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 & C. F. Choate, for the petitioner.

A A. Ranney & 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 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. Meekins v. Smith, 1 H. Bl. 636. Spence v. Stuart, 3 East, 89.

3 Doug. 45.

8 T. R. 534.
Ves. & B. 316.
case, 6 Mass. 245.
way, 16 Gray, 86.

Walpole v. Alexander,

Arding v. Flower,

Ex parte Byne, 1

Persse v. Persse, 5 H. L. Cas. 671. M'Neil's
Wood v. Neale, 5 Gray, 538. May v. Shum-

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. c. 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. Sts. c. 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 tri bunal. 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, by ordering their discharge from arrest, just as any court of record may order the discharge of a person unlawfully arrested while in attendance upon the court, or upon a commissioner or arbitrator acting under its authority. May's Law of Parl. (6th ed.) 147 & seq. Cush. Parl. Law, § 999. Meynel v. Cooper, 1 Ch. Rep. 217. Walters v. Rees, 4 Moore, 34. Rishton v. Nisbett, 1 Mood. & Rob. 347. Hurst's case, 4 Dall. 387. Norris v. Beach, 2 Johns. 294. United States v. Edme, 9 S. & R. 147. M'Neil's case, 3 Mass. 288.

But it is equally within the power of the court, out of which the process issues, to discharge, on motion, a person arrested by abuse of that process. Pitt's case, Fortescue, 159, 163, 164; S. C. 7 Mod. 225, 230; Cas. temp. Hardw. 37, 41; Cunningham, 16, 27; 2 Stra. 985, 990. Walker v. Webb, 3 Anstr. 941. Selby v. Hills, 8 Bing. 166; S. C. 1 Mo. & Sc. 253. Attorney General v. Skinners' Co. Coop. Pract. Cas. 1. Bours v. Tuckerman, 7 Johns. 538. Or any one arrested in violation of privilege may, like any other person unlawfully imprisoned or restrained of his liberty, be discharged by this court, or by any justice thereof, in the exercise of the general power to issue writs of habeas corpus. Gen. Sts. c. 144, §§ 1-5. St. 1861, c. 91, § 1. Com. Dig. Privilege, A. 3. Ex parte Tillotson, 1 Stark. 470. Ex parte Dakins, 16 C. B. 77. Wood v. Neale, 5 Gray, 538. May v. Shumway, 16 Gray, 86.

As it does not appear that either house of the Legislature is exercising its authority to the same end, it is the duty of the court to order that the petitioner be

Discharged from custody.

NEW YORK WAREHOUSE AND SECURITY COMPANY vs. F. B.

LOOMIS.

Suffolk. April 4, -6, 1877.

AMES & ENDICOTT, JJ., absent.

Under the U. S. St. of March 3, 1875, § 3, providing that a petition for the removal of a cause from a state court into a Circuit Court of the United States must be filed "before or at the term at which said cause could be first tried, and before the trial," such a petition filed before trial, at a term of this court subsequent to that at which the case was entered and at issue, is too late, although the case has been first put upon the trial list at the term at which the petition is filed.

CONTRACT on a promissory note for $105,333.33. Writ dated December 14, 1874, and entered at April term 1875, of this court.

The plaintiff was and still is a corporation established and doing business in the State of New York, and the defendant a resident and citizen of Connecticut and doing business in that State. The defendant filed his answer at April term 1875, to wit, on May 6, 1875. The case was first placed on the trial list at September term 1876. During that term, to wit, on March 5, 1877, and before trial, the defendant filed by consent an amended answer, and on the same day filed a petition for the removal of the case into the Circuit Court of the United States for this district, together with a bond with sufficient surety in the form required by the act of Congress of March 3, 1875. The plaintiff objected to the petition and bond, because they were not made and filed, as required by § 3 of that act, "before or at the term at which said cause could be first tried." It appeared from in spection of the records of this court, that several cases entered after this case at April term 1875, and one entered at September term 1875, were tried at April term 1876.

Upon these facts, Lord, J., reserved for the consideration of the full court the question whether the petition and bond were

seasonably filed, so as to entitle the defendant to have the case removed into the Circuit Court of the United States.

A. A. Ranney, for the defendant.

D. Thaxter & F. W. Palfrey, for the plaintiff, were not called apon.

GRAY, C. J. A petition for the removal of a cause from a state court into a Circuit Court of the United States must, by the terms of the act of Congress of March 3, 1875, § 3, be filed "before or at the term at which said cause could be first tried, and before the trial." The manifest purpose and effect of this enactment are that a party, who intends to remove a case from a state court into a federal court for trial, shall do so, not only before trial in the state court, but at the first term at which a case is at issue for trial and might be ordered to be tried there.

By our practice act, an action at law is deemed at issue as soon as an answer is filed, and no further pleading is required, except by order of the court. Gen. Sts. c. 129, §§ 23, 28. Cases may be, and often are, tried at the first term at which they are entered. And the rule of this court, which requires that at each term for the trial of cases by a jury, a trial list shall be prepared on the first day of the sitting of the court, allows any case to be placed upon the list afterwards by order of the court. Rule 22, 104 Mass. 563. The present case was therefore at issue, and could by the law and practice of this Commonwealth have been tried, at April term 1875, at September term 1875, or at April term 1876; and this petition for removal, filed at September term 1876, comes too late. Our interpretation of the act of Congress is supported by the opinions of three federal judges of much experience: Mr. Justice Davis of the Supreme Court, and Judges Drummond and Dillon of the Circuit Courts for the seventh and eighth circuits. Dillon on Removal of Causes, 58, note. Springfield Railroad, 6 Bissell, 529, 536. Central Railroad, 4 Centr. L. J. 199.

Scott v. Clinton &
Ames v. Colorade

Petition for removal denied.

EDWARD H. GLIDDEN vs. LINUS M. CHILD & another.

Suffolk. April 4.-10, 1877. AMES & ENDICOTT, JJ., absent.

A written agreement of the defendants to pay for certain bricks to be delivered to a third person, who had contracted to build a house for them, is an original promise; and the plaintiff, upon substantially performing the agreement on his part with variados assented to by the defendants, may maintain an action for the bricks upon an account annexed.

The report of a commissioner, to whom a petition to establish the truth of exceptions had been referred, showed that material evidence introduced at the trial upon one of the questions presented by the exceptions, was not stated in the bill of exceptions presented. Held, that the bill of exceptions, so far as it related to this question, was rightly disallowed.

CONTRACT against Linus M. Child and H. B. Crandall, on an account annexed, for a quantity of bricks sold to the defendants. Trial in the Superior Court, without a jury, before Bacon, J., who found for the plaintiff. The defendants tendered a bill of exceptions in substance as follows:

It appeared at the trial that one Silva went to the plaintiff to purchase some bricks to build two houses; that the prices and conditions were stated and agreed on, but that the plaintiff refused to trust Silva, as he did not consider him good, but required some guaranty for the payment; that afterwards, on the same day, Silva brought him the following written agreement signed by the defendants: "Boston, December 7, 1874. Mr. E. H. Glidden. We will pay you for eighty-seven thousand light hard bricks, and eighty-eight thousand hard bricks, to be delivered to Manuel Silva, at the rate of 6.25 dollars per thousand for the light hard, and 8.25 dollars per thousand for the hard, in thirty days after delivery."

The defendants contended that the plaintiff could not maintain his action on the account, but should have sued on the agreement.

The plaintiff testified that after the contract had been signed he met the defendant Crandall, who requested that there should be delivered more of the bricks at 8 per thousand, and less of those at 6 per thousand, and he agreed with him so to do; that afterwards the plaintiff rendered a bill to Silva for a portion of the bricks, (he, said Silva, being the contractor who was building