It was settled many years ago, that no action would lie at common law against a town, for an injury sustained by reason of a defect in a highway, and that the remedy was given only by statute. Mower v. Leicester, 9 Mass. 247. And it has never been held that an action would lie, by the party injured, against the surveyor of the highway himself, for his alleged neglect of duty, or that such surveyor is answérable, except in the manner provided for in the statutes.
A surveyor is not the mere servant or agent of the town, but *111an officer created by statute, and chosen by the town, with other town officers; and his duties are prescribed and defined by the statutes. If in that district of the highways assigned to him to keep in repair, any deficiency exists, occasioned by his fault or neglect, he may be prosecuted for the same by indictment. And if the town also shall be sentenced to pay a fine for any such deficiency, the surveyor, within whose limits such deficiency may be found, shall be liable to the town for the amount of such fine and the costs of prosecution, to be recovered by the town in an action on the case, if such deficiency exist through his fault or neglect. Rev. Sts. c. 15, §§ 83, 84. But no other action is specially given against him, where a recovery has been had against the town. He is not treated by the statute as a mere agent or servant whom the town have employed, and to whom, as such agent or servant, he is directly responsible for any neglect of duty.
It follows, therefore, we think, that the common rule of law, which makes the agent or servant liable over to his employer or master for damages sustained by him in consequence of the neglect of such agent or servant, does not apply in this case. A judgment against the town, in a civil action, is not the ground of a suit against him. We are therefore of opinion that the surveyor is not such agent or servant of the town as renders him incompetent to testify in a civil action, in which the town is defendant, for a defect in that part of the highway which is within his district. The case of Wood v. Waterville, 5 Mass. 294, decides that a surveyor of highways cannot himself recover for a defect in a highway, which defect is the consequence of his own neglect; but that decision does not affect or touch the point here presented.
It was intended to give the person injured certain redress for injuries sustained, by making the town itself liable, and not to turn him round to an action against the surveyor, from whom he might be able to obtain no satisfaction. The surveyor, then, is answerable where the statute gives a remedy against him for the non-performance of those duties assigned to him, or for misfeasance in the discharge of them, but he is *112not responsible as the mere agent or servant of the town. We therefore.think the judge erred in rejecting the witness.
■ New trial granted.