Hadley v. Citizens' Savings Institution , 123 Mass. 301 ( 1877 )

Gray, C. J.

Upon a complaint under the mill act, every matter which shows that the complainant cannot maintain his suit, except the question whether he has sustained any damages, must he pleaded in bar and decided by the court before the issue of the warrant for a sheriff’s jury. Gen. Sts. e. 149, § 8. Charles v. Porter, 10 Met. 37. Howard v. Proprietors of Locks & Canals, 12 Cush. 259. Darling v. Blackstone Manuf. Co. 16 Gray, 187. The objections that the respondent had a prescriptive right to maintain its dam and that there was no mill existing, as well as those to the sufficiency of the description of the land in the complaint, and to the sufficiency of the service, were waived by omitting so to plead them, and by appearing, without protest, before the sheriff’s jury, and taking the chance of a favorable veidict, and could not be made for the first time after the return of the verdict into court. In Fitch v. Stevens, 4 Met. 426, cited for the respondent, the defendant, who was allowed, in answer to an action to recover the damages assessed by the sheriff’s jury, to show that no mill had ever been built, was not a party or privy to the proceedings on the complaint.

The motion for a new trial was addressed to the discretion of the court. The testimony of the complainant’s husband was admissible to identify the land flowed.

Exceptions overrule i.