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conusance, originally, of all pleas of land within the manor, to the exclusion of all other jurisdictions, except by a remisit curiam from the lord (a), and this by the writ of right patent; but it is to be remembered, that the writ of right patent is a command from the King to the lord, that he will do right to the party complaining (6); and that the plea may be removed by writ of tolt into the county court, and from thence into the court of Common Pleas, by writ of pone (c):-It is also to be observed, that the issue by writ of right patent never could be tried in the court baron, by the great assize, but by wager of battel only (d), and that should issue be joined there, upon the
great assize, or foreign plea be pleaded, prohibition lies (e).
The reader is here apprised that by prescription a court baron may have jurisdiction, as a peculiar, to grant probate and administration, and to take cognizance of testamentary causes (f), as in the manor of Mansfield, and of Cowle and Caversham in Oxfordshire (g).
Where and when to be kept.
The Court Baron, it is clear, may be held at any place within the manor (h), but it appears formerly to have been thought that it must be held at a place certain (i). Although it would be void if held out of the manor (k), yet we have
(a) 2 Bac. Abr. 205. Kitch. 147. trespass be sued there, and foreign (6) Kitch. 146, 151.
matter is pleaded, it shall not be (c) Booth's Real Actions, 86. n. tried in court baron,' cites 1 H 5. 12. 16. 89, 90, 91. See further, as to the (f) Denham v. Stephenson, Salk. writ of right patent, post. And note, 41. Atkins v. Hill, Cowp. 286. 3 Bac. that it is abolished from 31st Dec. Abr. 39. Toll. Ex. 49. 1834. Vide 3rd & 4th W. 4. c. 27, in (8) Off. of Ex. 43. the Appendix.
(h) Kitch. 186, cites 8 H. 7. 4. (d) See the act 59 Geo. 3. c. 46, A. 24. E. 3. Co. Cop. s. 31. Tr. 50. abolishing appeals of murder, treason, Scroggs 83. Ow. 35. felony, or other offences, and trial by (i) So the opinion of Brian. Kitch. wager of battel in writs of right. 186. Co. Cop. S. 31. Tr. 50. (e) F. N. B. 4 E.
(k) Co. Lit. 58. a. Glanv. 19. who also says, if plaint of debt or Kitch. 186. Ow. 35.
already seen that, by custom, courts for several manors may be held together in one of them (a).
It is proper and usual to give fifteen days' notice of the court, including three Sundays, but even three or four days would probably be deemed sufficient (6).
The Court Baron is frequently held with the Court Leet, and then the various acts are referred to the court, to which they respectively apply (c): and when there are both freehold and copyhold lands within the manor, the proceedings of the common law and customary court baron may be entered on the same roll (d).
The Court Baron was anciently held once in every three weeks (e), but this was for the convenience of the suitors, and where the jurisdiction as to plaints in nature of personal actions is not established by charter or prescription (f), or has fallen into desuetude, the court is more generally held once only in the year (g); and I apprehend that the lord, in the absence of an established usage, could not compel a more frequent attendance of the suitors, without some good cause for it being shown (h).
Of the Suitors to the Court, and before whom it is to be kept ;
and herein of the Steward.
Freehold tenants alone are suitors to the Court Baron, and it is essential to the existence of the court, that there should be
(a) Ante pt. 1. p. 6. (6) Ib.
(h) See 2. Bac. Abr. 206. marg. (c) 1 Freem. 525. ca. 707. where it is said “ The court of B. R.
(d) Co. Lit. 58. a. Com. Dig. Cop. has granted informations against lords (R. 2.)
and stewards, for oppressing the te(e) Scroggs 40,83. Co. Cop. s. 31. nants, by warning courts baron every Tr. 50. Co. Lit. 58 a.
three weeks, and distraining them to (f) Post sect. v.
appear or pay a certain sum of money (g) It has been decided that the upon no occasion at all, but to extort court baron may be held even at amercements from them.” But see night. Mo. 68. ca. 185. Ante pt. l. Scroggs 40.
two suitors ad minimum (a). The reason assigned for this is, that freemen could only be tried by their peers, or equals, and that if there be one tenant only, he has no peer, or judge, and therefore, must appeal to the court of the lord paramount (b). In Bradshaw v. Lawson (c), Lord Kenyon said, that this point was so well settled, that cases need not be cited to prove it, and he would only mention that of Rumsey v. Walton, which was an action on a judgment alleged to have been recovered in a court baron, and on the trial at the Hereford summer assizes, 1760, before Foster, J. the plaintiff proved the court to have been holden before the steward; on which it was objected that such a court could not be legally held, without two free suitors; and the judge being of that opinion, the plaintiff was nonsuited.
And according to the case of Chetwode v. Crew (d), such suitors could not be created by a conveyance of part of the demesnes of the manor at this day. Suppose a conveyance to be made by one of two free suitors to a corporate body, it would I apprehend be a suspension only of the suit, so that on
(a) Br. Court Baron pl. 23. Ib. would be under some difficulty to try Comprise pl. 31. Ib. Suit pl. 17. them by their peers.” Kitch. 7, 8. Co. Lit. 58. a. Tonkin v. And by ancient custom in the maCrocker, 2 Lord Raym. 864. Rex v. nor of Dymock, there must be three Slaverton, Yelv. 190-1. Scroggs 84. benchers of the free suitors at the
There is an instance in the Regis- least, or no court can be holden. I ter, f. 11, of a cause being removed Watk. on Cop. 10, (n.) [2d Ed.] out of a court baron, by reason of (6) 1 Watk. on Cop. 9. there being but four suitors there. (c) 4. T. R. 446. See also Rex v. Br. cause a remover plee, &c. pl. 35. Mein, Ib. 480. In Glover v. Lane, Ib. Suit. 17. And see | Watk. on 3 T. R. 447, Lord Kenyon said, “To Cop. 9, who says,
« But it should constitute a manor it is necessary not seem that there must be more than only that there should be two freetwo frank tenants holding of the ma- holders within the manor, but two nor, to enable the lord to hold a court, freeholders holding of the manor, for otherwise, if one of those two subject to escheats." And see Willes, were the plaintiff, and the other of 619. those two the defendant, the lord (d) Willes, 614.
a subsequent conveyance by the corporation to a person capable of performing suit, a court might be held (a).
And if A. should be the only free suitor, and he should convey part of the land holden by him of the manor to B. I incline to think that the right to hold a court baron would revive.
The suitors of the court baron are the judges of it (6), even in a plea holden by force of a writ of right (c); and it has been thought that the court baron could not, even by prescription, be held before the steward, being a thing of common right (d), but the authorities are quite the other way (e).
It has been said that there is this distinction, namely, that where pleas in a court baron are held by writ, then it must be before suitors, and the bailiff of the lord of the manor; but where without writ, then it must be coram sectatoribus only (f).
(a) Tonkin v. Crocker, 2 Lord judges in county court, court baron Raym. 864.
and hundred, as well in writ of right (6) Kitch. 145-6. 4 Inst. 268. patent, as in justicies, and other suits 4 Co. 26 b, 33 b. Jentleman's case, 6 there; and the sheriff, steward, or Co. 11 b. Lord Cobham and Browne's bailiff, are not judges there quod nota case, 1 Leo. 217. Rex v. Morgan, bene (39 H. 6.5.)” Br. tit. Judg1 Sir W. Bl. 398. Eure v. Wells, T. ment, pl. 118. Jentleman's case, sup. Jones, 23. Lovell & Golston's case, (d) Pill or Pell v. Towers, Cro. Godb. 68. Ib. 49, ca. 60. Scroggs 88. Eliz. 791. S. C. Noy 20. Armyn v. “ In a court baron action of debt lieth Appleoft, Cro. Jac. 582. 2 D'Anvers, for the lord himself, because the sui- 295. tit. Court Baron. 1 Nels. Abr. tors are judges," Ib. 84. Kitch. 145.
501. « Nota
Fineux and Keble, that in (e) 1 Leo. 316. pl. 444. I Mod. court baron the suitors are judges, 173. Rex v. Morgan, sup.
Tomand in the leet the steward is judge kins or Tonkin v. Crocker, 2 Salk. (12 H. 7. 16).” Br. tit. Court Baron, 604. S. C. 2 Lord Raym. 860. S. C. &c. pl. 9.
Lutw. 1211. Nels. Lex Man. 57-8, It is not in the court baron alone Rast. Ent. 553 a. Co. Ent. 118. b. that the suitors are the judges. “Nota 570 b. Winch's Ent. 1014. James v. per Chock, Justice, that in court ba- Tutney, Cro. Car. 497, Win. 30. ron, county, or hundred, the suitors Eure v. Wells, T. Jones, 23. W. are judges, and the bailiff and sheriff Jones, 434. Mar. 28. are only ministers, (6 E. 4. 3).” Br. (f) Pells v. Towers, sup. And see tit. Court Baron, &c. pl. 11.
Seroggs 88. Godb. 49. ca. 60. But (c) « Nota that the suitors are in Jentleman's case, sup. it was re
There would certainly seem to be a contradiction in terms, to say that the same persons are suitors and judges of the court, but it is now fully established that the suitors are the judges of the court baron, notwithstanding the expression in some books of authority, that the steward is the prothonotary only of the court (a).
The steward, however, is a constituent part of the court, and not merely a ministerial officer as was formerly supposed (6).
This question was raised, and fully put at rest, in the case of Holroyd v. Breare & Holmes (c), which was an action of trespass, for breaking and entering the plaintiff's house, and seising and taking his cattle, &c.; the defendants first pleaded the general issue, and secondly justified, the one as steward of the court baron of the manor of Wakefield, and the other as his bailiff, stating that on the 12th of September, 1817, at a court of the said manor, holden before certain then suitors of the said court, according to the custom of the said court, one J. A. levied his plaint against Sarah Holroyd, and afterwards recovered on the plea aforesaid, against her £9. 14s. for his damages and costs; and the defendant Breare on the 5th of December, 1817, as such steward of the manor, caused his precept to be issued to take the goods of the said Sarah Holroyd in execution, which precept was delivered to the defendant Holmes, as bailiff, to be executed, and that by virtue of that precept, the goods in question were by him seised, and the trespasses committed. There was another similar justification, setting out a judgment recovered in the same court, at the suit
solved, that be the plea held by writ, says
« The steward doth
the or without writ, the suitors are judges. part of several persons, that is to say, Vide also Lex. Man. 56. pl. 8. Ante, a judge to order in cases of copyhold, p. 721. n. (c).
and also a minister and register to (a) Rex v. Morgan, ubi sup. Earl enter things into the court rolls, and of Shrewsbury's case, 9 Co. 49. a. in both these to be indifferent be
(6) See 1 Freem. 473, in Howard tween the lord and his tenants.” v. Wood, S.C. T. Jones, 126. S. C. (c) 2 Barn. and Ald. 473. 2 Lev. 245. Calthr. p. 54. [2d Ed.]