Tillotson v. Cheetham , 2 Johns. 63 ( 1806 )

Kent, Ch. J.

delivered the opinion of the court.

The first question arising upon this motion is, whether the writ of inquiry was well executed before the deputy sheriff.

This appeared to me upon the argument to be a novel objection ; for it has been usual to execute writs of inquiry before the deputy, with as little hesitation as before the sheriff. It has been taught us by the best books of practice, that the form of a ticket to. a witness, subpeenaed before a jury of inquiry, is to appear before the sheriff or under sheriff. (Rich. C. B. practice, vol. 1. 149.) The cases of Ketle v. Bromsell, Wallace v. Humes, Davis v. Skillins, and Dixon v. Goodman, (Barnes, p. p. 230, 231, 232, and 431.) and the case of Denny v. Trapnell, (3 Wils. 378.) are sufficient to place the modern practice and its sanction by the court of C. B. beyond all doubt or contradiction. The counsel for thé defendant was not however satisfied with the authority of the practical cases in Barnes; yet those cases are at least'conclusive, as historical evidence, to prove the fact that deputjr sheriffs in England, during the reign of George II. did execute writs of inquiry, and that no question was máde as to its legality. The case in Wilson is as late as the year 1768, and is a correct and high authority; that case coniains the admission of the counsel on each side, that the practice of the court of K. B. was in this particular the same. But some older cases have been alluded to, as intimating a contrary doctrine; and it was said that the execution of a writ of inquiry was a judicial act, which cannot be delegated. It may therefore be satisfactory to the parties to go further into the subject, and to look more attentively into the foundations upon which our present practice is supported.

The deputy is an officer coeval in point of antiquity with the sheriff, and is recognised in the most ancient statutes. (W. 2. 13 E. 1. c. 39.) The creation of deputies arose from an impossibility of the sheriff’s performing all the duties of his office in person. The powers of the deputy have consequently been ascertained at an early date. The general criterion by which to test his authority is declared in the case of Levett v. Farrar, (Cro. Eliz. 294.) in which the court said, that if a writ be directed to the sheriff by the name of his office, and not by a particular name, and doth not expressly command him to execute it in person, the under sheriff may execute it. He did so in that case, which was a writ upon the statute of Northampton, 2 E. 3. to remove a force, and he made inquiry of the force, and his act was held good. This inquiry was by an inquest taken before him 5 it is therefore an authority to show that an under sheriff may preside at a jury of inquiry.

The inquisition is merely an inquest of office, and the act of presiding is ministerial, and not judicial, notwithstanding there are some loose sayings to be gleaned from the books that seem to countenance a contrary opinion. The sheriff gives no judicial decision upon the law, and concluding to a judgment, any more than what might be requisite, in the performance of every ministerial act. The reason given why the jurors cannot be challenged on a writ of inquiry of damages, is, because it is only an inquest of office, and the sheriff does not act as judge.— (Rol. tit. Trial P.) Even at the county court, in England, the freeholders were considered as the real jU(jgeg) an(j the sheriff no more than a ministerial officer, and, consequently, the deputy might preside. (2 Blaclc. Comm. 36. 6. Co. 11. Jentleman's case. Siat. 11. H. 7. c. 15.) " There are numerous cases within the circle of the sheriff's duties, in which these inquests of office are requisite, and in which no doubt has been entertained, that a deputy was competent to summon a jury and take the inquest, although the objection would equally go to every inquest, in every possible case. The elegit cannot be executed without the aid of a jury, sworn to appraise the goods, or value and extend the land. (Cro Eliz. 584.) The statute of W. 2. c. 18. which gave the elegit, and coupled it with‘the _/i. fa. directed, that viceccmes fieri facial et liberet, &c. and yet the deputy may execute the one as well as the other; for, in Fulwood’s case,- (4 Co. 65, 6.) it was resolved, that the serjeant at mace might execute the eleget, as the personal attendance of the sheriff was not required.

The cases in which the sheriff must personally preside at the inquisition are all special cases, in which the writ requires the personal attendance of the sheriff. They are exceptions to the general rule, and demonstrate its existence. Those arc the only instances, in respect to process awarded, in which the books speak of the sheriff, as acting as a judge, and in some of them, the expression is, perhaps, used with propriety.

The statute of 13 E. 1. c. 14. which gave the writ to inquiry of Waste, required the personal attendance of the sheriff viceconies in propria persona assumptis secum duodecim, &fc. accedat ad locum vastatum et inquirat, &fc. and the writ is framed accordingly. (Reg. Brev. jud. 25. b. 37. a.) So in the writ relating to the inquiry and punishment of Redisseisin, the statue of Merton, 20. H. 3. c. 3. directs that the sheriff, in propria persona accedat ad tenementum, fyc. etcoram eis per primos jur atores et alios legales homines facial inquisitionem; and if tbo disseisin be found, the disseisor is to be taken and committed, and kept in prison, till discharged by fine, or otherwise. Thisinqui-sition is, therefore, in the nature of a criminal conviction and judgment, and it is for this reason, I apprehend, that the courts have so often held, that the sheriff acted judicially in the proceedings under the statute of Merton. (See Jentleman’s case and Fulwood's case, supra, and Norton v. Simmes, Hob. 12.) The original writ of accedas ad curiam, and the judicial writs of partition, and admea-surement of dower, and of pasture, are all special, and require the sheriff to go in his own proper person and execute them. (Reg. Brev. orig. 9. b. Jud. 80. b. 36. b. 38. a.) It was resolved, in Clay’s case, (Cro. Eliz. 10.) that in all cases where the words of the writ were, that the sheriff should go in person, he cannot execute it by deputy. It can scarcely be necessary to add, that in general, the writ of inquiry omits the requisition of the personal attendance of the sheriff, and that his attendance in person is not, therefore, essential. (Reg. Brev. 37. b. Bohun’s Inst. Leg. 55.)

Bandal’s case (Noy, 21.) appears, indeed, to advance a contrary doctrine, and to consider the execution of a writ of inquiry of damages, as a judicial act. The case states that Bandal brought a writ of dower, and that a writ issued to the sheriff to inquire of the damages; and he made a warrant to a deputy to take the inquest, and two judges were of opinion that it was not good, because, taking the inquest was a judicial act, which the sheriff ought to do in person. In the first place, it is to be observed, that Noy’s Reports are of no credit; they being, according to Mr. Hargrave, only loose notes, compiled from his papers by serjeant Size, and imposed upon the world as genuine. But the case itself is solitary and anomalous, and cannot be law. The only dower pro-cess which cannot be executed by deputy, is the writ of admeasurement of dower; this writ is vicontiel, and not returnable; and the parties may plead to it before the sheriff if they think prdper, as he is commanded by it to d0 right and justice to the parties. (F. N. B. 148. 2 Inst. 369.) But the writ of inquiry of damages in dower, the case seems to allude to, and which issues in pursuance of the statute of Merton, is a mere inquest of office. It so was considered as early as Hen. IV. (Bro. Inquest, pl. 17.) and the writ is in the common form, and does not require the sheriff to execute it in person. (Thes. Brevium, 139. 2 Saund. 45. note 4.)

Frpm this view of the subject, I believe I may safely say, that there is no case in which a writ of inquiry may not be executed by a deputy, except where the statute, or the writ itself, requires the sheriff to attend in his proper person; and that therefore, the first objection taken to the inquisition, in the present case, cannot be supported.

Before I conclude this point, it may be proper to notice, that the affidavits upon which the motion was grounded, state, that the inquest was taken before a deputy sheriff. By this we are to understand a general deputy, with powers as extensive as the sheriff can delegate, and who is inquired to take the general oath of office prescribed by law to be taken by the sheriff. There is an officer known under the name of under-sheriff of the county, who is appointed by the special direction of the statute, (Law’s, vol. 1. p. 206.) and who is to act as sheriff, in case of the death or inability of his principal. But while the sheriff is in the exercise of his office, this under-sheriff has no more power than any other general deputy; and the statute of 3 G. I. c. 13: § 1, 8, 10,11, from whence our statute was taken, uses the name of under-sheriff, and deputy sheriff, as synonimous, I hold it, therefore, to be perfectly immaterial, in respect to the question before us, whether the inquest was taken before the under-sheriff, strictly só called, or a general deputy. There was no distinction made or known in our law. between an under-sheriff and a deputy sheriff, until we first adopted the above provision, in the year 1795, and there is no other distinction still but the one created by that statute.

The second ground of the present motion is, the excess of damages. In connexion with this point, it was contended, in support of the motion, that the last inuetido stated in the declaration was not good. But upon this motion we are not to take that matter into consideration ; and the declaration must be deemed sound and correct. We cannot interfere on account of the damages. A case must be very gross, and* the recovery enormous, to justify our interposition on a mere question of damages, in an action of slander. We have no standard by which we can measure the just amount, and ascertain the excess. It is a matter resting in the sound discretion of a jury. The plaintiff, when libelled, was a high and confidential officer of the government; and by the libel he is held out to the world as an object of reproach. He is represented as being seduced into unworthy and dishonourable conduct, by motives equally mean and unworthy. This was a printed defamation, which is regarded in law as the most injurious and aggravated species of slander, because it has a wider circulation, makes a deeper impression, and has a more permanent existence. (Hardress, 470. 2 Show. 321. 2 Wils. 403. 1 B. & Puller, 332. Christian’s note to 3 Blacks. 8. n. 3. Williams' Saunders, vol. 1. 248 n. 3.)

The greater mischiefs of written or printed slander, are described by Peresius, (Prelec. in Cod. lib. 9. tit. 30.) with equal truth and elegance : “ Gravioris injurice species esi; pice s crip to fit; quia diutius in conspectu hominum pei‘-severat. Vocis enim facile obliviscimur, at litera scripts manet, ei per manus moltorum longe lateque vagatur.”

The court are therefore of opinion, that the defendant take nothing- bv this motion.

Rule refused^