In debt for an amercement the declaration ought to express the names of the affeerors, or it shall be intended to be done by the steward (a); and it should also aver that the affeerment was made at the same court as the amercement (b).

And in Monnop v. Thomas (c), upon a distress for an amercement in leet, it was held that the issue whether C. and H. were afferratores curiæ prædicta ought to have been tried by the record.

In an avowry for an amercement in leet it is not sufficient to say præsentatum fuit at the leet, that the plaintiff did such an act, but he must aver the act, and not rely upon the presentment (d).

And in debt for an amercement in leet the declaration must also aver inhabitancy, as well at the time of the amercement as of the offence, but this will be cured by verdict, for it must be proved at the trial (e).

Where in debt for amercement the declaration stated it to have been affeered at a court holden before the steward, but it appeared in evidence that the court was really holden before the deputy steward, the variance was held to be fatal (ƒ). And where in debt for an amercement the declaration stated that the defendant was summoned to serve on the jury of the court leet and court baron, but the summons was to serve on the jury of the leet only, the plaintiff was nonsuited, Lord Mansfield observing that this was a matter of strict law, and

distress, see Keilw. 52, pl. 3. Ib. 66 b.

(a) 8 Co. 40 b, in Griesley's case. Cutler v. Creswick, 3 Keb. 362-3. Keilw. 66 a.

(b) Cutler v. Creswick, sup.
(c) Cro. Eliz. 860.

(d) Sir T. Raym. 337.

(e) Bul. N. P. 167, cites Wicker & Norris, 8 G. 2.

(f) Wyvill v. Shepherd, 1 H. Bl.

162.

the plaintiff was bound to prove the averment in the declaration, which the summons did not prove (a).

It should seem that in debt for amercement in leet for not abating a nuisance, it is not necessary to allege notice of the order, for the party being within the jurisdiction of the leet, is to take notice of it at his peril (b), and this rule applies equally to an amercement for breach of a by-law (c).

The defendant may traverse the fact of the presentment in debt for amercement in leet (d):-But where an amercement had been estreated into the duchy court of Lancaster, and paid, the court of B. R. would not grant a certiorari to remove the record and proceedings out of a court leet, in order to inquire into the propriety of an amercement, Rex v. Heaton (e). The case was this-The manor and liberty of the Savoy is parcel of the possessions of the Duchy of Lancaster. Previous to the Easter court the steward issues his warrant to the chief bailiff, requiring him to summon all resiants, &c. to appear and do suit and service, and also to warn a sufficient number of resiants to be upon pain to serve offices, &c.; whereupon the chief bailiff issues his precept to the deputy to summon them accordingly. Heaton had been so summoned to attend the court at twelve o'clock on the 3d May, 1787; he came accordingly at the exact time, and waited a few minutes at the court house, but the steward not being there, he desired one of the officers present to take notice that he had duly attended, and that being elsewhere engaged, he was obliged to go away. Though it was the practice to issue the summonses for twelve o'clock, it had not been usual to open the court till near one o'clock, and this was generally known. The court was opened on this occasion at the usual time, and Heaton not appearing, the jury presented him, and amerced

(a) Gery v. Wheatley, 1 H. Bl. 163 n.

(b) Lee v. Boothby, M. 11 Car. B. R. Vin. Abr. Incroachment, pl. 2. Ib. Condition (B. d.) pl. 6.

(c) Ante, p. 749.

(d) Carth. 74. 1 Lord Raym. 470. Bul. N. P. 167. See further as to traverse, post. sect. 5. (e) 2 T. R. 184.

him for his default in the usual sum of £5, and the amercement was duly affeered. In Trinity term following, the amercements were estreated by the steward, and the estreat roll delivered by him upon oath into the court of the duchy chamber of Lancaster; in consequence of which the usual writ of levari facias et capias issued, under the duchy seal, to the bailiff of the liberty (a), into whose hands Heaton paid the £5.

A rule was obtained in the court of B. R. calling on the steward of the manor and liberty of the Savoy to show cause, why a writ of certiorari should not issue to remove into that court the record and proceedings of the court leet, held as above mentioned, in order that the same might be quashed for irregularity: And it was urged against the rule, that Heaton had no claim to this indulgence, his attendance being merely illusory, and a certiorari, being originally a prerogative writ, was never granted of course; and that in point of law it was a decisive objection to the application, that the fine had been estreated and paid; that the records and proceedings of the leet were become part of the records of the duchy chamber, and could no more be removed than the presentments and fines of

any other inferior court, after they were estreated into the Exchequer (b); nor was Heaton without remedy, for he might have applied to the duchy court to remit or mitigate the fine [amercement] according to equity. In support of the rule it was contended, first, on the merits, that Heaton having attended as above stated, had thereby showed his respect to the court, and that on a certiorari he would be intitled to traverse the presentment itself (c); and secondly, on form, the party being intitled to his certiorari if the presentment appear on the face of it to be informal (d). And that there were two

(a) See as to a distress by the bailiff of a liberty of the Duchy, ante, p. 855, in notis.

(b) The case of the Sheriff of London and Middlesex, T. Jones 169, VOL. II.

was cited.

(c) Rex v. Roupell, Cowp. 458. Dy. 13. pl. 64.

(d) Cowp. 460. 1 Saund. 135.

858

objections to the presentment. 1st, That it was an amercement without affeerment, but even if in truth affeered, yet not being recorded, it must be taken that there was none, for that fact could not be tried per pais (a). 2dly, That the amercement ought to have been by the court, and not by the jury (b). But the court, without hearing the other side on the objection to the presentment, were clearly of opinion that a certiorari would not lie, as the fine [amercement] had been estreated and paid.

Amercements in the King's leet are to be estreated into the Exchequer (c) and may be levied by levari facias; and action of trespass for any thing done in the execution of that process must be brought in the office of pleas in the Exchequer, the bailiff levying the distress as officer of that court (d).

And the above cited case of the King & Heaton, shows that amercements set at courts of which the King is lord in right of his Duchy of Lancaster, are to be recovered by a similar process out of the duchy court.

SECT. III.

Of By-Laws.

BY-LAWS may by custom be good in the court leet (e), as well as in the court baron (f), and they are to be embodied in the presentments and verdict of the jury and homage; but it is

(a) Monnop v. Thomas, Cro. Eliz. 860. Ante, p. 855.

(b) Ante, p. 851-2. Fitzg. 46, 109. 1 Barnard. 214.

(c) Anon. Hardr. 471. In ordinary cases the amercements are estreated or extracted from the court roll, or record of proceedings in the leet, and a warrant from the steward

to the bailiff to levy the same subjoined.

(d) 1 Roll. Abr. 533. Lane 55-6. (e) Lane 56. Br. Custom 32. Ib. Prescrip. 40. Fitz. Prescrip. 67. Ruddock's case, 6 Co. 25 a. S. C. Cro. Eliz. 648-9.

(f) Ante, p. 747. et seq.

clear that they are not binding of common right (a), except as to matters properly cognisable in the leet, such as the neglect of repairing highways, bridges, &c. (b). And in pleading the custom the by-law must be set forth (c).

And I must suppose that a custom to make by-laws at a court leet, regarding matters of a private nature, and not naturally belonging to the leet, could not be supported (d). But in the case just cited from Hardress' Reports (e), it appeared that at a court leet, held for the King within the honour of Grafton, a person was fined 20%., according to a by-law for the payment of 57. a month by every one within the leet that should receive or place an inmate within any house there, without giving security to the overseers of the parish, to discharge the parish. The fine was estreated into the Exchequer, and process issued to levy it; and Hale, C. Baron, held it to be a good by-law, and frequent in leets, but said that it was hard to estreat the fine thither without taking the usual remedy for it by distress, and to extend the party's lands upon it, when, perhaps he might have something to plead to it, as that he was not within the leet, or that he received no inmate. But the party was put to plead, the officers of the court observing that it was usual to estreat such fines into the Exchequer, when they belonged to the King.

We have seen that the freehold tenants of a manor are bound

(a) Wormleighton v. Burton, Cro. Eliz. 448. Lane 56.

(b) 5 Co. 63 a, in the Chamberlain of London's case. Vide also Kitch. 82, 156, cites 11 H. 7. 14. 21 H. 7. 40. Ib. 89, cites 44 E. 3. 19. Jeffrey's case, 5 Co. 66 b. Gateward's case, 6 Co. 60 b. Abbot

v. Weekly, 1 Lev. 176. And a bylaw must be just and reasonable to be supported, per Parker, C. J.

10 Mod. 133.

(c) Gerrish v. Rodman (or Rodborne), 3 Wils. 155, 164.

(d) Gouldsb. 79. pl. 13. Scroggs 141. Rex v. Arnould, Tr. 21 Car. 2. B. R. cited ib. 142. Kitch. 89. Per Tirrel, in Earl of Exeter v. Smith, Carter 173. S. C. 2 Keb. 368. But see contrà in the last case (per Wild & Archer). Vide also Clarke's case, 5 Co. 64 a. Whether a by-law for repairing a church is for the public good, and therefore binding, see ante p. 747 n. (g), Co. Lit. 110 b.

(e) Anon. 471. Ante p. 858. Scroggs 11. And see Lane 55-6.