the clock in the forenoon; and that you warn all the tenants of, and resiants within the said manor, that do owe any suit or service at the said court, that they and every of them personally be and appear at the time and place aforesaid, then and there to do and perform the same. And likewise that you summon twenty and four honest and lawful men of the said manor, to be and appear at the time and place aforesaid, to inquire for our sovereign lord the King, of all such matters as to the said courts do appertain; and that you yourself be then and there also personally present, and have you there the names of such persons as you shall have so summoned, and this precept. Given under my hand and seal, &c.' It is, I think, but a fair conclusion from the foregoing observations and references, that the bailiff of a leet jurisdiction is an indispensable officer, possessing functions of no trivial importance, and bearing a very close resemblance to the sheriff in his present ministerial character, as far, at least, as respects the criminal branch of his office (a). The remark of C. J. Abbott in the case of Holroyd & Breare, already cited at some length (b), that the steward of a court baron is not a minister of that court, but a constituent and essential part of it, appears to me to sustain the analogy between the sheriff, at this day, and the bailiff of a court leet. No mandate (observed his lordship) is directed to the steward, but he makes his mandate to the bailiff, and (added the Ch. J.) there is this material distinction between the mandate of the sheriff and that of the steward of a court baron; in the former, the sheriff commands the bailiff to make the levy, and concludes, So that I may have the same before the court, &c.' but in the warrant of the steward, the bailiff is (a) But the sheriff is a constituent part of the county court, so that he is not responsible for the acts of his bailiff done in execution of the judg ments of the court. Tinsley v. Nassau, 1 Moody & Malk. 52. Ante p. 829. n. (b). (b) Ante, p. 722 et seq. directed to levy, so that he (the bailiff,) may have the same before the court on the day appointed. It is true that in the particular case the question arose upon the execution of the process of the court, which was a court baron, where the suitors are the judges, but if the steward of that court, possessing at most a qualified judicial character, is not responsible for a ministerial act, it is no easy task to reconcile that irresponsibility with the execution of a ministerial duty by the steward of a court leet, who presides as judge of the court, with reference more particularly to the justly admired principles of the trial by jury, ingrafted by act of parliament, or usage, on the Anglo-Saxon jurisprudence; nor does the difficulty seem to be diminished by any supposed amenability of the steward for a violation of his judicial functions. In the case of the King v. Harrison (a), a motion was made in the court of B. R. for an information in nature of a quo warranto against the steward of a court leet, (which, according to a Ms. note of the late Mr. Serjt. Hill, in the margin of the report of this case in my possession, was the court of Birmingham,) and against the bailiff and constables, for impanelling a jury not duly summoned, the bailiff being alleged to be the proper officer to summon the jury, who should be all freeholders. It appeared that six persons stated to have no right were sworn, and that six freeholders who were present, and who had not been summoned, refused to be sworn to act with them, and thereupon the steward swore six more, and the jury, so constituted by the steward, chose the bailiff of the manor and constables. A rule was obtained for the defendant to show cause why an information should not go against him. On showing cause he relied on the refusal of the six freeholders to be sworn, and the constant course of choosing such officers, urging that it would be dangerous to make a precedent of trying the right of such choice by a quo warranto.-The court observed, that there was no room for any complaint against the (a) 8 Mod. 135. N constables or bailiff, but, if any, it was against the steward, and a rule was made for him to attend, and to show cause why an attachment should not go;-the rule for the rest was in the meantime enlarged. With the principal and more important duties of the bailiff of the court leet, I am disposed, therefore, to class that of impanelling the Jury (a), and without any distinction in the office when the lord of the leet possesses only an ordinary jurisdiction, and when a leet franchise exists in a borough or town, of which the head municipal officer is elected by the jury of the court leet (b). (a) It should seem that peculiar customs exist in particular places on the point adverted to. I infer from the Ms. note of Mr. Serjt. Hill, just referred to, that a custom of this nature was relied upon in the King & Harrison. And it is settled that by custom the steward may nominate the persons to be summoned as jurors. The King v. Joliffe, ante, p. 831. n. (a). In that case Abbott, C. J. said, "The leet jury is rather in the na"ture of a grand jury.” (b) See The King v. Joliffe, sup. Sometimes the Jury merely present, in writing, the candidate who may have the most votes, but have no control over the poll. In The King v. Rowland, 3 Barn. and Ald. 130, the plea to a quo warranto against the defendant, as Mayor of the Borough of Holt in Denbighshire, after stating an immemorial court leet, and view of frank-pledge, holden within the Borough, set out a charter of 13 H. 4, confirmed by letters patent of Queen Elizabeth; and a by-law that the Mayor and Burgesses, or such of them as chose to attend, should assemble at the court leet, held within one month after Michaelmas, and should elect one of the Burgesses to be Mayor for the ensuing year; and that since the by-law the usage had been conformable to it, and the court in part holden in the morning and in part in the evening, the one being called the morning and the other the evening court; and that the custom had been to elect the Mayor at the morning court, which Burgess was sworn into office by the steward of the Lordship, or his deputy. It then stated that on the 27th October, 1818, a court leet was held before C. W. W. W. Esq. the steward, in the morning, which was duly adjourned to the evening of the same day; and that the defendant was duly elected at the morning, and sworn in at the evening court. The replication, after tendering issues. on the different facts alleged in the plea, denied that the mode of election had been according to the supposed by-law, or that the defendant was duly sworn. At the trial at the Shrewsbury Summer Assizes, 1819, the mode of election set out in the defendant's Sometimes, indeed, the bailiff of a leet, when appended to a manor or borough, is chosen by the jury of the court (a), and possesses a clear prescriptive right to exercise a discretionary power in impanelling the jury, and in the case of the King v. Bingham (b), Lord Ellenborough deemed that very important function a sufficient ground for an information in nature of a quo warranto, calling upon the defendant to show by what authority he claimed to be bailiff of the manor and borough of Gosport in the county of Southampton. His lordship's observation was, that he did not doubt that the office as appendant to a court leet, was such for which the information would lie, and noticed particularly the argument that the bailiff was an officer having a discretionary power as to the persons whom he plea was proved, with the addition that the custom had been to swear the jury of the leet at the morning court, and then to take the poll for Mayor; and that at the evening court the jury used to make a written presentment of the person who had the majority of votes to the Steward to be sworn in. The jury had on this occasion presented to the steward the candidate opposed to the defendant, but the latter having the majority of legal votes, the steward swore him into the office of Mayor. The jury did not appear ever to have exercised any discretion over the poll. It was contended for the Crown that the presentment by the jury should have been stated in the plea. Holroyd, J. over-ruled the objection, but with liberty to enter a verdict for the Crown, if the Court of B. R. should be of a different opinion. A rule nisi having been moved for accordingly, the above objection was urged on the part of the Crown, and judgment asked at all events, on the issue, " not duly sworn." But 844-5. (b) 2 East 308. It appeared also in this case that the bailiff was sworn in with the other officers chosen by the jury. should select for the jury; adding, that the bailiff having no fees annexed to his office, there was no other convenient civil mode of trying the right to it. The general practice and forms of court keeping appear to me also to be favourable to the opinion, that all ministerial acts in a court leet are to be executed by the bailiff; and so far, at least, as my own experience extends, the steward of the court is totally ignorant even of the names of the jurors, until the delivery to him by the bailiff, of the list of persons summoned as jurymen, together with the resiant roll, or names of those who are liable to perform suit to the lord at the particular court. But I have suggested that the general practice for the bailiff to exercise an uncontrolled power of impanelling the jury of a court leet, may possibly be opposed by a special custom prevailing in some few manors, and that such a custom would be good (a). The case of Crane v. Holland (b) would seem to have established the legality of such a custom, for it was there held that one may be judge and officer, diversis respectibus. In that case, which was error of a judgment in Northampton, where the court is held before the mayor and two bailiffs, the error assigned was because the bailiffs being judges of the court, could not also be officers to whom process should be directed, there being no custom that can maintain any to be both officer and judge.'-But the court of B. R. held that it might be good by custom. And in the case of the King v. Joliffe (c), which was a quo warranto, calling upon the defendant to show upon what authority he claimed to exercise the office of mayor of the borough of Petersfield, it appeared by the defendant's plea that at the court lect of the borough, the jury presented a fit person to be mayor of the borough for a year, and that the person so presented had always been sworn in at that court before the steward, and that the defendant had been presented (a) Ante, p. 842. n. (a). (6) Cro. Car. 138. 2 Barn. & Cress. 63. (c) 2 Barn. & Cress. 54. |