The Hampshire and Hampden Canal Company versus Thomas Ashley, 15 Pick. 496

Wilde J. delivered the opinion of the Court. Several errors have been assigned in the record of the proceedings of the county commissioners on the respondent’s petition, and in the rendition of judgment thereon, one of which appears to us conclusive in favor of the petitioners, and we have not considered the other errors assigned. It appears by the record, that the county commissioners rendered judgment in favor of the respondent, on his petition for an increase of damages, not only for the damages assessed by the jury, but for his costs also ; which they were not authorized to do.

By the St. 1822, c. 59, § 8, it is enacted, that “if the party injured ” (by the laying out of the canal) “ in his, her, or their estate, apply for a jury, and fail to obtain increased damages, such party shall be liable for all legal costs arising after the entering of such application for a jury.” But there is no provision for taxing costs against the other party, when the petitioner succeeds in obtaining an increase of damages.

So there is no provision for costs for either party on the assessment of damages in the first instance by the commissioners ; and doubtless it was considered unreasonable by the legislature, that the party resting satisfied with the assessment by the commissioners should be mulcted in costs for any mistake in judgment of theirs. This is suggested as a reason for a similar provision, in respect to costs on the laying out of highways, in the case of Commonwealth v. Carpenter, 3 Mass. R. 270.

But whatever may be the reason why no provision was made for the allowance of costs in a case like this, it is sufficient for the present, that no such provision has been made. The St. 1784, c. 28, § 9, entitling the prevailing party to recover his costs, is confined to civil actions, and cannot by any reasonable construction be extended to cases "kc the present. Certiorari granted.

After the return of the writ of certiorari, Boise argued, that the fact that the warrant for a jury was made returnable to the Court of Common Pleas instead of the county commissioners, was owing to an error of the clerk, for which the respondent ought not to suffer ; and that the proceedings had been set right by the order of that court, and the canal corporation had sustained no injury in consequence of the mistake. Sawtell, Petitioner, &c. 6 Pick. 110. Shaw C. J. delivered the opinion of the Court.

It seems conceded in the argument, that by the statute the warrant should have been made returnable to the county commissioners, and such was the decision of the Court of Common Pleas. We have not examined ve complicated provisions on this subject, changing the jurisdiction of these tribunals ; and it is the less necessary, because if that decision of the Court of Common Pleas was wrong, it should have been excepted to and set right in due course of law, and their act declining the jurisdiction and transmitting the proceedings to the county commissioners- was erroneous.

Supposing the decision of the Court of Common Pleas correct, the Court are of opinion, that the return of the warrant was of the substance of the proceeding ; it fixed the tribunal before which, and the time and place at which, the parties were next to appear, and have day in court. It is like the return of a writ, or report of referees. Mott v. Anthony, 5 Mass. R. 489. A compliance with the statute in this respect, is necessary, to give the court jurisdiction.

Where the parties are already before a court of competent jurisdiction, by a proper return of process, such strictness may be dispensed with, and any irregular proceeding corrected by the order of the court. Whitney v. Cook, 5 Mass. R. 139 ; Bacon v. Ward, 10 Mass. R. 141. Without a legal return the Court of Common Pleas have no jurisdiction of the subject matter or of the parties. The return of a verdict is not like the case of a writ of execution, for preservation and record only.

Parties may appear upon it; the court may set it aside ; it is the foundation of further proceedings ; if a mistake of the time, in the return of process, is a fatal error, a fortiori is a mistake of the forum, before which it is returnable.

The warrant not being made returnable to the county commissioners, and not being in fact returned to them by the sheriff, it is difficult to perceive on what ground they could receive and act upon it; the return of the Court of Common Pleas to them, was without legal authority, and was inoperative and void, except as a mere notice, that that court declined the jurisdiction, and had done nothing either to affirm or disaffirm the verdict. For this - error, we think, that the proceedings must be quashed ; and this renders it unnecessary to express any opinion upon the other errors assigned.