Terry, C. J., concurring.
The only question presented for consideration is, whether the private property of an inhabitant of a county is liable to seizure and sale on execution for the satisfaction of a judgment recovered against the county.
In support of the affirmative of this question, severаl authorities are cited by the appellant, principally from the reports of Massachusetts and Connecticut. Upon examination, they will be found to admit that the doctrine sustained by them is peculiar to the Mew England States.
In Massachusetts, thе individual liability of the inhabitants of towns and parishes is treated as an exception to the general rule, and is founded upon immemorial usage. (5 Dane's Ab., 3 58; Chase
v.
Merrimack Bank,
In Beardsley
v.
Smith, (
We are unable to find any adjudged case in the other States going to the extent of the Courts in Mew England, and, as we have seen, the rule is there regarded as peculiar, or founded on immemorial usage. There appear to us insurmountable difficulties in the way of any just application of the rule. The inhаbitants of a county are constantly changing; those who contributed to the debt may be non-residents upon the recovеry of the judgment, or the levy of the execution; those who opposed the creation of the liability may be subjectеd to its payment, whilst those by whose fault the burthen has been imposed may be entirely relieved of responsibility. Again, it is a settled рrinciple that whenever one of several is held liable for their joint *409 debt, he may have recourse, upon its paymеnt, to the others for contribution. To enforce this right against the inhabitants of a county, even where its population is small, wоuld lead to such a multiplicity of suits as to render the right utterly valueless. Or if, as might be the case, the party should institute his action agаinst the county for the amount which he had thus paid on its account, and recover judgment, he might, in turn, levy upon the property оf another inhabitant, and even of the original creditor himself, if he should also be an inhabitant of the county. And it might be insisted that the сreditor, if an inhabitant of the county, was only entitled to a proportional part of his judgment from the other inhabitants, or why might not the entire judgment be satisfied out of his own property ? If all the private property of the inhabitants of a county may bе indiscriminately seized by the officer, we do not perceive any ground for excepting that of the creditor himself. And if a сontribution was sustained, the person who was compelled to pay more than his share would be obliged to resort to a similar remedy, and thus there would be such a continuing series of difficulties and inconveniences attending the assertion of the rule for which the appellants contend, as to render it a source of far greater evil than good.
In Russell v. The Men of Devоn, (2 Term, 667,) an action was brought against the men dwelling in the county for an injury sustained by an individual in consequence of a breach of their duty in not keeping a bridge in repair; and Lord Kenyon, C. J., held, that there was no law or reason for supporting the action against the defendants, and observed that, “ 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.” And in the same case, Ashhurst, J., said : “It is a strong presumption that that which never has been done can not by law be done at all. And it is admitted that no such action as the present has ever been brought, though the oсcasion must have frequently happened. But it has been said that there is a principle of law on which this action may bе maintained, namely : that where an individual sustains an injury by the neglect or default of another, the law gives him a remedy. But there is another general principle of law which is more applicable to this case, that it is better that an individual should sustain an injury than that the public should suffer an inconvenience. Mow, if this action could be sustained, the public would suffer a great inconvеnience j for, if damages are recoverable against the county, at all events they must be levied on one or twо individuals, who have no means whatever of reimbursing themselves; for, if they were to bring separate actions against each individual of the county for his proportion, it is better that the plaintiff should be without remedy.”
*410
Whoever becomes a creditоr of a county, must look to its revenues alone for payment. The statute has authorized a suit against the county by which his demаnd may pass into judgment, but it has given no remedy by execution. When the judgment is rendered, it becomes the duty of the supervisors to apply such funds in the treasury of the county as are not otherwise appropriated, to its payment, or if there are no funds, and they possess the requisite power, to levy a tax for that purpose, and if they fail or refuse to apply the funds, оr to exercise the power, he can resort to a
mandamus.
But if they have no funds, and the power to levy the tax has not beеn delegated to them, the Legislature must be invoked for additional authority. (Act to create a Board of Supervisors, § 24; Practice Act, as amended, § 219
;
Gilman
v.
Contra Costa County,
Judgment affirmed.