and sworn in as mayor according to that usage. And by the eighth replication it further appeared, that the court leet had immemorially presented a fit person to be bailiff, who was always attendant upon the court; and that at the court mentioned in the plea, the steward nominated the fourteen persons who served on the jury, and issued his precept to the bailiff to summon those persons, and that the bailiff did accordingly summon them, whereas, (as it was alleged in the replication,) by the law of the land, the steward should have issued his precept to the bailiff to summon a jury, and the particular 'persons should have been selected by the bailiff.' Rejoinder that from time immemorial the steward had been used to nominate the jurors: and issue thereon. At the trial the defendant proved that for more than twenty years the precept to the bailiff had always contained a list of persons whom the steward directed him to summon as jurors. The learned judge, (Mr. J. Burrough,) told the jury that slight evidence, if uncontradicted, became cogent proof; and they found a verdict for the defendant. A rule nisi for a new trial was obtained on the ground that there was not sufficient evidence to warrant the finding of the jury; or to enter judgment for the crown, non obstante veredicto, on the ground that the custom set out in the rejoinder was bad in law. On cause being shown against the rule, the court held that there was no ground for a new trial, but that the observations of the judge, and the verdict of the jury, were well warranted by the evidence.

Abbott, C. J., expressed an opinion that there was nothing in the usage proved to contravene the public policy, or any known rule or principle of law. And that in reference to the passage in Hawk, P. C. b. 2. c. 10, § 15. which had been relied upon as showing that the bailiff was to select the jury, because the sheriff might fine him for not making a panel, there was nothing inconsistent in saying that it is the bailiff's duty to make the panel, although the sheriff decides upon the persons to be named in it. His lordship added that there was

also another answer to the argument, viz. that the passage might refer to the traverse jury, and not to the grand inquest.

I submit, in conclusion of these observations, that it is most difficult to suppose that the steward of a court leet is capable of discharging any ministerial or subordinate duty, either in or out of court, as being wholly inconsistent with his judicial character, and with those organic principles of the leet juris'diction, which, even in its present faded form, are not wholly screened from the searching eye of the antiquary (a).

We will now proceed to a more general consideration of the duties and powers of the steward of a court leet.

It has been said that the Steward of a leet may take a recognizance of the peace (b), and not only fine but imprison, and it is the better opinion that he may fine for a contempt of court, and commit the person guilty of the act of contempt, until the fine be paid (c), and also that the steward may award a person to prison for a gross misdemeanour in face of the court (d): and again it is said that in matters within the province of the leet,

(a) It certainly would not be easy to reconcile the performance of a ministerial duty by the steward of a court leet, with the notion that he is a man indifferent between the lord ' and the law.' Ante, p. 829. "It is of the greatest consequence to the law of England, and to the subject, that the powers of the judge and jury are kept distinct," &c. Per Hardwicke, C. J. in Rex v. Poole, Com. Dig. Enquest.' (A. 1.)

(b) 7 H. 6. 12. 10 H. 6. 8. 11 H. 6.7. 4 Inst. 263-4. Powell of Leet 32-3. Br. Leet 29. But this has been denied. Shepp. 9.

(c) But that course would be very unadvisable, as an action of debt lies, post. p. 849.

(d) 31 H. 6. Fitz. Abr. Lete 11.

Earl of Lincoln v. Fisher, Ow. 113. 13 H. 4. 12. 10 H. 6. 7. 21 H. 7. 32. Cromp. J. P. 92 b. 130 b. These authorities are strengthened by the act of 1 Ed. 4. c. 2., (see Appendix,) declaring that sheriffs in their tourns or law-days, should not have power to fine or imprison on indictment, or presentment there, in which act there is an express exception of persons holding liberties and franchises by grant or prescription. But the steward's power to imprison has been denied. Godfrey's case, 11 Co. 43 b. And see 1 Roll. Rep. 35, 74. Scroggs 5, 16. Shepp. 9. Kitch. 81, says, Quære of committing a tenant to prison since Magna Charta, c. 29.

the steward hath powers equal with the Justices of the Bench (a).

In one particular instance, indeed, it should seem that he has a still greater power, for if there are not sufficient suitors present to constitute a jury, he may compel a stranger passing by to be sworn (b); and consequently impose a fine on him for his refusal (c).

We shall presently see that all felonies are inquirable at the court leet, those, at least, which were so at common law, and those of which the leet has express jurisdiction by statute law :-this is to be done by indictment or inquisition by roll indented under the seals of the jurors consisting of not less than twelve persons, whereof one part is to remain with the person indicting, and the other part with the steward, to be certified by him to the King's justices at the next gaol delivery (d), and persons against whom such charges by indictment or inquisition are found may be committed by the steward to prison (e); but the leet cannot arraign and deliver the persons indicted (ƒ) :And except for felony the steward hath no power to inquire by indictment or inquisition, therefore an indictment in leet of assault and battery without bloodshed is not good, for such indictment before the sheriff in his tourn was adjudged void (g); nor can a steward in leet take indictment of robbery out of his precinct (h).

(e) Kitch. 81, says The steward may send a prisoner taken for felony to the gaol,' cites 13 H. 4. 12.

(f) Cromp. J. P. 151, cites 8 H. 4. 17.

(g) Dy. 233 b. pl. 14, cites 13 E. 4. 10.

(k) Br. Corone, pl. 194, where it mentions that a capias was awarded against the lord of the leet and his steward for taking such an indictment, cites 41 ass. 30. Ib. Leet 18, cites S. C.

It is generally supposed that the steward of a court leet may be retained by parol (a); except in the case of the King or a corporation, when it is certain that a patent or deed is essential (b).

The better opinion is that the office of steward of a court leet, being a judicial appointment, is not grantable in reversion, even in the case of the King (c); and that such office is forfeitable for non-user or mis-user (d).

It would clearly appear that a mandamus lies to restore the steward of a leet (e). And we have seen that an information in nature of a quo warranto has been granted against a person for exercising the office of steward of a court leet (f). But I have also shown that, in one instance, it was refused, as being a private right (g).

Deputy-StewarD.-It does not appear to have been decided whether the steward of a court leet can exercise the office by deputy, but at all events, as it has been doubted whether even a general steward of a manor can act by deputy in the absence of

(a) Co. Lit. 61 b. Dy. 248 a. Scroggs 28. But see Scroggs 35. Comb. 285. It is better to retain the steward of a court leet by deed :—and certainly is essential if the appointment be for life or years; or to enable the steward to recover his salary by writ of annuity. Ante, pt. 1. pp. 135, 143.

(b) Com. Dig. Cop. R. 5. Ib. Leet, M. 1. 19 Vin. tit. Steward of Courts,' F. 11 Co. 4, in Curle's

357. 2 Vent. 188. And that the King may so grant without usage. Savage's case, cited Mar. 42. 4 Mod. 280. Co. Lit. 3 b. n. 5. Ante, pt. 1. p. 142.

(d) 9 Co. 50 a. Per Chock, Br. forfeit. de terres, pl. 54.

(e) Ile's case, 1 Vent. 153. The King v. the Churchwardens of Kingscleere, 2 Lev. 18. Stamps' case, 1 Sid. 40. Sir T. Raym. 12. But see 12 Mod. 666. Rex v. Cann, T. 10 & 11 G. 2, Andr. 14.

(f) The King v. Hulston, 1 Str. 621. The King & Medlicoat, 2 Barnard. B. R. 222. Ante, tit. 'Court Baron.' p. 725, n. (c).

(g) Rex v. Cann, Andr. 14. Ante, p. 725, n. (c).

an express power, or an established custom, I must suppose that the steward of a court leet, who presides there in a judicial character, could not depute a person to perform the duties of the office for him, unless an authority of that nature should be contained in his patent or deed of appointment, or he could show an established custom for it (a).

What fines may be imposed by the Steward of a Court Leet.

The steward may set a fine on any man for a contempt or disturbance in court (b), and such fine is recoverable in an action of debt (c); but the fine must be reasonable (d), though it should seem that the reasonableness need not be averred (e); nor need the fine be affeered, as in the case of an amercement (ƒ).

In an action of debt for a fine imposed on the defendant at a court leet the plaintiff set forth in his declaration that he had a leet within his manor of H., to which, &c., and that at a court held, &c. before J. S., his steward, he the said steward told the defendant that he was a suitor, and ought to be sworn to inquire, &c., who replied "in saying so thou liest," and for those words the steward set a fine of 20s., for which the action was brought. The case was at issue upon a plea of nil debet, and a verdict was given for the plaintiff. It was moved in arrest of judgment, that this was not a contempt for which

Action upon the case will lie by the lord of the leet against a person disturbing his steward in holding a court leet. 38 H. 6. 16. Br. action on the case, pl. 75.

(c) Br. Leet 29. Kitch. 81-2, 86, cites 7 H. 6. 13. 10 H. 6. 7.

(d) Griesley's case, sup. 2 East 59, in Davidson v. Moscrop.

(e) Co. Ent. 571-2. 2 East 59. (f) Kitch. 82, cites 10 H. 6. 7.