persons, it excepts all existing liberties of the like nature (a); but the latter statute, it is to be observed, speaks only of the tourns of sheriffs, and of bailiwicks within which such tourns were held, and does not use the term frank-pledge.

It is, at all events, the better opinion that no man can be of two leets (b). So if a man hath a house within different leets, he shall be taken to be conversant where his bed is (c). And if a leet jusisdiction be annexed to a manor within a hundred to which a leet is also appendant, the lord of the hundred has not even a concurrent jurisdiction with the lord of the manor, for the one jurisdiction is as high as the other (d).

Suit to the leet is due by reason of resiancy, and has no reference to tenure; it is therefore called suit real, and not suit service (e).

Suit real cannot be done by attorney (ƒ), the statute of Merton, 20 Hen. 3. being confined to suit service by freeholders (g); nor, as it should seem, can suit real be released (h); but the attendance may be essoigned (i), which is generally done by the payment of a penny, or some such nominal sum.

And the non-performance of suit real is to be punished by amercement," because for suit real no distress can be taken, but for the amercement in default thereof. (k)

(a) And see in the Appendix the act of 1 Ed. 4. c. 2. interdicting sheriffs, &c. in their tourns or law days from fining and imprisoning upon any indictment or presentment, and which expressly excepts out of the operation of the act, persons having liberties or franchises by grant or prescription.

(b) F. N. B. 159. n. c. Ib. 160. A. Kitch. 65-6, cites 18 H 6. 13.

(c) 2 Inst. 122. And see The King v. Adlard, 4 Barn. & Cress. 780, where Abbott, C. J., in quoting this passage from Lord Coke, said “This is a plain authority that the

VOL. II.

"

word Inhabitant, when the view of frank-pledge is spoken of, cannot mean an occupier."

(d) Br. Leet. pl. 13, cites 21 E. 3. 3.

(e) 12 H. 7. 15. 7 E. 2. 204. Kitch. 82, cites 45 E. 3. 23. Ib. 145. Ib. 291. 2 Inst. 99, 104, 120.

(f) Kitch. 145. F. N. B. 25 C. (g) 2 Inst. 104. Ante, p. 736.

(h) Tott v. Ingram, 1 Brownl. 186. But see Fitz. Abr. Avow. 211, 212. Br. Incidents, pl. 28.

(i) Mirr. c. 1, s. 17. See as to essoign, ante, pt. 1. p. 431. (k) 2 Inst. 118. And see Gilb.

M

CERT-MONEY; COMMON FINE. It should seem to have been the practice for the lord of a hundred or manor, who had a sufficient influence with the crown to obtain the grant of a leet franchise, to claim from his tenants a certain annual sum pro serto letæ, as a mean of fixing them with a contribution towards the purchase of the franchise, which secured to them, not only an exemption from attending the sheriff's tourn, as we have already noticed, but likewise the advantages of a summary redress in all matters within the jurisdiction of the leet (a).

The money thus paid to the lord was in some places called cert or certainty money, and in others chief or King's silver; and in others again, as some suppose, common fine, or head money, or head pence; but it has been thought that the common fine was originally a payment to essoign the appearance of all the suitors, except the chief pledges (b).

The proper remedy for this payment is action of debt (c); but where the cert-money is to be paid at the day of the leet, the defaulters may be amerced, yet as it is for the private advantage of the lord, he cannot distrain for cert-money or chief silver, without he can also prescribe in the distress (d). And this is the only matter of a private nature where a prescription to amerce is allowable (e).

Dis. 13. F. N. B. 159 D. (n. a.) 161
D. (n. a.)

(a) Bullen's case, 6 Co. 77 b. Scroggs 2.

(b) Ritson on Courts Leet, p. 120.

(c) A court of equity will not en

tertain a bill for law-day silver. Thornhagh v. Hartshorn, Bunb. 237.

(d) Godfrey's case, 11 Co. 44 b. 1 Roll. Abr. 211. (A. 2.) (C. 2.), cites 13 H. 4. 9. (e) Scroggs 2.

Mandamus to enforce a court: Forfeiture of Leet.

As the leet was originally granted for the more convenient administration of justice, the lord is compellable to hold a court by writ of mandamus (a): and a leet is forfeitable by non-user, and by acts of abuser (b).

A long disuser of the franchise will induce the suspicion of a defect in title:-So in Darell (or The King) v. Bridge (c), on a motion for an information in nature of quo warranto for holding a court leet, there appeared to have been a grant from the crown in 14 Jac. 1. to R. M., his heirs and assigns, of the privilege of holding courts leet, and a court was held by the defendant in 1740, claiming under a conveyance of the manor of S. with all courts, &c. in 1739, wherein courts leet were expressly mentioned, but there were no mesne conveyances between the original grant of the leet and 1702, when and previous to 1739 conveyances were made of the manor, with all courts thereunto belonging;' and the court of B. R. observed, that as there appeared to have been no exercise of the grant till 1740, there was strong suspicion of some defect in title, and therefore it must go to be tried by a jury.

The usurpation of a leet is indeed accounted so great a grievance to the people, as to have been adjudged to be an indictable offence (d).

By the opinion of some, a leet is forfeited by the neglect of appointing an able steward, or of electing such officers as are essential to the exercise of justice, as constables, aleconners, &c. or of providing particular instruments of punishment, as pillory,

(a) Rex v. Willis, Andr. 279. Com. Dig. Mandamus (A). 2 Roll. Rep. 107.

(b) 2 Hawk. P. C. c. 11. § 5. Bro. Abr. Franchise, pl. 10, 26.

Tottersall's case, W. Jones 283. Cro. Jac. 155. F. N. B. 160. A. (n. d.) 9 Co. 50. Scroggs 3, 4.

(c) 1 Sir W. Bl. 47. (d) 6 Mod. 183.

tumbrel, stocks, &c. (a); and clearly the franchise may be seised quousque for any such neglect (b).

SECT. II.

Of the Steward of the Court Leet, (and herein of his authority to impose fines);—And of the Office of Bailiff.

WHETHER the steward of a court leet is to be considered as judge of the court, not only in the absence of the lord, but also in his presence, or whether he is to be deemed an assistant judge, assessor, or lawgiver only, when the lord happens to be present, (analogous to the shiregerieve in the Anglo-Saxon shire-gemot court,) the office of steward of a leet court is obviously one of very high importance, and such as ought only to be filled by a person of considerable legal learning, and of sound judgment and discretion (c).

I have already ventured sides in a customary court.

(a) Steverton v. Scrogs, Cro. El.z. 698. S. C. Mo. 573, 607. Tottersall's case, ubi sup. Per Popham, Cro. Eliz. 125, in Partridge's case. Kitch. 24. Br. Quo warranto, pl. 8. And see Keilw. 138, &c. But as to stocks, see Carter 29, in Davis v. Lowden, where Bridgman, C. J. distinguished between stocks and pillory, &c. and said that the former were originally not to punish, but only as the constable's gaol, to keep men in hold, but that as to pillory and tumbrel the lord was bound to find them, and not the inhabitants.

It should seem that for the neglect of providing stocks, a vill is punishable by amercement in leet, and that any of the inhabitants may be dis

opinion, that the steward prerepresentative character only, trained for the amercement. Steverton v. Scrogs, sup. So also as to pillory and the like instruments of punishment, if a prescription be alleged. Ib.

(b) Lex. Man. 25.

(c) 4 Inst. 261, &c. The steward of the court leet ought to be a barrister. Per C. J. Holt, Scroggs 33. Ante, pt. 1. p. 134.

In a recent case the court of B. R. adverted to the necessity of a steward's possessing legal knowledge, and considered the charges of an attorney for holding a court leet, as charges made in his professional character, and therefore taxable. Luxmore v. Lethbridge, 4 Barn. & Ald. 898.

and that there is no principle of law to prevent the lord of a manor from holding his own customary court in person (a), and the same rule would seem to extend to a court baron, where the suitors are judges of the court. of the court. But in a court leet, which we have seen is a juridical franchise held under a grant from the crown, and not necessarily incident to a hundred or manor, the steward appears to me to be an essential officer, filling exactly the same judicial character as the sheriff in his tourn, and not inaptly described as a man ́ indifferent ⚫ between the lord and the law.' (b)

A condition appears to have been annexed to every grant of a leet franchise, that the lord should appoint an able steward (c), and this circumstance is much in favour of the more general opinion, that the lord cannot hold his own court leet. To this may also be added, the decision in Cholmely & Morton (d), that the mayor, if owner of a fair, cannot be a good steward of it. And we find it laid down in various books, that the court leet is held before the steward, and that he is the judge in it (e); nor am I aware that it is stated in any book of authority, that the lord or steward presides as judge of that court, though the expression, as referrible to a customary court, is by no means unfrequent (ƒ).

(a) Ante, pt. 1. p. 145.

(b) Powell on the jurisdiction of courts leet, p. 43. It is there said that the lord cannot sit as judge in his own court, in regard that the profits of the court accrue to him; but this reasoning would equally apply to the disqualification of the sheriff in his tourn, if the statement be correct that he is intitled to the profits of the court. See Com. Dig. Leet (A.)

"The theory was said to be that suitors only were judges in county courts, but late decisions have ruled the sheriff to be judge also." Per Bayley, J. Durham Summer Assizes, 1830. And see Tinsley v. Nassau,

1 Moody & Malk. 52; post, p. 840. n. (a).

(c) Ante, p. 827.
(d) 2 Sho. 180.

(e) 4 Inst. 261. 6 Co. 12, in Jentleman's case, Com. Dig. Leet. (M. 1). And see Dy. 70 b, in Withers v. Iseham.

(f) Co. Lit. 58 a. 4 Co. 26 b. Co. Cop. s. 45. Tr. 102. But it is proper to notice, that, in the case of the Queen & Jennings, 11 Mod. 215, C. J. Holt is stated to have said, "that in a private leet the lord may sit as judge, and exclude the steward," to which is added, (but I conceive as an observation only of the