation, they were authorized or required to do.

In the case of Hawthorn v. The City of St. Louis, 11 Mo. 60 [47 Am. Dec. 141], the only question is, whether the salary of an officer of the corporation can be subject to an execution against such officer by a proceeding by garnishment against the city. The court holds that it can not, and in this particular distinguishes between its being a public municipal corporation and a private corporation, such as banks, insurance companies, and similar incorporations. We do not see that this authority decides anything touching the question in regard to the bringing of an action on the case against a corporation for non-feasance, by which any one has sustained a special damage.

The case of Edwards v. The Union Bank of Florida, 1 Fla. 136155, is an action of trespass vi et armis, brought by the plaintiff against the corporation of the Union Bank. The question is there raised whether this action will lie against a corporation, and after an elaborate examination of the authorities, the court hold the action well brought-but this was an action against a private money corporation. And we must now look to see whether trespass can be maintained against other corporations aggregate. In the case of Riddle v. Proprietors of Locks and Canals on Merrimac River, 7 Mass. 189 [5 Am. Dec. 35], Parsons, C. J., delivering the opinion of the court, says: “It is one of the maxims of the common law, that a man specially injured by the breach of duty of another, shall have his remedy by action. If the breach of duty be by an individual, there is no question, and why should a corporation receiving its corporate powers, and obliged by its corporate duties with its own consent, be an exception, when it has, or must be supposed to have, an equivalent for its consent?" "We distinguish between proper aggregate corporations and the inhabitants of any district, who are by statute invested with particular powers without their consent. These are in the books sometimes called 'quasi corporations.' Of this description are counties or hundreds in England, and counties, towns, etc., in this state [Massachusetts; and counties and townships in Florida]. Although quasi corporations are liable to information or indictment for the neglect of a public duty imposed on them by law, yet it is settled in the case of Russell et al. v. Inhabitants of the County of Devon, 2 T. R. 667, that no private action can be maintained against them for a breach of corporate duty, unless such action be given by statute. And the sound reason is, that having no

corporate fund and no legal means of obtaining one, each corporator would be liable to satisfy any judgment rendered against the corporation. This burden the common law will not impose --but in cases where the statute is an authority, to which every man must be considered as assenting. But in regular corporations, which have or are supposed to have a corporate fund, this reason does not apply."

And he cites with approbation the case of Mayor of Lynn v. Turner, 1 Cowp. 86, where the principle is established that "case will lie against a corporation for neglect of a corporate duty, by which the plaintiff suffers." The doctrine of this last case appears to be sustained in New York. In the case of The People v. Corporation of Albany, 11 Wend. 543 [27 Am. Dec. 95], Nelson, J., delivering the opinion of the court, says: "It is well settled that when a corporation or an individual is bound to repair a public highway or navigable river, they are liable to indictment for neglect of their duty. An indictment and an information are the only remedies to which the public can resort for a redress of their grievances in this respect. If an individual has suffered a particular injury, he may recover his loss by an action on the case," for which position many authorities are there cited. The same doctrine is asserted 1 Co. Lit. 56 a: "But the law for this common nuisance has provided an apt remedy, and that is presentment in the leete or in the torne, unlesse any man hath a particular damage, as if he or his horse fell into the ditch, whereby he received hurt and losse, there for this special damage, which is not common to others, he shall have an action upon his case. And all this was resolved by the court in the king's bench." And again, in 3 Bla. Com. 219, the same doctrine is recognized, as well also as the doctrine that a ditch dug across a common highway is a common nuisance. 4 Id. 167, defines a common-law nuisance thus: "The doing a thing to the annoyance of all the king's subjects, or the neglecting to do a thing which the public good requires." We can have little difficulty in asserting that the large ditch, gully, or chasm, situated in the east end of the street, named in the declaration, which street was a common highway, as asserted by the declaration and admitted by the demurrer, was a common nuisance: that the corporation of the city of Tallahassee is an aggregate corporation, which has or may be supposed to have a common fund, as it has the power of assessing and collecting taxes, and the power to purchase and hold personal, real, and mixed prop erty. It has also the power to prevent and remove nuisances,

and provide for the interior police and good government of the city. It was contended by appellee, in argument (and not denied by appellant), as we think, with much propriety, that the legal power to remove nuisances, having been conferred on the corporation by statute, carried with it the implied legal obligation to remove them.

It is therefore the opinion of the court, that the city of Tallahassee was guilty of a non-feasance in permitting the nuisance mentioned on appellee's declaration to remain, and plaintiff having lost his mare by means of her falling into the said common nuisance, and being thereby bruised so that she died, he is entitled to have an action of trespass on the case against the said corporation, for said special damage, unless it occurred by his own gross negligence. And this brings us to consider the second objection of appellants.

The following statement was agreed by counsel to be a part of the averments in the declaration as demurred to: "On the third day of October, George W. Hutchins, who had been using Fortune's mare, returned with her and hitched her near the place where Fortune's tin-shop was kept. The mare got loose, and nothing more was seen or heard of her until next morning, although diligent search was made for her as soon as it was discovered she had got away. She was found next morning in the bottom of the chasm complained of, which was immediately opposite the lot in which she was usually kept. The mare was badly hurt and died on the day she was discovered." Parker, C. J., says, in the case of Smith v. Smith, 2 Pick. 624 [13 Am. Dec. 464]: To entitle the plaintiff to an action of damages resulting from a nuisance, he must show that he acted with common and ordinary care." And so we take the law to be; if a person should go headlong with his beast upon a nuisance, which (with ordinary care) he might have avoided, he ought not to have damages for his loss in consequence of his own recklessness. In effect this was decided in the case of Butterfield v. Forrester, 11 East, 60. The facts of the present case show that Fortune's mare, after being used, was hitched before his tin-shop, and where of course she could not remain long without notice. It is the custom of the people generally, when in the streets, to hitch their horses to a hook, peg, post, tree, or rack, and leave them while the riders attend respectively to their own business. The thing is daily (and frequently every day) done by the most careful as well as by careless persons, and can not, in our opinion, form a ground of allegation, of negligence or

want of ordinary care, in the plaintiff; but horses so hitched often escape, and this is accident rather than negligence. The mare then having broken loose, or having accidentally escaped from her fastening, it is presumed sought to return to her accustomed inclosure or stall, as it was contiguous to the chasm complained of, and on her way thither fell in and was lost as the facts appear. Had not the chasm been in the street, it is reasonable to suppose that the mare would have returned to her stable without damage. It was, therefore, the direct cause of her death and of her owner's loss. It was there in consequence of the wrongful negligence of the defendant, and in our opinion it ought to pay the damages such non-feasance occasioned.

The judgment of the court below is affirmed with costs.

LIABILITY OF Town For Injury from DefecTIVE HIGHWAY, GENERALLY: See Jones v. Inhabitants of Waltham, 50 Am. Dec. 783, and note citing previous cases in this series; Tonawanda R. R. Co. v. Munger, 49 Id. 239. In Browning v. City of Springfield, 17 Ill. 146, the court, after a review of the cases, said the deduction from them was, that where a specific duty to repair was fully and completely enjoined, and full and adequate powers and means were provided or put within the power of the person or corporation to provide, the obligation was perfect, and the liability for neglect reciprocal for the special damages occasioned by it, and cited the principal case as showing that the same rule prevailed in Florida.

CONTRIBUTORY NEGLIGENCE: See Birge v. Gardner, 50 Am. Dec. 261, and

note.

MUNICIPAL CORPORATION IS LIABLE TO ACTION OF TORT: Meares v. Commissioners of Wilmington, 49 Am. Dec. 412, and note.

LIABILITY OF MUNICIPAL CORPORATION FOR NEGLECT TO REMOVE NUI. BANCE: See People v. Albany, 27 Am. Dec. 95.

STRONG v. WILLIS.

[3 FLORIDA, 124.]

WHERE CREDITOR IS APPOINTED TRUSTEE IN DEED OF TRUST BY DEBTOR in favor of the debtor's wife and children, and the conveyance declares the property to be "free and exempt from the debts, contracts, and incumbrances" of the debtor, if the creditor signs the deed it is equivalent to a covenant or agreement on his part, that the property shall be free from his own debt, and he can not afterwards subject the property to his debt.

PARTY IS NOT PERMITTED TO ALLEGE HIS OWN FRAUD; consequently a trus tee in a deed of trust by a debtor, who is also a creditor of the debtor, can not impeach the conveyance as fraudulent so as to subject the property to his debt.