{Cristman  v.  Paul,  16  How.  17.)

But  a  private  action  would  probably  lie  for  an  affirm-
ative act  by  which  somn  injury  is  done,  as  for  negli-
gently and  unskilfully  constructing  a  bridge,  or  for  the
negligent  execution  of  a  duty  resulting  in  the  creation
of  a  public  nuisance.     (See  16  N.  T.  Jt.  161.)

The  commissioners,  however,  may  be  indicted  for
neglecting  to  make  the  proper  reparation.  (Per
Weight,  J.,  in  Oarlinghouse  v.  Jacobs,  supra,  and
per  Beardsley,  J.,  in  Wilson  v.  Mayor  of  New  York,
1  Denio,  599 ;  see  also  11  Wend.  539.)  But  an  indict-
ment against  them  will  not  lie  unless  they  have  funds  ;
and  an  indictment  against  them  is  defective  unless  it
avers  that  the  defendants  have  funds  or  other  means
to  defray  the  expenses  of  the  repairs,  or  the  power  to
obtain  them.  {People  v.  Adsit,  2  Hill,  619  ;  4  Hill,
630;  Hover  v.  Barlchoff,  44  N.  Y.  R.  113.)

Liability  of  towns. — A  town  is  not  liable  to  a  civil
action  in  any  event,  for  an  injury  occasioned  by  their


COMMISSIONEKS,   THEIE  POWERS  AND  DUTIES.      87

suffering  a  public  highway  or  road  to  become  out  of
repair,  and  in  a  ruinous  and  unsafe  condition.  There
is  no  statute  or  common  law  liability  on  towns  to  re-
pair. They  are  unlike  the  parishes  in  England  in  this
respect.  Even  the  vote  of  the  electors  in  town  meet-
inff,  to  pay  damages  aiising  from  the  ruinous  condition
of  the  roads,  being  without  consideration,  cannot  bind
the  town  to  pay  such  damages.  {Morey  v.  Town  of
Wewfane,  8  Barb.  645 ;  see  also  Town  of  Galen  v.
Clyde,  &c.  Plank-road  Go.  27  Barh.  551 ;  Lorillard  v.
