
    Coleman, Executor and Trustee of Rowlett, v. Moody.
    Wednesday, May 3d, 1809.
    
      a. Depositions — Notice—Sufficiency.— The reasonable notice •which the law requires upon taking depositions must depend upon circums tances; therefore, where a notice was lelt with the wife of the party at his dwelling--house, when it was known hy the adverse party that he was absent on a journey to another state, and where it appeared also, that the notice might previously have been given to the party himself, and that the taking of the deposition might have been postponed, as it respected the trial of the cause, till his return; it was held that the notice was insuíílcient, and the deposition taken under it was suppressed.
    
      \2. Mills — Inquisition—Notice to Executor of Deceased Owner — Effect of Appearance.  — An Inquisition on a writ of ad quod damnum in a mill case, having found that lands of T. It. deceased, would be over-sowed, and a summons having issued to T. O. acting executor and trustee of the decedent, to shew cause why leave should not be given to •erect the mill; and T. O. having appeared and contested the motion on its merits, he was precluded from afterwards saying that he was not legally summoned as the tenant or proprietor of the land.
    3. Same — Validity of Order. — The mentioning in the writ of ad quod damnum a certain height for the mill-dam, is no ground for setting aside the proceedings at the instance of the opposing party; notwithstanding no particular height was specified in the order directing the writ.
    4. Same — Finding of Jury — Damages.—If the Jury find that a certain number of acres of land will be overflowed, “together with all other damages to the value of a specified sum,” it is special enough, and will not bar an action for any damages not foreseen and estimated by them.
    5. Same — Order of Court-Failure to Direct Daymen tof Damages. — An order of Court granting leave to erect a mill is valid, though no order be made directing payment of the damages found by the inquisition.
    
      6. Same — Inquisition—Setting Aside — Misbehavior of Jurors.  — An inquisition in a mill case ought not to be set aside on the ground that the jurors, before they were sworn, and afterwards, when their verdict had been agreed upon, but before they had signed it, ate and drank moderately at the expense of the appellant, no corruption appearing, and the opposite party having consented.
    7. Same — Record of Proceedings. — It is sufficient for the clerk to state in the record, that the writ of ad quod damnum with the inquisition annexed, was returned by the sheriff, without inserting a copy of the signature of the sheriff, or of his deputy, to the return; a copy of the inquisition itself with the signatures of the jurors being inserted in the record.
    Francis Moody applied to the County Court of Mecklenburgh for leave to erect a water grist-mill on Butcher’s creek, being proprietor of the land on both sides of the stream at the place proposed for the abutment. He gave a written notice, of his intention to move for a writ of ad quod damnum, to Thomas Coleman, “acting trustee and executor of Thomas Row-lett, deceased,” stating that he *the said Coleman had lands above the said place, on the said stream, vested in him in trust for certain purposes designated by the last will and testament of his testator, and that the object of the intended application was to ascertain what damages might be occasioned to him as acting trustee aforesaid, or to other persons, by erecting a dam of the height of 15 feet 2 inches. In the petition and order for the writ of ad quod damnum, as stated in the record, nothing was said of the height of the dam; but the writ issued by the clerk directed the inquiry of damages to be made, upon the supposition that the height of the dam was to be as above mentioned. A notice was also given to Coleman of the time and place of meeting of the Jury, who found that, by a dam IS feet and two inches high, no mansion-house, offices, curtilage or orchard would be overflowed; that the passage of fish and ordinary navigation would not be obstructed; and that, in their opinion, the health of the neighbours would not be annoyed by the stagnation of the waters; that three acres of land belonging *to the estate of Thomas Rowlett, deceased, ' would be overflowed, together with all other damages to the value of fifty dollars; and that the estate of no other person would sustain any damage. Their inquisition so made was first signed and sealed by John G. Baptist, (the deputy-sheriff who attended them,) in this manner, “Witness John G. Baptist, (seal,)” .and then by thetwelve jurors, and. together with the writ was returned by the sheriff to the succeeding Court; but the signature of the high sheriff or his deputy to the return on ihe writ was not inserted in the record; neither was his title of deputy-sheriff added to the signature of John G. Baptist. On the return of the inquest, the Court ordered a summons to be issued to Thomas Coleman, “sole acting executor and trustee of Thomas Rowlett, deceased,” to shew cause if any he could, why leave should not be granted to Francis Moody to build his mill agreeable to the inquisition and Jury’s report thereupon. This summons was returned, executed by John G. Baptist, deputy of William G. Baptist, sheriff. Thomas Coleman accordingly appeared, and endeavoured to shew cause; but, after hearing the parties by their attorneys, and the evidence on both sides, the Court granted Moody leave to erect the mill and dam, to the height of IS feet and two inches. No order was made directing the payment of the fifty dollars to Coleman, but the record stated that Moody produced the money at the clerk’s table, and called on Coleman’s attorney to receive it, who refused; and no person entitled thereto appearing to receive it, it was ordered that the clerk should receive and keep it for the benefit of the “proprietors or persons damaged agreeable to the inquest. ’ ’
    On an appeal to the District Court of Brunswick, the order of the County Court was affirmed; whereupon Coleman again appealed to the Court of Appeals.
    A number of witnesses were examined before this Court, whose testimony (under the rule now established) was committed to writing; but to mention even its substance, *in our report of the case, would be tedious and useless. Suffice it to say that the weight of evidence was in favour of establishing the mill, as greatly conducive to the convenience of the neigh-bourhood; and the witnesses generally were of opinion, that the quantum of damages had been rather overrated by the Jury, for the purpose of satisfying Coleman, and putting an end to further controversy. One circumstance, however, must be noted. It appeared in evidence that the Jury met at Moody’s house; that the weather being very warm, and some of them having travelled a considerable distance, he set out some spirits, took a drink himself, and said he was disagreeably situated because he could not offer them any; that Coleman, who was present, said he had no objection to their taking- some refreshment, and so saying, set the example himself; that thereupon most of the Jury took a little spirits and water; that when they had finished viewing the mill-seat and grounds on the creek, they returned to the house, at a late hour in the evening, after having agreed on their report; and while the deputy-sheriff and surveyor who attended them were writing the inquisition, they again drank moderately and ate at Mood37’s expense; that Coleman made no objection to their doing so, partook of the same refreshments, and stayed with them until they had all signed the inquisition; that some of the jurors might, perhaps, have felt what they drank, but none of them appeared intoxicated; that one of them made a slight objection to part of the inquisition, before it was finished, but afterwards waived the objection, and approved of it as written.
    On the part of the appellee, for the purpose of proving that Coleman, as proprietor or tenant of the land, was the person who ought to have been summoned, the will of Thomas Rowlett, dated the 29th of December, 1805, and recorded the 13th of January, 1806, was introduced and read; (though not inserted in the record of the proceedings in this cause in either of the Courts below;) but the Judges gave no opinion relative to its admissibility as evidence. From that document it appeared, that after certain ^specific and pecuniary legacies, the testator directed all the the residue of his estate, both real and personal, to be kept together for two years after his death, and then to be sold by his executors, and “after paying his debts, if any should be due, and the legacies aforesaid, that the whole of his estate arising from the said sales, and the profits of his estate until the said sales, be divided into three equal parts,” &c. Thomas Coleman alone qualified as executor. The summons was issued August 12th, and served September 14th, 1807; and the County Court acted finally on.the subject in December following, before the two years in which the estate was directed to be kept together had expired. Parol evidence was also introduced (without any decision as to its being admissible) to shew that Coleman exercised acts of ownership, or such as evinced possession of the land, during those two years, by employing overseers and receiving the profits; in the course of which investigation it appeared, that shortly after the decision in the County Court, he sold the land at public sale, in obedience to the directions of the will, and became himself the purchaser.
    [Among other evidence the appellant offered to read the deposition of William W. Green, taken by virtue of a commission issued from this Court on an affidavit filed, that the witness was, through infirmity, unable to attend. It appeared that Coleman had himself accompanied the person employed to give notice of the time and place, to the house of Moody, whose wife informed them that he was then in Nortn-Carolina, and would not return until a day or two after that appointed for taking' the deposition; that on their way, they had been told by others, that Moody was gone to North-Carolina; that nevertheless, the notice was given to Mrs. Moody on a Saturday, and the deposition taken on the Wednesday following, being the 22d day of March; that Moody returned home a day or two afterwards; that Coleman, meeting with him at a public house, where the witness and two magistrates happened to be present, told him he might ask the witness any questions *he thought proper, before those magistrates, and the answers given might be read as evidence in the cause; but did not shew him the deposition, without seeing which, it was contended on his part, he could not have known what questions to ask; that indeed, the paper itself had, previously to this occurrence, been delivered to the Clerk of the Court of Appeals. It was also proved that Moody was at Mecklenburgh Court (on his way to North-Carolina) the Thursday before that on which the deposition was taken, and that Coleman was there also. George K. Taylor, counsel for the appellant, endeavoured to excuse his precipitation in taking this deposition before Moody’s return, by stating that Coleman at that time expected the cause to be tried before the end of the March term, and therefore thought it necessary to be expeditious in preparing for trial; though during that term, by consent of the counsel on both sides, but without his knowledge until after the deposition was taken, the 2d of May was appointed for the hearing. Mr. Taylor also solicited the Court (should they be of opinion that the notice was insufficient) to renew the commission, and grant a farther day in the term. But the Court unanimously declared the notice not to have been reasonable, and rejecting the deposition, moreover refused to delay the hearing.]
    George K. Taylor, for the appellant,
    (besides contending that, on the merits, leave ought not to be granted to raise the dam to the height of 15 feet 2 inches,) made the following objections to the proceedings in the County Court.
    1.According to the 3d section of the act concerning mills,  the summons must be issued to the proprietors or tenants of the lands found liable to damage. It should have appeared, therefore, upon the record, that Thomas Coleman was tenant or proprietor; but here there is nothing to shew this. He is only styled executor and trustee, from neither of which characters can it be implied that *he was entitled to, or in possession of the land. The case of Tanner’s Administrator v. Saddler fortifies this objection; for there, though it was decided that an administrator, being in possession of the land of his intestate for special purposes, could maintain a caveat, j^et the fact of his possession was expressly found in the special verdict, and nothing was left to presumption, or extrinsic evidence.
    2. The original motion was merely for a writ of ad quod damnum, in general terms, and the order of Court was made accordingly. By what authority then did the clerk mention in the writ, 15 feet 2 inches? By so doing, he precluded the Jury from stating the advantage or disadvantage of making the height less or more than that specified in the writ.
    3. The Jury find “all other damages,” to the value of fifty dollars; not the injury to the land alone. The 7th section of the act of Assembly provides, that an action shall not be barred tor damages not foreseen by the Jury; yet this comprehensive and indefinite finding of ‘all other damages,” would bar any future action. The verdict should have specially and distinctly stated each injury, and its value.
    4. After the Court had granted leave to erect the mill, Moody produced fifty dollars, and no person appeared to receive it. The inference is strong that Coleman was not the person in possession. Besides, no order was made that the monej' should be paid to him.
    5. The Jury drank at the expense of Moody, the party in whose favour their verdict was given; which is a fatal error, according to Rord Coke ; though, in such case, if the verdict be against that party, it shall not be set aside.
    Munford, for the appellee,
    observed, that Moody being owner of the land on both sides of the stream, was not obliged to give notice of his intended application for the writ of ad quod damnum, or of the time and place of meeting of the Jury, to Coleman or any body else. Such notices are required by law, only where the person applying, owns -the land on one side of a water’course, and that *oa the opposite side, against which he would abut his dam, is owned bjr another person, to whom such notices must be given,  It is true, then, that in this case the notices were works of supererogation; yet the first of them served to apprize the appellant of the ground on which he was made a party.
    It ought to be presumed from this record, that Coleman was either entitled to the legal estate, or in possession of the land, as he is repeatedly styled, and admitted to be, sole acting executor and trustee of th'e last will and testament of Rowlett, whose lands alone are found liable to damage. The notice first given informed him that the land was considered as vested in him for the purposes designated by the will; the summons also must have been understood by him in the same manner; yet he no where denies his title to, or possession of the land, neither does the point appear to have been made by a bill of exceptions, or in any other way. This objection is evidently an afterthought, suggested by the fertile genius of his counsel in this Court, but which never entered into the mind of Coleman himself. If he was neither proprietor nor tenant of the land, he was not interested in the controversy, and therefore, ought not to have meddled with it. Yet we find him in every stage of the proceedings, appearing by his attorney, or in person, and opposing every step taken by Moody; but never on the ground that he was not himself interested in the point in dispute. If, indeed, that had been the case, he would have had no right to appeal from the order, according to the decision of this Court in the case of Sayer v. Grymes. 
    
    But, if the question be doubtful from the record, we have proved his possession by the copy of the will, and by'parol evidence, which, in cases of this sort is always admitted.
    According to the will, even if the legal estate was not in Coleman, not being expressly devised to the executors, the possession was; for he was the only person who had a right to hold the land, and keep it together until the end of the *two years; there being no devise of the land to any other person. He was to receive the profits, and be accountable for them, towards the payment of debts and legacies, and finally to sell the land and divide the money among the distributees. He was therefore certainly as much to be considered in possession, as an executor or administrator of a person dying after the first day of March, 
    
    As to the second point, the clerk’s mentioning in the writ the height to which Moody wished to raise his dam, certainly could not have the effect of limiting the Jury in their inquiries. Their being directed to inquire what damages would result from a height of IS feet 2 inches, did not preclude them from examining the subject in other aspects also, and stating if they thought proper, the comparative advantages and disadvantages of that and other degrees of elevation. But, in fact, the clerk acted correctly in mentioning the height of the dam; because, in so doing, he submitted to the Jury the true point in dispute, as was evident from the notice, according to which, no doubt, the motion was made; though in his concise manner of entering the order of Court in the minute-book, he did not express that circumstance in the order. The same thing is proved, by all the subsequent proceedings, and by the conduct of Coleman himself, who should have moved to quash the writ of ad quod damnum, if it had issued incorrectly; but never made such a motion, and ought not to be permitted to make it now at this late stage of the controversy.
    The third objection is a strange one indeed I It amounts to this, that the power of the Jury is superior to that of a positive law ; that their finding that all the damages (which can only signify all the damages estimated by them) amounted to fifty dollars, could prevent the proprietor of the land from recovering, in an action, for other damages not foreseen nor estimated by them; notwithstanding the act of Assembly declares that such action shall be maintainable. The law does not direct the jury to state separately, (like items in an account,) damages for every inconvenience which may arise from erecting the dam; but *a general finding of the aggregate amount of damages, is always considered as sufficient: neither was it necessary in this case, to mention the value of the three acres of land which would be overflowed; as it is to value the acre laid off for the abutment of a dam.
    The fourth point is not more tenable than the last. That no person appeared to re ■ ceive the fifty dollars, is easily explained by the spirit of opposition manifested by Coleman throughout; a spirit which would not permit him to receive the money, for fear of giving some countenance to the motion of his adversary, and which has carried this apparently unimportant dispute (to the great expense and vexation of both parties) through the County and District Courts up to the Court of Appeals.
    As to the circumstance that the jury took a little spirit and water at the house of the appellee, before they were sworn, and after returning from their very fatiguing service, (which, in both instances, was done with the assent and co-operation of the appellant,) the objection is too captious and trifling to be countenanced in these enlightened times, especially when it appears in evidence that the jury was highly respectable, and far above being influenced by such a pitiful consideration. Neither is it by any means clear that the verdict was in favour of Moody, the party who treated them with this slight refreshment; for it is proved that the damages they allowed to Coleman, were more than the value of any injury the estate he represented could sustain.
    Upon the merits, the evidence clearly supports the motion, and authorises the order upon every ground of private benefit and public expediency. But if this were doubtful, the concurrent decisions of the District and County Courts, ought to be sanctioned here, as was done in the case of Home v. Richards,  In Noel v. Sale,  also, the decision was presumed to have been right “for reasons appearing to the Court” below, notwithstanding those reasons were not specified in the record.
    *Wickham, on the same side, said there was'no difficulty on the subject of the summons, because a trustee for the payment of debts or legacies is always considered as in possession of the legal estate.
    Nothing in the law requires the Court to make any order about the money. The entry of Moody’s offer to pay the fifty dollars, was the act of the clerk, and altogether unnecessary. The maxim therefore applies that “utile per inutile non vitiatur.”
    It was also unnecessary to mention in the writ of ad quod damnum, the proposed height of the dam ; but its insertion cannot vitiate. Mentioning fifteen feet 2 inches, bound only and limited Moody, but could not benefit him. It takes latitude from him and promotes certainty. No human being is injured by it but the appellee. The appellant, therefore, if it was an error, cannot avail himself of it.
    The finding of the Jury in this case is rather more special than usual. Their mentioning the three acres was unnecessary, and as to the damages, all the verdicts I have ever seen were general. The record cannot be a bar to an action for any damages not foreseen and estimated by the Jury, because the act of Assembly says that it shall not be a bar.
    The attempt to overthrow the order of Court on the ground of misbehaviour in the Jury, is now too late, for if any such existed, a motion should have been made in the County Court to quash the inquisition.
    Taylor. On this point, this Court has original jurisdiction, as it has appellate on the other points in the cause.
    Wickham. The objection then should have been made by motion, before the hearing on the merits.
    But, in fact, there was no misbehaviour in the Jury. Lord Coke in his commentary on Littleton, lays down many rules which are no longer in force, and some which the Hiberality of modern practice, has modified and relaxed from their ancient strictness. I understand the rule of law to be at present, that when a Jury are sent from the bar, they must not drink; but that rule does not apply to inquest in the country. I think, indeed, if that venerable Judge were now alive, he would not be so hard-hearted, as to object to the moderate and necessary refreshment taken by the Jury in this case.
    Hay, in reply, besides commenting on the evidence, observed, (on the points of law,) “in this case an attempt is made to deprive my client of part of his freehold; the right to do so is founded not on the common law, but the act of Assembly. The proceedings ought therefore to be strictly conformable to the act. My client owns the land at present by purchase under the will; but the record ought to shew that he was tenant or proprietor when he was summoned.
    “It is contended that the Court shall be presumed to have done right, until the contrary appears. But here the contrary does appear. The act requires the tenant or proprietor to be summoned, but Coleman was summoned only as executor and trustee. Suppose a notice was given to the person entitled in remainder, either vested or contingent, would it be sufficient? And where is the substantial difference between such a notice and this? That the proof of every thing essential to the applicant’s obtaining leave to erect the mill, ought to appear in the record itself, and not by testimony aliunde, is evident from the cases of Richards v. Home, 2 Wash. 36, and Martin v. Beverley, MS. in 1805. In those cases the several applicants for mills, being owners of the lands on one side only, it was decided to be necessary to state on the record, that the bed of the water-course belonged to the applicant or to the commonwealth, and all other evidence as to that point was rejected.”
    [Here Judge Tucker asked Mr. Hay, if the actual tenant had, in reality, no notice, whether he might not yet sue for ^damages, or abate the nuisance? Mr. Hay answered that, according to Mr. Munford’s doctrine, that the County Court must be presumed to have done right, the tenant could neither sue nor abate the nuisance; and he doubted himself whether he could with safety abate the nuisance until the proceedings were reversed, though he might have his action on the case.]
    2. Does the law authorise the clerk to insert the height of the dam in the writ of ad quod damnum? The party might have been content with a dam not so high, yet the clerk confined the Jury in their inquiries, to a dam of that precise height.
    3. The point as to the money has been misunderstood, by Mr. Wickham. The County Court shewed by that entry, that they did not consider Coleman as the tenant or proprietor, and indeed were not informed what person held the land in either character, otherwise they would have directed the money to be paid to such person.
    4. The Jurj' certainly contemplated other damages than those resulting from the lands being overflowed. If an action should be brought for any damage not foreseen or estimated by them, it may be said, upon the words of this inquest, that the Jury estimated that damage, the words being broad enough to cover all possible damages. The onus probandi ought not to lie upon any body; the whole of the damages estimated, and for what, ought to appear in the inquest.
    It is said that the principle upon which a verdict is set aside for the Jurors’ drinking, does not apply here; but this is a mere dictum. One fact appears in evidence, that a change in the inquest after it was first written was proposed; but objections gradually lost their force as liquor began to operate; and no change was made.
    Another fact in the record is worthy of observation. It does not appear that the writ of ad quod damnum was executed by a sheriff or his deputy: no name of any sort is subscribed to the return, and the clerk’s declaration, that the inquisition was returned by the sheriff, does not obviate the difficulty.
    *The law concerning sheriffs,  requires the under-sheriff to subscribe the name of his principal, as well as his own, to all official returns made by him; but here he appears to have subscribed only in the capacity of witness to the signatures of the Jurors. The force of this objection is not impaired by the third section of the act concerning mills, requiring the inquest to be made and sealed by the Jurors only. I admit there is no necessity for the sheriff to sign it, but he ought to return it according to law; and the return being defective, ought to be quashed. The doctrine is explicitly stated in Bac. Abr. tit. Sheriff, let. H. that the deputy-sheriff must always act in the name of the sheriff. It is only by virtue of our act of Assembly, that he is authorised to use his own name; and this act being in alteration of the common law, must be strictly followed by the deputy, or his returns are illegal.
    In answer to the new point made by Hay, Munford contended, that it did sufficiently appear that the writ of ad quod damnum was executed by a deputy-sheriff. In another part of the record John G. Baptist is mentioned as deputy of William G. Baptist, sheriff; and the name of John G. Baptist is subscribed to the inquest. He has also been examined as a witness before this court, and has stated on oath that he was the deputy-sheriff who attended the Jury. True it is, in his signature he did not style himself deputy-sheriff, nor annex the name of his principal: but, if this was a neglect of duty, the only consequence is, that he is liable to a penalty, not that the inquest ought thereupon to be quashed,  But this subject may be viewed in another light: the record expressly states, that the inquest was returned b3' the sheriff to the Court; and Mr. Hay has no right to contradict the record. The clerk has only omitted to copy the signature to the return, which doubtless was indorsed on the writ of ad quod damnum;'probably thinking it sufficient to certify the fact that such return was made, without copying the signature into the ^record. Neither was it necessary to insert it, unless a question had been made concerning it. If in fact the writ was irregularly executed or returned, a motion to quash the inquest should have been made, and, if overrated, the point should have been reserved by a bill of exceptions.
    But, if this objection, that the sheriff’s return, as written by himself, ought to appear in the record, should be thought material, its utmost effect would be to induce the Court to award a writ of certiorari to supply the omission.
    Wickham observed, it was the general practice of clerks in making out records, not to insert the return itself, with the signature of the sheriff, but merely to express it in general terms.
    Hay. Mr. Wickham is unquestionably mistaken as to the practice. The signature of the sheriff to his return on the writ is always certified by the clerk where the judgment is by default.
    Wickham. IJven admitting Mr. Hay to be right in this position, the order in this case does not resemble a judgment by default: for Coleman was heard by his counsel, and, after an argument on the merits, the decision was against him.
    
      
      Depositions — Notice—Validity. — See monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
    
      
       Mills and Milldams — Condemnation Proceedings— Notice to Owner. — On this question, the principal case is cited in Pitzer v. Williams, 2 Rob. 252, and note; Fishery. Smith, 5 Leigh 613: foot-note to Mairs v. Gallahue, 9 Gratt. 94: Varner v. Martin, 21 W. Va. 546; Keystone Bridge Co. v. Summers, 13 W. Va. 488.
    
    
      
       Same--Order of Court — Failure to Direct Payment of Damages, — in Tipper Appomattox Co. v. Hardings, 11 Gratt. 5, it is said: “Under the general law in regard to mills, it was not essential to give judgment for the amount so ascertained before the court could give leave to erect the dam; the leave to erect the mill being valid, though no order was made directing the payment of damages; but the payment of such damages to the persons entitled, is imposed by law as a condition to protect the party against the suit of the person injured. Coleman v. Moody, 4 lien. & if. 1; Anthony v. Lawhorne, 1 Leigh 1.”
      The principal case is also cited on this question in Anthony v. Lawhorne, 1 Leigh 4. See monographic note on “Mills and Milldams” appended to Calhoun y. Palmer, 8 Gratt. 88.
    
    
      
       JuriesSetting Aside Verdict — iliseonduct. — The principal case is cited in Thompson v. Coin., 8 Gratt. 657, 658; Flesher v. Hale. 22 W. Va. 49.
      Appellate Practice — When Decree of Lower Court Will Not Be Reversed. — On this question, the principal case is cited in foot-note to Home v. Richards, 2 Call 507; Brugh v. Shanks, 5 Leigh 603; foot-note to Gray-son v. Com., 6Gratt 712; Caldwelly. Craig, 21 Gratt. 136.
      Common Law — How Far the Law of Virginia. — in Hanriot v. Sherwood, 82 Va. 15, it is said: “Judge Tuokeb says the common law of England is, at this day, the law of this commonwealth, except so far as it has been altered by statute, or so far as its principles are inapplicable to the state of the country. It adapts itself to the situation of the society, being liberalized by the courts according to the circumstances of the country and the manner and genius of the people, so as to effect a reasonable and substantial, rather than a literal compliance with its principles.' Citing (Findlay v. Smith), 6 Munf. 148; (Thornton v. Smith). 1 Wash. 83; (Baring v. Reeder). 1 Hen. & M. 161-162; (Coleman v. Moody), 4 Hen. & M. 19.”
    
    
      
      ta) Rev. Code, vol. 1, p. 198.
    
    
      
      3 Hen. & Munf. p. 370.
    
    
      
       Rev. Code, vol. 1, p. 198.
    
    
      
       1 Inst. 157, b.
    
    
      
       Rev. Code, vol. 1, p. 197, c. 105, s. 1, 2.
    
    
      
       1 Hen. & Munf. p. 403.
    
    
      
       Rev. Code, vol. 1, p. 166, c. 93, s. 46.
    
    
      
       3 Call, 507.
    
    
      
       1 Call, 495.
    
    
      
       Rev. Code, vol. 1, p. 123, c. 80, s. 26.
    
    
      
       Rev. Code, vol. 1, p. 123, c. 80, s. 26.
    
   Friday, May 26.

JUDGE TUCKER.

The first exception taken to the proceedings in the County Court is, that the summons to shew cause against erecting the mill was directed to Thomas Coleman, executor and trustee of Thomas Rowlett, deceased; whereas the law requires the summons to be issued to the proprietor or tenant of the lands located, or found liable to damage. There are two answers to this objection.

The first is, that the original notice of the intended application for leave to build a mill, is directed to Coleman as acting trustee and executor, &c. and recites, that “he *hath lands above the said place on the said stream, vested in him in trust for certain purposes,’’ &c. The second is, that Coleman appeared, in consequence of the summons, and contested the petitioner’s right, on the ground of inconvenience and injury to himself; thereby admitting himself to be the proprietor or tenant. And, having taken no exception to the summons on the ground now taken, he cannot do it in this Court; this case coming within the reason of the rule at common law, that appearance, and pleading to the action cures all defects in the process.

The second objection is, that the clerk had in the writ of ad quod damnum taken upon himself to state the precise height, to which it was proposed to raise the mill-dam.- This, however, was pursuant to the original notice, and was perfectly right. The Jury were not to inquire to what height it was necessary, for the petitioner’s purposes, to raise the dam, but what injury would ensue to others, if he were permitted to raise his dam so high.

The third objection is, that the Jury have said that a dam of the proposed height will in their opinion “overflow three acres of land belonging to the estate of Thomas Rowlett, deceased, together with all other damages, to the value of fifty dollars,” &c. And that this finding will operate as a bar to a recovery against him for any other damages hereafter. This must depend upon circumstances. For the law declares that neither the inquest of the Jury, nor the opinion of the Court shall bar any prosecution or action, which any person would have had in law, other than such injuries as were actually foreseen and estimated by the Jury. Suppose it should happen that six acres of land, instead of three acres, should be overwhelmed: or that any house, office, garden, or orchard on the premises, should, in fact, be injured or overwhelmed thereby. Would this return upon the inquisition bar an action in such cause?

The fourth objection is, that several of the Jury, perhaps the whole, drank ardent spirits at the house of the petitioner, ^before they proceeded upon the inquisition, and again before the same was completed and signed by them.

The purity of the trial by Jury, and more especially the incorruptibility of jurors, are subjects of supreme importance, in a countrj' whose constitution declares, that that mode of trial ought to be held sacred. And I am of opinion, that the same jealous vigilance ought to be exercised in cases of inquest of office, as in trials at common law. The reason is even stronger. The latter are had under the eye of a Court of Justice, which, if it observes any thing improper in the conduct of a Jury, will immediately set aside the verdict. Inquests of office are taken in pais; the superintendance of the sheriff may not always be adequate to the prevention or discovery of improper practices. No kind of bribe, or other evil practice, so soon finds its way to the head, as intoxicating liquors. Our act concerning roads (ed. 1794, c. 19), prohibits a juror, on pain of being discharged from the inquest, and immediately imprisoned by the sheriff, from taking any thing of meat or drink from any person whatsoever, from the time they come to the place until their inquest be sealed. The act for removal of the seat of government to this place contains a similar provision, (May, 1779, c. 21,) and both appear to me to have been dictated in the true spirit of the common law, and of consummate wisdom and foresight. The omission of a similar provision in the act concerning mills, probably proceeded from the opinion of the legislature, that a repetition of such a provision in every act authorising an inquest, was, upon the principles of the common law, unnecessary, as being implied in all cases of the kind. In the present case, the fact is not denied; on the other hand, Mr. Coleman was present, and is not only said to have consented that the jurors, who Were assembled at a late hour of the day in the month of July, should partake of the slight refreshment set before them, (a quart decanter of spirits brought out to a company of twenty or five and twenty persons assembled at the petitioner’s house,) but set them an example, by taking a glass *of spirits and water himself, before they set out to view the lands. No other impropriety of conduct seems to be chargeable to the Jury, until they had agreed on their report. They ate and drank at the petitioner’s house, either before or immediately after the inquisition was signed, which was some time alter night, Mr, Coleman staying with them and partaking of the same refreshments, and staying afterwards all night. These circumstances afford a strong apology for all that happened. Yet I am afraid of shaking great and fundamental principles. I dread the effect of the precedent, should we decide that they may in any case, except absolute, unavoidable necessity, be departed from. No line is so easy to define as a strait one; and if the least departure from that be permitted, it will be difficult, if not impossible, to draw one capable of application in all cases of this nature. On these grounds, 1 am inclined to think we ought (for the sake of avoiding what may operate a dangerous precedent) to set aside this inquisition: though I am well satisfied with the judgment, both of the County Court and the District Court, upon every other ground.

JUDGE ROANE.

Upon a thorough consideration of the testimony in this cause, I am of opinion that the appellee ought to have leave to raise his dam according to the prayer of his petition. If, however, the testimony were doubtful, I should certainly respect the concurring judgments of the County and District Courts, tribunals sitting in the neighbourhood, as was done by this Court in the case of Home v. Richards, 2 Call, 507.

As to the objections taken to the regularity of the proceedings, gone of them, in my view, are important.

The inquisition having found that damages would be done to the estate of Thomas Rowlett, deceased, it became the duty of the Court to issue a summons to the tenant or proprietor thereof. The Court ordered one to be issued to Thomas Coleman, who is also stated therein to be “trustee and acting executor of Thomas Rowlett, deceased.” *Coleman appeared and contested the motion on the merits. After this, we are not at liberty to say without any evidence to that effect, (and thus convict the County Court of error in issuing the summons to an improper person,) that he was not, in fact, the tenant or proprietor of the land within the meaning of the act. He might have been so, the description given to him, of “trustee and executor,” notwithstanding.

As to the notice given to him by Moody, in that character, in the first instance, it was mere supererogation, and consequently will not affect his rights.

With respect to the objection to the writ of ad quod damnum, in that it confines the Jury in their estimation of damages to the height of fifteen feet two inches, the answer is that the writ corresponds in this respect with the real application to the Court, and being, besides, beneficial to the opposing party, cannot be objected to on this ground by him.

As to the objection to this inquisition on the ground that the Jury drank some spirits and water at the cost of the appellee; while I heartily join with the Judge who preceded me in wishing to keep the jury-trials as pure as possible, and also thick, with him, that, in general, the same necessity for circumspection equally holds in relation to inquisitions of office which are held in pais and out of the sight or control of a Court of Justice, I must be permitted to say that nothing shewn in evidence in this case ought to impeach the present verdict. At the same time, also, that I readily make the foregoing admissions, I do not agree that all the rigid doctrines of the ancient common law in respect to eating or drinking by a Jury, and which are laid down in relation to perhaps a short trial in a comfortable jury-room, equally apply to the laborious duties required by an inquisition in the country, where, from the necessity of the case, the jurors must have a reasonable refreshment. We must not be governed by the letter of the rule under every possible state of things, but take a more liberal and enlarged view of the circumstances. *1 presume it will not at this day be contended, that in this laborious service the jurors might not have refreshed themselves at their own expense: but we are to consider the case as it is, where the refreshment was furnished by one of the parties. In considering this case, we must recollect that the Jury in question was not acting in a populous city where they might have got refreshment at their own cost, and where a party could from no motive, except an interested one, have furnished it at his cost. The jurors summoned on this inquisition and perhaps most of them rode many miles that day; there was, probably, no public house near, from which refreshment could have been obtained; the weather was, probably, very hot; and therefore a kind of necessity existed for the appellee’s offering', and their accepting, the trivial refreshment now made the ground of opposition to the verdict. The character for hospitality of our countrymen, too, ought not on this occasion to be entirely lost sight of. That circumstance, perhaps, taken in connection with the real necessity of the case, furnishes a clew for the offer in the present instance very distinct from any view to corruption on the part of the appellee. If the terms of the act'concerning roads has expressly inhibited all kinds of refreshment to the Juries who are acting upon them, notwithstanding the possible hardships which may result therefrom to the jurors, the omission to insert a similar provision in the act respecting mills leaves those cases on the footing of the common law ; in applying the provisions of which, however, we must adapt them to the circumstances of the case, and so as to effect a reasonable and substantial compliance therewith, rather than a literal one. So far as the provisions of the statute are express and imperious, let them prevail; but, as to any case not embraced by it, let such case be considered independently of its provisions.

I need not, however, consider the present case in a general point of view. The testimony in the cause shews, abundantly, that Coleman consented that the Jury should take some refreshment, and set them the example. We *do not sit here to lay down mere abstract propositions, but to administer justice: and shall we set aside a verdict, in favour of a man who is proved to have deliberately and freely waived the objection which his counsel long after. may think proper to set up? We are in the habit, every day, of disregarding errors which are beneficial, or not injurious to parties, or to which they have bound themselves not to object. On this ground, and referring particularly to the testimony in the cause in support of this part of my opinion, I must think the verdict in the present case ought not to be impeached, and that the judgment ought to be affirmed.

JUDGE DEEMING.

The only difference in the opinion of the Court, arises from the circumstance of the Jury having taken a little refreshment of spirits and water, in the first instance, before they were im-panelled and sworn, and after they had finished their examination and were on their return towards the house, they took a drink of grog; (says Baptist, the sheriff;) and after returning to the house, they reported their verdict, and whilst he and the surveyor were writing the inquisition, they took some spirits and water; but neither the sheriff nor Mr. Quie (another respectable witness who spoke of these circumstances! saw any thing like intoxication in either of the jurors.

Although the law, in order to preserve the purity of trials by Jury, (justly considered as one of the chief excellences of our constitution) has inhibited jurors from taking either meat or drink, or even the use of fire or candle, whilst consulting of their verdict, which, says Eord Coke, some book call an imprisonment, those rules are more strictly observed in England than they are, or ought to be, in this country, where the habits, manners and genius of our people are widely different. Though here, I should be far from countenancing or tolerating embracery, or any thing that might tend to corrupt or bias the minds of a Jury; but in the case before us nothing of the kind, to my mind, appears; and I am persuaded that the appellee had *no sinister object in view, in producing the spirits spoken of in the evidence, but was actuated merely from a motive of hospitality and kindness, for which our citizens are generally distinguished : and I am the more confirmed in this opinion, from the circumstances of his caution in consulting the appellant, (the only person to be affected by the verdict of the Jury,) who readily gave his assent, and set an example himself, by taking a drink of grog before either of the jurymen; and it is laid down in Co. Eitt. 12S, b. ‘‘that all defects in convening or in the qualifications of the jurors, are aided by consent of parties ; for the rule herein is, that omnis consensus tollit errorem.” If, then, the consent of parties takes away error in the qualifications of jurors, I can perceive no good reason why such consent should not take away the error of their taking a little refreshment in a hot summer’s day; but the taking such refreshment before they were impanelled and sworn, is not prohibited by the strict law in England; which, however, is admitted to be the law here also.

On this view of the case, then, I am of opinion, that the verdict was uncorrupt, and ought to be sustained, and that the judgment of the Court below ought to be affirmed.

By a majority of the Court, (absent JUDGE LYONS,) the judgment of the District Court was affirmed; JUDGE TUCKER dissenting on the point of the refreshment taken by the Jury, only. 
      
       Co. Litt. 237. b.
     