(111 A.) lived unhappily together before the defend-fense before you can award damages of this ant appeared and even were much estrang- kind. It has been held by this court hereed, would not constitute a bar to the plain- tofore thattiff's action but would go as we have already said, in mitigaton of damages. "It was a question for the jury to say whether there were circumstances of aggravation in the case which ought in their judgment to require a departure from the general rule of compensatory damages, and which called on them to add anything by way of public example or punishment." [6, 7] In all cases where there is conflict of testimony or disagreement between the witnesses produced by the respective parties in a suit, the jury should first endeavor to reconcile the testimony so that the whole may be harmonious. If this cannot be done, In conclusion we say, if you are satisfied then it is the duty of the jury to estimate that the defendant was guilty of adultery and weigh in their minds the value of the with plaintiff's wife, and are not satisfied testimony on the respective sides and give that he was the controlling cause of the their verdict to that side where the testi- plaintiff's loss of his wife's affection, servmony is of the greatest weight or prepon-ices and society, your verdict should be for derance and most worthy of credit. In es- the defendant. timating such weight the jury are to consider the character of the witnesses as known to them from the testimony, their means of knowledge of the facts about which they speak, and apparent fairness, and all other circumstances or facts with respect to such witnesses as show the reliability of their statements. Verdict for defendant. STATE HIGHWAY DEPARTMENT v. (Supreme Court of Delaware. June 15, 1920.) I. Eminent domain 214-Land already condemned need not be particularly described in petition for writ of ad quod damnum. Under Act Gen. Assem. April 2, 1917 (29 Del. Laws, c. 63) § 11, providing for condemnation of land for a highway, where the property has already been condemned by the commission, whose proceedings are returned to the prothonotary, the petition of the landowners for a writ of ad quod damnum, and the writ and report of the jury need not particularly describe the land condemned. If you should conclude, after carefully and fairly considering and weighing all the testimony as you have heard it from the witnesses, and applying the law as the court has declared it to you, that the defendant committed adultery with the wife of the plaintiff, then your verdict should be for such amount as in your judgment will compensate the plaintiff for his mental suffering from the dishonor of the marriage bed and the loss of the affection of his wife and the comfort of her society, as well as the pecuniary loss of her services. It is for you to say whether from the evidence it is shown that the defendant did commit adultery with the wife of the plaintiff. If you should believe that there is no proof of adultery in this case, but are satisfied that the defend-way must direct the jury to consider the adant did alienate the affections of plaintiff's wife, your verdict should be for such amount as in your judgment will compensate the plaintiff for the loss of his wife's services and the marital consort; less, however, in either case, the value of the husband's duty to support, clothe, cherish and care for her. Such damage would be compensatory damages. If you believe from a preponderance of the evidence that the defendant willfully and maliciously committed the injury or wrong complained of in this action, you may, in addition to any compensatory damages that you think him entitled to, award to the plaintiff such damages as you may consider proper as a punishment to the defendant and an example to others. But we say to you that such damages are based on the enormity of the offense and its malicious, willful, and aggravated character, and you must be satisfied that such was the character of the of 2. Eminent domain 214-Writ of ad quod damnum must direct jury to consider benefits. The writ of ad quod damnum for the assessment of damages for taking of land for a high vantages to the owners of the land in ascertaining the damages, as required by Act Gen. Assem. April 2, 1917 (29 Del. Laws, c. 63) § 11, and where the writ contained no such show that they did consider the benefits to direction, and the report of the jury did not the owners, the record is fatally defective. 3. Eminent domain 214-Objection to notice of proceedings cured by general appear ance. for assessment of damages for condemnation of Objections that the writ of ad quod damnum land for a highway did not require notice to be given the highway department, and that notice was not given within the time required by statute, is cured by the general appearance of the state highway department in the proceedings. Certiorari, No. 1, October Term, 1919. Certiorari to the Superior Court for Sussex County at the suit of the State Highway Department, defendant below, against Mary For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes A. Hastings and others, plaintiffs below, on | Div. 564, 46 N. Y. Supp. 293; Tarkio v. the proceedings had under a writ of ad quod Clark, 186 Mo. 285, 85 S. W. 329, 332; Green damnum (No. 18, to the June Term, 1919) et al. v. Road Board, 126 Ga. 693, 56 S. E. sued out of said court by plaintiffs below. 59, 61; Rud v. Board of Com'rs, 66 Minn. On exceptions to the record and proceedings. 358, 68 N. W. 1062, 69 N. W. 886; McDonald Reversed. v. Wilson et al., 59 Ind. 54; Farmer et al. v. PENNEWILL, C. J., and RICE and HEI- Pauley et al., 50 Ind. 583. SEL, JJ., sitting. Andrew J. Lynch, of Georgetown, for plaintiffs below. James I. Boyce, of Wilmington (Robert H. Richards, of Wilmington, on the brief), for defendant below. The writ contains no reference to the property to be condemned, except by way of recital, which is as vague, indefinite and uncertain as the petition upon which the writ was issued. When the sheriff took his twelve men to view the lands and premises, there was nothing from which he could say: "Here is where the road will start and here The original proceeding in this case was begun by the "State Highway Department," is where the road will end." before the resident associate judge in Sussex county, for the condemnation of certain lands and premises of plaintiffs below, situate in said county, for a proposed state highway, in accordance with the provisions of the Act of Assembly in that behalf, section 11 of which is recited in the opinion of the court, as also are the several exceptions in certiorari and the contentions of the parties. It is impossible for the State Highway Department to go to the prothonotary's office in Sussex county and to find out from the record in this case what part of the lands was condemned under the writ. Argument for Plaintiff in Error. The petition, the writ, and the report of the finding of the jury do not sufficiently indicate the land to be condemned. 2 Woolley, Del. Prac. § 1448. They each indicate the land to be condemned as "a strip of land sixty feet wide, extending by and through the whole of your petitioner's lands and premises, in Little Creek hundred, aforesaid, along and through the middle part thereof." The termini of the road are not located. The direction of the road is not given. It does not appear whether the strip is straight or curved or what is the quantity of the land to be taken. What has been said with regard to the petition and the writ is equally true of the report of the finding of the jury. It would seem that the jury intended to annex a description of the lands and premises condemnAn insufficient If the de ed, but they did not do so. The writ of ad quod damnum in this case does not require the jury, in assessing the damages, to take into consideration the benefits and advantages to the owner or owners of the land, resulting from the proposed ue of the benefits or advantages against the loss, detriment and disadvantages which such owner would suffer. The petition gave the prothonotary no in-highway improvement, and to set off the valformation upon which to base the writ. The writ gave the jurors no information upon which to assess the damages. And the report of the jury gives no information from which to determine what part of the lands was viewed and what part of the lands was condemned. It is elementary that the petition should describe the property with sufficient definite ness to enable one skilled in such matters to locate it on the ground. In many States the statute providing for condemnation proceedings expressly requires a description of the lands proposed to be taken. Our statute has no such provision, but if the petition, the writ, and the report of the finding of the jury all fail to contain a sufficient description, the proceedings are necessarily void for uncertainty. A condemnation is a conveyance and, as such, an adequate description of the premises conveyed is essential. Smith v. Weldon et al., 73 Ind. 454, 456; State v. Green, 18 N. J. Law, 179; Clement v. Burns, 43 N. H. 609, 614; In re De Camp, 19 App. The report of the findings of the jury does not show that the jury in assessing the damages, took such matter into consideration. In Elbert v. Scott et al., 5 Boyce, 1, 12, 90 Atl. 587, two writs had been issued; the one upon the petition of the landowner, and the other upon the petition of the New Castle County Building Commission. The writs did not require the jury, in assessing the damages, to take into consideration all the circumstances of benefit and detriment. The court said: "If the landowner obtained the kind of writ he asked for, he cannot complain that it does not contain something he did not ask for. We find, therefore, that there was no error of the court in refusing to quash the writ of ad quod damnum issued on application of the plaintiff in error, Samuel G. Elbert. *** A different question might have arisen if there had been but one application and one writ, and that the application and writ of the commission." (111 A.) In The writ in the present case is the land-ed by the resident judge for Sussex county owner's writ, but it is the State Highway De- was already in court, filed with the propartment which is excepting to it because it thonotary, showing the termini, the metes failed to require the jury to take into con- and bounds courses and distances, and the sideration the benefits and advantages to the contents of the land condemned, together owner or owners of the land resulting from with a plot or blue print of the same. the proposed highway improvement. fact the road way had been cleared nearly from one end to the other, except where there were growing crops and the whole course of the road was shown to the jurors not only by the sheriff, but by a foreman and employé of the plaintiffs in error. There could be no appeal from the condemnation proceedings; only from the amount of damages assessed. The writ of ad quod damnum should encompass within itself all authority for the proceeding. It is the writ that must from beginning to end control the action of all agencies which it can properly set in motion. The sheriff's action is controlled by the writ and the jury's action is defined, limited, and must be described by the writ. The writ is the sole source to which the jury may resort for instruction or information as to their duty. 2 Lewis on Eminent Domain, § 614. The mandate of the writ does not require the sheriff to serve the defendant with the The writ is not directed to the jury or required to be, but to the sheriff only. The act governing the laying out of roads by the State Highway Department does not require that the writ shall state to the sheriff or to any one else how the jury shall arrive at their finding in assessing damages to the own process. It does not appear that the defendant beer of the land taken. The State Highway low was served with the process. The mandate of the writ does not require the sheriff to give any notice to the defend ant. It does not appear that the defendant below was given ten days' notice of the summoning of the jury; but, on the contrary, it does not appear that the personal service rendered to John G. Townsend, Jr., as one of the State Highway Committee, was made less than ten days before the summoning of the jury and the inquisition. The writ is not as required by the statute, in the usual form. 2 Woolley, Del. Prac. § 1449. Department was, at the hearing before the sheriff and jury, and it was its privilege or that of its attorney to instruct the sheriff, or the jury, as to the law governing in such cases. The act does not require the sheriff to serve the defendant with process, but even if it did, the defendant appeared by counsel, of record, which cured any defect in the mandate or in serving the defendant with process. Appearance of a party after the grant of a new trial by a magistrate cures the want of notice of the application for such new trial and all prior defects of the proceedings. Jester v. Lekite, 5 Har. 19; Lewis v. Hazel, 4 Har. 470. The act in this case does not re the summoning of the jury and even if it did, the defect was cured by appearance of record of the defendant by its attorney. It may be urged for the plaintiffs below that these exceptions are of a technical na-quire ten days' notice to the defendant of ture. Exceptions in certiorari are necessarily of a technical nature, for they go to the validity of the proceedings rather than the merits of the cause. It has already been decided in the case Elbert v. Scott et al., above cited, that certiorari is the proper remedy in cases of this sort. It has also been decided that condemnation proceedings must be pursued strictly in accordance with the legislative authority for such proceedings. It is the right of a landowner to have his property taken only with due process of law, and it is the right of the state to have its money awarded only under strictly accurate proceedings. It is respectfully submitted, therefore, that the petition, the writ, the return, and the report of the jury in this case are so wholly insufficient and uncertain that the proceedings should be reversed. The act does not say that the jury shall incorporate in the report of their findings that in assessing the damages they took into consideration the benefits and advantages to the owner or owners of the land resulting from the proposed highway improvement, and set off the value of such benefits and advantages against loss, detriment and disadvantages which such owner would suffer. The jury is presumed to have done its duty in the premises and in as much as the State Highway Department was represented by counsel that he informed them of their duties and of the law in the case. The report of the finding of the jury sufficiently describes the property taken for the proposed highway. The act does not require to be annexed Argument for Defendants in Error. to the report of the finding of the jury, a The writ of ad quod damnum issued for description of the property but the proceedthe purpose only of assessing the damages ings fully indicate the land that was confor the land that had already been condemn- demned and for which damages were asThe return of the commission appoint-sessed to the plaintiffs below. ed. In the return of the jury no such particularity is necessary for the reason that the return of the original commission was filed with the prothonotary, and besides it was not the province of the jury to lay out and condemn the land, but merely to assess the damages for land already condemned. Certiorari is not appropriate where, should the writ be granted and the proceedings be quashed or reversed, mischievous consequences would ensue and the parties or third person could not be placed in statu quo. 6 Cyc. 744, citing Hagar v. Yolo County, 47 Cal. 222; Rutland v. Worcester County, 20 Pick. (Mass.) 71; Sowles v. Bailey, 69 Vt. 277, 37 Atl. 751. "The court will not award the writ where the errors complained of are merely informal and technical, or where although there is error in fact, substantial justice has been done, and no appreciable injury has resulted to the complaining party." 6 Cyc. 749. It is the settled policy of the court to affirm judgments or proceedings below whenever possible, and it is respectfully submitted that the proceedings below should be affirmed. 5. That the writ of ad quod damnum does not require the jury, in assessing the damages, to take into consideration the benefits and advantages to the owner or owners of the land, resultand to set off the value of such benefits or ading from the proposed highway improvement, vantages against the loss, detriment and disadvantages which such owner would suffer. 6. That the report of the finding of the jury does not show that the jury, in assessing the damages, took into consideration the benefits and advantages to the owner or owners of the land, resulting from the proposed highway improvement, and set off the value of such benefits or advantages against the loss, detriment and disadvantages which such owner would suffer. 7. That the mandate of the writ does not require the sheriff to serve the defendant with the process. 8. That it does not appear that the defendant below was served with the process. 9. That the mandate of the writ does not require the sheriff to give any notice to the de fendant. 10. That it does not appear that the defendant below was given ten days' notice of the summoning of the jury; but, on the contrary; it does appear that the personal service rendered to John G. Townsend, Jr., as one of the State Highway Committee, was made less than ten days before the summoning of the jury and the inquisition. The State Highway Department was created by an act of the Legislature, approved April 2, 1917, being chapter 63, vol. 29, Laws of Delaware, and section 11 of the act is as follows: "Whenever the department cannot agree with the owner or owners of any land, building, franchise, easement, sand, earth, stone, gravel or in the construction, reconstruction, or mainteother property necessary to be taken or used RICE, J. (delivering the opinion of the court). It appears from the record that Mary A. Hastings, Katie W. Francis and Bertha E. Gordy, the plaintiffs below, were the owners of certain lands and premises situate in Little Creek hundred, Sussex county, and state of Delaware, and that the State Highway Department made application to the associate judge of the state of Delaware, resident in Sussex county, for the appointment of a commission to condemn a part of the said lands and premises for a pro-nance of any state highway or proposed state posed state highway. The commission was appointed and condemned a part of said lands and premises, owned by the plaintiffs below, and awarded to them the sum of $150 and the timber on the lands for their damages. The plaintiffs below being dissatisfied with this award, sued out a writ of ad quod damnum in the Superior Court, in and for Sussex county, said writ being No. 18, to the June term, 1919. To this writ and the proceedings had thereunder a writ of certiorari was issued out of this court. There were fourteen exceptions filed to the record, but four were abandoned, and argument was heard upon the following exceptions: 1. That the said petition, as now incorporated in the record, does not sufficiently indicate the land to be condemned. 2. That the writ does not describe the property to be condemned with sufficient accuracy to enable the jury to inquire of the damages. 3. That the report of the finding of the jury does not sufficiently describe the property to be condemned. 4. That no description of the property is an nexed to the report of the finding of the jury. highway, which the department shall construct, reconstruct, straighten, widen, grade or otherwise improve, or shall propose to construct, reconstruct, straighten, widen, grade or otherwise improve, for the purchase thereof, the said department may apply to the associate judge of where any such property necessary to be taken the state of Delaware, resident in the county are located for the condemnation of such property, first giving to the other party or owner at least five days' notice in writing of the intended application if such party or owner is within the state, and if said party or owner is unknown or without the state, or if under legal disability and having no legal representative in the state, then such notice shall be published in some newspaper in the county in which said property proposed to be taken is located at least five days prior to the intended application, and such publication shall be sufficient notice; upon application made as aforesaid, the said associate judge shall appoint five judicious and impartial freeholders to view the premises or ascertain the easement or franchise, and assess the damages which the owner or owners will sustain by reason of the said construction, reconstruction, straightening, widening, grading, or other improvements to the highway, or the taking of such property. The freeholders shall be sworn (111 A.) or affirmed before some officer authorized to administer oaths or affirmations, before entering on the premises or before ascertaining the easement or franchise, faithfully and impartially to perform the duties assigned them. They shall give ten days' notice, in writing, to the owner or owners of the premises or property so proposed to be condemned or to their guardian or guardians, duly appointed, if within the State and to the said department of the time of their meeting to view the premises or ascertain the easement or franchise; if the owner or owners are unknown or are without the state or if under legal disability and having no legal representative in the state, publication of such last mentioned notice shall be made in some newspaper in the county in which the proceedings were instituted at least ten days prior to the said meeting, and such publication shall be sufficient notice thereof. The said commissioners shall keep a record of their proceedings with their findings and awards and return the same to the prothonotary of the county in which the said proceedings were instituted, and shall certify their findings and awards to the owner or owners of the property and to the department; if the department or any party in interest is dissatisfied with such findings or awards, it or he may, on application to said prothonotary within fifteen days after such findings and awards have been made and filed, sue out a writ of ad quod damnum, requiring the sheriff of said county, in the usual form, to inquire of twelve impartial men of his bailiwick of the damages which will be sustained as aforesaid, and their report shall be final. The said commissioners or the said jury shall, in assessing the damages aforesaid, take into consideration the benefits and advantages to the owner or owners resulting from the proposed highway improvement and set off the value of such benefits or advantages against the loss, detriment and disadvantages, which such owner will suffer, provided that in no case shall the amount estimated as and for benefits and advantages exceed the amount allowed for loss, detriment or disadvantage to such owner. The amount of damages being ascertained, the department may pay or tender the amount thereof within two months after the same shall have been so as certained, to the person or persons so entitled The been ascertained, the amount thereof. expenses of the assessment by the said commissioners of the damages aforesaid of the fees. of the said sheriff and prothonotary and of all costs incurred in the execution of the writ of ad quod damnum, shall in all cases be paid by the department. The said judge shall have power to fill any vacancy in any commission and thereafter the commission shall proceed as though no vacancy had occurred. "In addition to the manner of condemnation of property in this section provided, the said department shall have the right to condemn any property in this act mentioned for the purposes of this act, in the same manner as fully as any person or persons or official body might or could condemn any property under other provisions of chapter 55, of the Revised Code, Whenever any property shall be acquired by the department in any manner, the title to such property shall be in the state for the purpose for which it was acquired. "After the department has determined upon the road or roads which shall be converted into state highways, it shall cause notice thereof to be sent by mail, a record of which shall be preserved, to all persons owning property abutting upon and continuous to such road or roads, and any such owner or the legal representative of any such owner, who after such notice has been given, shall construct any building within sixty feet of the center line of any such road shall be allowed no compensation for such building, upon the condemnation thereof, or the land upon which it is situated, unless such owner shall serve written notice upon the department within three months from the time that he receives such notice that he claims damages by reason of the provisions of this paragraph, in which event the said department may apply, as provided in the first paragraph of this section for the ascertainment of damages in other matters, for the ascertainment of the damages so claimed by such owner." [1] It is claimed by the plaintiff in error, with respect to the first four exceptions, that the land condemned is not sufficiently described in the petition for the writ of ad quod damnum, or the writ itself, or in the return of the jury thereon. The land condemned is described in the petition, writ and return as a "strip of land sixty feet wide extending by and through the whole of your petitioner's land and premises in Little Creek hundred aforesaid, along and through the middle part thereof." thereto, or, if the person or persons so entitled refuse to accept or reside out of or are absent from the county during all or any part of said period of two months, the same may be deposited to his credit in the Farmers' Bank of the State of Delaware, in the county seat of the county wherein such proceedings are instituted, within said time, and thereupon said property In considering this question, it should be may be taken and occupied for the use and pur- clearly understood that the petition for the pose for which it was condemned, provided that the department, in its discretion, after it has writ of ad quod damnum was not the origmade application as aforesaid, for the condem-inal step in the proceeding of condemning the nation of property, may occupy or use such land of the defendants in error and ascerproperty without delay and the proceedings for taining the damages for the taking of their the ascertainment of the damages shall proceed land. The original step and the one in which as in this section provided, but in the event of the land was condemned was a petition presuch immediate use or occupation as last afore-sented to the associate judge, resident in said, the department shall pay to the owner or owners thereof if within the state, or if such owner or owners refuse to accept the amount of damages or are without the county, deposit to his or their credit in the said bank as aforesaid, within ten days after the damages have Sussex county, and the appointment by him of a commission to condemn the land and premises, which commission was required, under the provisions of section 11, to keep a record of their proceedings with their find |