There is no doubt that the court may, and in a proper case, would direct the execution of the writ of inquiry out of the ordinary course of practice; but on the present occasion no difficulty either in law or fact is pointed out, which might require the presence and attention of a judge of this court. (See Tillotson v. Cheetham, 2 John. 107.) The defendant has permitted judgment to go against him, by default, by which the battery is acknowledged, 'and the only remaining question to be settled is, what amount of damages ought to be allowed the plaintiff. The affidavit which has been laid before us states the battery to have been a violent one; but the only inference that can be drawn from this circumstance, is, that heavy damages are contemplated. Prima fade the sheriff and a common jury are competent to the mere assessment of damages, whatever may be their extent: it is a question peculiarly and exclusively within their powers, and upon a point of this kind I am not aware that, any advice or direction would be necessary from a j udge of this court; or that a difficulty which might arise before the jury would be of that description, which it would be within the line of -his duty to settle. It is not suggested that there exist any particular objections to this sheriff, on the ground of partiality or otherwise, or that there is any legal intricacy in the case. I am unable therefore to perceive any circumstance which distinguishes it from . ordinary cases, and am therefore of opinion that it ought to take the common course.

Chetwood, J. concurred with the Chief Justice.

The powers which the court are now called upon to exercise, are entirely discretionary; and in the exer*405cise of their discretion they ought not to be narrowed down by a strict adherence to any precedent or authority. Every case must rest upon its own peculiar circumstances. I consider the affidavit of tho plaintiff, proving a violent and outrageous battery, as establishing a special case, authorizing us to accede to his request, and I am unable to perceive any disadvantage which can possibly arise from directing the execution of the writ of inquiry before the justices of Nisi JPrius.

The plaintifF took nothing by his motion.