Joseph Jarmain the Elder v Hooper, Pilcher, and Heenan
| Jurisdiction | England & Wales |
| Judgment Date | 06 December 1843 |
| Date | 06 December 1843 |
| Court | Court of Common Pleas |
English Reports Citation: 134 E.R. 1126
IN THE COURT OF COMMON PLEAS
S. C. 7 Scott, N. R. 663; 1 D. & L. 769; 13 L. J. C. P. 63; 8 Jur. 127. Referred to, Stratten v. Lawless, 1864, 14 Ir. C. L. R. 438. Distinguished, Smith v. Keal, 1882, 9 Q. B. D. 340. Referred to, Thomas v. Rowlands, 1886, 3 T. L. R. 149. Considered, Morris v. Salberg, 1889, 22 Q. B. D. 614. Adopted, Lee v. Rumilly, 1891, 7 T. L. R. 303.
joseph jarmain the eldek v. hoopek, pilchek, and heenan. Dec. 6, 1843. [S. C. 7 Scott, N. B. 663; 1 D. & L. 769; 13 L. J. C. P. 63; 8 Jur. 127. Eeferred to, Straiten v. Lawless, 1864, 14 Ir. C. L. E. 438. Distinguished, Smith v. Keal, 1882, 9 Q. B. D. 340. Eeferred to, Tlmnas v. Rowlands, 1886, 3 T. L. E. 149. Considered, Morris v. Salberg, 1889, 22 Q. B. D. 614. Adopted, Lee v. Eumilly, 1891, 7 T. L. E. 303.] In trespass quare domum fregit against the sheriff and A., the sheriff justified under a fi. fa. issued against the goods of the plaintiff by A.; to this plea the plaintiff replied, that the fi. fa. did not issue against the goods of the plaintiff.:-It appeared that A. had obtained judgment against Joseph Jarmain, who was the son of the plaintiff, and thereupon issued a fi. fa. against Joseph Jarmain, without any further description, under which the goods of Joseph Jarmain the elder were taken : Held, that the writ afforded no justification to the sheriff.-And held, that A. was also liable in trespass, notwithstanding he was not proved to have in any'way interfered beyond giving instructions to the attorney to sue Joseph Jarmain the son.-Held also, that the writ de idemptitate nominis is not a remedy necessary to be resorted to, or applicable in such a case. Trespass. The declaration stated that the defendants, on the 6th of January 1843, and on divers other days, with force and arms, broke and entered certain rooms and apartments of the plaintiff in the parish of St. Luke, Chelsea, in the county of Middlesex, and being the first floor and kitchen, called and known as No. 3 Prospect Place, and then made a great noise and disturbance therein, and continued therein making such noise and disturbance for a long time, to wit, for the space of fourteen days then next following: by means of which premises the plaintiff and his family were, during all the time aforesaid, not only greatly disturbed and annoyed in the peaceable possession of the said rooms and apartments, but also the plaintiff during all that time was prevented from carrying on therein his necessary affairs, &c. The defendant Heenan pleaded not guilty only ; whereupon issue was joined. [828] The defendants Hooper and Pilcher pleaded-first, not guilty-secondly, that the said rooms and apartments were not, at the time when, &c., the rooms and apartments of the plaintiff-thirdly, that, before the time when, fec., to wit, on the (a) See Doe d. York v. Walker, 12 M. & W. 591. 6 MAS. & &. 829. JARMAIN V. SOOPBK 1127 5th of January 1843, the defendant James Heenan sued and prosecuted out of H. M.'s court of Common Pleas at Westminster, a certain writ of the Lady the Queen, called a fieri facias, directed to the sheriff of the county of Middlesex, by which writ the said Lady the Queen commanded the said sheriff that of the goods and chattels of the now plaintiff in the said sheriff's bailiwick, he should cause to be made 231. 3s. 6d., which the said James Heenan had lately, in Her Majesty's court before her justices at Westminster, recovered against the now plaintiff for his damages which he had sustained, as well on occasion of the not performing of certain promises, then lately made by the now plaintiff to the said James Heenan, as .for his costs and charges by him about his suit in that behalf expended; whereof the now plaintiff was convicted as appeared to H. M.'s justices, of record; together with interest upon the said sum of 231. 3s. 6d. at the rate, of 41. per centum per annum, from the 5th of January 1843, on which day the said judgment was entered up and that the said sheriff should have that money with such interest as aforesaid, before H. M.'s justices at Westminster, immediately after the execution of the said writ, to be rendered to the said James Heenan for his damages and interest as aforesaid; and that the said sheriff should do all such things as by the statute passed in the second year of Her Majesty's reign (1 & 2 Viet. c. 110); he was authorized and required to do in that behalf; and that in what manner he the said sheriff should have executed that Her Majesty's writ, he should make appear to Her Majesty's justices at Westminster, imme-[829]-diately after the execution thereof, and that he should have there then that writ; which writ afterwards, and before the delivery thereof to the said sheriff as thereinafter mentioned, to wit, on, &c., was duly indorsed with a direction to the said sheriff to levy the whole, with 15s. for that writ and warrant, besides sheriff's poundage, officer's fees, and all other legal incidental expenses; and which writ, so indorsed, afterwards, and before the execution thereof, to wit, on the day and year last aforesaid, was delivered to the defendants Hooper and Pilcher, who then and from thence until and at and after the execution of the said writ, were sheriff of the county of Middlesex, to be executed in due form of law : by virtue of which writ the defendants Hooper and Pilcher, being such sheriff as aforesaid, afterwards, and before the return of the said writ, to wit, at the said time when, &c., peaceably and quietly entered the said messuage in the declaration mentioned, the same being in the bailiwick of the said sheriff, and the outer door thereof being then open, and then entered the said rooms and apartments in the declaration mentioned in order to seize and take in execution, and did then seize and take in execution, divers goods and chattels of the now plaintiff in the said rooms and apartments respectively then being, for the purpose of levying the moneys so directed to be levied by the said writ and the said indorsement thereon as aforesaid ; and in so doing the defendants necessarily and unavoidably made some noise and disturbance in the said rooms and apartments, and continued therein making such noise and disturbance, for the space of time in the declaration mentioned, as they lawfully might for the cause aforesaid, doing no unnecessary damage to the plaintiff on that occasion; which are the same trespasses as in the declaration are mentioned, and whereof the plaintiff has therein complained.-Verification. [830] A fourth plea set out a fi. fa. at the suit of Heenan against " Joseph Jarmain the younger, described in the said writ as Joseph Jarmain," and alleged an entry of the said rooms and apartments, and a seizure therein of " the said goods and chattels of the said Joseph Jarmain the younger." The plaintiff after joined issue on the first and second pleas of the defendants Hooper and Pilcher, replied to the third plea, that the supposed writ of fieri facias in that plea mentioned, was not sued out or prosecuted and did not issue out of the said court of Common Pleas at Westminster, modo et forma; concluding to the country. To the last plea he replied, that, although true it is that the said writ of fieri facias was issued out of the said court and delivered to the defendants Hooper and Pilcher as such sheriff, modo et forml, for replication nevertheless in that behalf the plaintiff said that the defendants Hooper and Pilcher, at the times when, &c., of their own wrong, and without the residue of the cause in the last plea alleged, committed the several trespasses in the declaration mentioned, modo et formft; concluding to the country. At the trial, before Tindal C. ,1., at the sittings at Westminster after Trinity term last, it appeared that the defendant James Heenan had brought an action against one Joseph Jarmain (the .plaintiff's son), and judgment having gone by default therein, 1128 JAEMAIN V. HOOPER 6 MAN. & G. 831. a writ of testatum fi. fa. was sued out upon the judgment, and lodged with the defendants Hooper and Pilcher, as sheriff of Middlesex, on the 5th of January 1843. By the writ the sheriff was directed to levy upon the goods of Joseph Jarmain the sums set forth in the third plea, and it was indorsed as follows:-The defendant is an upholsterer and bill-broker, and resides at No. 3 Prospect Place, Church Street, Chelsea, and No. 38 Leicester Square, Middlesex." The sheriff having granted a war-[831]-rant pursuant to this writ, the officer proceeded to the residence of the present plaintiff, No. 3 Prospect Place, Church Street, Chelsea, and seized the goods in respect of which this action was brought. The plaintiff having claimed the goods seized, the sheriff applied for relief under the interpleader act, and an issue was directed to try whether the goods seized were at the time of the seizure the goods of the claimant-the claimant to be plaintiff, and the execution-creditor, (Heenan) defendant. The execution-creditor however having declined to try the issue, the money which the claimant had paid into court upon the goods being delivered up to him, was paid out to him, with costs; and he then commenced the present action for the alleged trespass. For the sheriff it was submitted that the writ established the justification set up by the third plea. On the part of the defendant Heenan, the execution-creditor, it was contended, that, inasmuch as he had not interfered in the original action further than giving the attorney instructions to sue, he was not liable as a trespasser for the alleged wrongful seizure by the sheriff. His lordship left it to the jury to say to what amount of damages the plaintiff was under the circumstances...
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384238 Ontario Limited c. La Reine,
...(C.A. Angl.); Co/will v. Reeves (1811), 2 Camp. 575; 170 E.R. 1257 (N.P.); Jarmain the Elder v. Hooper, et al. (1843), 6 M & G 827; 134 E.R. 1126 (C.P.); Wilson et al. v. Tumman et al. (1843), 6 M & G 236; 134 E.R. 879 (C.P.); Morris v. Salberg (1889), 22 Q.B.D. 614 (C.A. Angl.); Cl......