Court-baron. CHAPTER IX. MANORIAL COURTS. THE holding of manorial courts has become so rare, except where copyholders are concerned, that very little need be said here about their nature and incidents. Every legal manor has a court-baron as one of its necessary incidents, in which the free-tenants are the judges and the steward, who is an essential part of the court, is registrar (a). The court-baron was anciently held at intervals of three weeks, but is now held but seldom, except in those manors where a body of freeholders have a set of customs relating to fines, heriots, regulation of commons, and the like, resembling the customs of copyhold tenants. In case of necessity, the lord may be compelled to hold a courtbaron, or may be restrained from holding it too frequently to the oppression of his tenants (b). Though no court has been held for the manor time out of mind, the right to hold the court is not thereby lost, as the court is incident to the manor of common right (c). But to constitute a court-baron, it must be held before two free-tenants subject to escheat (d); if, therefore, all the tenancies, or all but one, have escheated to the lord or have been purchased by him, the right to hold the court will be gone, (a) Co. Copyh. s. 31; Scroggs, Courts, 3rd ed. 52; Rex v. Stanton, Cro. Jac. 259; Holroyd v. Breare, 2 B. & Ald. 473. (b) Fitzh. Nat. Brev. 12 D.; 2 Bac. Abr. 534; see Appendix for an extract from the Close Roll of 18 Hen. III. showing how the period of three weeks was fixed for the manorial courts. (c) Scroggs, Courts, 55. (d) Chetwode v. Crew, Willes, 614; Bradshaw v. Lawson, 4 T. R. 443. and the manor will be extinguished (e), although it may still exist as a reputed manor for the purpose of making title to any franchises belonging to the lord (ƒ). A courtbaron ought to be held within the manor (g), but by special custom the court may be held elsewhere (). Such customs are generally found to exist in cases where the lords, being seised of two or three manors, have usually kept at one the courts for all (i). In a great number of manors the lords have the privi- Court-leet. lege of holding a court-leet, which, so far as it is useful in the present day, is held for the purpose of presenting small offences in the nature of a common nuisance which require immediate attention and redress. "A court-leet is a court of record, having the same jurisdiction in particular precincts as the sheriff's tourn and leet has in the county; it is not necessarily incident to a manor like a court-baron, but was created by grants from the Crown to certain lords of manors in order that they might administer justice to their tenants at home" (k). Without entering on a discussion as to the origin of these courts, it may be remarked that they are in all probability as old as the manorial system itself, but are treated in law as franchises granted by the Crown in each case to the lord of the manor at some time before the beginning of legal memory. To every court-leet is annexed what is called the View of Frank-pledge, now obsolete, which refers to the ancient system by which the householders of every tything were pledges or mutual bail for the good behaviour of each other. The court still retains the style or title of the "Court-leet and View of Frank-pledge of our Lady the Queen, held &c."(). All inhabitants within the district (e) Delacherois v. Delacherois, 11 H. L. Cas. 62, 106. (f) Soane v. Ireland, 10 East, 259. (g) Melwich v. Luter, 4 Rep. 26 a. (h) Clifton v. Molineux, 4 Rep. (i) Co. Litt. 58 a. (k) Cru. Dig. tit. 27, s. 47; and see Colebrooke v. Elliott, 3 Burr. 1859. (7) Ritson, Courts Leet, introd. p. v. of the court-leet are bound to attend, under penalty of some trifling fine, if they have no proper excuse for being absent (m). In the absence of a special custom to the contrary, it is usual for the steward to order the bailiff to give notice to a number of the principal inhabitants, sufficient to ensure having a jury; the number is usually more than twelve and less than twenty-four, twelve being the number required for the leet-jury. If they do not come upon the summons they may be amerced by the court, and if they appear and refuse to serve they may be fined for contempt of court (n). The steward, being the judge (o), is not the proper person to impanel the jury, but by custom may have the power of nomination (p). The chief function of the jury is to appoint or in some places merely to present the appointment of certain officers, as the bailiff, constable, &c.; and in some places to nominate the mayor and other officers of a borough (1); and also to present all such nuisances to the inhabitants as the stopping up of ways, turning of watercourses, and the like, as require immediate attention and redress. It has been held, therefore, that a custom to swear the jury in one court-leet to inquire and return their presentments at the next court would be void (r). But the jury has properly nothing to do with inclosures or encroachments upon the wastes of the manor, nor with making bye-laws for the regulations of commons; where such bye-laws are found to have been made at courts-leet, it will generally be found that a court-leet and some other manorial court have been held together without proper distinction of their respective functions (s). (m) Delacherois v. Delacherois, 11 H. L. Cas. 62. (n) Ritson, Courts Leet, 56, 57; Scroggs, Courts, 4, 6, 14; 1 Cas. & Op. 234. (0) Co. Copyh. s. 31. (p) Rex v. Joliffe, 2 B. & C. 54. (q) Rex v. Rowland, 3 B. & Ald. 130; Rex v. Banks, 3 Burr. 1452; Rex v. Hundred of Milverton (Lord of), 3 A. & E. 284. (r) Davidson v. Moscrop, 2 East, 56; and see Willcock v. Windsor, 3 B. & Ad. 43. (8) Exeter (Earl of) v. Smith, Carter, 177; Rex v. Dickenson, 1 Wms. Saund. 135. court. It has been already mentioned that there cannot be a Copyholders' court-baron without freeholders; but the name is also given by common usage to the customary court of the copyholders, which concerns the copyholders only and may be held without free tenants; and in the same way the word "homage" is used to denote the jury of copyholders. The following extract from Lord Coke will be found of use in distinguishing between the nature of these courts. "The court-baron must be held on some part of the land within the manor, for if it be held out of the manor it is void: unless a lord, being seised of two or three manors, has usually time out of mind kept at one of his manors courts for all his manors, then by custom such courts are sufficient in law. And it is to be understood that this court is of two natures: the first is by the common law, and is called a court-baron, and of that court the freeholders, being suitors, are judges; the second is a customary court, and that doth concern copyholders, and therein is the lord or his steward the judge. Now as there can be no courtbaron without freeholders, so there cannot be this kind of customary court without copyholders or customary-holders. And as there may be a court-baron of freeholders only without copyholders, and then is the steward the registrar, so there may be a customary court of copyholders only without freeholders, and then is the lord or his steward the judge. And when the court-baron is of this double nature, the court-roll contains as well matters appertaining to the customary court as to the court-baron" (t). A customary court cannot be held out of the manor unless there should be a custom to warrant it (u). Since the 31st of December, 1841, it has been lawful for the lord of any manor, or his steward or deputy steward, to hold a customary court for the manor, notwithstanding that there are not at the time any persons holding lands of the manor by copy of court (t) Co. Litt. 58 a; Luter, 4 Rep. 26 a. Melwich v. (u) Doe d. Roberts v. Whitaker, 3 N. & M. 225. Judge, &c. in customary court. Customary courts for inclosures from waste. roll; and also notwithstanding the fact that if there are copyhold tenants no copyholder was present at the court; every court so held is to be deemed for all purposes a good and sufficient customary court, subject however to the proviso that no proclamation made at it is to affect the right or title of any person who is not present, unless notice of the making of the proclamation has been duly served on him within one month after the holding of the court (x). The lord is said to be the judge, and chancellor in cases of equity, when he sits in the customary court (y). The steward in the lord's absence sits as judge to punish offences, determine controversies, redress injuries, and the like (); but he is also said to be "a minister and register to enter things into the court-rolls, and in both these to be indifferent between the lord and tenants" (a). The freeholders fulfil two parts, to set the amount of amercements, and to return judgments in cases tried in the court-baron, and the copyholders are "to inform of offences committed against the lord within the manor, and to present such things as shall be given in charge by the steward” (b). "The bailiff also occupies two parts, that is to say, to execute the process and commandments of the court, and to return into the court the execution of the same process" (c). The bailiff's duty consists in the main of distraining for fines and amercements, and where there is the franchise of holding a court-leet of impanelling the jury of the leet (d). The Copyhold Act of 1841 has so much reduced the number of occasions upon which it was necessary to summon a court, that this general outline of the practice will probably be found sufficient. But it has been thought convenient to enter with some minuteness into the practice connected with the special courts at which the consent of (x) 4 & 5 Vict. c. 35, s. 86. (z) Ibid. s. 45. (a) Calthr. Copyh. 54. (b) Ibid., 55. (c) Ibid. (d) Watk. Copyh. ii. 28, n.; Scriv. Copyh. 122. |