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regard is to be had to adjudicated cases, it must be held that no such liability exists. See 2 Dillon Mun. Corp., § 762; Cooley's Const. Lim. 246; 2 Addison on Torts 1298. A large number of authorities are cited by the learned authors; and in Addison on Torts it is said: "A plainly marked distinction is made and should be observed, between municipal corporations proper, as incorporated villages, towns and cities, and those other organizations, such as townships, counties, school districts and the like, which are established without any express charter or act of incorporation, and clothed with but limited powers. These latter political divisions are called quasi corporations, and the general rule of law is now well settled, that no action can be maintained against corporations of this class by a private person for their neglect of public duty, unless such right of action is expressly given by statute."

That municipal corporations proper are liable to an action for damages in such cases is settled beyond all question. The question has generally arisen in actions for injuries caused by unsafe and defective streets, sidewalks and bridges upon public thoroughfares; and, as is said in Soper v. Henry County, 26 Iowa 264, "there may be found decisions in almost all, if not in every state of the Union to the effect that such actions may be maintained." In the same case, it is said, on the other hand, the decisions are almost, (though not wholly), uniform to the effect that counties and other quasi corporations are not liable to private actions for the neglect. of their officers in respect to highways, unless the statute has, in so many words, created the liability, especially giving the action to the party injured."

The authorities cited in support of the proposition are, in the main, the same as those cited by the learned text writers above quoted. We need but refer to a few of them, which closely resemble the case at bar. In Commissioners of Hamilton County v. Mighels, 7 Ohio St. 109, it was held that a county was not liable for an injury suffered by plaintiff, who, when in attendance upon court as a witness, was precipitated into the cellar of the court-house, in consequence of the negligent omission of the agents or officers of the county to guard or light a dangerous opening leading into the cellar.

In Bigelow v. Randolph, 14 Gray 541, it was held that a town in Massachusetts, which had assumed the duties of a school district, was not liable for an injury sustained by a scholar attending the

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public school from a dangerous excavation in the school-house yard, owing to the negligence of the town officers.

In Eastman v. Meredith, 36 N. H. 284, it was held that a town was not liable for an injury to a person received by the giving away of the floor of a town house at an annual town meeting, the building having been negligently and defectively constructed by those who built it for the town. The ground upon which it is held that quasi corporations, such as counties, towns, school districts, and the like, are not liable for damages in actions of this character, is that they are involuntary, territorial and political divisions of the state, created for governmental purposes, and that they gave no assent to their creation, whereas municipal corporations proper are either specially chartered, or voluntarily organized under special acts of the legislature.

This court, years ago, held that a county was liable for an injury to a person caused by a defective county bridge: Wilson and Gustin v. Jefferson county, 13 Iowa 181. That case has been followed in a number of other cases down to the present time, although exhaustive arguments have been made insisting that it should be overruled, as against not only the weight, but the whole current of authority. As often as the question has been made the rule has been adhered to without deviation. In Huston v. Iowa county, 43 Iowa 456, it is said: We have no inclination now to review, either for the purpose of fortifying or overturning a case (referring to Wilson and Gustin v. Jefferson county) which has for so long a time, in so many instances, and in so deliberate a manner been sanctioned and followed."

It is insisted by counsel for appellant, that the defendant must be held liable in the case at bar, because such liability rests upon the same ground and is controlled by the same principles as the cases involving liability for injuries caused by defective bridges. It must be admitted that a distinction between one injury resulting from a defective county bridge, and one caused by a defective and improperly constructed court-house, is not very plain or easily demonstrated. But as the line of decisions in this state as to the liability for defective bridges stands almost if not quite alone, as we have seen, we have no disposition to carry the doctrine further than is necessary to sustain the decisions of the court, which have stood so long that it may truthfully be said they have the implied sanction of the law-making power and the people of the state: Krause v. Davis county, 44 Iowa 141.

There is a recognised distinction, however, which we will proceed briefly to examine. An examination of the cases where it is held that quasi corporations are not liable in actions of this character, will disclose that the reason of the rule is, as before observed, that they are involuntary political divisions of the state, created for governmental purposes; and in Bigelow v. Randolph, supra, it is said that the rule holding these quasi corporations not liable, is of limited application. "It is applied in the case of towns only, to the neglect of or omission of a town to perform those duties which are imposed upon all towns without their corporate consent, and exclusively for public purposes, and not to the neglect of those obligations which a town incurs when a special duty imposed on it with its consent, express or implied, or a special authority is conferred on it at its request."

The statutes of this state contemplate that every county shall be provided with the necessary county buildings, and to that end, by section 303 of the code "the board of supervisors are empowered to build and keep in repair the necessary buildings for the use of the county and the courts.' Section 173 provides that "when a county is not provided with a regular court-house at the place where the courts are to be held, they shall be held at such place as the board of supervisors provide.'

It will be seen that all counties are required without their assent, and exclusively for public purposes, to provide a room or place. for holding the courts. The counties have no option concerning this duty. It is an involuntary duty imposed upon them by the state, and imposed upon all alike. The obligation to build bridges is different. The statute leaves it to the respective counties to determine what bridges shall be built. It is provided that the board of supervisors shall have power "to provide for the erection of all bridges which may be necessary and which the public convenience may require within their respective counties, and keep the same in repair" Code, § 303, sub. 18.

The respective counties are not absolutely required, by this provision of the statute, to build any particular bridge, or to build any bridge whatever. It is a question to be determined by the board of supervisors, taking into account the wants and convenience of the public. Now, when they elect to build a bridge, it may very probably be said that, under the rule last above referred to, the county incurs a duty by its consent and should be liable for the negligence

of it, or for negligently permitting the bridge built by its express consent to become out of repair.

We are aware that this distinction has not been taken in any of the cases determined by this court, but it seems to us to be sound, and, unwilling as we are to extend the liability of these quasi corporations further than already obtains, which, if done, must inevitably lead to inextricable complications arising in actions for all possible negligent acts, we conclude that the ruling of the District Court should be affirmed.

formance of the work is voluntarily assumed in the first instance, or is a special duty imposed by the legislature, and assented to by the county: Hannon v. St. Louis County, 62 Mo. 313 (following Mower v. Leicester, 9 Mass. 247), where, by the negligence of the contractor, a workman, employed by him, was killed by the caving in of a ditch dug on the grounds of the county insane asylum, under the supervision of the county engineer, and the county was held liable.

"A distinction is, also, made between those corporations which are created as exceptions and receive special grants of power for the peculiar convenience and benefit of the corporators, on the one hand, and the incorporated inhabitants of a district, who are by statute invested with particular powers, without their consent, on the other. *** The reason

which exempts these public bodies from liability to private actions, based upon neglect to perform public obligations, does not apply to villages, boroughs and cities which accept special charters from the state. The grant of the corporate franchise, in these cases, is usually made only at the request of the citizens to be incorporated, and it is justly assumed that it confers what to them is a valuable privilege. This privilege is a consideration for the duties which the charter imposes." See Cooley's Const. Lim. 247-8, and the cases there cited.

Considered in the light of the authorities above cited, and which might casily be multiplied, the decision in the principal case seems entirely correct.

M. D. Ewell. Chicago, June 11, 1880.

Supreme Court of Vermont.

LUKE P. POLAND v. LAMOILLE VALLEY RAILROAD CO. ET AL. A railroad company issued in succession three series of bonds, secured respectively by first, second and third mortgages. Afterwards it being found necessary to issue more bonds to complete the road, 18-23ds of the first mortgage bondholders agreed that a preference mortgage, which should be a lien prior to the bonds held by them, should be given to secure such additional bonds. Upon a bill filed to ascertain the priorities of the securities: Held, that the agreement of the 18-23ds of the first mortgage bondholders did not work a forfeiture of their lien as against the second and third mortgages, but that equity would treat their agreement as an equitable mortgage of their lien to secure the preference mortgage bondholders.

A statute of Vermont authorized railroads to mortgage their rolling stock and personal property without delivery of possession; but provided, that nothing in the act should prevent such property from being attached for claims for services rendered or materials furnished in running the road or keeping it in repair. The mortgagees of an insolvent railroad which was indebted for such claims filed a bill against all parties in interest, and obtained the appointment of a receiver to run the road until final decree. Held, that the right given by the statute to the holders of these claims to obtain a priority over the mortgagees, was not lost by the appointment of the receiver.

Held further, that althougn such claimants could not proceed at law by attachment against the property in the hands of the receiver, yet the court would give