Hill v. City of Boston.

Railroad v. Blossburg & Corning Railroad, 20 id. 137; State Railroad Tax Cases, 92 U. S. 575, 615. In the absence of such binding decisions, we find it difficult to reconcile the view, that the mere acceptance of a municipal charter is to be considered as conferring such a benefit upon the corporation as will render it liable to private action for neglect of the duties thereby imposed upon it, with the doctrine that the purpose of the creation of municipal corporations by the State is to exercise a part of its powers of government a doctrine universally recognized, and which has nowhere been more strongly asserted than by the Supreme Court of the United States, in the opinions delivered by Mr. Justice HUNT, in United States v. Railroad Co., 17 Wall. 322, 329, and by Mr. Justice CLIFFORD, in Laramie v. Albany, 92 U. S. 307, 308.

But, however it may be where the duty in question is imposed by the charter itself, the examination of the authorities confirms us in the conclusion that a duty, which is imposed upon an incorporated city, not by the terms of its charter, nor for the profit of the corporation, pecuniarily or otherwise, but upon the city as the representative and agent of the public and for the public benefit, and by a general law applicable to all cities and towns in the Commonwealth, and a breach of which in the case of a town would give no right of private action, is a duty owing to the public alone, and a breach thereof by a city, as by a town, is to be redressed by prosecution in behalf of the public, and will not support an action by an individual, even if he sustains special damage thereby; and, according to the terms of the report, there must be

Judgment for the defendant.

C. R. Train (S. F. Keyes with him), for plaintiff.

H. W. Putnam (J. P. Healy with him), for defendant.

Puffer v. Inhabitants of Orange.

PUFFER V. INHABITANTS of Orange.

(122 Mass. 389.)

Highway-Duty of town to fence at dangerous place.

A town is not bound to erect barriers to prevent travelers straying from a highway, although there is a dangerous place at some distance from the highway which they may reach by straying.*

A

CTION of tort to recover for injuries alleged to have been occasioned to plaintiff through the negligence of the defendant. At the trial in the Superior Court, before BRIGHAM, C. J., there was evidence tending to prove that the plaintiff, on May 18, 1872, was traveling with a horse and buggy on the highway in question in a northerly direction, and was approaching a railroad crossing at grade; that the plaintiff's horse was startled by the noise of an approaching train of cars, and jumped toward the right or easterly side of the highway, and, because there was no railing on the side. of the highway to prevent, rushed into land adjoining it between the railroad and Miller's river; that the plaintiff directed the horse down the river's bank to its foot, where the horse fell and the plaintiff was thrown from the buggy and injured; that when the plaintiff's horse turned from the highway to the right upon the adjoining land, he turned abruptly between one of several posts along the highway and the railroad, and proceeded on the adjoining land in a direction nearly parallel with the railroad for the distance of twenty or thirty feet, and then turned down the river's bank; that the highway was smooth and level, without gutters on either side, and on the easterly side were the posts above mentioned in the line of the highway, without any railing upon them, indicating an old fence, and the highway to the posts was more or less traveled and not grassed over; that the land adjoining the highway upon the east, bounded by the highway, the railroad and the river's bank, had a surface of sandy loam slightly sloping from the highway; and that the river's bank from the top to the foot was covered with rocks.

*See note, ante, p. 183.

Puffer v. Inhabitants of Orange.

The judge ruled that the absence of a railing on the easterly line of the highway was not such a defect, affecting its safety and convenience, as would entitle the plaintiff to maintain this action, directed a verdict for the defendant, and reported the case for the determination of this court.

If the ruling was correct, judgment was to be entered for the defendant; otherwise, a new trial was to be ordered.

G. M. Hobbs, for plaintiff, contended that the question whether the absence of a railing was or was not a defect in the highway, should have been submitted to the jury, and cited Palmer v. Andover, 2 Cush. 600; Stevens v. Boxford, 10 Allen, 25; Titus v. Northbridge, 97 Mass. 258, 266; Babson v. Rockport, 101 id. 93; Murphy. Gloucester, 105 id. 470; Britton v. Cummington, 107 id. 347; Marshall v. Ipswich, 110 id. 522; Warner v. Holyoke, 112 id. 362.

J. W. Rollins, for defendant, was not called upon.

GRAY, C. J. The law which governs this case is well settled by the decisions of this court. A town is bound to erect barriers or railings, where a dangerous place is in such close proximity to the highway as to make traveling on the highway unsafe. Stevens v. Boxford, 10 Allen, 25; Babson v. Rockport, 101 Mass. 93; Britton v. Cummington, 107 id. 347. But it is not bound to do so to prevent travelers from straying from the highway, although there is a dangerous place at some distance from the highway which they may reach by so straying. Sparhawk v. Salem, 1 Allen, 30; Adams v. Natick, 13 id. 429; Murphy v. Gloucester, 105 Mass. 470; Commonwealth v. Wilmington, id. 599; Warner v. Holyoke, 112 id. 362. In the case at bar there was no dangerous place, and no defect or want of sufficient railing, where the plaintiff's horse left the highway; and the dangerous place where the accident happened was reached by passing some distance over a level space, and was at a spot not in or contiguous to the highway, and which the town was not bound to guard by a railing or barrier.

Judgment on the verdict.

VOL. XXIII. — 47

A resident of another State voluntarily went into Massachusetts solely for the purpose of presenting to the legislature and testifying to a claim of his against the Commonwealth and with the intention of returning home without unnecessary delay. Held, (1) that he was privileged from arrest on civil process, and (2) that having been arrested he could be discharged on habeas corpus."

*

ETITION for habeas corpus. The petitioner was a resident of

wealth of Massachusetts, presented such claim to the legislature and voluntarily came into the State and appeared before a joint committee thereof to prove such claim. During an adjournment of the committee petitioner was arrested on an execution issued upon a judgment obtained in the State against him by a citizen thereof. The judge found that he was in attendance on the committee in good faith and solely for the purpose of presenting and proving his claim and with the intention of returning home without unnecessary delay.

The petitioner contended that he was exempt from arrest and was entitled to his discharge. The judge admitted the petitioner to bail, and reserved the case for the consideration of the full court.

J. A. Loring and C. F. Choate, for petitioner.

A. A. Ranney and I. R. Clark, contra.

GRAY, C. J. Parties and witnesses, attending in good faith any legal tribunal, whether a court of record or not, having power to pass upon the rights of the persons attending, are privileged from arrest on civil process during their attendance, and for a reasonable

*See Person v. Grier, ante, p. 38.

Thompson's Case.

time in going and returning, whether they are residents of this State or come from abroad, whether they attend on summons or voluntarily, and whether they have or have not obtained a writ of protection. Walpole v. Alexander, 3 Doug. 45; Meekins v. Smith, 1 H. Bl. 636; Arding v. Flower, 8 T. R. 534; Spence v. Stuart, 3 East, 89; Ex parte Byne, 1 Ves. & B. 316; Persse v. Persse, 5 H. L Cas. 671; M'Neil's case, 6 Mass. 245; Wood v. Neale, 5 Gray, 538; May v. Shumway, 16 id. 86.

The Constitution of the Commonwealth declares that the house of representatives shall have authority to punish by imprisonment every person who shall assault or arrest any witness or other person ordered to attend the house, in his way in going or returning; and that the senate and house of representatives may try and determine all cases, which by the Constitution they have authority to try and determine, by committees of their own members, or in such other way as they may respectively think best. Const. Mass., ch. 1,

§ 3, arts. 10, 11. It is provided by statute that senators and representatives, acting as members of a committee of the legislature, may administer oaths to persons examined before the committee. Gen. Stats., ch. 2, § 20. Each house may exercise the power of summoning witnesses, and of examining witnesses so summoned, or who voluntarily appear, by means of committees, and may punish such witnesses, as for a contempt, if they refuse to testify. Burnham v. Morrissey, 14 Gray, 226. And there can be no doubt that the privilege from arrest of parties and witnesses, attending either house or its committee, is the same as of those attending any strictly judicial tribunal. Cush. Parl. Law, $$ 997, 998.

The claim of the petitioner against the Commonwealth could not have been the subject of a suit in any court, but could only be tried and determined by the legislature; and the justice of this court, to whom the petition for this writ of habeas corpus was presented, has found that the petitioner was a resident of another State, and was in attendance on the legislative committee in good faith, solely for the purpose of presenting and testifying to his claim, and with the intention of returning home without unnecessary delay, and that, immediately upon leaving the state-house, he was arrested on an execution issued from this court, upon a judgment against him in a civil action.

Each house of the legislature doubtless has power to protect parties and witnesses attending before the house or its committees,