Ballard v clement burrow er report date ballard and another chamberlain of  Worcester versus bennet the same versus clement bylaw can be object to in a  summary way except in case from London Mr Norton on behalf of the defendant in  both cause show cause against the issue of a procedendo to the court below on  Friday the d of June last Mr serj nares have move for a procedendo to the  mayor alderman and citizen of the city of Worcester to proceed in these action  which be action of debt bring there in the name of the chamberlain and have be  remove hither by habeas corpus cum causan to which they have return a bylaw  make by the corporation to restrain the sale of flesh meat to certain proper  place and that it shall not be sell in the public street under a penalty for  burrow which penalty the respective action be bring in the court of plea hold  for the say city the word of the bylaw be that all sort of fleshmeat sell  within the say city on the market day or fairdays by butcher and other person  not be inhabitant and keep open shop within the say city shall be public  expose to sale in such newerected shambles and not elsewhere within the same  city and that no person or person whatever shall erect put or place or cause  to be erect put or place or assist in the erect put or place any stall stand  bench table or other thing in any of the street lane or alley within the say  city or the liberty thereof for the sell or expose to sale by any foreign  butcher or other stranger resort to such market or fair any sort of flesh meat  whatsoever and that every person offend in the premise shall for every such  offence forfeit and pay to the chamberlain of the say city for the time be the  sum of three pound to be recover by action of debt in the name of such  chamberlain in the court of plea hold for the say city and not elsewhere with  full cost of suit and to be apply by they to the use and benefit of the poor  belong to the several almshouse erect within the say city this bylaw the  sergeant allege to be a good one and cite in proof of it Siderf player v  Jenkins Mr just Wilmot at the time of the original motion  recollected that  there be a case in the yearbooks the prior of Dunstables case about a man be  restrain from sell meat in his own house and Mr justice denison and himself  the only judge then in court make a rule to show cause why there shall not go  a procedendo on that may Mr Norton show cause against the procedendo and  object to the validity of the bylaw but a preliminary doubt be make by the  court original start by Mr just denison whether the court will suffer a bylaw  to be object to in this summary way upon a motion on the return of a habeas  corpus in any other case except those from the city of London burrow they  agree that this method have be always practice upon bylaw return into this  court to writ of habeas corpus cum causan direct to the court of the city of  London but they do not recollect any instance where the same thing have be  permit in the case of any other city or corporation Mr just denison say that  such a distinction between the city of London and all other city and  corporation may perhaps arise from particular method of recovery be establish  and allow by the custom of London which can be pursue in this or any other  court so that the show that to be the cause be a good cause of detainer for  upon these writ of habeas corpus the person to who they be direct must show a  good cause of detainer and if this court can proceed as the custom of London  authorize their court to proceed it be a good cause of detainer therefore the  court will there enter into the validity of the buy it be in h foe pl and foe  pl these writ issue on the civil side out of the king bench office they order  the person of the defendant to be bring up together with the day and cause of  take and detain he burrow er p law to see whether that be the case or not and  if the bylaw appear to be bad the party shall be discharge as be detain  without cause and no writ of error lie hither from the court of the city of  London but in all other city and corporation if a habeas corpus cum causan  issue and a bylaw be return as the foundation of the action below the method  be not for the defendant to object to the bylaw upon motion but the plaintiff  be to begin do to make new and to declare over again here in this court and  therefore the question be whether he ought not to do so here the court agree  with Mr justice denison that it be incumbent upon the counsel for the  procedendo to show that in any other corporation beside London the court have  ever enter into the question concern the validity of the bylaw upon motion but  the counsel for the procedendo observe that the action give by this bylaw be  restrain to be bring in that court and not elsewhere consequent no action can  proceed in this court find upon this negative bylaw nor can the plaintiff  declare here upon the present bylaw the only case in the book upon any bylaw  contain such negative word and all of they in London they say be lev mayor and  commonalty of London burrow v bernardiston Siderf SC chamberlain of London v  Barnardiston Keble SC player v Barnardiston Mod Cuddon chamberlain of London v  provost and Mod fazakerly v Baldo both on the same bylaw as barnardiston case  they also cite a case of the chamberlain of London v Grosvenor g c b and a  late one of Harris v Wakeman g b r a writ of error upon a judgement give in a  action find on a bylaw in this very city of Worcester Mr serj nares Mr Morton  and Mr Aston of counsel for the procedendo desire further time to look into  this preliminary question for which they say they be not prepare as they be  not at all apprise of a objection of this sort the court grant it but they  observe that if these negative word shall be allow to prevail all the city and  corporation in England and even all the little borough who have court of  record will putnegative word into their bylaw and exclude this court the rule  be therefore at that time enlarge these cause be now mention again Mr serj  nares Mr Morton and Mr Aston acknowledge that they can not find any instance  where the court have enter into the validity of the bylaw return in a summary  way upon motion except in those which have be return from London but they  argue that there be no reason to distinguish between London and other great  city and that the hand of the inferior court ought not to be tie up where this  court can do the plaintiff the same justice that the inferior court by virtue  of their local custom can they urge the great inconvenience of oblige the  party reside in corporation in the country to sue in this court for penalty of  very small value and upon local bylaw and they say it will be very hard if the  plaintiff shall be exclude from enter on the question here upon motion when it  be impossible for they to support a declaration there they cite Ro Rep  sterling case as be within the same reason as this negative bylaw which  casewas upon a charter which have the exclusive word and not elsewhere and  will have be a ground for a procedendo if it have be return and they also  mention wade and Bemboes case in loon pl and cro Elizabeth grice v chamber  burrow and Mod Anonymous which two latter case be upon cognovit act et petit  quod to seek after do debt is owed under custom prevail in Norwich and in  Bristol Mr Norton contraThis be a mere personal action it be not a action  ground in other corporation a writ of error do lie returnable in this court v  Mod Mr Norton say that lev be erroneous report for the bylaw have be search  and there be no such negative word in it burrow er p upon a custom and it be a  case here this court can give the like remedy and do the same justice that the  inferior court may Lord Mansfield this be a action upon a bylaw and come  remove hither from a corporation in the country upon the return of a habeas  corpus and the whole question at present be whether the court can enter into  the consideration of the validity of the bylaw upon the return there be a  settle course and form of proceed in case of this nature of which there be  many thousand instance and yet though there be such number of instance of this  kind there be not a single one where the court have ever determine the  validity of the bylaw upon the return except in London as to the validity of  this particular bylaw if it be true that there never be such a one that be  strong argument against its be a good one however the validity of it be not to  be dispute upon the return but in the ordinary course of proceed in the like  case videlicet by the plaintiff declare here and the defendant demurrer to it  if he think proper it never have be do in this summary way upon the return nor  even attempt or think of before and therefore we ought not to do it now the  proper course be settle it must be by declare here and the defendant may  demurrer if he have any objection to the bylaw as to sterling case in Ro Rep  it be not a authority in this case charter of exemption be very different from  bylaw of corporation Mr just denison be of the same opinion he say that this  have never be do but upon return from the city of London and this be a attempt  to get the opinion of the court extrajudicial Mr just foster let the plaintiff  declare here Mr just Wilmot say he have search very diligent but can not find  any instance except in London where the court have ever enter into a question  about the burrow validity of a bylaw upon the return and therefore he be clear  that the court be not authorize to do so per cur unanimous the rule to show  cause why a procedendo shall not issue be discharge and the like rule be also  make in the other cause