Barber v Barber and Another
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 1811 |
| Date | 11 May 1811 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 184
Common Pleas Division
cited, where the right of patronage to the curacy was expressly inserted as well as to the rectory. MANSFIELD C. J. You may insert the advowson of Beeston, but as to the right of nominating a perpetual curate to Aebmenhaugh, bow can that he the subject of a recovery You cannot insert that ; it is a thing unknown to the law ; it is, where a layman is rector, as the Duke of Portland, for instance, is rector in Marybone, and appoints (as he is bound to do) a curate. HEATH J. The right to nominate a perpetual curate, is parcel of the rectory. Shepherd Suit. We will give no trouble on that point, but insert the advowson only. Rule absolute. [464) DICK V. NORRISH. May II, 1811. The Plaintiff falsifying the Defendant's affidavit to change the venue, the venue was retained, though the Plaintiff could not undertake to give material evidence in London, where he had laid it, either venue being inconvenient to one or other of the parties. In this action a rule had been obtained by Lens Serjt. for changing the venue from London to Hampshire, upon the usual affidavits that the cause of action arose wholly in Hampshire, and not elsewhere. Best Se*. now shewed cause upon affidavits, stating that the action was brought for maliciously suing out a commission of bankrupt, which necessarily issued in Middlesex, and so falsifying the Defendant's affidavit on which the rule was made ; but the Plaintiff, although his witnesses all resided in town, and many of them were clerks in public offices, who could not be carried down to Winchester to give evidence without great expence to the Plaintiff and inconvenience to the public, was nevertheless unable to give the usual undertaking to give material evidence in London, though he could have done it in Middlesex. It was further sworn on behalf of the Defendant, that all his witnesses resided in Hampshire, and that it would be expensive and inconvenient to him and them to try the action in London. Lens Serjt. endeavoured to support his motion, neither party being able to comply with the usual requisitions of the Court in the case of venue, and, under circumstances of mutual inconvenience, the rule which had been obtained must prevail. In the ease of Holmes v. Wainwright, 3 East, 329, the Court of King's Bench in a similar action made the rule absolute. MANSFIELD C. J. The Plaintiff cannot legally and truly swear, according to legal apprehension, that the whole cause of action arose in Southampton, because a (465] material part arose in Middlesex; and it is a question whether we can change the venue, when there is a material inconvenience on both sides; on the one side there would he a material...
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