#### Dawson v. Moons.

Argued March 24th, 1815.

i. Writ of Ad Quod Damnum — Inquisition-Date.—A date to the inquisition, upon a writ of ad quod damnum, is not essential, if it he stated, under the hands and seals of the iurors, that, “in obedience to the annexed writ, they viewed the lands in question, &c.”

a. Same-Sheriff’s Return — Amendment.—The court ought to permit the sheriff to amend his return upon a writ of ad quod damnum, at any time before the j udgment upon it.

See Baird v. Rice, 1 Call, 18; and Bullit's Executors v. Winstons, 1 Munf. 269.

3. Mill Cases* — Special Verdict.— If the jury in a mill case ñnd, that a certain number of acres of land belonging to A. B. will be overflowed, estimated at a certain price; and that all other damages which the said A. B. will sustain, for prohable injury to other lands, and inconveniences, are estimated by them at a farther sum, expressed in their inquest; it is special enough.

See Coleman v. Moody, 4 H. & M. 2, pi. 4.

On the petition of William and Bittlebury Moons, to the County Court of Albemarle, for leave to build a mill, and erect a dam on Hardware River, at or near the place where John Bewis formerly had a mill; it appearing to the court, that the lands on both sides of said river at that place, belonged to the petitioners, a writ of ad quod damnum was issued, to be executed on the fourth Saturday in August, 1812.

The sheriff returned the writ with the following endorsement. “The execution of the within will appear by an inquisition hereunto annexed. W. Garth, D. S. for Rice Garland, S. A. C. We, the undersigned, composing the jury for that purpose, summoned by the sheriff of Albemarle County, being first charged and sworn, have, in obedience to the annexed writ, viewed the lands both above and below the place where the said William and Bittlebury Moons propose erecting their mill and dam on Hardware, and hereby report, that a dam of ten and a half feet in height will, in our opinion, overflow five acres of land belonging to Pleasant Dawson, which we have estimated at the price-of forty dollars per acre in the average ; and we have estimated all other damages, which the said Pleasant Dawson will sustain, for probable damage to other lands, and inconveniences, at the sum of two hundred and sixty-six dollars ; that no other lands above or below the scite, the property of others, will be overflowed by the erection of the said dam; that neither *the mansion-house, office, curtilage, garden, or orchard of any person will be overflowed thereby ; that neither fish of passage or ordinary navigation will thereby be obstructed ; nor, in our opinion, will the health of the neighbourhood be annoyed; but that the said mill, if erected, will be convenient and advantageous to the neighbourhood. Given under our hands and seals this.” Signed by twelve jurors, with seals annexed. Pleasant Dawson being summoned to shew cause, &c. opposed the motion for leave to erect the mill and dam ; whereupon the court overruled the motion, with costs, being of opinion, that the inquisition should have been dated ; although it was proved, by the oral testimony of the sheriff, in addition to the return made on said writ, that it was executed according to the directions thereof, at the time and place mentioned therein, and in the presence of both parties. The plaintiffs then moved the court for leave to the sheriff to add to his return these words, “which writ was executed on the day in said writ mentioned which motion being also overruled, they filed a bill of exceptions.

Upon an appeal to the Superior Court of law, this judgment was reversed, on the ground that the court below ought not to have quashed the inquisition for the want of a date, and ought to have permitted the sheriff to amend his return ; and the cause was remanded to the said County Court, *262with instructions to proceed therein according to the principles of this opinion : from which judgment of reversal, an appeal was taken to the court of appeals.

Wirt, for the appellant,

contended that the inquisition ought to have been dated. Not only must it be taken on the day appointed in the writ, but it must appear, on its face, that it was so taken. There might be collusion between the sheriff and the applicant for the mill. To corroborate the return of the sheriff, the date ought to appear under the hands and seals of the jurors.(a) But, in this case, even the sheriff’s return gives no date. The question is dubious whether the court could permit him to amend his return. Returns have been permitted to be amended by *matter of record ; or to insert facts relating to property taken in execution : but I find no case where the amendment has depended on the sheriff’s recollection of the time when the process was executed. Yet, if the sheriff could amend his return, he cannot amend the inquisition, which is not his act, but that of the jurors.

2. The inquisition is farther defective. It should have shewn that the detailed charge, required by law,(b) was given by the sheriff to the jury. In matters in pais, the court will presume nothing to supply defects in the proceedings, although they will presume in favour of judgments of courts. The sheriff, in this case, is only a ministerial, and not a judicial, officer.

3. The damages are improperly found ; on the ground of uncertainty and universality. The jury should find the specific damages ; that the inquisition may shew what injury they did foresee, and what not; in order that the party may have his action for such damages as were not foreseen, or estimated. Otherwise, the remedy given by the law for such damages would be lost.

Wickham contra.

I might contend, that the superior court of law should have entered judgment absolutely, and not directed farther proceedings.

An express date to the inquest is not necessary. The jury have declared the day substantially, by saying that they acted “in obedience to the writ,” in which the day was appointed. But I hold the date unimportant. Dalton is an old author, in whose time more rigour was observed in such matters than is now required. In Shepherd’s Touchstone, the date of a deed is said to be essential; but that doctrine has since been overruled. (1) However, in the passage quoted, Dalton is speaking perhaps of inquests of office, where there is no writ, as in this case. But surely, the sheriff’s return is sufficient; there being a writ which commanded him to impanel the jury on a certain day, &c.; and his return * (which is considered as on oath,) declaring that he did so conformably with that writ. If not, why may not his return be amended ? It is a strange solecism to say, that the sheriff’s return ought to have included the date, and yet that he ought not be permitted to supply it when omitted.

2. The words, “charged and sworn,” in the inquest, must be understood to mean charged and sworn as the writ directed.

3. The inquisition is not too uncertain. The jury in finding the damages can only go upon “probabilities.” They could not have expressed themselves with more accuracy ; and, indeed, their finding is more minute than was necessary. It is for us to complain, if it be not sufficiently particular to protect us from being compelled to pay farther damages, which a future jury may assess, calculating that those damages were not estimated by this jury.

Wirt, in reply.

The authority of Dalton has always been respected in this court. The case of Syme v. Griffin, 4 H. & M. 279, was decided upon it. The passage I have cited expressly relates to proceedings on writs of ad quod damnum, and it is strongly supported by reason ; there being great necessity for the court’s superintending, and jealously watching these summary proceedings. There is no analogy between the date of an inquest, and the date of a deed, which takes effect from the delivery.

The act of assembly confines the enquiry of the jury to the damage resulting from the overflowing of the land ; leaving the party his remedy by action for other damages not foreseen : — but how can he have such remedy upon this uncertain finding ? They should have said how much other land, and what other inconveniences they estimated. As this causé is to go back to the County Court, why not set aside this inquest, and have a regular one found, to remove these uncertainties 7

Monday, December 4th, 1815,

*

Erection of Dam — Eminent Domain. — See *foot-note*to Mairs v. Gallahue, 9 Gratt 94, containing quotation from Varner v. Martin, 21 W. Va. 546, In which principal case is cited. The principal case was also cited in Fisher v. Smith, 5 Leigh 613.

See generally, monographic *note*on “Mills and Mill-dams” appended to Calhoun v. Palmer, 8 Gratt. 88.

(a)

 Dalton’s Sheriff, p. 259.

(b)

 Rev. Code, 1st vol. ch. 105, sect. 2 p. 197.

(1)

 Note. See 4 Com. Dig. 160, Title Fait. (B. 3.)

the president pronounced the court’s opinion, that the judgment of the superior court of law be affirmed.