The opinion of the court was delivered by

Several of the questions now made in argument, were decided in Hunter v. Windsor and West Windsor, at the last term. And, treating the points then determined as being settled for this case also, we have at present only to inquire,— 1st, whether the alledged injury to the plaintiff, sufficiently appears to have resulted from any breach of official duty on the part of the defendant Edgerton; and 2d, whether there is a misjoinder of defendants.

The first question will be considered in reference only to the second count in the declaration. For, if the allegations in this count are sufficient to determine the question in favor of the plaintiff, it becomes unnecessary to pass upon the sufficiency of the other counts. The averments peculiar to this count, are, in substance, that Edgerton, being inquired of by the plaintiff, at the time of their negotiation, whether there was any incumbrance of record upon the land, which he was about to purchase, and being requested, if there was, to show the record of it to the plaintiff, neglected and refused to show the record, and did not disclose the fact that such incumbrance existed, but concealed the same. Now without relying for any decisive effect in this case, upon the failure of Mr. Edgerton to keep an alphabet or index, pointing to the record of his mortgage to George and Edward Curtis, we think the other facts here alledged sufficient to entitle the plaintiff to redress *581under the statute. The inquiry and request of the plaintiff, are alledged to have been addressed to the defendant Edgerton in his official capacity, and his conduct which ensued, is also alledged in the same character. And such, indeed, is the sense in which the transaction would be more properly understood. The inquiry was, whether there was any such incumbrance of record “ in his office,” which could mean no other than his office as town clerk; that being the only place in Windsor for such record to be made or kept. And the request was, that he would show the record, if one existed; — a request obviously referring to that official custody and control of the records which would rightfully enable him to exhibit them. Had he complied with the request, it would seem that in so doing he must have acted officially. And since we must suppose Mr. Edgerton to have bejín fully aware of the incumbrance, and the record of it, (which fact is moreover expressly charged in this count and others,) his neglect and refusal to show the record, upon a request so manifestly timely and reaspnable, could be nothing less than a default in official duty, unless he disclosed the existence of the incumbrance, or put the plaintiff in a way to find the record of it by examination. But it is charged, that although he knew the plaintiff to b'e ignorant of the incumbrance, he concealed the fact of its existence, furnishing no clue or guide by which the record of it might be discovered. We think an official neglect and violation of duty are sufficiently alledged. And as it appears, from the additional averments of this count, that the plaintiff was thus induced to complete his purchase, believing the land to be unincumbered, except by the lease to Dunbar & White, and was consequently obliged to incur a heavy loss, by reason of the previous mortgage to George and Edward Curtis, we consider that a legal cause of action is here stated, as well against the defendant towns as against the town clerk.

It may be premised in reference to the. other question, that the liability of the town, in a case of this description, is equally original and direct as that of their delinquent town clerk or constable. No previous recovery or suit against the officer is necessary, in order to perfect a right of action against the town for his default.

The statutory enactment, that the town “ shall be liable to make “ good all damages,” &c., is held to render them immediately answerable for the official misconduct or neglect of the officer, to any *582person sustaining injury thereby. This is neither more .nor less than the liability of the officer himself. Both are made liable in the same form of action, and may be subjected upon the same evidence.

Hence, no solid objection is perceived to a joint action against the two parties liable. The person injured cannot be restricted to an action against one only of these parties, and if he seeks his remedy against both, it is not apparent why two actions of the same kind should be required to enforce precisely the same liability. So far as the analogy extends between such a case as the present and those growing out of the relation of master and serv-' ant, the views now expressed receive countenance from the tendency of modern authority in the latter cases. The inclination evidently is, to sanction a joint action against the master and servant, for the default of the latter, provided the appropriate form of action against each would be case, and not trespass.

It is true, that the liability of a town in this class of cases, would not arise upon common law principles. But when it is created by statute, and made to co-exist with that of their officer in the manner before stated, we are disposed to hold that the prescribed action on the case is warranted jointly against the town and the officer, as well by a just construction of the statute itself, as by analogy to the cases against master and servant. The result is, that in our opinion there is not a misjoinder of defendants.

The judgment of the county court is therefore reversed, and the declaration is adjudged to be sufficient.