Bell v. Aydelott, 1 Ill. 45, 1 Breese 45 (1822)

Dec. 1822 · Illinois Supreme Court
1 Ill. 45, 1 Breese 45

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 have 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.