
    GAY vs. CALDWELL.
    
      October 11th.
    
    It is not rte-cefiary that it fliould appear of record that the jurors holding an inqueft were qualified to ferve.
    If infaft any of them were not qualified, i£ fliould be quef. tioned bvfpeoial plea }⅝ an alignment of error in fa&»
    A record may be amended after the caufe yt out of codrt, where there is any thing to a-fiOend by.
    CALDWELL, in September 1800, being about to erect a mill in Woodford, applied to the court of that county and procured a writ of ad quod damnum. The jurors returned their inquest to the October court in said year, and the conrt then gave leave to erect the mill. But the sheriff omitted to endorse any return on the writ of ad quod damnum.
    
    A writ of error was sued out by Gay.
    At the county court for Woodford held in May 1805, and during the pendency of the writ of error in this court, and after the term of service of the sheriff of 1800 had expired, IJarman Bowmar, the deputy sheriff who then acted, obtained leave to insert his return on said writ, it appearing to the court that the return was omitted by mistake,” and then made his return the,reon. This proceeding was brought Up by certiorari. The following opinion will show the other points made in the eause.
    
      A iheriffper-mitred to make a return on a writ of ad quod damnum, feveral years after he wasout of office, there being the imjueft toamend ty.
    A deputy (he-riff may execute a writ of ad quod dariwHin.
    If during the pendency of a caufe in- the court of appeals the record be amended (o as to cure the error affignedj the de*-feodant in error ihould pay the cufts.
   By the Court.-

The errors alleged may be comprize ed under the following: 1st, It does not appear from the record that the jurors were fit persons or freeholders — * 2nd, That there is no legal and proper return by the sheriff of the writ of ad quod damnum-^— 3rd, The writ should have been executed and returned by the sheriff, and not by a deputy.

On the first, it may be observed, that although the law requires that the jurors should be fit persons or freeholders, yet it does not require that it should appear on the face of the record. This may be assimilated to the case of a grand juror, whom the law formerly required to be a freeholder ; it was never deemed necessary that it should so appear on the face of the record and if exception Was made, it was done by plea feféring to thé particular juror or jurors by name. In cases of this kind it should be assigned as an error, refering in the same manner.

As to the second^ great doubt existed as to the legality of the return ; but from the authorities cited, amendments are permitted wherever there is any thing to amend: by, and the inquisition taken and returned is certainly equal to a memorandum ; which has been deemed sufficient : therefore so many of the errors as relates to this point are overruled.

As to the third, the case of Wroe vs. Harris, 2 Wash. 126, and the case Of Noel vs. Sale, 1 Call. 495, decide against this error.

The order of the county court must be affirmed; but as the amendment of the return, has taken place pending this suit, the defeh'dailt should pay the costs.  