This case comes before us on an appeal from llie judgment of the court .of common pleas. On the appli*562cation of the petitioners to the county commissioners, for a jury to reassess the damages on the location and construction of a railroad over and across the respondent’s lands, a warrant was issued to summon a jury for that purpose, who were duly summoned, as the law directs, and who, after hearing the parties, returned- their verdict to the court of common pleas, who, after hearing the parties, ordered and decreed, in the premises, that the verdict of the jury should be set aside, and that the respondent recover his costs of suit.
The court of common pleas, as we understand, set aside the verdict for two reasons: 1st, because the verdict was uncertain, the same being for a certain sum, with interest from the time when the petitioners took possession of the respondent’s land; 2d, because the officer who presided at the hearing before the jury erroneously ruled, that the petitioners had the right to open and close, and that the hearing proceeded accordingly.
The counsel for the petitioners contends, that the verdict is sufficiently certain, as the court of common pleas were authorized to compute the interest and add it to the sum assessed. But we think the court were not so authorized by the Rev. Sts. c. 24. By the thirty-fourth section, the cou;t are authorized to receive the verdict, and adjudicate thereon, or to set it aside for good cause ; and by the thirty-seventh section, if the verdict be accepted and recorded by the court, it is to be conclusive on the parties to the proceedings phut the court are not authorized to alter the verdict, or to supply any defect therein, by any provision in the revised statutes. It is however argued, that this authority is given by the statute of 1847, c. 259, § 3, which provides that the county commissioners may issue warrants of distress, to compel the payment of the damages assessed by the commissioners, or by the verdict of a jury, together with costs and lawful interest. But the power thus given by the statute is not sufficient to cure the defect in the verdict. If the court of common pleas had rejected that part of the verdict relating to interest, and had so certified the verdict to the .county commissioners, the *563commissioners would not be authorized to compute any interest before the return of the verdict, or before the time when the verdict was given; whereas the jury intended that the interest should be computed from the time when the petitioners took possession of the respondent’s land. We are of opinion, that the statute of 1847 cannot be so construed as to authorize the commissioners to compute interest, before the assessment of the damages, upon which the computation is to be made. Another decisive objection to such a computation of interest is, that the commissioners have no authority to ascertain the time when the petitioners took possession of the respondent’s land. That was a fact for the jury to find.
As to the other ground of objection to the verdict, it seems to us quite clear, that the ruling of the presiding officer at the trial was erroneous. In cases where a reassessment of damages is to be made by a jury, after an assessment has been made by the commissioners, it is immaterial which party makes the application for such reassessment. The party claiming damages, the same being unliquidated, and to be settled by the jury, has the right of opening and closing the cause. 1 Greenl. Ev. 76, 77; Mercer v. Whall, 5 Ad. & Ell. 447. In this case, the rule is, as we think, correctly laid down by lord Denman, and is decisive as to the present case. “ Wherever,” he says, “ from the state of the record at Nisi Prius, there is any thing to be proved by the plaintiff, whether as to the facts neccssaiy for his obtaining a verdict, or as to the amount of damages, the plaintiff is entitled to begin.” But where the onus probandi lies in the first instance on the defendant, he is entitled to begin. Wootton v. Barton, 1 Mood. & Rob. 518. So, in Davis v. Mason, 4 Pick. 156, it was decided, that where in trespass the defendant pleads soil and freehold in himself, without any other plea, and the issue is joined thereon, the right of opening and closing the argument before the jury belongs to the defendant. But it would have been otherwise, if the defendant had likewise pleaded the general issue. These latter cases obviously have no bearing on the present question. The only question for the *564jury in this case was a question of damages, which they were bound to assess without any regard to the previous assessment by the commissioners. There seems, therefore, no reason for allowing the petitioners to open and close. The result is, that the order of the court of common pleas setting aside the verdict is affirmed, and the judgment for the respondent for costs is disaffirmed. The allowance of costs was premature ; the court should have ordered a certificate of their adjudication to be transmitted to the county commissioners, in order that the petitioners might make application, if they should think fit, for a warrant to summon a new jury, as the law directs. Rev. Sts. c. 24, <§> 36.
Such a certificate of the adjudication of this court is to be transmitted to the county commissioners with the papers for further proceedings.