Sumner v. . Miller

Dick, J. The remedy oí a person injured by the erection of a mill, is regulated by Statute : Acts 1868-’69, chs. 93 and 158. These special proceedings were commenced improperly, as the summons was returned to a regular Term of the Superior Court, and théy might have been dismissed upon demurrer: Tate v. Powe, ante 644. This irregularity was waived by the plaintiffs putting in an answer, and going to trial upon the merits. In a case like the present, the summons ought to he returned to the Clerk of the Superior Court, and when the issues are joined, the case ought to he sent to the Judge. If there are no issues of fact requiring the intervention of a jury, the Judge may determine that the plaintiff is entitled to relief, and order Commissioners to enquire, and ascertain the damages, &c. Where a jury is needed, the case must be transferred to the trial docket, when they pass upon the issues of fact raised by the pleadings, and if they find that the plaintiff is entitled to relief, three Commissioners are ordered by the Judge to inquire, and assess the damages sustained. This order is in the nature of a writ of enquiry, and the mode of procedure is regulated by the Statute referred to. Although these proceedings were commenced before the act of 1868-’69, ch. 158, they are governed by its provisions, as chapter 71 of the Eevised Code was repealed: Acts 1868-69, ch. 33. The Statute changed the mode of procedure, but did not deprive the parties of any vested right. The verdict of the jury was irregular, and must be set *690 aside as to the damages assessed, for that is a question to he determined by Commissioners. The complaint alleges that the plaintiff is the owner of the damaged freehold, that the defendant erected the dam, &c.; and the jury have found the allegation to he true. The defendant positively denied the truth of such allegations; in an answer upon oath. The answer was probably filed in the hurry of business, but such inconsistent swearing does not look well in the proceedings of a Court. As the judgment appealed from is partly confirmed, the appellant is not entitled to costs in this Court. Let this be certified, that proceedings may be had as above indicated. Pee, Cubiam. Ordered accordingly.