R v Inhabitants of Mayfield
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1758 |
| Date | 01 January 1758 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 425
IN THE COURT OF KING'S BENCH
fairley versus M'CoNNELL. 1758. Procedendo denied to a Borough Court that had tried a cause without the presence of a barrister of three years standing. Mr. Aston shewed cause " why a procedendo should not go, to the Borough-Court of Portsmouth: " who insisted on a right to proceed there, after a habeas corpus cum causa. He, on the contrary, insisted that by the proviso in 6 of the 21 Jac. 1, c. 23, ("to prevent suits commenced in Inferior Courts, from being removed into superior, unless, &c."). There ought to have been an utter-barrister of three years standing present at the trial of the cause; whereas no such person was present at this trial For want of which, the trial, he said, was void ; and the habeas corpus to remove the cause, waa well brought. In proof of this he cited Cro. Car. 79, Glapham's case-2d resolution) in point-"That it is essential that an utter-barrister of three years standing, be present, either as Judge, or Deputy Judge." 3 Mod. 85, Anonymous. A like resolution proving the necessity of an utter-barrister's being present; or else, that this Act, by virtue of this proviso, does not extend to the case. Mr. Yates contra for the procedendo. This qualification, of being utter barrister of three years standing, &c. only extends to the case of the Judge or the steward himself; [BIB] not to his assistant. And Mr. Serj. Stanniford who is such a barrister as is described in the proviso, is the Judge of the Court. So that the proviso does not xtend to the present case. Mr. Aston in reply-But he was not present; the cause was tried by Mr. White, * Shepheard. t Lewis. K. B. xxvi.-14* 426 REX V. SARMON 1 BURR. 816. an attorney ; who is his deputy, and is not a barrister at all. And the defendant relied upon the habeas corpus to remove the cause out of this Inferior Court; and therefore did not attempt to try the merits, or make any defence there. N.B. The proviao is, that this Act (of 21 Jac. 1, c. 23,) shall extend only to such Courts of Eecord " in cities, liberties, towns corporate, and elsewhere, and for so long time only, as there is or shall be an utter barrister of three years standing at the Bar, of one of the four inns of Court, that is or shall be steward, under steward or deputy steward, town clerk, or Judge or recorder of...
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Claxton v Swift
...the other indorsers for the same; and as this case is, the drawer (a) See Cro. Car. 79. Garth. 69, and the case of Fairley v. Mac Cmnel, 1 Burr, 514. (4) 1 Mod. 195. Garth. 59. 2 Cromp. Pract. 419. Tidd's Pract. 178. (a) Brown v. Woottm, Cro. Jac. 73. Yelv. 65. 2 Ld. Ray. 1217. 56 MICHAELMA......