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And again, [p. 89.)
“ If there be not twelve to be sworn, the lord (a) may cause strangers to be of the enquest;" cites 2 H. 7. 4.
In the Court Keeper's Companion, printed in 1717, after pointing out that the court leet is to be opened by the bailiff, by three proclamations, requiring the attendance of the suitors, and that the resiant rolls, to be delivered in by the constables or tithing-men, should then be called over, the following direction is given [p. 3.):-" The resiants of each tithing being called over, proceed to impanel your juries, by calling upon the bailiff or tithing-man for the return of the court leet jury; and after proclamation made, say: You good men that are returned on the jury, to inquire for our sovereign lord the King, in this court leet, - Answer to your names,” &c.
A very useful work intitled • The Compleat English Copyholder,' printed in 1735, in the instructions given to stewards of courts leet, says [p. 348.), “ The steward must call on the reeve or bailiff for a return of the jury, which must consist of twelve at least,” and “having made choice of a foreman, he must call over the jury, [and] fine those that do not appear,” &c.
In Fitzherbert's Nat. Brev, under the title` Writ pro exoneratione secte ad curiam com' vel baron,' it is said —
. And if a man have lands within the precinct of several leets, or in one county, and he dwell within the precinct of one of
them, and he be distrained to come unto another leet within * the precinct of which he dwelleth not, then he shall have a * writ unto the sheriff, or bailiffs of the court, &c. that they • do not distrain him to come to that leet, within the precinct • whereof he dwelleth not; and the writ is such :
• The King to his bailiffs of the honour of C. in the county • of Lincoln ; or, to the bailiff of A. of B. in the county of, &c.
(a) Unless this word be meant his own court leet, contrary to the only to express the power of the more general opinion, and to which I court, or be a misprint, an inference have assented in the beginning of the might be drawn from the observation present section. that the law permits the lord to hold
greeting: Whereas by the common council, &c. that they • who have lands in divers hundreds have no necessity to come to the view of frank-pledge, except in the bailiwick where • they shall be dwelling; we command you,
you distrain not A. to come to the view of frank-pledge in your court, or • in the court of your lord of the honour aforesaid in the county aforesaid, against the form, &c. and the distress, if * And it appeareth, that if the party be distrained, after that he hath sued the writ directed unto the sheriff, or bailiffs, that they do not distrain him, that he shall have an attachment against them: but it seems reasonable, that first he have an ' attachment against the sheriff, or against the bailiffs, who dis• trained him to come to the leet in the hundred where he is not dwelling, if he be dwelling within the precinct of another leet, because the statute of Marlebridge is a prohibition in it
self, and he who doth contrary to the statute doth wrong . the party, upon which he may have an attachment, without suing forth
writ.' • Note, That men or women who have entered into religion, ought not to come unto the sheriff's tourn, or unto the leet * of any other without great cause; and if they be distrained to
come, they may have a writ out of the Chancery to discharge • them, which shall be such :
* The King to the Sheriff, &c. Whereas by the common council, &c. that men who have entered into religion have no ' necessity to come to the sheriff's tourn, &c. or thus, to the 'view of frank-pledge, unless their presence be required for some special cause ; we command you, that you distrain not the abbot of I. to come to your tourn; or thus, to the view of frank-pledge in your hundred of F. against the form of the : provision aforesaid, and the distress, &c.
• And the abbot shall have such a writ unto the bailiffs of another lord, that they do not distrain him to come to his • leet.'
The ancient form of precept from the steward to the bailiff on assembling a court leet was as follows:
• W. S. gent. steward of the hundred (or manor) of S. To the bailiff of the same hundred (or manor] greeting. You are hereby required to warn the leet to be kept by your hundred [or manor.]. [or leet and court baron to be kept for the hundred of S. and manor of A.] the first day of April, &c. by nine of the clock in the forenoon of the same day, at the usual place there [or at the now dwelling house of, &c. as the case is.] Given under my hand, &c.' (a).—Or thus :
"J. K. steward to the bailiff thereof health : I command likewise and appoint, that diligently you give to understand the view of frank-pledge, of the court there to be held against the Thursday, that is to say, the sixteenth day of October next coming, after the date of these presents, and have there this command : And as, &c. Dated under my seal the first day of this month of October, &c.'(6).- Or thus :
· A. B. gent. steward of the manor or hundred or leet aforesaid. To the bailiff thereof, greeting : I command you, that you summon and warn all the tenant of the said manor, as well residents as not residents, and all customary tenants of the manor aforesaid, that they be before me at H. aforesaid, on Thursday the 26th day of March next coming, to do then suit unto the view of frank-pledge, and all things thereunto belonging, &c. Dated, &c.'(c).
The form of precept to the, bailiff for assembling the court, given in Scroggs [p. 13.], (and the same form is given in the book called The Compleat English Copyholder, p. 346.) is as follows:
precept to warn the tenants, and summon a jury at a court leet.
To the bailiff, &c. Manor of S. These are to will and require you to give public notice within the said manor, that the court leet and view of frank-pledge for the same manor, (with the court baron of A. B. esquire, lord of the said manor,) will be holden at the -, on Monday the
at ten of (a) Shepp. 25.
(c) Jenk. Pac. Cons. 3. (6) Kitch. 11. Greenw. 284.
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 (6), 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. Nas-
(6) 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.