Syllabus.

final, is a judicial decision, or at least a final order, reviewable under Const. art. 4, § 12, declaring that the Supreme Court has jurisdiction to finally determine all matters in error in the judgments and proceedings of the Superior Court.

4. EMINENT DOMAIN-MODE OF REVIEW-CERTIORARI.

Certiorari, and not error, is the proper proceeding by which to obtain a review of the confirmation of a report of the sheriff's jury summoned under a writ of ad quod damnum in a condemnation suit, for writs of error are limited to proceedings according to the common law, and a proceeding to condemn land, even by writ of ad quod damnum, is not one according to the common law.

5. CERTIORARI-Nature of Writ.

Certiorari was originally a writ of grace, which was not granted if substantial justice had been done, despite technical errors, and for that reason was preferred to review special proceedings by inferior tribunals.

6. EMINENT DOMAIN-QUESTIONS PRESENTED BY RECORD-IMPROPER PROCEEDING.

Though certiorari is the proper procedure to obtain review of the confirmation of the report of a sheriff's jury, summoned in a condemnation suit under a writ of ad quod damnum, yet where the record and the parties are before the Supreme Court on writ of error, the irregularity will be overlooked and the confirmation reviewed.

7. EMINENT DOMAIN-PROCEEDINGS-DISCONTINUANCE.

A landowner dissatisfied with the damages awarded by the freeholders upon condemnation of his property, having sued out a writ of ad quod damnum, cannot discontinue proceedings after verdict has been taken and a return made by the sheriff.

8. EMINENT Domain-Proceedings-Writ of AD QUOD DAMNUM.

A writ of ad quod damnum, issued to assess the damages of a landowner which in accord with his application did not require the sheriff's jury to take into consideration all circumstances of detriment and benefit, will not be quashed, although Act February 26, 1913 (27 Del. Laws, c. 201), authorizing the condemnation, required the freeholders to take into consideration such damages.

9. EMINENT DOMAIN-WRIT OF AD QUOD DAMNUM-IRREGULARITY.

Where a writ of ad quod damnum, issued upon the application of the New Castle County Building Commission, under Act February 26, 1913 (27 Del. Laws, c. 201), did not require the sheriff's jury to consider, in assessing damages from the condemnation, all circumstances of benefit and detriment, though the application so requested, a landowner, who sued out his own writ of ad quod damnum upon an application containing no such request, is not entitled to have quashed the writ issued to the commission. 10. EMINENT DOMAIN-PROCEEDINGS

SHERIFF'S JURY-CHALLEnge.

Where a party not present when the sheriff's jury was sworn in a condemnation proceeding participated in the trial without objection to the jury, he cannot, after award, defeat the verdict and invalidate the return by showing that he had no opportunity to challenge, because not notified of the place when and where the jury would be impaneled; it being his duty to make his objection at the first opportunity in the progress of the cause.

Syllabus.

11. EMINENT Domain-Assessment of Damages-SheRIFF'S JURY-CHAL

LENGE.

The proceeding for assessment by sheriff's jury of damages caused by the condemnation of land is not a civil suit in which peremptory challenges are allowed, for, the sheriff being commanded by the writ of ad quod damnum to summon only twelve impartial men, Rev. Code 1852, amended to 1893, p. 807 (17 Del. Laws, c. 221) § 19, providing for peremptory challenges in civil cases, does not apply, though a challenge for cause made at the earliest possible opportunity would probably be allowed.

12. EMINENT Domain-RevIEW-QUESTIONs Presented.

Where the record on appeal failed to show the form of oaths taken by the sheriff's jury, summoned under writs of ad quod damnum to determine the damages upon the taking of land, the landowner cannot in the appellate court raise the question that the sheriff's return was improperly confirmed because the proper oath was not administered.

13. EMINENT DOMAIN-PRoceedings-OATH OF SHERIFF'S JURY.

Where the writ of ad quod damnum, issued in accordance with the application of a landowner, did not require the sheriff's jury to take into consideration all circumstances of benefit and detriment, the jury need not be sworn to consider those circumstances.

14. EMINENT DOMAIN-Assessment ASIDE.

OF

DAMAGES-Verdict-SetTTING

The sheriff's return of the verdict rendered by the jury in a condemnation proceeding will not be vacated, because failing to show that the jury were sworn to perform the specific duty imposed by the condemnation statute (Act February 26, 1913 (27 Del. Laws, c. 201]); the statute requiring no particular form of oath, and the return showing that the jurors were sworn according to law.

15. EMINENT DOMAIN-ASSESSMENT OF Damages-VerdICT OF SHERIFF'S JURY.

Where the writ of ad quod damnum, issued in accordance with the application of the landowner, did not require the sheriff's jury to consider all circumstances of benefit and detriment in assessing the damages, the sheriff's return on the verdict will not be vacated, because not showing that the jury considered such matters.

16. EMINENT DOMAIN-ASSESSMENT OF DAMages-Sheriff's Return.

Where the writ of ad quod damnum, issued in accordance with the application of the landowner, did not require the sheriff's jury to consider all circumstances of benefit or detriment, the sheriff's return on the verdict will not be vacated, because not showing that the jury considered such damages, even though the application by the condemning body for such a writ required a consideration of such elements and the return to it did not show that the jury considered the detriment.

17. EMINENT DOMAIN-ASSESSMENT OF DAMAGES-CONSIDERATION JURY OF NOTES OF TESTIMONY.

BY

That the sheriff's jury in condemnation proceedings considered, after the close of the case, notes of testimony taken by a stenographer, is no ground for vacating the sheriff's return, where the stenographer was engaged at the request of the jury after it became apparent that they could not remember or conveniently take notes of the testimony.

Syllabus-Statement.

18. EMINENT DOMAIN-Assessment of Damages-CUSTODY OF SHERIFF'S JURY.

That the sheriff's jury, summoned to assess the damages in a condemnation proceeding, were allowed to separate after argument and before verdict, is no ground for vacating the sheriff's return.

19. CONSTITUTIONAL LAW-DUE PROCESS OF LAW-WHAT CONSTITUTES. Where Act February 26, 1913 (27 Del. Laws, c. 201), authorizing condemnations, gave landowners a reasonable opportunity upon due notice to be heard before a jury, whose findings were returnable to and subject to confirmation by a competent court of record, a landowner was not denied due process of law, because not given an opportunity to challenge the jurors before they were sworn, and because they separated after argument and before verdict.

20. EMINENT DOMAIN-PROCEEDINGS.

Proceedings for the condemnation of private property for public use should be in strict accord with the statute, and the record should show that all statutory requirements have been observed.

(February 17, 1914.)

CURTIS, CHANCELLOR, and BOYCE, CONRAD and RICE, J. J.,

sitting.

Robert H. Richards for plaintiff in error.

William S. Hilles for defendants in error.

Supreme Court, January Term, 1914.

ERROR to Superior Court, New Castle County (Nos. 4 and 5, January Term, 1914 being Nos. 32 and 33, September Term, 1913, court below).

Writs of ad quod damnum to assess damages from the condemnation of the property of Samuel G. Elbert were issued on the application of Harlan G. Scott and others, constituting the New Castle County Building Commission, and on the application of said Samuel G. Elbert. Motions to quash the writs and vacate and set aside the sheriff's returns thereon having been denied (4 Boyce 388, 88 Atl. 608), the landowner, Samuel G. Elbert, brings error. Affirmed.

STATEMENT OF THE CASE.

Under the provisions of an act of the Legislature approved February 26, 1913, being Chapter 201, Volume 27, Laws of Delaware, "the New Castle County Building Commission," the defend

Statement.

ants in error, was created for the purpose of acquiring, by purchase or otherwise, such real estate in the City of Wilmington as may be necessary for the erection of a county building. Section 4 of the act provides, as follows:

*

"Section 4. In case the said the New Castle County Building Commission shall for any cause be unable to agree with the owner or owners for the purchase of any lot or lots of land selected by the said Commission as aforesaid for the purpose aforesaid, any judge of the Superior Court, upon application of the said Commission, shall issue a commission under his hand directed to five impartial freeholders of said county commanding them to view the premises and assess the damages which the said owner or owners will sustain by reason of taking of the said land for the purposes of this act, taking into consideration all the circumstances of benefit and detriment to result to such owner or owners, and to make return in writing of their proceedings to said judge at a time in said commission appointed. Upon application of the said the New Castle County Building Commission or any owner or owners of such land to the prothonotary of the Superior Court for New Castle County, he may issue out a writ of ad quod damnum, requiring the sheriff in the usual form to inquire of twelve impartial men of his bailiwick of the damages as aforesaid and their report shall be final. And upon confirmation of the said return or the return of the said writ of ad quod damnum and the payment or deposit of said damages as aforesaid, the said the New Castle County Building Commission shall cause to be recorded in the recorder's office at New Castle County the application, commission and return under which said land may be condemned as aforesaid, together with the receipts and certificates for the payment of said damages."

* *

Among the properties sought by the Building Commission was a lot at the southeast corner of Eleventh and King Streets, extending along Eleventh Street to French Street, being all of the property of Samuel G. Elbert, the plaintiff in error in each of these cases. Being dissatisfied with the damages awarded and assessed by the freeholders appointed by one of the judges of the Superior Court, the Building Commission, as well as Elbert, the

Statement.

owner, applied to the prothonotary of New Castle County for writs of ad quod damnum. The application of the commission asked for a jury to assess "the damages which the said Samuel G. Elbert will sustain by reason of the taking of the said land for the purposes of the said act, taking into consideration all the circumstances of benefit and detriment to result to such owner." The application of the landowner, Elbert, was for a jury to assess "the damages occasioned to your petitioner by the taking of the said land for the purpose aforesaid." Both applications for the writs of ad quod damnum were made on the same day and the writs were issued to the sheriff simultaneously. The same persons were selected as jurors in each case, and at their request, and for their convenience in determining the amount of damages, stenographic notes were taken of the testimony of witnesses produced by the Building Commission and the landowner, Elbert. The returns of the sheriff of his proceedings under the writs were made to the Superior Court at the September Term, A. D. 1913. The inquisition of the jury was under seal, dated the thirtieth day of July, A. D. 1913, and in addition to a description of the property, contained in each case the following:

"We, the undersigned jurors, duly summoned under the annexed writ, having all been severally sworn or affirmed according to law and having gone upon the lands and premises in question, as described in said writ, do award to Samuel G. Elbert, the owner of the lands and premises proposed to be taken, appropriated and used by the New Castle County Building Commission, acting on behalf of New Castle County, for the purpose of the erection of a county building the sum of thirty-nine thousand ($39,000) dollars.

*

On the first day of the September Term, 1913, of the Superior Court, Robert H. Richards, Esq., as attorney for the landowner, filed a motion to quash the writ of ad quod damnum issued in each case, and also filed twenty-two exceptions to the sheriff's return in each case. In the proceedings instituted by the landowner (No. 5), leave was also asked to abandon, discontinue and stay the writ issued on application of the landowner. The exceptions filed were the basis of a motion to vacate and set aside the writs,