and more particularly of such as may have accrued subsequently to the then last court, bearing in recollection that such seignioral rights as are referable to land of customary or copyhold tenure are not within the jurisdiction of the court baron, but are to be inquired of only in the court denominated the customary court. That the attention of the homage is especially to be directed to any possible advantages to the lord by reason of any reliefs payable on death, or otherwise by the custom of the manor (o); or by reason of any escheats occasioned by the death of any of the freehold tenants, without leaving heirs inheritable to their lands (p); or in consequence of the forfeiture of freehold lands by any felonious act; or of any deodands, estrays, waifs, treasure trove, or other manorial franchises (9). That it is also the duty of the homage to inquire whether any boundary stones or landmarks between the particular manor and any other manor, or between the lands of any of the free tenants, may have been removed; and whether any encroachments may have been made upon the wastes of the lord (r), or upon the commonable rights of such tenants; and of any breach of the lord's pound; and whether the several persons who owe suit and service to that court have duly attended to render and perform the same, or wherein and by whom any default may have been made, and to set a reasonable amercement on any such defaulters (s), unless, as regards the freehold tenants, the lord of the manor should prefer resorting to his remedy of a distress for the neglect of suit (t); and generally to inquire of all rights, and of all offences, both of commission and omision, as between the lord and the freehold tenants of the manor, and as between tenant and tenant, with reference particularly to any existing by-law established by the custom of the manor (u); and to make their presentments and orders accordingly (x). (0) Ante, pt. 3, p. 618 et seq. (p) Ante, pt. 3, p. 631 et seq. (q) Ante, pt. 3, pp 643, 647, 649, 655. (r) The inclosure of a common is a private wrong only, 9 Co. 113a; and a common that has been inclosed for a great number of years cannot afterwards be thrown upon. 1 Vern. 32; ante, pt. 1, p. 520, n. (u). (s) Ante, pt. 3, pp. 615, 616, 621 et seq. (t) Ante, pt. 3, p. 615, 616. (u) Ante, pt. 3, p. 601, n.; p. 625 et seq. (x) N. B. The steward is not bound to receive any presentments whereby the rights of the lord may be prejudiced. 1 Vol. Ca. & Opin. 172. It is the better opinion that all the freehold tenants present at a court baron may claim to be put upon the homage. In Arlett v. Ellis, 7 Barn. & Cress. 368, Bayley, J. said, "The homage are persons associated together at the lord's court (at which all the tenants of the manor may attend) to act as between the lord and his tenants." But it should seem that if the homage obstinately refuse to make such presentments as the nature of their oath requires of them, the steward would be justified in dissolving the court, or in discharging the homage and swearing another, and the latter would be the more desirable course. See 1 Vol. Ca. & Opin. 172, 173. The case of The King and Hemingway, 1 Barnardiston, K. B. 436, may, the author submits, be properly introduced in this note: it is thus reported: "On rule to show cause why an information should not be granted against the defendant, as under Whilst the jury of the leet are absent preparing their presentments, the steward may proceed in the business of the court baron. [See Precedent of Rolls of Court Baron, post, 1149.] On receiving the presentments from the homage, the steward will administer the following oaths to the Affeerors and the Hayward. (Affeeror's Oath.) You shall well and truly affeer and assess the several amercements now to you remembered, and therein spare no one through fear, favour or affection, nor enhance any one through prejudice, hatred or malice: So help you God. (Hayward's Oath (y).) You shall well and truly execute the office of Hayward for this manor, until you be thereof discharged according to due course of law. You shall steward to the Archbishop of York of his manor of Otley in that county, for soliciting a jury at a court baron and customary court holden there to present the dying seised of such a one twenty-three years ago of certain copyhold lands, and then discharging that jury because they would not find this, and swearing another for this particular purpose, who accordingly did find such dying seised, though oath was made upon the former motion that such finding was false, for the party himself did not die but seventeen years ago; Mr. Fazakerley now said, that he hoped the rule should be discharged. He submitted it, that by law a steward may swear a second jury, when the first jury refuses to find such things which their oath obliges them to inquire into. But in this case there were two particular reasons for doing it; one, because the foreman in the first jury was a party interested in the question, the other, because the jury charged with this presentment consisted of freeholders as well as copyholders, whereas the law requires that copyholders only shall present the death of copyholders: and this is the peculiar business of the customary court; whereas the freeholders only are the persons concerned in matters relating to the court baron and therefore he insisted, that as there were distinct courts kept at this time, there : ought to have been distinct juries. The Chief Justice said, he did believe indeed, that according to the antient law, there were always separate juries in these cases; but of late years the practice has been so universal to join them together, that the freeholders must be intended to speak to such things as relate to the court baron, and the copyholders to such things as relate to the customary court. Then as to the foreman's being a party interested, he said, there was a now [enough] of the jury without him, and therefore that reason could not be sufficient for changing the jury. However in general, he said, he took it, that it would be a thing of dangerous consequence to allow a steward to solicit a jury to find any thing against their consciences, and upon their refusal to do it, to swear a new jury. Accordingly the court made the rule absolute for granting the information." (y) The author has placed the Hayward's oath under the head of court baron, as the office appears to be more immediately connected with that court than with a court leet; but the Hayward is frequently sworn at the leet, being chosen by the jury under an ancient usage, and it is then considered as a public annual office, conferring a settlement under 3 W. & M. c. 11, s. 6, like the office of a hogringer. Ante, pt. 3, pp. 719, 720, and n. from time to time present all pound breaches, estrays, waifs, and all other matters and things falling within the duties of your office, justly, and without favour or affection: So help you God. The author has shown that it is seldom necessary or desirable to administer the oath of fealty to a newly admitted tenant (z). When it is deemed expedient, the following form will serve. (Oath of Fealty.) You swear to become a true and faithful tenant to A. Z. esq., lord of this manor, for the estate to which you have made your acknowledgment of tenure at this court; you shall from time to time bear, pay and perform all such rents, duties, services and customs in respect of the same estate as are due and of right accustomed: you shall from time to time be ordered and justified in all things at the lord's court, to be holden in and for this manor, as other the tenants of this manor are, shall or ought to be, and you shall in all things demean yourself as a faithful tenant ought to do: So help you God. When the leet jury have agreed on their presentments, they are to re-enter the court, and the steward will ask,— Gentlemen,- Have you agreed on your presentments? to which they will reply, yes; and the presentments are then to be handed over by the foreman to the steward, who will say, Gentlemen, do you desire and consent that I should alter any matters of form in your presentments, not altering matters of substance? to which the jury reply, yes. Then the steward will enter the presentments in his minutes, and swear the officers presented by the jury (a), and proceed to the affeerment of the several amercements, and to the general business of the court leet, according to the tenor of the presentments. [See Precedent of Roll of Court Leet, post.] (The Bedell or Bailiff's Oath.) You shall well and truly serve our sovereign lady the queen, and the lord of this leet, in the office of bailiff for the year ensuing, or until you shall be thereof discharged according to due course of law: you shall duly execute all process to be directed unto you from the steward of this court, and diligently and faithfully collect and account for all rents, profits and revenues, and in all things demean yourself as a true and faithful bailiff ought to do: So help you God. (2) Ante, pt. 1, p. 362; pt. 3, p. 615. (a) Ante, 1141. (The Constable's [or Tithingman's] Oath.) You shall well and truly serve our sovereign lady the queen, and the lord of this leet, in the office of constable for the parish [tithing or hamlet] of for the term of one whole year next ensuing, or until you be thereof discharged according to due course of law: you shall execute all lawful process sent to you, and by hue and cry or otherwise use your utmost endeavours to apprehend and secure all felons, riotous, disorderly and idle persons, and others guilty of a violation of the laws of this realm, and shall in all things faithfully and diligently demean yourself in the aforesaid office: So help you God. (The Aleconner's Oath.) You shall well and truly serve our sovereign lady the queen, and the lord of this leet, in the office of aleconner or assizer for the parish [tithing or hamlet] of for the term of one whole year next ensuing, or until you be thereof discharged according to due course of law: you shall present all offences cognizable by this court which may come to your knowledge, without fear, favour or affection, and in all things faithfully and impartially discharge the duties of the aforesaid office: So help you God. (The Affeeror's Oath.) [See this form as applicable to courts baron, ante, 1145.] (Adjournment of the Court.) [If it should be found necessary, the court may be adjourned (b) by a proclamation to be made by the bailiff thus: Oyez, Oyez, Oyez. All manner of persons who have any thing more to do at this court have leave to depart, giving their attendance here again at o'clock of this day. On the re-assembling of the court, the bailiff is to make the following proclamation: Oyez, Oyez, Oyez. All manner of persons who were adjourned over to this time and place draw near and answer to your names, each person as he shall be called. Then the steward should call over the jury list of the leet.] The above proceedings are to be entered by the steward in his minute book, ending thus: It is further agreed and ordered, that the steward of this court may alter (b) Ante, 1142, n. matters of form in these presentments, not altering matters of substance; and then he will subjoin these words: "We present this as our verdict,” to which the jury and homage will subscribe their names, When the bailiff will discharge the court by the following proclamation: Oyez, Oyez, Oyez. All manner of persons who have appeared this day at the court leet and court baron of, &c., may now depart, keeping their day and hour on a new summons. God save the queen, &c. |