¶1The court are of opinion that the directions of the sheriff were perfectly correct. Whatever tends to show that the complainant cannot maintain his suit, whether it may be matter of law or fact, (except that the complainant -has sustained no damage,) must be put in issue and tried before the court, before a warrant for a sheriff’s jury is awarded. Formerly, a practice had grown up for a respondent to plead in bar that the complainant had sustained no damage. But as this brought the question of damage before the first jury, to be tried by evidence, which could be more effectually and satisfactorily tried, upon a view, by the sheriff’s jury, it is provided by the Rev. Sts. c. 116, § 8, that the respondent shall not plead, in bar of the complaint, that the land therein described is not injured by the dam ; but, by <§> 16, if the sheriff ’s jury find that the complainant is not entitled to recover any damages, they shall return their verdict accordingly; and this will warrant a judgment for the respondent. See the commissioners’ note to their report of c. 116, § 8.
¶2It appears by the bill of exceptions, that the evidence *40offered by the respondents, and rejected, was to matter in bar, which was precluded by the previous verdict. But the jury were rightly instructed, that if the complainant, in their opinion, had sustained no damage, they should return their verdict accordingly.
¶3Exceptions overruled.