Andrews v Linton
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1790 |
| Date | 01 January 1790 |
| Court | High Court |
English Reports Citation: 92 E.R. 91
COURTS OF KING'S BENCH AND COMMON PLEAS
[884] andrews vers. linton. Intr. Hil. 1 Ann. B. E. Hot. 483. S. C. Salk. 265. Holt. 273. 'Tis not assignable for error, that the person who returned the original was not sheriff. Error upon a judgment given in the Common Pleas in trespass, for a close broken, upon default, writ of inquiry thereupon awarded and returned, and final judgment given there for the plaintiff. And now after the assignment of the general errors he saith further, that the said record is diminished in non certificando breve originate inter partes praedictaa de praedicto placito et retornam ejusdem brevis quod quidem breve originale vicecomiti Essex directum fuit et retornabile coram justiciariis dicti nuper regis apud Westmonasterium in octabis sancti Hilarii anno regni ejusdem nuper regis decirao tertio ac retorna in dorso brevis illius sive indorsamentum superinde scriptum ut hujusmodi retorua factum et scriptum fuit nomine cujuadam Petri Whitcombe armigeri tanquam vicecomitis dicti comitatus Essex ubi revera dicto tempore retornae ejusdem brevis originalis scilicet in eisdem octabis sancti Hilarii eodem anno decirao tertio quidam Edvardus Luther armiger fuit vicecomes comitatus Essex praedioti et non dictus Petrus Whitcombe, &c. et hoc paratus est verificare, &c. Upon which a certiorari was awarded to the custoa brevium of the Common Pleas, who returned the original, to which the name of Whitoombe was subscribed. And after two scire faciaa's ad audiendum errores returned nihil, the defendant in error pleaded, in nullo est erratum. And Mr, Serjeant Hall for the plaintiff in the Common Pleas, and the defendant here in the error, objected, that this matter was not assignable for error. Against which it was argued by Mr. Raymond for the plaintiff in error, that it was assignable as error. And he said, that there was a difference between acts judicial and ministerial; for against the ministerial acts done by a sheriff or other officer, an averment may be. And of that opinion is Popham, Cro. Jac. 12, Arundel v. Arundel. And he cited Yelv. 34, aa in point, where it is said, that though in case of the sheriff a man cannot aver contrary to what is returned, yet he may say, that he who has indorsed his name on the back of the writ, &c. was not sheriff. Because by the common law until the statute of 12 Ed. 2, c. 5, no sheriff nor officer used to put their names to their returns; and bo...
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...B. 340. Barney v. JubbENR 2 H. Bl. 352. Fitzpatrick v. Pickering 2 Wils. 68. Forbes v. SymmondsUNK 2 Sc. N. R. 178. Andrews v. LintonENR 2 Ld. Raym. 884. Powell v. SonnettENR 3 Bing. 381. Powell v. SonnerrENR 3 Bing. 382. King v. Birch 3 Q. B. 425. Phillips v. Birch 4 M. & Gr. 405. Lord Bag......