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.