Page v Pearce
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1841 |
| Date | 12 June 1841 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 1211
EXCH. OF PLEAS.
S. C. 9 Dowl. P. C. 815; 10 L. J. Ex. 434.
pagk v. pearge. Exch. of Pleas. June 12, 1841.-On the execution of a writ of inquiry in trespass, the jury having assessed the damages at one farthing, the under-sheriff was applied to to certify, under the stat. 3 & 4 Viet. c. 94, s. 2, that the trespass was wilful and malicious. He said that the trespass was wilful, but he would take time to consider whether he would certify that it was malicious. The Court then adjourned, and on the same day, at 5 p.m., met again to take an inquisition under an elegit:-Held, that a certificate given by the under-sheriff pursuant to the act, on the same day, but after the Court had so met again, was valid. [S. C. 9 Dowl. P. C. 815; 10 L. J. Ex. 4li4.] In this case Erie had obtained a rule, calling upon the plaintiff to shew cause why the Master's allocatur, allowing costs to the plaintiff, should not be set aside. This was an action of trespass, in which a writ of inquiry had been executed before the upder-sheriff of Dorsetshire, when the jury assessed the damages at one farthing. The under-sheriff was immediately applied to, on the part of the plaintiff', to certify, ujider the 3 & 4 Viet. c. 94, s. 2, that the trespass was wilful and malicious. The affidavit on which this rule was obtained stated, that the under-sheriff thereupon said that he would certify that it was wilful, but would not certify that it was malicious. 1212 COLVIN V. BUCKLE 8 M. &W. 678. The affidavit on the other side stated, that he only said (after an argument on the point by counsel), that he would take time to consider whether he would certify that the trespass was malicious. The Court then adjourned, and met again ut 5 o'clock p.m. of the same day, for the purpose of taking an inquisition under an elegit; and the affidavit in support of the rule stated the belief of the deponents that the under-sheriff did not certify until after the Court had so met again. The plaintiff afterwards gave notice of taxation; and on the parties attending before the Master, the writ of inquiry was produced, with a certificate indorsed thereon, in the handwriting of the under-sheriff, that the trespass for [678] which the action was brought was wilful and malicious ; whereupon the Master allowed the plaintiff his costs. Cresswell and Barstow shewed cause against the rule, and relied on Thompson v. Gibson (ante, p. 281) as a decisive authority in...
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