the homage is taken for inclosures out of the waste, because that Act provides that where by the custom of any manor the lord is authorised, with the consent of the homage, to grant any common or waste lands to be held by copy of court-roll, nothing contained in the Act is to operate to authorise or empower the lord to grant any such common or waste lands without the consent of the homage assembled at a customary court held for the manor, and that a court which is held for the manor is not to be deemed a good and sufficient court for the purpose, unless it has been duly summoned and held according to the custom of the manor in such cases used and accustomed before the passing of the Act, and unless there shall be present at such court a sufficient number of persons holding lands of the manor by copy of court-roll to constitute according to such custom a homage assembled at such court (e). It will be remembered, however, that fresh grants of the waste as copyhold cannot now be made, except with the consent of the Board of Agriculture, and that on the allowance of the grant the land is held as in common socage (ƒ).

The steward usually makes a precept to the bailiff to Notice give notice of the holding of a court: four days' notice required. has been said to be a reasonable time (g), but "it is better," says Kitchin, "to give fifteen days' notice"; and in some manors it is customary, when the homage is to be asked. to assent to an inclosure, to give at least three weeks' notice (h). Notice is usually fixed on the church-door, or in some other public place, and to enforce attendance it is necessary to summon the copyholders personally. On the assembling of the court, the "style of the court,' including time, place, nature of the court, and name of the steward, is entered on the court-roll, and after proclama

(h) Kitch. Jurisd. 11; Scriv. Copyh. 5.

Formation of jury.

Charge to
Jurors.

tion made the suitors are called, and fines for nonattendance imposed, or excuses accepted.

There does not appear to be any general rule for the formation of the juries in customary courts. Every copyholder is bound by his tenure to attend and, if required, to be sworn upon the homage jury, which is selected by the steward of the manor (i). In some manors it is not usual to impanel a fresh jury on every occasion of holding a court, but to summon the same tenants at each court, vacancies in the number of jurors being filled up either at the lord's discretion, or by his selection from several persons recommended by the remaining jurors (k). Occasionally too the steward is aided in his selection by the permanent foreman of the homage jury.

A right has been occasionally claimed for the lord to summon fresh juries, until he can find one which will consent to a customary inclosure; but the better opinion is that such a course would be illegal, and that the verdict of a packed jury might be upset (7). There is a great diversity in the number of tenants required for a full jury. In courts-leet the number impanelled is invariably twelve, but a much smaller number may be summoned to a court where none but tenants can be required to serve (m). Thus seven, eight, twelve, or more copyholders may form a jury (n).

After the jury has been formed, the jurors are sworn and charged by the steward. The charge admonishes them to present suitors who make default, the death of every tenant and who is heir, and what reliefs, heriots, or other profits have accrued, the forfeiture of any tenement by waste or alienation, or other means, the subtraction of

(i) Co. Copyh. s. 57.

(k) Open Spaces Sel. Comm. (1865), 1 Rep. Qu. 753; Ibid. 2 Rep. Qu. 5834.

(1) See Rex v. Hemingway, 1 Barnard. 436.

(m) Co. Copyh. s. 31.

(n) Wentworth (Lady) v. Clay, Cas. temp. Finch, 263; Calthr. Copyh. 53; Open Spaces Sel. Comm. 2 Rep. Qu. 5837.

any lands or services from the lord, encroachment or trespass in the demesnes or wastes, inclosures, or surcharges of common, and the like (0).

As a general rule, the duty of a homage jury is to make Duties of presentments of all things done within the manor to the jurors. prejudice of the lord or tenants, and to recommend whatever may appear to be advantageous to the lord and not injurious to the tenants. They stand in an intermediate position between the lord and the other tenants, being bound by their oath to consider the interests of both parties. For this reason the rest of the copyholders are bound by the verdict of the jury, when a customary inclosure has been presented as beneficial and allowable (p). "The homage may enquire into encroachments on the waste, and may direct inclosures to be thrown down, but they have no jurisdiction to enquire whether the soil belongs to any individual, or whether he has a right of common only" (q).

laws.

The homage may by custom have the right of making Homage may bye-laws for the regulation of the common, and where make byesuch a custom exists all the tenants will be bound by the bye-law without personal notice (r). Such bye-laws cannot be extended so as to deprive any commoner of his right (s); but they may deal with all matters concerning the proper regulation of the common, as the draining and fencing of the land, the appointment of a common-keeper, the maintenance of the pound, stinting the number of the cattle, setting a mark for distinguishing the commoners' cattle from strays, closing the common for a certain time of the year, and the like, according to the usage in each case (†).

(0) See Kitch. Jurisd. 107; Jacob, Court Keeper, 8th ed. 35.

(p) Arlett v. Ellis, 7 B. & C. 346, 368.

(9) Richards v. Bassett, 10 B. & C. 657, 662, per Littledale, J. (r) James v. Tutney, Cro. Car. 497.

(8) Ibid.

(t) Kitch. Jurisd. 156; Scroggs, Courts, 111, 135; Scriv. Copyh. 625; and see Fox v. Amhurst, L. R. 20 Eq. 403; Hall v. Byron, 4 Ch. Div. 667; Austin v. Amhurst, 7 Ch. Div. 689.

Whether jurors must

In the same way a manorial bye-law may regulate the amount of wood or other produce of the waste which is to be used by the commoners, as by providing that persons of certain trades shall not be allowed to take more fuel than the other householders, and the like. But such byelaws do not bind strangers, and in the absence of a custom they cannot have force, except as an agreement made between the tenants who have consented to the rule (u).

It is said to be the better opinion that in all cases the be unanimous. jury must find an unanimous verdict, as is also the practice in most of the manors where customary inclosures are allowed. There are cases, however, which show that the point is not settled, and the only general rule which can be safely followed is that the special custom of each manor must be strictly observed. Thus in the manor of Stepney it is stated to have been the custom that any seven copyholders might present a proposed inclosure as beneficial, and that their presentment should be confirmed or rejected by the major part of the homage at the next court (x). Again, it has been decided that if thirteen copyholders be sworn on the jury in a customary court and twelve agree to a verdict, the thirteenth dissenting, it is a good verdict without his assent; and it was held to be doubtful what would be the effect of a similar dissent of one juror out of twelve, "for it is not a full jury" (y).

Appointment of steward.

The steward of a manor may be appointed by parol, and a steward so appointed will hold office until he is discharged(); but the appointment is usually by deed; and a deed will be required if the stewardship is granted for life (a). In crown manors it is said that he ought to have his appointment by deed or letters patent (b). The

may

be

office is forfeited by neglect or misconduct, or in the words How office of Lord Coke by abuser, non-user, or refuser; by abuser, forfeited. when he destroys the court-rolls, takes a bribe, or uses partiality in any case depending before him; by non-user, when he neglects to hold a court, and thereby prejudices the lord; by refuser, when he fails to keep a court after request by the lord, even although the lord is "nothing damnified" by the failure (c). "The law," as he also said, "is not very curious in examining the imperfections of the steward's person, nor the unlawfulness of his authority, for be he an infant, or non compos mentis, an idiot, or lunatic, &c., yet what things soever he performeth as incident to his place can never be avoided for any such disability, because he performeth them as a judge, or at least as custom's instrument; and for his authority though it prove but counterfeit if it come to an exact trial, yet if in appearance or outward show it seemeth current that is sufficient. As if I grant the stewardship of my manor of Dale by patent, and in the patentee's absence a stranger by my appointment keepeth court, this is authentical. If the grant of a stewardship be made to one and for some fault or defect in the grant it is avoidable, yet courts kept by him before the avoidance shall stand in force, and whatsoever he did as steward is ever unavoidable; as if a corporation retaineth a steward by parol, and he keepeth a court, &c., these acts being judicial shall ever stand for current, though his authority be grounded upon a wrong foundation, for a corporation cannot institute any such office without writing, and so if the King's auditor or receiver retain a steward by parol, he may lawfully execute any judicial act, but things which he performeth as custom's instrument and not as judge, such as voluntary admittances neither in the retainer by the corporation, nor in the retainer by the King's officers, shall any whit bind "(d).