the record, or misconduct of jury, or because the jury has been tampered with,' or because the verdict is against the weight of evidence. Although there is no provision for preserving the evidence, the court may use any authentic manner of bringing such evidence before it. The inquiry must be full and intelligent, and if conducted in a defective or negligent manner, so as to show that the damages have not been properly inquired into, the verdict will not be sustained. If it can be shown that proper items of damages were ignored by the jury, the verdict ought to be set aside.* The affidavit of a juror is not admissible, on a motion to set aside the verdict, to show that after the trial he has a different conception of the law, or of the facts, from that under which the verdict was given.5 § 260. Reassessment by jury. There may be a reassessment by a jury, although the first assessment was by commissioners. A refusal to grant a reassessment in a proper case will render the supervisors liable in damages. 1 Walker v. Boston R. R., 3 Cush. 1. 2 Fitchburg R. R. v. Eastern R. R., 6 Allen, 98. But see Brown v. Ipswich Manufacturing Co., 5 Gray, 460. Fitchburg R. R. v. Eastern R. R., 6 Allen, 98. Walters v. Houck, 7 Iowa, 72. 5 Oregon R. R. v. Oregon Steam Nav. Co., 3 Oreg. 178. 6 Clark v. Miller, 54 N. Y. 528; s. c., 42 Barb. 255. 296 CHAPTER XXIII. OF PARTIES TO PROCEEDINGS. 261. Joinder of defendants. 262. Tenants in common. 263. Joint interests. 264. Town a proper party. 265. Parties pursuing statutory authority not tort-feasors. 266. Equity may bring in all parties. 267. Separate assessments, verdicts, and appeals. 268. Who may appeal. 269. Who are "interested or aggrieved" - Interest of tax-payers. § 261. Joinder of defendants. -There is no reason why all the persons who sustain damages should not be joined in one proceeding. Such a mode of procedure commends itself by its cheapness and convenience, and cannot injure the interest of any one concerned, provided the damage is assessed to each owner separately. An assessment thus made must be regarded as a separate inquiry for each owner of the land. Otherwise, each owner might exercise his right of challenging, and thus render it impossible to obtain a jury. A lessor and lessee would be regarded together as the owner of the land, and would not be entitled to a separate inquiry as to their separate interests in the parcel." If the statute provided that any number of residents of the county or circuit might be joined as defendants, that would exclude all non-residents from that petition, and such proceedings against non-residents would be set aside, on timely application. The statutory remedy must be strictly followed.1 1 McKee v. St. Louis, 17 Mo. 184. 2 Giesy v. Cincinnati, 4 Ohio St. 308. Kohl v. The United States, 91 U. S. 367. 3 § 262. Tenants in common. -The title of tenants in common being joint, they should all join in proceedings to have damages assessed. Suit cannot be brought by one alone. If such suit was allowed, there would be several trials, and contradictory verdicts as to the value of the same land. There should be one trial for each tract of land condemned, but not separate trials for the separate interests of joint owners. Joint owners should be joined in proceedings brought against them to condemn the lands. A tender to one of tenants in common, acting for others, is a sufficient tender as to all; but a payment to one is not a payment to all, unless all consent. When property of one tenant in common is condemned by a railroad, the railroad does not thereby become a tenant in common as to the others. A subsequent partition cannot affect the right of the company, when the damages had already been paid to the sheriff. All conveyances made afterward were made subject to the right of way so acquired. Nothing remained to be determined on appeal, except the question as to whether the damages assessed should be increased or diminished." § 263. Joint interests. Where there are joint interests in property, all those having an interest should be joined;" and if they appear jointly and demand a jury, they cannot afterward object that their interests were not separately considered, and an undivided sum may be awarded to them. The assessment having been made to two jointly, one cannot appeal without uniting the other, or making 8 1 Tucker v. Campbell, 36 Me. 346; Merrill v. Berkshire, 11 Pick. 269. 2 Whitcher v. Benton, 48 N. H. 157. But see Dyckman v. Mayor of New York, 5 N. Y. 434. 3. Dyckman v. Mayor of New York, 5 N. Y. 434. Brinckerhoff v. Wemple, 1 Wend. 470. 5 Weston v. Foster, 7 Metc. 297. Ruppert v. C. O. & St. Joe R. R., 43 Iowa, 490. Ashby v. Eastern R. R., 5 Metc. 368. East Saginaw R. R. v. Benham, 28 Mich. 459. him a party by notice or otherwise. An objection that separate assessments should have been given to two undivided interests comes too late after verdict;2 or that separate parcels should be considered, when a verdict in gross had been rendered. A holder of an undivided interest cannot move to set aside the report as to his interest alone, but in reference to the whole tract in which he has an interest. Otherwise, if his interest should be found to be greater than on the former hearing, the company would be compelled to pay a greater amount for one share, although the interests of the parties stood just as before.* § 264. Town a proper party. There is an interest in the town or community through which a road is to be laid, as well as in the petitioner for such road. The town will have to levy taxes for the construction and maintenance of the road, and should have some voice in preventing the laying-out of injudicious and uncalled-for roads. Hence, in the eastern states, the town should be treated as a party, and should receive notice of proceedings. The damages found are in the nature of a judgment, and no party can be bound by a judgment without notice. The town may appeal, and demand a jury." § 265. Parties pursuing statutory authority not tortfeasors. - At common law, either of tort-feasors could be sued for damages separately. Statutes allowing condemnation relieve the officers from actions of tort,' and they should be sued jointly, and not separately. 1 Chicago R. R. v. Hurst, 30 Iowa, 73. 2 Knauft v. St. Paul R. R., 22 Minn. 173. Lake Superior R. R. v. Greve, 17 Minn. 322. 5 Williams, petitioners, 59 Me. 517; Thetford v. Kilburn, 36 Vt. 179; Hinckley, petitioner, 15 Pick. 447. 6 La Croix v. Medway, 12 Metc. 123; Lanesborough v. Berkshire, 22 Pick. 278. South Carolina R. R. v. Steiner, 44 Ga. 546. Hill v. Baker, 28 Me. 9. § 266. Equity may bring in all parties. In Georgia, it is suggested that a court of equity may take jurisdiction over various suits for damages brought against railroads in streets, by bill of peace, and adjust their equities and rights by one decree; but this course has never been taken in any reported case. § 267. Separate assessments, verdicts, and appeals. Each owner is entitled to a separate assessment of his lots, and cannot be bound by an assessment of a block in which his lots are, when the value of the lots varies. Juries, in passing on various claims for damages, should find separate verdicts, so that the verdicts in the cases in which they agree may be confirmed, and new trials can be had where they disagree. The jury cannot find a gross amount for a strip of land taken which belongs to several owners. The land may vary in quality and value. Some lots may be ruined by the improvement, while others will be scarcely injured. There must be a separate consideration of each several parcel. The appeals are to be separate. No individual has the right to disturb the assessment made as to any one else except himself. The fact that one owner appeals cannot enure to the benefit of one not appealing.5 There may be separate interests in the same tract, and each is entitled to separate consideration, and the compensation of all is not to be assessed in one sum.7 6 § 268. Who may appeal. Only those whose rights have been disregarded may appeal. There can be no appeal for errors affecting only those who do not appeal. 1 South Carolina R. R. v. Steiner, 44 Ga. 546. Sharp v. Johnson, 4 Hill, 92. 3 Lanesborough v. Berkshire, 22 Pick. 278; Smith v. Connelly, 1 T. B. Mon. 58. Chicago R. R. v. Sanford, 23 Mich. 418. 5 McKee v. St. Louis, 17 Mo. 184. • Abrahams v. Mayor of London, 37 L. J. (Ch.) 732. Rex v. Trustees of Roads, 5 Ad. & E. 563. The State v. Richmond, 26 N. H. 232; Pickford v. Lynn, 98 Mass. 491; |