
    Wroe v. Harris.
    October Term, 1795.
    Mills — Application—Execution of Writ. — The writ of ad quod damnum, which issues upon an application to a Court for leave to build a mill, may be executed by the Deputy Sheriff.
    Same — Same—Ownership of Bed of Stream. — Where the person applying- for leave to build a mill has land on one side only of the stream, it should be stated in the petition that the bed of the stream is in himself, or in the Commonwealth; — but this is not necessary, if he own the land on both sides.
    Same — Inquisition—injury to Land below. — It is not necessary that the inquisition should set forth the injury «which the land below the dam may sustain.
    Process — Execution by Deputy Sheriff. — Process, may in all cases be executed by a Deputy Sheriff unless the High Sheriff is expressly required to act in person.
    This was an appeal from a judgment of the District Court of Northumberland, reversing an order of the County Court, giving leave to the appellant to build a mill. The land on both sides of the stream is. stated to belong to him, but nothing is said, respecting the Bed of the run. The District Court reversed the order because the writ of ad quod damnum was executed by the deputy, instead of the High Sheriff.
    Washington for the appellant.
    It is. wonderful that this opinion respecting the incapacity of a Deputy Sheriff to execute a writ of ad quod damnum, has so generally prevailed in this country. It is founded om a mistaken notion, that the Sheriff, in executing such a writ, acts judicially and not ministerially. It would puzzle any person I think', to state a case, in which the Sheriffs in this country act judicially. In England, they are to some purposes judges in every sense of the word, and whilst acting in that capacity they cannot delegate their authority; but in all other cases, the rule is, that they may act by deputy unless specially commanded to go in person. This is laid down in 4 Rep. 65. where a similar objection was made to a deputy’s executing a writ of Elegit; but it was not sustained. In every instance where it has been determined that the High Sheriff must execute a writ in person, he is either required by statute to do so, as in an enquiry of waste, partition, accedas ad curiam, Redisseisin &c; or else he executes it in a judicial capacity, as in cases of admeasurement of dower and pasture which are vicontiel writs, and not returnable; consequently, the decision of the Sheriff is judicial and final, unless the case be removed by Pone before the Court of common Pleas. E. N. B. 148; Clay’s case 1 Cro. El. 10. Dalt. Sb. 34. So in a writ de nativo habendo, if it go-to the sheriff to hold plea of the matter, *he is judge and officer, and must therefore execute it in person; Otherwise it is, if directed to him, returnable into the King’s Bench, for there he acts ministerially, 4 Bac. 441. In the case before the court, the writ is directed to the sheriff generally. He is to summon and impanel a jury and to charge them, and afterwards to return their inquisition to the court, to be there decided upon. All his acts are of a ministerial nature. He exercises no judicial function whatever in this case, more than he does in executing a writ of Elegit. By our law, (see Rev. Laws p. 129) all writs and other process whatsoever are to be executed by the Sheriff, or by his Deputies; now this is certainly a writ, and within the general expressions of the law.
    Campbell on the same side.
    Wherever the legislature has thought proper to except particular cases out of the general law authorising deputy Sheriffs to act, a particular provision has been made for the purpose. Two cases are at present recollected. "The one is where an execution issues against the property of a former Sheriff; •and the other, where lands are directed to be sold for the payment of taxes. In both instances the law requires the High Sheriff to attend, and by doing so it distinguishes between the High Sheriff in exclusion of the Deputy, and the Sheriff, which means as well the Deputy as the principal.
    Warden for the appellee.
    There are two errors in the order of the County Court (which have not been noticed) sufficient I think to sustain the reversal of it in the District Court. 1st, The application to the County Court for leave to build the mill, does not state that the bed of the stream belonged to the appellant. The words of the law are, that “any person ow'ning lands on one side of any water course, the bed whereof belongeth to himself or to the commonwealth, and desiring to build a water grist mill on such lands, and to erect a dam across the same for working the said mill, shall not himself have the fee simple property in the lands on the opposite side thereof, against which he would abut his dam, he shall make application for a writ of ad quod damnum” &c. (see Rev. laws p. '206).
    Now, altho’ the appellant in this case ‘owned land on both sides of the stream, and therefore he is not literally within this clause of the law, yet the 4th section requires the same formalities where the person applying, owns the land on both sides, as if he were seeking to condemn an acre of ground on one side, as mentioned in the first section.
    2d, The jury in their inquisition, say, “they have viewed the lands above and below, and are of opinion, that no person *will be injured by the overflow of the water, the said Wroe owning the lands on both sides of the run above and below, his land above, running farther than the water will probably flow to.”
    Now the jury have said nothing about the lands below, which may be injured, as well by the breaking of the dam, as the lands above could be by the overflow of the water.
    As to the principal question, I have more doubts respecting it. The administering of an oath seems to be a judicial act, or at all events one, which from its nature cannot be delegated. The sheriff is to perform this solemn act, and it would seem as if it were intended to be confided to the High 'Sheriff who is always a justice of the peace, and from his mode of appointment holds a more respectable station than deputies of his own choosing.
    The court stopped Mr. Campbell, who was about to reply, saying it was unnecessary.
    
      
      nills — Application—Ownership of Bed of Stream. —The principal case is cited in Mairs v. Gallahue, 9 Gratt. 97, for the proposition that where the applicant owns the land on both sides of the stream, the presumption is that the bed of it belongs to him also, and therefore it is unnecessary for him to set it forth in his application.
      To this point, see the principal case cUed in Mead V. Haynes, 3 Rand. 37. -
      See generally, monographic note on ' Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
      Mill Acts — Constitutionality of — Right of Mill Owners to Condemn Land. — The principal case is cited with approval in Varner v. Martin, 21 W. Va. 546. See foot-note to Mairs V. Gallahue, 9 Gratt. 94.
    
    
      
       Dutles of Sherllf — Execution of by Deputy. — The principal case is cited in Chapman v. Bennett, S Leigh 333, as authority for the proposition that all ministerial duties of the sheriff may he executed hy deputy, while his judicial duties can only he exercised in person, they being- incapable of deputation.
      See Noel v. Sale, 1 Call 495, and note.
      
    
   CARRINGTON, J.

There is no weight I think in the two objections started by the appellee’s counsel. Where the person applying owns the land on both sides of the stream, the presumption is, that the bed of it belongs to him, and therefore it is unnecessary for him to set it forth in his application to the court. But if he own the land on one side only, and seeks to condemn an acre on the other side for an abutment, no such presumption exists, and therefore it is necessary to state to the court, that the property in the bed of the run is in the commonwealth, or in the party applying. The 4th section of the law refers to the proceedings subsequent to the ordering of the writ. The words are, “in like manner if the person proposing to build such mill and dam shall have the fee simple property in the lands on both sides of the stream, yet application shall be made to the court of the county wherein the mill house will stand, for a like writ which shall be directed, executed and returned as prescribed in the former case.”

The second objection is, that the jury have said nothing as to the injury which the lands below the dam might sustain. They have gone as far as they could. It was impossible for them to value the damage which the owners of land below the mill might sustain by the breaking of the dam; it was an accident which perhaps might never happen. They have therefore very properly left it to be decided upon by another tribunal whenever the case should occur.

I come next to consider the point upon which the District Court reversed the judgment.

*The rule is laid down in 4 Bac. Ab. 440, 441, and the cases there cited, that the Deputy Sheriff may execute process in all cases where the High Sheriff is not specially required to go in person, or where the thing to be done is not of such a nature as to amount to a judicial act. Thus in an enquiry of waste, partition &c. the writs command the Sheriff to go in person, and consequently being commissions specially directed to himself, they cannot be executed by deputy. In two other cases which are mentioned viz. a writ of admeasurement of dower, and a writ de nativo habendo, the High Sheriff must act in person, because those writs being vicontiel and not returnable, he decides finally and in the capacity of a judge.

But in this case, every act of the sheriff is purely ministerial. The inquisition is the finding of the jury, not the judgment of the sheriff. It is returned to the court from whence the writ emanated, and it is there finally decided upon.

By the laws of this state, a general power is given to deputy sheriffs to execute all writs and process whatsoever, leaving it for particular acts to make exceptions from this general law when necessary. Consequently, we find that the legislature has thought proper to require the personal attendance of the High Sheriff, in cases of executions against a former Sheriff. Rev. law's p. 145.

Upon the whole, I am of opinion that the judgment of the District Court ought to be reversed, and the order of the County Court affirmed.

LYONS, J.-

The general rule is, that whatever the sheriff may do personally, he may do by deputy. But from this there are exceptions. If the act be of a judicial nature, he cannot delegate it to another. The case of a writ of admeasurement of dower is an instance of this. So if the High Sheriff be required to act in person, he must do so.

By our law, the sheriff is authorised generally to act by deputy unless in cases expressly excepted. The inconvenience might be very great, if the High Sheriff in cases of this sort were required to attend in person: as if two writs of ad quod damnum were to be executed on the same day.

This writ is directed to the Sheriff, which means as well the Deputy as the High Sheriff. It is a writ; and all writs may be executed by a Deputy Sheriff. It is not a judicial act; it is not a case excepted from the general authority given to Deputy Sheriffs, and therefore I ca'n see no reason why he may not properly take the inquisition. It may not be improper also *to remark, that the general practice of the country has favored this opinion. There is no weight in the other two objections stated at the bar. I am therefore of opinion that the judgment of the District Court is erroneous.

The PRESIDENT. The rule in England is, that where process is directed to the sheriff generally, and not by name, if the High Sheriff be not required by the command of the writ, or by some statute to go in person, he may act by deputy. The case of an Elegit is not distinguishable from the present, and tho’ another reason seems to be given in Eulwood’s case, 4 Rep. 65, why the deputy may act, 3'et a more satisfactory one is furnished by the rule above mentioned; namely, that the statute does not require the High Sheriff to go in person.

Our law upon this subject appears to be formed upon this rule. All process without exception is directed by the general law to be executed by the High Sheriff, or by his deputies, leaving particular cases in which it might be proper for the High Sheriff to act, for future laws to provide for. Accordingly, the legislature have thought proper in two cases which are recollected, to require the High Sheriff to act in person. As to the charging of the jury, those ■who make the objection ought to shew, that the High Sheriff can ex ofiScio administer an oath, without a positive law to authorize it.

It was the common practice for the deputies to execute writs of ad quod damnum to dock intails, tho’ I do not know that in any instance it was questioned.

Judgment of the District Court reversed and the order of the County Court affirmed.  