Cannon against Smalwood and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1797 |
| Date | 01 January 1797 |
| Court | Court of Common Pleas |
English Reports Citation: 83 E.R. 651
COURT OF COMMON PLEAS
[203] cannon against smalwood and others. After freehold pleaded in the County-Court they cannot proceed. 6 Mod. 117, 118, 119. Trespass for taking and impounding his beasts until he paid 31. 7s. &c. The defendant pleads as to all except the taking and impounding of the beasts until he paid 31. 2s. and 2d. Not guilty ; and as to that he pleads a suit in the County-Court brought by A. S. against the now plaintiff; whereto he (being then defendant) pleaded the freehold of the Earl of Arundel, and justified the taking as doing damage in the earl's freehold, whereto the then plaintiff pleads in bar of the conusance, that the earl ought to make the fences, and that for default of reparation the beasts escaped, &c. And thereupon issue was taken, that the fences were in good repair. The jury found they were out of repair, and assess damages besides coats and charges (but did not say what sum for damages) and for costs and charges 39.s. Et idea consideratum fuit, that the plaintiff should recover 11. 3s. 2d. damages per jurator' in forma prced' assess, necnun pro misis & custagiis (but say not what sum) and yet conclude quce in tola attingunt ad 31. 2s. 2d. whereupon there issued out of the same Court a precept in nature of a fieri facias under the seal of the sheriff', whereby he commanded the defendant, being the bailiff, that he should cause the said 31. 2s. 2d. to be levied : who by virtue of the said precept took the beasts and impounded them until the now plaintiff paid him the said 31. 2s. 2d. which he paid to the recoverer ; upon which plea the now plaintiff here demurred: and by Serj. Pemberton at the Bar divers exceptions were taken to the plea. 1. For that the verdict finds damages, but it does not appear to what sum, and yet concludes quce in Mo attingunt, &c. 2. The precept is in nature of a fieri fac\ and yet the precept is quod levari faceret. 3. That the precept ought not to have been by the sheriff but by the suitors who are the Judges; but all those exceptions were overruled : for as to the two first they do not prove the judgment and execution void, but only voidable by a writ of false judgment; and in the mean time they are a good excuse to the bailiff, and pleadable by him; and as to the third, it is the constant practice for the sheriff, as minister...
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The "Kate"
...order in the case. The proceedings are coram -non judice, and altogether void : Tinnis-wood v. Pattison (3 C B. 247) , Cannon v. Smalwood (3 Lev 203) ; Lawford v Partridge (1 H. & N. 621) This last case is directly in point to shew that the Court cannot even give costs. Lushington, in reply......
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Johnston v Meldon
...judice: Case of the MarshalseaUNK 10 Rep. 76 a. Terry v. Huntingdon Hardress, 480. Papillon v. Buckner Ibid. 478. Canon v. SmallwoodENR 3 Levinz, 203. Reg. v. Young 52 L. J. (N. S.) M. C. 55. Branwell v. PenneckENR 7 B. & C. 536. Newman v. Hardwicke 8 Ad. & Ell. 124. Newman v. Bendyshe 10 A......
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Tinniswood v Pattison
...which ousts the jurisdiction, be pleaded, all the subsequent proceedings are void." The authority Comyns refers to is Gannon v. Smalwood (3 Levinz, 203). There, in trespass for taking and impounding the [246] plaintiff's beasts until payment of 31. 7s., &c., the defendant pleaded, as to all......