a fine ought to be imposed, but the court decided otherwise, and that the action was well brought (a). And where the defendant had put on his hat in contempt of the court, and on being admonished by the steward of the impropriety, he replied that he did not value what he (the steward) could do to him, whereupon the steward set a fine of 40s., for which the lord of the leet brought an action of debt, and it was adjudged that the action lay(b): But in a case where the observation only implied a doubt of the right of holding the court in the particular place, it was adjudged that the steward was not justified in setting a fine of 57., for the words spoken (c). The refusal to make a presentment is a contempt, for which the steward may assess a fine on the jury (d); but the fine must be set severally (e), and so in all cases, except only where there is an incertainty of persons, as in a fine on a town for the escape of a felon (ƒ): and if any suitor present in court refuse to be sworn on the jury (g), or if any of the jury depart without giving their verdict (h), or give it before all are agreed (i), they may be fined by the steward. The steward is also authorised to set a reasonable fine on any person elected by the jury to fill the office of constable or tithing-man, who being present should refuse to be sworn (k); and on a constable or tithing-man refusing to make presentment (7). (a) Earl of Lincoln v. Fisher, Cro. Eliz. 581. S. C. Ow. 113. S. C. Mo. 470. (g) 10 H. 6. 7. 39 E. 3. 44 E. 3. 15. Kitch. 82. Ib. 86, cites 13 H. 6. Leet 11. And see Swan v. Mor (b) Bathurst v. Cox, Sir T. Raym. gan, Lex Man. App. 80. 68. Scroggs 150-1. (c) Berrington v. Brooks, T. Jones 229. (d) 10 E. 3. (or E. 4.) 4. Powell 32. Kitch. 82. (e) Bullen v. Godfrey, 1 Roll. Rep. 73. 11 Co. 43. Dy. 211 b. pl. 31. (h) Griesley's case, 8 Co. 38 b. (i) 40 Ass. 10. 1 Roll. Abr. 219. (Y) pl. 4. (k) Fletcher v. Ingram, Salk. 175. S. C. 5 Mod. 130. S. C. 1 Lord Raym. 70. S. C. Skin. 635. 2 Hawk. P. C. 64. (1) Griesley's case, sup., cites 10 (f) 11 Co. 43 b, in Godfrey's H. 6. 7. a. case. We have also seen that the bailiff's refusal to execute his office is an offence fineable by the steward of a court leet (a). But a fine for contempt can only be set when the offence is committed in court, so where in replevin the defendant justified the taking a distress for a fine set on the plaintiff by the steward of the leet, for that he (the plaintiff) did not appear at the court to do suit and service there: upon demurrer to this plea the plaintiff had judgment, the court holding that the offence ought to have been presented, and the plaintiff amerced; and Periam said if the steward shall assess the fine, he will assess it too grievous, and so the party shall have no remedy, but for amercements a moderata misericordia lieth,' citing 10 H. 6. 7. (b); but this writ, as it should seem, only lies where a person is amerced in a court baron or other court which is not a court of record, and not even there, if the amercement be affeered (c). Of Amercements. An amercement is generally considered to be the act of the jury (d), and a fine the act of the court (e), though it has been (a) Ante, p. 835. (b) Hall v. Turbett, Cro. Eliz. 241. And see Lukin v. Eve, Mo. 88-9. 8 Co. 41 a. This applies equally to a constable not present at the time of his election, whose refusal is to be presented at the next court, and then he shall be amerced. Fletcher v. Ingram, ubi sup. In replevin the defendant avowed for distress for pain assessed in leet for not serving as constable, nor finding sufficient deputy, according to the custom that he that is chosen must serve per se or another. And it was held on demurrer that the presentment was ill, being that the plaintiff should find sufficient person to serve for him, not giving him liberty to serve for himself. Escourt v. Stokes, 1 Keb. 416. (c) F. N. B. 75 A. Ib. 76 D, and n. (a). Stubbs v. Flower, 1 Bulst. 125. (d) 7 H. 6. 12, cited Br. Leet 12. Ib. Fine pur contempts,' 44. Ib. Amercement 65. 8 Co. 41. Palm. 7. 3 Keb. 362, in Cutler v. Creswick. Morgan's case, 8 Mod. 300. S. C. Gilb. Eq. 209. 2 East 59. (e) See Br. Abr. as in the last note. Keilw. 65. pl. 5. Godfrey's case, 11 Co. 43 b. 2 East 59. said that the amercement is the act of the court, and the affeerment the act of the jury (a). We have just seen that for not appearing at the court leet the suitor is to be amerced, as a fine can only be set by the steward for an offence in court (b), and the jury are to present that the party ought to do suit at the particular court (c). But it is not necessary to prove notice on the suitors (d). No person can be amerced in leet for a private trespass done to the lord (e); nor could the right be upheld even by custom (f), though this was formerly doubted (g). But a deciner may be amerced for non-payment of the certum letæ, if a prescription be shown for it, but clearly not without (h). An amercement in a court leet, as in a court baron, should he reasonable (i), and must be affeered (k); and yet it has been said, that if the jury will amerce in a certain amount there needs not any affeerment (7). The affeerment of an amercement must be in open court by two or more persons appointed by the steward and sworn for that purpose, and not by the jurors at large (m); but the (a) See 8 Co. 406, in Griesley's case, 2 Keb. 613, in Rex v. Dickenson. 1 Sho. 62, in Matthews v. Cary. Stephens v. Haughton, 2 Str. 847. Vide also the case of an amercement for not appearing at the sheriff's tourn, where the assessment of it was considered to be a judicial act, Gryffyth v. Biddle, Cro. Car. 275. The jury are to amerce, and the sum assessed is to be affeered by officers elected by the steward. Evelin v. Davies, 3 Lev. 206. Wilton v. Hardingham, Hob. 129. Per Dolbin, J. 1 Sho. 62, in Matthews v. Cary. 8 Mod. 298. (b) Hall v. Turbett, Cro. Eliz. 241. (c) Ib. (d) Ib. Skin. 393, in George v. Lawley. (e) 1 Roll Abr. 211 (C) pl. 1, cites 12 H. 4. 8 b. Rex v. Dickenson, 1 Saund. 135. S. C. 2 Keb. 606, 613. Rex v. Ayers, 2 Keb. 139. 3 Keb. 644. Sir T. Raym. 160. (f) Wood v. Lovatt, 6 T. R. 511. (g) 12 H. 4. 8, cited Br. Leet 12. Ib. Custom 16. Ib. Amercement 19. (h) Ante, p. 826. (i) Co. Lit. 126. 2 Inst. 27. Ante, p. 743, et seq. (k) Mirr. c. 5. s. 1. Br. Amerciament 50, cites 10 H. 6. 7. 8 Co. 39 b. Sup. n. (a). (1) Per Holt, C. J. in Matthews v. Cary, 1 Sho. 62; & 11 Mod. 76, in Brook v. Hustler. (m) Evelin v. Davies, 3 Lev. 206. Lex Man. 13. App. Sup. n. (a). affeerors may be selected from the jury; and this is the constant practice (a). The reasonableness of an amercement once affeered cannot be questioned in a writ of error, nor shall the party have a moderata misericordia (b); the latter writ, indeed, is only applicable to courts that are not courts of record (c). Of the Remedies for Fines and Amercements. We have seen that a fine set by the steward in leet is recoverable in an action of debt (d). It may also be recovered by distress (e), even without a custom, a distress being incident to a court leet of common right (ƒ); and the lord may sell the distress (g); but when the fine is not of common right, or when it is for a private advantage of the lord, it cannot be distrained for, without a prescription (h). An amercement in a court leet is recoverable either by action of debt (i), or by distress; and though it is said in some of the books that a man may prescribe for amercement in leet to distrain and sell the distress (k), yet it should seem that the And it must be made at the same court, and be so pleaded. Cutler v. Creswick, 3 Keb. 363. (a) Ante, tit.Court Baron,' p. 744. (b) Stubbs v. Flower, 1 Bulst. Doe v. Ball, Lex Man. 85, App. (e) Swan v. Morgan, Lex Man. 80, App. Keilw. 66 b. (f) 1 Roll. Abr. 668. F. pl. 2, 3. Pierson v. Ridley (or Ridge), 2 Keb. 701, 739, 745. Sir T. Raym. 204. 1 Vent. 105. Godfrey's case, 11 Co. 45 a. . (g) Br. Leet 20. Ib. Distress 40, 72, cites 3 H. 7. 4. (h) 11 Co. 44 b, in Godfrey's case. (i) Br. Dette 180, cites 10 H. 6. 7. Keilw. 66 b. 8 Co. 41 b. Kitch. 86. And wager of law was not allowed even before the stat. of 3d & 4th W. 4. c. 42, (ante, p. 746). Kitch, 188. Br. Ley Gager 99, cites 10 H. 6. 7. remedy by distress is of common right, equally as for a fine (a). And the distress may be taken in any place within the precinct of the leet (b); even in the common street (c). But the cattle of a stranger cannot be taken, as in a distress for nonperformance of suit (d). In justifying a distress for an amercement, the defendant. must show that the offence was committed within the jurisdiction of the leet; and for this purpose he ought to plead the bounds of the leet with certainty (e); and it is requisite also to show in what sum the plaintiff was amerced, or rather the particular sum set by the affeerors (ƒ). The bailiff in justifying the distress for an amercement may plead the amercement without averring the fact, but this is in trespass only; in replevin it is otherwise, for there he must recover on the merits, as he makes a title for the return of the goods (g). It has been said that the bailiff of a court leet cannot distrain for an amercement without a special warrant from the steward, not even by command of the lord of the manor (h). (a) 1 Roll. Abr. 666. F. pl. 2. 1 Brownl. 36. Kitch. 85, cites 10 H. 7. 15, and other cases from the year books. Griesley's case, 8 Co. 41. Godfrey's case, 11 Co. 45 a. Br. Distress 45. Ib. Prescription 61, cites 9 H. 7. 22. Scroggs 145. Gilb. Dis. 12, 13. The power of distress is suspended by the possession of the King. Br. Leet 8. Kitch. 85-7. Ante, p. 853. n. (f). (b) Br. Leet 28, cites 2 H. 4. 24. Kitch. 86, cites 8 R. 2. Avowry 194. (c) Kitch. 86, cites 34 E. 2. 19 E. 2. Avowry 221. (d) Goosey v. Pot, Ow. 146. The Prior of Tindal's case, 41 E. 3. 26. Br. Leet 4. Scroggs 146. But see (e) George v. Lawley, Skin. 393. Wilton v. Hardingham, Hob. 129. (f) Evelin v. Davies, 3 Lev. 206. Wilton v. Hardingham, sup. Brook v. Hustler, 1 Salk. 56. (g) Stephens v. Haughton, 2 Stra. 847. Lamb v. Mills, Skin. 587. S. C. 4 Mod. 378. Matthews v. Carey, Carth. 73. S. C. 3 Salk. 52. (h) Carth. 75, in Matthews v. Carey. And see Lamb v Mills, sup. Not without an especial warrant from the steward or lord,' per Popham, in Steverton v. Scrogs, Cro. Eliz. 698.The bailiff may distrain for lawful amercements, by reason of |