#### JAMES HARPER *vs.*ELISHA P. MILLER.

On an appeal from the verdict of a jury in the County Court, assessing damages for the erection of a mill, the Superior Court has a right to permit the Sheriff to amend his return of the verdict of the jury, so as to set forth that they wore sworn on the premises.

In the' case of a petition for damages caused by the erection of a mill, under the act of Assembly (Rev. Stat. c. 74) when there have been a verdict and judgment in the County Court, the Superior Court has no right to dismiss the appeal of either party therefrom, because of irregularity in the proceedings previous to the verdict or in the verdict itself. The trial must he had in the Superior Court, as prescribed by that act.

The case of *Barnard*v *Etheridge,*4 Dev. 296, cited and approved.

Appeal from the Superior Court of Law of Caldwell County, at Fall Term, 1843, his Honor Judge Dick presiding.

The plaintiff filed his petition in the County Court of Caldwell County, in conformity to the provisions of the act of Assembly, “ concerning Mills and Millers ” (Rev. Stat. c. 74), in which he represented that he was the owner of a tract of land and a mill — that the defendant was the owner *35of an adjoining tract and of a mill thereon lower down .the stream — and that the defendant raised the water of the stream by reason of his mill darn, so as to overflow the petitioner’s land, and submerge the water wheel of the petitioner’s mill; and the petitioner prayed that the Court would direct the sheriff to summon a jury to go upon the premises and assess his damages. The defendant put in an answer to the petition, and the Court ordered, *“*that .the sheriff should summon a jury aud that they report to the next term according to the act of Assembly.” To the next term a report was made purporting to be the verdict of the jury so summoned, wherein they assessed the damages sustained by the petitioner at fifteen dollars per year; The transcript, alter setting forth these matters, then proceeds to state, “ with which verdict James Harper ” (the plaintiff)being dissatisfied prayed an appeal to the Superior Court, which, was granted, he having entered into bond and security as required by law.” Upon the cause being carried up to the Superior Court, a motion was made on the part of the plaintiff to amend the return of the Sheriff, setting forth the verdict of the jury, so as to shew that they were sworn on the premises, and the Court ordered the amendment to be made; whereupon the defendant prayed, and the Court gave him leave, to appeal from this interlocutory order. A motion was then made by the defendant to dismiss the appeal, because the verdict of the jury was so defective, as not to au-thorise a judgment in the County Court, from which the plaintiff could appeal, and thereupon it was ordered by the Court that the appeal be dismissed. From this judgment the plaintiff appealed to this Court.

*B. F. Caldwell, Bynum, and J- H. Bryan*for the plaintiff.

Alexander, for the defendant.

Gaston, J.

There is no error in the order from which the defendant appealed. The Court has unquestionably the power to make the amendment, under the extensive *36contained in the first section of the act “Concerning ^ amendment of process, pleadings, and other proceedings at law.” (Rev. Stat. c. 3.) We presume that they exercised p0wer discreet]y, and have no right to supervise the exercise of a discretionary power.

With respect to the dismission of the appeal to the Superior Court, we are of opinion that it is not warranted by any sufficient reason. The counsel for the defendant expressly waives the objection that no formal judgment was entered up in the County Court, if the verdict can be deemed such as to warrant a judgment thereon. In waiving this objection, he not only conforms to the well known indulgence, which gentlemen of the profession uniformly shew to the imperfect records of our County Courts, but foregoes no right of his client, however technical, for it has been long settled in this State, “that upon a verdict, which, connected with the pleadings, authorizes a judgment, and where no judgment is formally entered, the courts intend such a judgr ment as ought to have been rendered.” *Barnard*v *Etheridge,*4 Dev. 296.

It remains to be seen, whether the verdict was so *defective*as not to authorize a judgment. The law directs, that the jury shall assess the amount, which the plaintiff ought annually to receive from the owner of the mill, on account of the damages by the petitioner sustained. Surely this is distinctly done, when, after setting forth that they were appointed to assess the damages between James Harper, plaintiff, and Elisha P. Miller, defendant, they report that, in performance of that duty, they assess the damages sustained by James Harper at fifteen dollars per year. To every fair in-tendment this is a verdict that the plaintiff, Harper, receive from the defendant, Miller, annually the sum of fifteen dollars, on account ol the damages sustained by the plaintiff.

It is to be remarked, too, that no exception was taken by either party in the County Court to the form of the verdict, and it docs not appear that the defendant was dissatisfied with its substance. The plaintiff, who complains of the verdict, treats it as a valid one followed by a judgment con*37forming thereto. We think that it cannot be allowed to the defendant to say, there was no verdict, no judgment, and therefore the appeal of the plaintiff was a nullity. The act concerning appeals, (Rev. Stat. ch. 4, s. 2,) declares that no appeal from the County Court shall be dismissed for want of form, if there .appear sufficient matter of substance in the transcript to enable the Superior Court to proceed thereon.

In the argument here, the defendant raised objections to the regularity of the proceedings previous to the verdict.— It is unnecessary to examine into the validity .of these objections, and, if valid, whether they be not waived by not being brought forward in apt season. It is certainly a general rule, that objections to proceedings, because of irregularity, should be made upon the first opportunity presented, and, where there has been an irregularity, if the party overlook it and take subsequent steps in the cause, he cannot afterv wards turn back to the irregularity and object to it. But, at all events, whether the previous proceedings have been regular or irregular, there have been a verdict in this cause and a judgment pursuant thereto, and therefore the plaintiff had a right to appeal therefrom. Appeals are expressly given, “where either” (party) “is dissatisfied with the judgment of the court upon the verdict of the jury, rendered upon the petition of any person alleging that he is injured by the erection of a public mill.” Rev. Stat. c. 4, s. 2. And by the 17th section of the act “concerning mills and millers,” (Rev. Stat. ch. 74) special provisions are made as to the mode of trial upon such appeals, and as to the consequences, if, when the plaintiff appeals, he fail to recover higher damages than were awarded to him by the jury on the premises.

This opinion must be certified to the Superior Court of Caldwell, with instructions to reverse the order dismissing the appeal from the County Court, and to proceed with the trial of the cause, so brought before it by appeal, according to the usages of law.

Per Cueiam, Ordered accordingly,