Mansfield against Brearey
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1834 |
| Date | 07 May 1834 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 1238
IN THE COURT OF KING'S BENCH
[347] mansfield against beearet. Wednesday, May 7th, 1834. Where a cause has been tried before a Sheriff or Judge of an Inferior Court by order, pursuant to 3 & 4 W. 4, c. 42, s. 17, this Court .will not hear a motion for a new trial, unless the notes of the sheriff or other Judge be produced and verified by affidavit. Such notes, however, need not be filed. In an action tried under the above statute before an under sheriff, the declaration contained special courits on a promise by defendant to sell a chattel for plaintiff, at; a price not below 41,, averring that defendant sold the same at an inferior price, to wit, 11. 10s.: there were also common counts. Evidence was given for the plaintiff of the special contract, and evidence on the other side, tending to discharge or excuse the defendant; and it was proved that defendant sold the chattel for 11. 11s., which he bad not paid over. Defendant, when the action was brought, lived within the jurisdiction of a Court of Bequests established by a statute, which enacted that no action for any debt below 40s. should be brought against any person residing within the jurisdiction, except in that Court. The Act was insisted upon by the defendant at the trial. The jury found a verdict for the plaintiff for 11. 11s. On motion to enter a nonsuit, or verdict for the defendant, or for a suggestion under the local Court Act, Held, that this (Court could not consider the action as one brought merely to recover a debt, evidence having been given (5) In the course of the argument the Courf; adverted to a case of Hex- v. The Churchwardens of St. Mary, Lambeth, Trinity t. 1832, in which a rule nisi had been obtained for a mandamus to elect churchwardens, &e. on the ground, that on the occasion when the persons then acting were supposed to have been elected, the rector, who was in the chair, had, upon a poll being claimed, adjourned the meeting for .that purpose from the school-house (where it was holden by appointment) to the church, of his own authority, and that he had postponed the poll till some other business, which he considered necessary, had been disposed of. The poll was gone into on the same day, and continued on subsequent ones, at the church. ;No previous notice had been given of such adjournment. The affidavits were numerous, and went into much detail. The statements in opposition to the rule tended to shew that the poll could not have been properly, if at all, taken in the school-house, from the nature, of the place, and the numbers and tumultuous state of the meeting; and the rule was also opposed on other grounds, independent of the discretionary power of the chairman to adjourn, viz. a former practice of electing at the church, and an alleged acquiescence, on the present occasion, by the parties now complaining; 'St'onghton v. .Reynolds, 2 Stra. 1045, was cited ;in support of ;the rule, upon which Parke J. observed,; that in that case the adjournment was to a subsequent day, and :asked if the poll'i could not have;been adjourned from, one room into another? The Court (Lord Tehterden G.J., Littledalfr,- Parke;--and Taanten-J-s.) consitteritig -the question too- important to be ^decided without further...
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Zulueta and Others v Miller and Others
...of the judge who tried the cause, together with an affidavit verifying such to be a true copy." And see Mansell or Mansfield v. Brearey, 1 A. & E. 347, 3 N. & M. 471 ; Burney v. Mawson or Moxall, 1 A. & E. 348, n., 3 N. & M. 472, n.; Hall v. Middleton, 4 N. & M. 368; Walker v. Needham, 3 M.......
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Hall against Middleton
...accounting for the non-production. It being objected that this was contrary to the rule laid down by the Court (see Mansfield v. Brearey, 1 A. & E. 347; Burney v. Mawson, 1 A. & E. 348, note (a)); he urged that the rule was recent, and probably not known to the parties now applying, that th......