In this case, which is an action against the defendants for damages sustained by the plaintiff, in consequence of an alleged defect in one of the public streets of Lowell, the evidence shows that the supposed defect had existed for three or four hours only, when the accident occurred. This draws in question the construction of the Rev. Sts. c. 25, § 22, which provides, that any person, who shall receive any injury by reason of any defect in a highway, which has existed for the space of twenty-four hours, may recover, &c. ; and that, if the town had reasonable notice of such defect, the person injured may recover double the damages sustained.
The court are of opinion, that, upon this statute, the defendants are not liable, either for single or double damages, the defect not having previously existed for twenty-four hours. The previous existence of such defect, for the length of time specified in the statute, is thereby made essential, in order to entitle a party suffering damage to the remedy provided by the statute. There is no remedy, in such case, at the common law ; but one is created and given wholly by statute, and can only be modified by the legislature. It was probably in reference to the constitution of towns and cities, which are aggregate corporations, and as such must act by their officers and agents, who need some time to ascertain and make repairs, after the defect occurs, that the provision in question was made. The requisite of twenty-four hours’ previous existence of a defect is the more significant, because it was not contained in the statute of 1786, c. 81, nor inserted in the report of the commissioners for revising the statutes, but was added afterwards, by way of amendment, by the legislature.
It was ingeniously argued for the plaintiff, that, by the latter clause of the section, towns are liable for double damages, if they have had reasonable notice; and that this liability is not limited to cases where the defect has existed for twenty-four hours. It is true, the liability is not so limited in terms, but it is so by necessary implication. The word *125“ such ” is affixed to highway; when, perhaps, the intent of the legislature would have been expressed more precisely, if the word “ such ” had qualified defect, so as to read “ any such defect.” But we think the meaning is obvious. The latter clause intended to give damages in every case, if the defect had existed twenty-four hours, without other proof of notice; and to give a penalty in addition, if the town had actual and seasonable notice. We think it was the intention of the legislature, in both cases, to make towns liable only m case the defect had existed for twenty-four hours, and then for double or single damages, as they had or had not reasonable notice of the defect.
It being conceded, that the accident, of which the plaintiff complains, occurred when the defect had existed for three or four hours only, she is not entitled to recover against the city in this action.*
Plaintiff nonsuit
Since this decision was made, the law has been altered in both particulars, first, in not requiring that the defect shall have existed twenty-four hours ¡ and, second, in not giving double damages in any case.