Lisle being indicted of murder, was convicted of manslaughter, and prayed his clergy by a friend, not being in Court himself; and after at the same assizes, an appeal waa lodged by the brother and heir of the party slain, and the conviction and appeal were removed by certiorari, and the party by habeas corpus ; and at the return of the certiorari it was moved by the appellant, that he might file a letter of attorney, in which case the Court would not make any rule, but said that they might file it at their peril, yet insinuated that they could not file a letter of attorney by the Stat of Hen. 7, till after appearance ; and they admitted clearly that in mayhem, they could not make an attorney; and the Court said, that if he filed a letter of attorney, and the law required an appearance in person, the appeal would be discontinued ; and Holt Chief Justice said, the appellee ought, after the appeal returned upon the certiorari, to sue a scire facias against the appellant ad prosequendum, for the appellant has not a day in Court; and the Chief Justice enclined fortiter that the Court ought not to refuse to allow clergy to one convict of manslaughter ; but in regard of some resolutions contra, it is fit to be argued; and he said that he had argued it both ways, but he never was satisfied in his judgment with the resolutions which had been given, that they may respite clergy, for by this means they put it in the power of Judges to hang a man ; and at the return of the conviction the counsel of the appellant took exception to the conviction, the which Holt Chief Justice would not allow, and said, that they are strangers to this record, and they have not any privity or authority to take exceptions.
Judges:
Holt CJ
Citations:
[1728] EngR 69, (1728) Skin 670, (1728) 90 ER 300 (A)
Links:
Criminal Practice
Updated: 02 May 2022; Ref: scu.388402
