Richardson v. Curtis

Fletcher, J.

This was a proceeding before a sheriff’s jury. There were pending in the court of common pleas, in the county of Norfolk, at the same time, five other complaints' by other complainants against these respondents, claiming damages for injuries to their meadows situated in Medway and Medfield, in said county, on the sides of the Charles River; the damages to which meadows are alleged in the complaints, respectively, to have been caused by the same dam of -the respondents, mentioned in the complaint of the present complainant, and in each of these complaints a jury was ordered to be empanelled to assess the damages occasioned to each of the complainants by the respondents’ dam, which order was passed at the same term of the court at which the order in this case was passed.

Before the jury were empanelled in this case, the respondents objected to any proceedings under the warrant, by virtue of which the jury were assembled, because the said court did not, nor did the complainants, cause all said complaints to be considered and determined by the same jury, and because it appears that separate juries had been drawn, and had been or were to be summoned in all said cases. But the jury were empanelled, and the cause proceeded, notwithstanding *346this objection. The question now presented to this court is, whether or not it was correct to try this case alone by a separate jury, or whether all the cases' pending at the same time should have been tried by the same jury. The decision of this question depends entirely upon statutory provisions. The one hundred and sixteenth chapter of th'e Rev. Sts. §§ 13 and 14, provides, that trials of claims for damages in such a case as this shall be according to the provisions of the twenty-fourth chapter in regal'd to the complaints of persons aggrieved by the laying out of a highway.

The twenty-fourth chapter, <§. 15, provides, that if several applications shall be pending at the same time, all such applications shall he considered and determined by the same jury. This provision constitutes the law applicable to the case now under consideration, and is too plain and express to leave any doubt. By law, this case should have been tried with the other cases, pending at the same time, by the same jury. But it was not so tried, but was tried by itself, by a separate jury, which was not warranted by law, and the verdict must for that reason be set aside and a new trial granted.

It appears, that there were separate warrants issued by the court, in the several cases pending at the same time. The more correct and proper course would have been to have issued but one warrant, reciting the several cases to be tried by the same jury. But, though there were separate warrants, yet the statute peremptorily requires that the complaints should all be tried and determined by the same, jury; and this can be complied with by the sheriff, who can treat the separate warrants as a joint warrant, and bring all the cases before the same jury.

From the view taken by the court, as to the trial of the case, it becomes unnecessary to settle the question, as to the competency of the evidence to show a mistake in the results of the experiments made by Messrs. Hayward and Wadsworth,

The report of the case is defective in not stating the nature and kind of evidence introduced to show such mistake; but, judging of the nature of this evidence hv the answer stated *347to have been introduced, to show that the meadows of the complainants were on the same level with those of the witnesses, the court have great doubt, whether the evidence, to show mistake in the results of the experiments of Messrs. Hayward and Wadsworth, could be admitted consistently with the agreement of the parties as to the effect to be given to the report of those surveyors. Evidence to show mistake, it would seem, should be such as would show some error in the compass, or some error in figures or computation, or something of that nature, and not evidence going over the whole field of the observations and experiments of the surveyors, and thus by conflicting evidence to make out a mistake in results. But it is not now necessary to go more fully into this subject.

Verdict set aside, Sfc.