Gallatin County IL Archives Court.....Bell, V Aydelott 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 28, 2008, 3:34 am

Source: Reports Of Cases Illinois
Written: 1819-31

DECEMBER TERM, 1822, VANDALIA.

James Bell and John Bell, Plaintiffs in Error, v. Zadock Aydelott, Defendant 
in Error.

Error to Gallatin.

The long and uniform practice in this state, has been to execute writs of 
inquiry of damages, in the presence of the court, and there is no irregularity 
in it.

Aydelott brought an action of assault and battery, in the Gallatin circuit 
court, against the Bells. Judgment was entered against them for default of a 
plea, and the court, on motion of the plaintiff, ordered the sheriff to 
impannel a jury instanter to ascertain the damages. The jury, instanter, and 
in the presence of the court, assessed the damages, upon which the court 
rendered a judgment. The error assigned was, that the court ought to nave 
awarded a writ of inquiry to the sheriff, who should have executed it by a 
jury, not in the presence of the court.

Opinion of the Court by Justice John Reynolds. The long and uniform practice 
in this state has been for the jury to inquire of damages in the presence of 
the court. This mode is the more easily given in to, when we reflect that this 
inquiry of damages is had, in the presence, and under the immediate care and 
direction of the court. If it be absolutely necessary from the old law, as it 
was contended, for this writ to be executed in the presence of the sheriff, 
this likewise is done, for generally the sheriff is in the court. This will 
answer the ends of form, and form it must be, as the substantial ends of 
justice will be answered by the assessment of damages before the Court. We are 
therefore of opinion, that the judgment of the circuit court be affirmed. (a) 
(1)

Judgment affirmed.

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(a) The executing a writ of inquiry is an inquest of office, and the officer 
who presides, acts ministerially, and not judicially. 2 Johns. Rep., 63. If it 
appears that important questions of law will arise on the execution of the 
writ, the court will order it to be executed by a judge at the circuit. Ibid., 
107. Tidd's Prac., 513. 4 T. R., 275. 2 Bos. & Pull., 55.

(1) A writ of inquiry may be executed in vacation, as well as in term time. It 
may be executed at any place within the sheriff's bailiwick. The statute has 
not changed the common law in this respect. Vanlandinghham v. Fellows et al., 
1 Scam., 233.

If any irregularity take place in the execution of a writ of inquiry, the 
proper way is to apply, upon affidavit, to the circuit court to set the 
inquest aside. Id.

A writ of inquiry may be executed before the sheriff at any place within his 
bailiwick, and a want of notice to the defendant, on executing the writ, can 
not be assigned for error; nor can the sufficiency of the writ, the proper 
practice being to move the court below to quash it. Moore v. Purple, 3 Gilm., 
149.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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