THE facts in the case sufficiently appear in the opinion of the court, which was delivered by

SHAW, C. J. This was a petition for the assessment of damages alleged to have been done to the plaintiff in his property, by the discontinuance of a portion of Market Street, in the city of Boston, by order of the Mayor and Aldermen. It appears by the order of discontinuance and by a plan which was made part of the case, that this discontinuance was of that part of Market Street which would be crossed by the tracks of the Boston and Maine Extension Railroad Co., which, by their charter, have been permitted to extend their road through part of the city. The petitioner owned several lots near that street, and offered to prove at the trial in the Court of Common Pleas, that the value of each had been lessened, and the rent of one or more of them diminished; but it appeared that no one of the parcels bounded on that part of the street which had been discontinued, and that all were accessible by other public streets. The presiding judge ruled, that no damage was recoverable; to which the petitioner excepted.

Upon this state of facts, the court are of opinion that the direction given by the judge at the time was correct, and that the inconvenience sustained by the petitioner, if any, was not such an injury done him in his property, as to entitle him to damage within the true intent of the law. There is obviously a difficulty in laying down a general rule applicable to all cases; one limit however must be observed, which is, that the damage for which a recompense is sought, must be the direct and immediate consequence of the act complained of, and that remote and contingent damages are not recoverable. The inconvenience of the petitioner is experienced by him in common with all the rest of the members of the community. He may feel it more in consequence of the proximity of his lots and buildings; still it is a damage of like kind, and not in its nature peculiar or specific. The creation of a public nuisance by placing an obstruction in a highway, can only be punished and suppressed by a public prosecution; and though a man who lives near it and has occasion to pass it daily, suffers a damage altogether greater than one who lives at a distance, he can have no private action, because in its nature it is common and public. But if he suffers a peculiar and special damage not common to the public; as if by driving on to such an obstruction in the night and

injuring his horse, he may have his private action against the party who placed it there. The damage complained of in this case, though it may be greater in degree, in consequence of the proximity of the petitioner's estates, does not differ in kind from that of any other members of the community who have occasion more or less frequently to pass over the discontinued highway. The petitioner has free access to all his lots, by public streets. The burden of his complaint therefore is, that in going to some of his houses, in some directions, he may be obliged to go somewhat further than he otherwise would. So must the inhabitant of the south end of the city, or the citizens of other towns, with their teams or carriages, who would have had a right to use the discontinued way. Of the question of public convenience, it is the province of the Mayor and Aldermen, upon a balance of all considerations bearing upon it, to decide. It is not to be presumed that they will discontinue a highway once laid out, unless the considerations in favor of the discontinuance decidedly preponderate.

In this case, the rule adopted by the judge seems to have been well adapted to the circumstances of the case, and well guarded; it was limited to damage done to some estate bounding on the highway discontinued. It has been held that in assessing damage for land taken for a railroad, it is not competent to give in evidence, by way of set-off, the benefit done to other lands of the claimant, not connected with the land taken, by the establishment of the railroad. Meacham v. Fitchburg Railroad Co. (4 Cush. 292.) It seems to us that this case falls under the same principle. For if the petitioner could give in evidence loss to estates not bounding on the street discontinued, it would be competent for the respondents to show, that the street was discontinued in consequence of the railroad, and the better to secure the safety and convenience of the travel incident to it, and then show, by way of set-off, any benefit done to any of the complainant's real estate situated any where near the railroad. This would be inadmissible, upon the rule stated, which is founded on the consideration, that the general benefit, which a town or a village derives from a railroad, is common and general to all, which one, a portion of whose land is taken for it, is no more bound to pay for, than any other person deriving a benefit in common, from public improvements. Palmer Co. v. Ferrill, (17 Pick. 58.)

We do not mean to be understood as laying down a universal rule, that in no case can a man have damages for the discontinuance of a highway, unless his land bounds upon it, although as applicable to city streets, intersecting each other at short distances, it is an equitable rule. man may have a farm, store, mill, or wharf, not bounding on a street, but communicating with it by a private way, so situated that he has no access to his property but by the public way. If this is discontinued he must lose the benefit of his estate, or open a way at his own expense, which might be a direct and tangible damage, consequent upon the discontinuance of the public way, and we are not prepared to say that he would not have a claim for damages under the statute.

Exceptions overruled.

B. R. Curtis, for the petitioner. P. W. Chandler, for the respondent.

FREDERICK W. ROBINSON v. AZEL HOWARD AND TRUSTEE.

An officer is not liable, under the trustee process, to a creditor of a person arrested by him on a criminal warrant, for money or other property, taken by the officer, under color of his official duty, from the person of his prisoner.

The giving of a receipt to the prisoner by the officer for the articles so taken, creates no such liability on the part of the officers.

THIS was an appeal from the judgment of the Court of Common Pleas, discharging the trustee, James W. Pierce, upon his answers, which were substantially as follows:Prior to the service of the writ, the plaintiff complained against the defendant in the Police Court of the city of Boston, for larceny, by stealing a note of hand, alleged to have been delivered to him for the purpose of getting it discounted. Upon this complaint a warrant was obtained, and placed in the hands of Pierce as an officer and constable, for service; and he, accompanied by the plaintiff, proceeded to Greenfield, in the County of Franklin, and there arrested Howard. Soon after the arrest, Pierce stated to Howard, that it was his duty as an officer to take from him every thing of value which might enable him to effect an escape between Greenfield and Boston. Howard protested against the proceeding, and alleged that the note, with the stealing of which he was charged, was payable to his own order. Pierce took from him $175 in money,

and sundry small articles, worth not more than $10. In the course of the return to Boston, Pierce learned such facts from Robinson as satisfied him that no larceny had been committed, and on the morning after his arrival in Boston went to the jail to return the property to Howard. When upon the platform of the jail, the present trustee process was served upon him. Within a few hours after this, Howard's case was examined in the Police Court, and he was discharged.

In this court, the alleged trustee being further interrogated, disclosed, that when he took the articles from Howard, as before stated, he gave him a paper acknowledging that he had taken such articles, &c. from him, and he thought he added the words, "When arrested on a charge of larceny;" that he did this to avoid future controversy about what he had taken, and that there might be something to show how he came possessed of the property, in case any accident should happen to him with it in his possession.

A. H. Fiske, for the plaintiff, cited Cush. Tr. Pro. 16–19; Swett v. Brown, (5 Pick. 178); Allen v. Hall, (5 Met. 263.) J. C. Park, for the trustee.

The opinion of the Court was delivered by

SHAW, C. J. The court are of opinion, that the judgment of the Court of Common Pleas ought to be affirmed, and the trustee discharged. The trustee was an officer charged with the service of criminal process, issued on the complaint of this plaintiff. He acted by color of his office, and, as incidental to the service of the process, took from the trustee the money and property in question, declaring it to be in the performance of his official duty, which was to carry the defendant before the examining magistrate. The prisoner could make no resistance, and in no other way express his objection and dissent, than by protesting, which he did. We think that both the officer, and the plaintiff who claims through him, are estopped to deny. that in this respect he acted officially. He is therefore within the spirit if not within the letter of the Rev. Stat. chap. 109, § 30, clauses 2 and 3. The property was taken by him as a public officer, performing an official duty. We should fear, that any other construction would lead to a gross abuse of criminal process. Such process might be used to search the person, or otherwise, under color of lawful authority, to get possession of the property of a

debtor, in order to place it in the hands of the officer, and thus make it attachable by trustee process.

The receipt, disclosed in the last examination, given by the officer to the person arrested after the arrest, appears to us to make no difference. It was a mere certificate of the fact that he had taken the property to give the defendant the benefit of it as proof, and also exempt himself from the charge of any unlawful intent in taking it.

Trustee discharged.

Hampshire, 1851.

SAMUEL A. BOTTOM ET AL, v. AUGUSTUS CLARKE AND TRUSTEE. Trustee Process What is not Attachable.

Where a small trunk, locked, the contents of which were not known, was deposited in the vault of a bank, with the consent of the officers of the bank, for safe-keeping merely, and the officers had no authority to open the same, for the purpose of ascertaining its contents; it was held, that neither the officers nor the bank were chargeable as the trustees of the owner, either for the contents of the trunk, or for the trunk itself.

In this case, the supposed trustees summoned were the President, Directors and Company of the Holyoke Bank, and Ira Clarke, their President, whose answers, upon which the case was submitted, it was agreed, should be received also as the answers of the bank.

The interrogatories and answers were as follows.

1. At the time of the service of the writ, had you or the bank any goods, effects or credits of the defendant, in your or their hands or possession? Had he deposited any personal property with either? If any, please state what, and on what terms.

Answer. At the time of the service of the writ there was in the vault of the Holyoke Bank a small trunk, which had been left in the vault by Augustus Clarke; neither the president nor any other officer of the bank has known its contents, or had access to said contents. He merely requested the privilege of leaving it in the vault, whenever he brought it there; and this privilege I have sometimes given, when I was present at the time; or, if I was not there, Mr. Green, the cashier, or the young man who is clerk, would give it. Neither the bank nor I personally took any responsibility of safely keeping said trunk; and the said Augustus Clarke usually himself put it in the vault and took it from thence. 2. Did you keep the trunk locked up with other property in the vault, and for how long had the practice you speak of continued? Please state also whether any person, or the cashier, had a right to enter your vault without permission of the officers of the bank, and whether said Clarke, when putting it into the vault or taking it therefrom, acted under that per

mission.

Answer. The trunk was kept locked up with other property in the vault, whenever it was there at the usual time of locking the vault. I can't recollect how long he had been in the practice of leaving the trunk there; he had done so for some time prior to the service of the writ. No