cavil v Burnaford burrow er report date king versus peters et all or cavil  versus BURNAFORD et all inferior court may set aside a interlocutory judgement  to try the merit but can set aside a verdict except for irregularity see Mod  salk vin pl sayer Mr Hussey show cause against the issue of a mandamus a  motion have be make by Mr Whitaker on that February for a mandamus to be  direct to the defendant John Peter the countyclerk who be the steward of the  court and also to the free suitor of the countycourt of the county of Cornwall  command they to proceed to final judgement in a certain cause by plaint in  replevin commence in the say countycourt between John cavil plaintiff and John  Burnaford Anthony pomery and Nicholas Pelyne defendant in which cause the say  John cavil obtain a interlocutory judgement in the say countycourt the case in  short wasthat Burnaford distrain cavil for rend cavil bring a replevin in the  countycourt of corn wall a interlocutory judgement be regular enter and a writ  of inquiry of damage execute thereupon and d assess for damage and S for cost  and so much more cost as the court shall allow this inquisition be set aside  for irregularity videlicet want of notice of execute the writ of inquiry the  defendant advocate there then move to set aside the say regular interlocutory  judgement itself upon the defendant pay the cost of enter it to be tax by the  steward and on avow issuably and afterward on a subsequent motion to make such  rule absolute it be urge by the other side that that court have no power to  set aside a regular judgement the judge take time to advice at a future court  after inquiry from ancient practiser in the say court and be inform that it  have be the constant burrow custom and usage of it to set aside interlocutory  judgement any time before execute writ of inquiry therein on the defendant pay  the cost of enter the same judgement and plead issuably to such action  instanter and after have full consider the affair in all its circumstance and  apprehend it to be agreeable to the practice of this court he declare his  opinion that it ought to be set aside and the defendant avowry receive they  have pay the cost at the time of fill it de bene be which have be do in the  interim and accord he make a rule thus cavil v Burnaford et be eager or  anxious it be order c that the interlocutory judgement enter in this cause be  set aside on payment of cost tax and that the avowry file in this cause de  bene be last courtday be now on consideration of the court make absolute and  therefore rule for the plaintiff in replevin to plead in bar to the avowry and  the judge of this inferior court swear that he act with the utmost  impartiality in the affair and accord to the best of his judgement and  understanding and he apprehend and believe accord to the constant usage and  practice establish and observe in the say court Mr whitaker motion be ground  upon the inferior judge have exceed his authority and he have cite strange fox  v glass h g as the first time that even this court have set aside regular  judgement and strange baily v Boorne m where they doubt of a inferior judge  have such a power on Friday last first April Mr Hussey show cause why  thismandamus shall not issue and he make the two follow question saint whether  the judge or steward of a inferior court have a right to set aside  interlocutory judgement regular obtain d whether in this particular case the  steward of this inferior court have a right to do as he have do and as be the  practice of that inferior court as to the first questionhe agree they can  grant new trial salk burrow er p queen v hill et bee and salk the case of  Bristol which be S c brook v ewer et bee strange S p a mandamus issue to a  judge of a inferior court to give judgement though he have grant a new trial  therefore he will not contend that a inferior court have a right to set aside  a regular judgement unless it be to let in the merit burrow but they man do it  in order to try the merit salk in the case of the mayor and alderman of  Bristol it be hold that a inferior court can not grant a new trial however it  be long since do by this court and they will also former set aside regular  judgement on put the plaintiff in as good condition as before and it do not  appear how the court come to leave it off as sir John strange say in the case  of fox v glass that they have do and it seem right in itself and agreeable to  natural justice to permit inferior court to set aside regular interlocutory  judgement in order to let in a trial of the merit indeed it be reasonable not  to permit they to set aside the verdict of jury which be a exceed different  case from a judgement by default as to the d questionin the present case the  steward act right and reasonable upon the circumstance attend it Mr Whitaker  contra for the mandamus the let in the trial of the merit make no difference  say that a inferior court can not set aside a regular judgement after they  have once exercise their authority in strange Baily v Boorne m g b r the court  think it a question that deserve consideration whether the judge of a inferior  court can do it and there be no more reason why they shall have this power  than that of set aside verdict they have no such discretion discretion be  another word for arbitrary will Lord Mansfield deny this interpretation of the  term discretion and refer to what be say a few day ago in the case of king v  young and pit v ante pa and and he say that discretion be as Lord coke say to  separate per law quid sit justice to which observation Mr just Wilmot desire  to add another from   a rook case discretion be a science and understanding of  distinguish and discern between falsehood and truth c c and not to do accord  to arbitrary will and private affection Mr Whitkar but these inferior judge  have no sort of discretionary power of any kind Lord Mansfield that case of  Baily v Boorne in strange only say that it be a question that deserve  consideration but there be no precedent or authority burrow to the contrary of  their have such a power and it seem a power necessary to the exercise of  judicature and be very different from the case of set aside verdict this power  to set aside interlocutory judgement seem incident to justice however both  Lord Mansfield and the other two judge think it may not be amiss to look into  it and Mr just denison intimate as if there be something of this sort before  the court in t p g b r cur advisare vult and now Lord Mansfield deliver the  opinion of the court have first desire Mr Hussey to state the case for the  sake of the student and he take this opportunity of observe and declare I that  nothing mislead so much as report the determination of court of justice  without have a sufficient and correct state of the case which he say be only a  fire fatuus lead people into error and mistake here the question upon the true  state of the case which v ante pa appear to be I whether a inferior court have  power to set aside a regular interlocutory judgement in order to let in the  trial of the merit and we be all of we of opinion that they have such a power  there be no Mr just foster be absent it be in hill and p g Eastwell v  Livermore v post burrow er p authority nor even dictum to the contrary nor be  there any reason why they shall not have such a power which be incident to the  do of justice indeed there be authority which say that a inferior court can  not grant a new trial or set aside the verdict of a jury but for irregularity  but there may be many reason why they may be permit to set aside a  interlocutory judgement in order to let in the merit which reason will not  hold so far as to make it Allowable for they to set aside the verdict of a  jury one of which reason may be that no attaint lie upon a verdict give in a  inferior court and indeed the set aside a verdict of a jury be too great a  power to be entrust to a inferior jurisdiction yet we be all of we clear of  opinion that they may set aside regular interlocutory judgement in order to  let burrow in the merit both upon the reason of the thing and for the  convenience attend it that case in strange of Bailey v Boorne v ante p prove  nothing at all against this and in strange jewel v hill h g a inferior judge  set aside even a verdict for irregularity or rather for surprise which this  court allow he may do Mr just denison add that in the case of Eastwell v  Livermore v ante p in note it seem to be understand and agree at the bar that  a inferior court can not set aside a verdict at all but he find that he have  write a note at the bottom of that case import that he himself think that it  ought not to be take for grant so general as this be lie down that they can do  it at all for that he think that a inferior court may set aside even a verdict  for irregularity though they be not to be trust with a power of set aside  verdict upon the merit and this he say be certain the right distinction  videlicet that they may set aside even verdict for irregularity but not upon  the merit wherefore per cur unanimous let the rule make that John Peter the  countyclerk and the free suitor of the countycourt show cause why a mandamus  shall not issue direct to they command they to proceed to final judgement in a  certain cause by plaint in replevin commence in the say countycourt between  John cavil plaintiff and John Burnaford Anthony pomery and Nicholas Pelyne  defendant in which say cause the say John cavil obtain a interlocutory  judgement in the say countycourt on the that day of October last be discharge  rule discharge