Assuming, for the purposes of this case, that the Sts. of 1830, e. 79, and 1831, e. 59, are so far public acts that they need not be set out by plea, yet we are of opinion that the demurrer presents no question of law which can defeat the indictment.
1. It does not appear that the county commissioners ever laid out a highway, in pursuance of the authority given them by the first of those acts. The second act does not, in terms, recite such location as a fact accomplished; neither is it to be so taken, as a legal inference, from the language of the proviso that the erections “ do not obstruct said highway as laid out.” The participle is in a past tense from its relation to the verb which precedes, and which, though present in form, is manifestly intended to bear a future significance. If the second statute were incorporated with the first, the language would be entirely appropriate to the apparent purpose of the legislature, and give rise to no ambiguity. It is equally adapted to that purpose, whether the location had then been made or not.
2. If a highway was laid out under the first act, it does- not? appear that the county commissioners authorized the entire interruption of all navigable use of the water; nor that the construction of such a highway would necessarily cut off such use entirely.
3. It does not appear that the town ever accepted or availed itself of the second act; either by vote or by actual construction of such works as are therein authorized.
There being no fact in the case showing the existence of a highway across the cove, with dam, dike, causeway and flood-gates or sluice-ways, corresponding to the authority thus given by the two *496acts, there is nothing to which the presumption can attach, that the proper forms of proceeding, necessary therefor, were adopted. Non constat, that any proceedings were had, or any highway or dike constructed until that complained of as built in 1867. The indictment, indeed, describes a highway as striking the cove at that part where the dam and dike complained of are built; but that does not identify either the highway or the dam, as structures authorized by the statutes in question.
4. But further, we do not see how the identity of the dam and dike complained of, with the structures authorized by the statutes relied on, can be made out otherwise than by proofs as a question of fact. A highway “ across Goose Cove,” even if made solid, would not necessarily exclude the whole from navigable use; and a dam or dike which obstructed navigation in the remainder, would be indictable.
5. If “ convenient and suitable sluice-ways or watercourses through said highway ” and “ flood-gates suitable for admitting and stopping the tide-waters, for the purpose of creating mill privileges,” would not, as is contended on the part of the Commonwealth, cause an entire interruption of all navigable use, then the construction of a dam and dike not required for the purposes indicated, and not authorized under the statutes relied on, would be a nuisance, for which this indictment would lie. Commonwealth v. Nashua & Lowell Railroad Co. 2 Gray, 54. Commonwealth v. Proprietors of New Bedford Bridge, Ib. 339. Commonwealth v. Vermont & Massachusetts Railroad Co. 4 Gray, 22.
That judgment of guilty may be rendered by the court, upon demurrer overruled, is fully settled. See authorities cited for the Commonwealth; also Gen. Sts. c. 158, § 5.
It is contended, however, that the court could not proceed to such judgment after exceptions were taken to the order overruling the demurrer.
There is some degree of ambiguity in the phraseology of the statutes in this regard. The term “ judgment ” is sometimes applied to the final determination of the issues in the case, or to the final ascertainment of the guilt of the accused, at nisi prius. It is also used in a larger sense, involving the order for execution oi sentence.
*497It is used in the former sense in the Gen. Sts. e. 115, § 7, allowing exceptions to a “judgment of the court in matters of law.” This court has always interpreted § 9, of the same chapter, as providing that the trial shall proceed to such a judgment at nisi prius, notwithstanding the allowance of exceptions to previous interlocutory opinions, rulings and directions, before the questions of law thus raised can be heard in bane; and the further provision that “ no judgment shall be entered unless the exceptions are adjudged immaterial,” &c., as referring to a judgment of the latter character, and such as is provided for in § 10. The exceptions, when allowed and filed, merely put upon record the questions of law thus raised. They do not remove the case. Until there is judgment upon the issues of fact, it is not apparent that the party has been prejudiced by the adverse ruling. Accordingly it is held that the whole record below must be complete before an excepting party can be heard by this court in bane. This was the settled rule of practice before the St. of 1859, e. 196. Commonwealth v. Salem, 11 Gray, 52. Commonwealth v. Paulus, Ib. 305. Bursley v. Barnstable, 14 Gray, 106. Stetson v. Exehange Bank, 7 Gray, 425. We do not think that any change in this particular was made by that statute, or by the Gen. Sts. c. 115, §§ 7-12. In both, the same provisions are made applicable alike to civil and to criminal cases. And in civil cases the rule of practice, above stated, has been frequently and uniformly maintained. Case v. Ladd, 2 Allen, 130. Bennett v. Clemence, 3 Allen, 431. Webber v. Davis, 5 Allen, 393. Marshall v. Merritt, 13 Allen, 274. Most of these cases, it is true, arose under the Gen. Sts. c. 129, § 64. That statute, however, does not provide the mode in which such questions shall be carried up. The demurrer is to be “ further heard upon appeal or otherwise, as is provided in respect to such questions of law.” If by exceptions, then the mode is governed by e. 115, §§ 7 et seq. The reasons for the rule, as explained in Bennett v. Clemence, are applicable equally to civil and to criminal cases; and to exceptions as well as to cases of appeal. Those reasons are satisfactory to our minds, and lead to a consistent and uniform rule, which is salutary in its practical operation.
*498The judgment of guilty was properly entered in the court below. Without it the defendants could not have brought to this court the exceptions to the overruling of the demurrer. Doubtless the Superior Court might have permitted the defendant to plead over, and have a trial of questions of fact. But if such proceedings were to be had, the defendant was not entitled to have them delayed until the demurrer could be argued and decided in the court above. The exceptions filed and allowed did not supersede nor suspend further proceedings in that court, except as to a final judgment awarding sentence.
Upon both points, therefore, the defendant fails to sustain the exceptions, and they must be Overruled.