
    Noel v. Sale.
    [Saturday, April 27, 1799.]
    Milis — Inquisition—Improperly Quashed. — If an inquisition be improperly quashed, the plaintiff should pray a new writ, or except to the Court’s opinion.
    Same — Same—Who May Take. — The deputy Sheriff may take an inquisition.
    Noel petitioned the County Court of Essex, for leave to build a mill. Writ of ad quod damnum granted, and inquisition taken. After which, the record proceeds thus, “On the motion of the said Sale, the said inquisition, for reasons appearing to the Court, is quashed; and it is further considered by the Court, that the said John Sale recover of the said Taylor Noel, his costs about his defence, in this behalf expended. Erom which determination of the Court, the said Taylor Noel prays an appeal to the next District Court to be held at King and Queen Court-house; the same is granted the said Taylor having given bond and security according to law.”
    The District Court affirmed the judgment of the Countj’ Court; and, to the judgmerit of the District Court, Noel obtained a writ of supersedeas from this Court.
    Marshall, for the appellant.
    The proceedings were all regular, and yet the inquisition is quashed by the Court; which is unquestionably erroneous. Therefore, the judgment of the District Court ought to be reversed.
    *PENDLETON, President. May there not have been a cause dehors the record?
    Marshall. If so, it ought to have been stated.
    Cur. adv. vult.
    
      
      MiIIs and MÍ.’fíl'Kr^s — Erection of Dam — Eminent Domain — Constitutionality of Statute. — See foot-note to Hairs v. Gallahue. 9 Gratt. 94. The principal case is cited in Varner v. Martin, 21 W. Va. 546.
    
    
      
      Same — Writ Ad Quod Damnum — Who May Execute. —The writ of ad quod damnum which issues upon an application to a court for leave to build a mill, m ay be executed by the deputy sheriff. Wroe v. Harris. 2 Wash. 126. See monographic note on ‘’Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
      Appeal-Supersedeas. — The principal case is cited in Wingfield v. Crenshaw, 3 Hen. & M. 254, 257.
    
   LYONS, Judge.

Delivered the resolution of the Court, that the judgment of the District Court should be affirmed. That Noel should either have moved for a second inquisition, or filed a bill of exceptions to the Court’s opinion, in order that it might have appeared upon what ground the Court proceeded.

ROANE, Judge. I suspect that the Courts below proceeded upon the ground, that the inquisition was taken by the deputy Sheriff; but that has been decided to be good by this Court. However, as there might have been matter dehors, as misconduct in the Sheriff, jurors, or party, and nothing is stated in the record to exclude that idea, we must presume that something of that kind appeared to the Court.

PER CUR. Affirm the judgment.  