
    * Thomas Lord versus the Fifth Massachusetts Turnpike Corporation.
    [n an act incorporating the proprietors of a turnpike road, it was provided that the proprietors should have a right to demand toll, when the road should be approved, as sufficiently made, by a committee to be appointed by the Sessions; and that they should be liable to pay all damages happening to passengers fr m want of repairs; it was holden that they were liable for such damages, although the road was in the same state as when approved by such committee.
    The defendants were incorporated by an act passed on the first of March, 1799 , with authority to make a road therein described ; and in the first section it is provided, that when the road should be sufficiently made, and approved of by a committee to be appointed by the Courts of Sessions in the counties of Worcester and Hampshire for that purpose, the proprietors might erect five turnpike gates, and should be entitled to receive certain tolls fixed by the act, at each of those gates. In the third section it is enacted, that the corporation shall be liable to pay all damages that shall happen to any person from whom the toll is demandable, for any damage which shall arise from defect of bridges or want of repairs in said road.
    The plaintiff brought his action on the case, to recover damages for the loss of his horse, arising, as he alleged, from defect and want of repairs in the said road. At the trial before Jackson, J., at the last May term in Franklin county, the plaintiff having sustained the. issue on his part, the defendants offered evidence, to prove that the road was in the same state at the time of the accident, as it was when originally made and approved by the committee of Sessions appointed pursuant to the act. But the judge, being of opinion that this fact, if proved, would not constitute a sufficient defence to the action, rejected the evidence ; and a verdict being returned for the plaintiff, the defendants moved for a new trial on account of this opinion of the judge.
    
      Mills, for the defendants,
    contended that the approval by the committee was conclusive on the point. They were commissioners, appointed by the law to adjudicate upon the sufficiency of the road; and their sentence was final and binding on all parties. [ * 107 ] The same section, which * gives a right to the suffering party to recover damages, also authorizes an indictment. Suppose, then, that a grand jury had seen fit to present the road as insufficient, the day after the committee had approved it. The doings of the committee would certainly have been a good bar to the prosecution, unless imposition and fraud were shown. If, however, the evidence offered at the trial was not conclusive, it was proper and competent,con the question whether the road was in sufficient repair.
    
      Allen for the plaintiff.
    
      
      
        Mass. Spec. L. 52, 295. —Stat. 1798, c. 85.
    
   By the Court.

Taking the two sections of the act together, it is obvious tha.t the intent of the legislature in the first was, merely to have .it ascertained, when the road should be so finished as to entitle the corporation to demand toll; not that travellers, who might suffer, should be prevented from having their action for damages, if the committee reported the road to be properly made. It might well appear to such committee, to be sufficient at the time when they examined it; and yet, in a different season of the year, it might be palpably insufficient for the security and safety of passengers. The approval of the committee could have no other effect, than to entitle the defendants to demand and receive toll; and their undertaking to set up their gates is a pledge to. all travellers, that they shall not be hindered, or injured in their property, by reason of any defect in the road, over which they are invited to pass.

Judgment on the verdict.  