led, charged and sworn as the law directs, proceeded to inquire into the several matters delivered them in charge." Their inquisition then proceeded, "after due consideration thereof, we are of opinion that by erecting the said Richard K. Cralle's dam six inches higher than its present height, agreeable to the annexed writ of ad quod damnum, it will damage the lands and other conveniences of Francis Eppes to the amount of fifty dollars and fifty cents, and that the lands of William Buford will be damaged to the amount of one dollar. We are further of opinion, that there has accrued damages to the land conveniences of the said Francis Eppes to the amount of one hundred and forty dollars, and that it will damage the lands of William Buford four dollars, which said last-mentioned damages was occasioned by the waters overflowing higher than the former Jury contemplated, and have been assessed by us, which we are of opinion ought to be paid by the said Richard K. Cralle to the said Francis Eppes, in addition to the damages assessed by the former Jury. We are further of opinion that no mansion house, office, garden, curtiledge or orchard will be effected or damaged by the erection of the said mill-dam six inches higher than the present dam, and that no mansion house, garden, office, orchard, curtiledge, or the ordinary navigation, or passage of fish, or the health of the neighbourhood will not be annoyed, or affected by the raising the said mill-dam to the present height, not contemplated by the former Jury, and in our opinions there will be no other damage to any person or persons whatsoever, except to the said Francis Eppes and William Buford. Certified under our hands and seals this 5th day of October, 1807."

On the return of this inquisition, Francis Eppes only was summoned, to shew cause, if any he could, why an order should not be granted according to the prayer of the petitioner; and the parties appearing, the Court," upon hearing the inquisition and other evidence adduced by the parties," was of opinion" that the said Cralle have leave to build his dam fourteen feet six inches high." And the said

APRIL, 1810.

Eppes

V.

Cralle.

APRIL, 1810.

Eppes

V.

Cralle.

Cralle tendered in Court the damages found by the Jury, which the defendant refused to accept, and appealed to the District Court of Brunswick, which reversed the said order, and, proceeding to make such order as the said County Court ought to have made, directed "that the said Richard K. Crailè have leave to raise his dam six inches higher than the present dam, and that the appellee pay to the appellant fifty dollars and fifty cents, and William Buford one dollar, the amount of the damages found by the Jury in their inquisition, which will be sustained by them in consequence of the appellee's raising his dam six inches higher than the present dam; and that the appellee recover against the appellant his costs expended by him in prosecuting his petition in the said County Court.".

From which order the appellant prayed an appeal to this Court.

George K. Taylor, for the appellant, made three points;

viz.

1. The petition was for leave to raise the dam "to fourteen feet and one half:" the order awarding the writ of ad quod damnum said "six inches higher than the present dam." This is a fatal variance; for there is nothing in the record to shew what the present height is.

2. The order made by the District Court should also be reversed for uncertainty. The County Court, notwithstanding their first order, had directed the Jury to assess the damages that would accrue by raising the dam six inches higher than at present, in their last order conformed to the petition, and granted leave “to build the dam fourteen feet six inches high." The District Court reversed that order, (which was the most correct,) and gave judgment in the language of the inquest, "to raise the dam six inches higher than the present dam;" leaving it uncertain to what height it should be raised.

3. The first order of the County Court, and the writ of ad quod dumnum directed the Jury to ascertain the dama

1810.

ges which a previous Jury had not foreseen and estimated; APRIL, and this Jury made a return as to that fact. This inquiry the Court had no right to direct them to make, and their having made it vitiates the whole inquest.

Call, for the appellee. The two first points depend on the testimony which is now about to be laid before the Court. The third point relates to mere surplusage, which ought not to have been in the order, but need not be regarded.

Taylor. The act of Assembly directs the attention of the Sheriff and Jury to certain points only. The Court here directed another point to be inquired into not authorized by law. Their act is therefore void. So, in the case of official bonds, if not exactly conformable to law, they are void.

Call. This objection never would have entered my mind; and, I must say, I never knew one of less foundation. I grant, if things ordered by the statute had not been done, the inquisition would have been void. But here the Court have only done a work of supererogation.

Where a statute directs bonds to be taken in a prescribed form, I admit that form must be strictly pursued. But no particular form is prescribed for an inquest. The case of a forthcoming bond is therefore similar to this. Where more than the amount of the execution is inserted in the bond, the plaintiff may release the surplus.

The additional inquiry in this case was for the benefit of Eppes; not of Crallè. The two assessments of damages may easily be severed; being separately found. So far, then, as the jurisdiction of the Court under the act extended, its orders should be supported; and disregarded as to the other part. Both the County and District Court rejected this, and merely proceeded to award the damages for raising the dam.

Eppes

v.

Cralle.

APRIL, 1810.

Eppes

V.

Cralle.

Judge TUCKER. The party was entitled to his action toties quoties for injuries not estimated by the former Jury. In this case the writ of ad quod damnum could legally issue only to assess the additional damages occasioned by raising the dam. I am therefore of opinion, that the inquisition taken upon it was illegal and ought to be quashed.

The party

Judge ROANE was of a different opinion. having prayed for what was perfectly legal; and the Court having corrected its own error, (for the last order was exactly conformable to the petition,) no injury was done. The maxim therefore applies "utile per inutile non vitiatur."

Judge FLEMING, as to this point, agreed with Roane; observing, that the error committed in the first order was subsequently corrected by the Court.

Taylor proceeded to mention another point. The Jury have not answered to all the commands of the writ. They have not said whether fish of passage, and ordinary navigation, will be obstructed, or the health of the neighbours injured.

Call. The Jury, in conclusion, negative all damages to any person whatever. But it greatly depends on the manner of reading this inquisition, to determine whether it answers to the whole command of the writ.

Judge TUCKER. This inquisition is not intelligible to me; and the last clause implies there might be other damages (not ascertained) to Eppes and Buford.

Judge ROANE. I am for looking to substance; and, if satisfied that the meaning of the Jury (though not technically expressed) comes up to the requisition of the law, will be satisfied. I understand the meaning of the last

clause in the inquisition, though inaccurate and ungrammatical, to be that the health of the neighbours had been contemplated by the former Jury; and that no other damage than (as before mentioned) to Francis Eppes and William Buford, would result. They thus adopt the opinion of the former Jury, as to the health of the neighbours; and say as they did.

Judge FLEMING considered the return of the Jury insufficient; not having answered to the essential parts of the writ of ad quod damnum; viz. to what related to the health of the neighbours, the passage of fish and navigation.

An order was therefore directed to be entered, reversing both judgments; quashing the inquisition and writ of ad quod damnum; setting aside all the proceedings subsequent to the petition; and remanding the cause to the County Court for further proceedings. But, on Judge ROANE'S suggestion, the Court agreed to reconsider the subject.

Wednesday, May 2. A second argument took place.

Call. More precision than was used in this case is not required by the terms of the act of Assembly. The question is about raising a dam, not about an original order to build a mill. The inquiry is only as to the value of additional damages; not as to the original points. But, even if a larger latitude of inquiry be requisite, this inquisition is sufficient. Whether the health of the neighbours will be injured is a mere matter of opinion, not conclusive, but traversable, and amounting to no more than the oral decla rations of the Jurors in Court. Evidence may therefore now be received as to this point.

b. Knight's

80l. Tidd's

The degree of certainty required in inquisitions is not as (a) 5 Co. 56. great as in pleadings. Certainty to a common intent is coses, Resufficient.(a) "There are three manners of certainty. 1. Prac. 136. 2 Certainty to a common intent; 2. Certainty to a certain Co 121. Long's case.

Sulk. 469 5

a.