#### *Harwell v. Bennett and Walker.

January, 1823.

Hill-Dam— Erection — Inquisition— Quashed Statement of Sheriff.* — On the trial of a -writ of ad quod damnum to erect a mill dam, one of the jurors who signed the inquisition, gave evidence, that the sheriff who took the inquisition, declared in the presence of himself and another juror, that the defendant had consented to the erection of the mill-dam. in consequence of which, he (the juror) had agreed to sign the inquisition; this will not be a sufficient reason for quashing the inquisition.

This was a writ of ad quod damnum issued from the court of Mecklenburg county, on the petition of Bennett and Walker, to erect a dam 1354 feet high. Two inquisitions were returned and quashed. A third writ issued, on which an inquisition was taken and returned, favourable to the petition.

On the motion of James Harwell, he was admitted a defendant, and opposed the building of the said mill and dam.

On the trial of this writ and inquisition, the defendant introduced Dennis Roberts, one of the jurors who signed the inquisition, to prove that the sheriff, before whom the inquisition was taken, without knowing the opinion of the witness, said that the defendant had consented for the dam of the petitioners to be 1354 feet high: that the conversation was addressed to no particular person, and took place when the witness and James Pully, another of the jurors, were present: that in consequence of the said conversation of the sheriff, the witness agreed to sign the inquisition; without which he would not have done so, because he believes that the mill-pond made the neighborhood unhealthy; and that he had lived on the head of the pond for four or five years, and he believed it had given his family the ague and fever.

Upon this evidence, the county court quashed the inquisition. The petitioners filed a bill of exceptions, and appealed to the superior court of law.

*The superior court reversed the decision of the county court, and sent the cause back for further proceedings.

From this judgment, the appellee (Harwell) appealed to this court.

Gilmer for the appellant,

contended that the county court did right in quashing the inquisition, on the evidence of the juror, and that the superior court ought not to have reversed that decision. He referred to the cases of Anderson v. Fox,(a) and Cochran v. Street,(b) to shew that such evidence as this, is sufficient to set aside a verdict.

W. Play, Junr. contra.

The evidence is inadmissible. It would afford an opportunity for tampering with a jury, if one or a few of the jurors might give evidence, going to impeach the verdict. In Cochran v Street, a majority of the jurors gave evidence of the fact which vitiated the verdict; and in Price’s ex’rs. v. Fuqua’s ex’rs.,(c) the evidence of two jurors was *107rejected. The reason is as strong in writs of ad quod damnum, as in other cases. As to the case of Anderson v. Fox, there were other circumstances to corroborate the testimony of the jury-men.

*

See generally, monographic *note*on “Mills and Milldams" appended to Calhoun v. Palmer, 8 Gratt. 88.

(a)

2 H. & M. 249, and Judge Boane’s opinion ib. 263.

(b)

1 Wash. 79.

(c)

1 H. & M. 385; 3 Bos. & Pull. 326.

January 38. — The court affirmed the decision of the superior court.