
    Matthew Vandusen, Plaintiff in Error, versus Prentice Comstock.
    Upon a complaint to the Court of Common Pleas by the owner of land flowed in consequence of the erection of a mill-dam, the respondent, if he claim to be wholly exempted from the payment of damages, must plead to issue at the bar of the Court; otherwise the sheriff’s jury are bound to give the complainant some damages.
    The plaintiff in error made his application to the Court of Common Pleas for this county, pursuant to the statutes of this commonwealth, for the support and regulation of mills, setting forth that he was seised and possessed of a certain tract of land in Great Barrington, through which a stream of water passes, that Comstock, owning and occupying a saw-mill on the said stream, had erected a dam across said stream, for the working of said mill, whereby ten acres of good and valuable land, parcel of the said tract, had been and still was overflowed and spoiled. Whereupon he prayed that a warrant might issue to the sheriff of the county, directing him to summon and impanel a jury to make, under oath, a true [ * 185 ] and faithful appraisement of the yearly damages done *to the complainant, by so overflowing his land, and how far the said overflowing might be necessary.
    The complaint was continued to the then next term, to notify the respondent, who appeared accordingly; but not showing sufficient cause, a warrant was ordered to issue to the sheriff to impanel a jury for the purposes suggested in the application.
    The certificate of the oath administered to the jurors was endorsed on the warrant as follows:—“ Berkshire, ss. A. B., foreman, &c.” [naming the twelve jurors], “ made oath that they would make a true and faithful appraisement of the yearly damages which the within-named Matthew Vandusen is entitled to recover against the within-named Prentice Comstock, for the flowing of the land set forth in the within warrant, and how far the same may be necessary.”
    The verdict of the jury was, “ that the complainant recover ni; damages for flowing his land as set forth in his complaint, that the said land may be flowed from and after the first day of November, until the twentieth day of April, in each year; and that the public convenience, and the circumstances of the case, do not justify such flowing any other part of the year.”
    The Court of Common Pleas, after hearing the parties, approved, and accepted the verdict, and ordered it to be recorded, and awarded costs for the respondent.
    To reverse this judgment of the Court of Common Pleas, this writ of error is brought. The errors assigned are, 1. It does not appear that the jurors were sworn to perform all the duties required of them, by the statute under which they acted, as by the said statute they ought to have been. 2. It appears that, notwithstanding the respondent had never pleaded in court to the said complaint, nor disputed the statement therein made, nor denied the complainant’s title to the land flowed, nor claimed any right to flow the same without payment of damages therefor, nor stated any composition for such flowing, the jury returned a verdict in favor of the respondent, whereas they were bound by law to have rendered a verdict in favor of the complainant for his damages. 3. It appears that the jury have certified that the said land *may be [ * 186 ] flowed in future for a certain part of each year, without the payment of any damages to the complainant.
    
      Ives, for the plaintiff in error.
    The fourth section of the statute for the support and regulation of mills, 1795, C..74, under which these proceedings were had, makes it the duty of the jury, when they inquire of the yearly damages, also to inquire, and make return in their verdict, what portion of the year the lands ought, not to be flowed. We contend that the oath administered to the jury should be as extensive as the duties to be performed by them; that the oath administered to the jurors in this case did not extend to, or comprehend that part of their duty above mentioned, and therefore, so far as they acted upon that part, that they acted without being sworn.
    But we rely with more confidence on the second error assigned. By the second section of the additional statute on this subject, 1797, c. 63, it is enacted, “ that if any owner or occupant of any mill shall plead to such complaint, and in his plea shall dispute the statement made by the complainant, or shall deny the complainant's title to the lands said to be damaged by flowing, or shall claim a right to flow such lands without payment of damages, or for an agreed composition; the Court shall order a trial of the issue, which may be joined by the parties, by a jury at the bar of said court; or, if the issue be an issue in law, shall determine the same themselves, reserving to each party the liberty of appealing,” &c. By the third section of the same statute, “ If the owner or occupant of a mill, notified as aforesaid, shall not appear, or, appearing, shall not show sufficient cause, the said Court of Common Pleas shall issue a warrant, and such proceedings shall be had in all things, as are prescribed by the act, to which this is an addition.”
    We contend that where the respondent does not appear, or, appearing, does not plead to the complaint, or in some legal manner, show sufficient cause why the complainant is not entitled to damages, he is estopped from showing such cause to the sheriff’s jury; and it is not competent to that jury to say that the complainant is entitled to recover no damages. This question is directed, and for the soundest reason, to be determined at the bar of the court.
    * The Attorney-General, Bidwell, for the defendant in error,
    observed that the statute has prescribed the form of the oath, and was exactly pursued in this case. But the oath, as prescribed by law, and as administered in this case, in terms includes that part of the duty of the jury referred by the counsel for the plaintiff in error. “ How far the same may be necessary,” will as well apply to time, as to the extent of ground which may be flowed, or the height to which the water may be raised; in' other words, how far may intend, how long in point of duration, to what distance or extent of surface, and to what height the flowing may be necessary.
    The Court unanimously concurred in this construction.
    As to the other errors assigned, it was argued by the Attorney General that if the public convenience and the circumstances of the case do not require the flowing at all, the jury have no power to. authorize it, and of course can award no damages. So if, upon a view of the premises, they are satisfied that, by flowing for such a season or portion of the year, as in their opinion the public convenience and the circumstances of the case require, the complainant will sustain no damage, or, as may be the case, will receive a benefit, it would be a flagrant violation of their duty, and a breach of the-oath which they had taken, to award any damages.
    
      The Chief Justice observed that a writ of error does not lie to remove proceedings of this kind, which are not according to the course of the common law; but as was done in the case of Hrowne vs. Stimpson 
      , this may be considered to be a certiorari.
    
    
      
      
        2 Mass. Rep. 441.
    
   Curia.

The verdict in this case is in direct contradiction to the record, which says expressly that the respondent appeared, but did not show sufficient cause. If he claimed to be exempted from the payment of any damages at all, he should have pleaded to issue, and the issue would have been tried at the bar of the court. Having neglected so to do, the sheriff’s jury were bound to give the complainant some damages. This verdict cannot be supported .

Proceedings quashed. 
      
      
         [As to the question how far the act of 1795, c. 74, is consistent with the constitution, see note to Stowell vs. Flagg, 10 Mass. 366.—To what is there said, it may be added, that, by the tenth section of the declaration of rights, it is declared that no part of the property of any individual can, with justice, be taken from him, or applied to public uses without his own consent, or that of the representative body of the people. If judicial decisions, and very long practice in this and analogous cases, had not determined otherwise, it would seem clear that authority must be given in each case by the legislature, as is the case in England. For the power is expressly intrusted to them alone; and to them only, when the public exigencies require it; and they, according to the rules of law, cannot delegate it to a jury, or any other persons.—Ed.]
     