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ad minimum (1). The reason assigned for this is, that freemen could only be tried by their peers or equals, and that if there be one tenant only, he has no peer or judge, and therefore must appeal to the court of the lord paramount (m). In Bradshaw v. Lawson (n) Lord Kenyon said, that this point was so well settled, that cases need not be cited to prove it, and he would only mention that of Rumsey v. Walton, which was an action on a judgment alleged to have been recovered in a court baron; and on the trial at the Hereford summer assizes 1760, before Foster, J., the plaintiff proved the court to have been holden before the steward; on which it was objected that such a court could not be legally held without two free suitors; and the judge being of that opinion, the plaintiff was nonsuited.
And according to the case of Chetwode v. Crewe (o), such suitors could not be created by a conveyance of part of the demesnes of the manor at this day. Suppose a conveyance to be made by one of two free suitors to a corporate body, it would, the author apprehends, be a suspension only of the suit, so that on a subsequent conveyance by the corporation to a person capable of performing suit, a court might be held (p).
And if A. should be the only free suitor, and he should convey part of the land holden by him of the manor to B., the author inclines to think that the right to hold a court baron would revive.
The suitors of the court baron are the judges of it (q), and were so
(1) Br. Court Baron, pl. 23; ib. Comprise, pl. 31; ib. Suit, pl. 17; Kitch. 7, 8; Lit. 73; 2 Roll. Abr. 121; Co. Lit. 58 a; Tonkin v. Crocker, 2 Lord Raym. 864; Rex v. Staverton, Yelv. 190, 191; Scroggs, 84; Jacob's Law Dict. tit. "Manor."
There is an instance in the Register, f. 11, of a cause being removed out of a court baron by reason of there being but four suitors there; Br. Cause a Remover Plee, &c. pl. 35; ib. Suit. 17; and see 1 Watk. on Cop. 9, who says, "But it should seem that there must be more than two frank tenants holding of the manor, to enable the lord to hold a court, for otherwise, if one of those two were the plaintiff, and the other of those two the defendant, the lord would be under some difficulty to try them by their peers."
And by ancient custom in the manor of Dymock, there must be three benchers
of the free suitors at the least, or no court can be holden; 1 Watk. on Cop. 10, n. 2nd ed.
Whether a woman can act as an homager, vide post, p. 736.
See the reference to the Commutation and Enfranchisement Act, 4 & 5 Vic. c. 35, ante, p. 719, (a).
(m) 1 Watk. on Cop. 9.
(n) 4 T. R. 446. See also Rex v. Mein, ib. 480. In Glover v. Lane, 3 T. R. 447, Lord Kenyon said, "To constitute a manor it is necessary not only that there should be two freeholders within the manor, but two freeholders holding of the manor, subject to escheats;" and see Willes, 619; ante, pt. 1, p. 6. (0) Willes, 614.
(p) Tonkin v. Crocker, 2 Lord Raym.
(4) Kitch. 145, 146; 4 Inst. 268; 4 Co. 26 b, 33 b; Jentleman's case, 6 Co.
even in a plea holden by force of a writ of right (r); and it has been thought that the court baron could not, even by prescription, be held before the steward, being a thing of common right (s); but the authorities are quite the other way (t).
It has been said that there is this distinction, namely, that where pleas in a court baron are held by writ, then it must be before suitors, and the bailiff of the lord of the manor; but where without writ, then it must be coram sectatoribus only (u).
There would certainly seem to be a contradiction in terms, to say that the same persons are suitors and judges of the court; but it is now fully established that the suitors are the judges of the court baron, notwithstanding the expression in some books of authority, that the steward is the prothonotary only of the court (x).
The steward, however, is a constituent part of the court, and not merely a ministerial officer, as was formerly supposed (y).
This question was raised, and fully put at rest, in the case of Holroyd v. Breare & Holmes (z), which was an action for trespass for breaking and entering the plaintiff's house, and seizing and taking
11 b; Lord Cobham and Browne's case, 1 Leo. 217; Rex v. Morgan, 1 Sir W. Bl. 398; Eure v. Wells, T. Jones, 23; Lovell & Golston's case, Godb. 68; ib. 49, ca. 60; Scroggs, 88; "in a court baron action of debt lieth for the lord himself, because the suitors are judges; " ib. 84; Kitch. 145. Nota per Fineux and Keble, that in court baron the suitors are judges, and in the leet the steward is judge (12 Hen. 7, 16); Br. tit. Court Baron, &c. pl. 9.
It is not in the court baron alone that the suitors are the judges. "Nota per Chock, Justice, that in court baron, county, or hundred, the suitors are judges, and the bailiff and sheriff are only ministers, (6 E. 4, 3;)" Br. tit. Court Baron, &c. pl. 11.
(r)" Nota that the suitors are judges in county court, court baron and hundred, as well in writ of right patent, as in justicies and other suits there; and the sheriff, steward or bailiff are not judges there quod nota bene (39 Hen. 6, 5);” Br. tit. Judgment, pl. 118; Jentleman's case, sup.
(s) Pill or Pell v. Towers, Cro. Eliz. 791; S. C. Noy, 20; Armyn v. Appleoft,
Cro. Jac. 582; 2 D'Anvers, 295, tit.
(t) 1 Leo. 316, pl. 444; 1 Mod. 173; Rex v. Morgan, sup.; Tomkins or Tonkin v. Crocker, 2 Salk. 604; S. C. 2 Lord Raym. 860; S. C. Lutw. 1211; Nels. Lex Man. 57, 58; Rast. Ent. 553 a; Co. Ent. 118 b, 570 b; Winch's Ent. 1014; James v. Tutney, Cro. Car. 497; Win. 30; Eure v. Wells, T. Jones, 23; W. Jones, 434; Mar. 28.
(u) Pells v. Towers, sup.; and see Scroggs, 88; Godb. 49, ca. 60; but in Jentleman's case, sup., it was resolved, that be the plea held by writ or without writ, the suitors are judges; vide also Lex Man. 56, pl. 8; sup. n. (r).
(x) Rex v. Morgan, ubi sup.; Earl of Shrewsbury's case, 9 Co. 49 a.
(y) See 1 Freem. 473, in Howard v. Wood; S. C. T. Jones, 126; S. C. 2 Lev. 245. Calthr. p. 54, 2nd ed., says "The steward doth occupy the part of several persons, that is to say, a judge to order in cases of copyhold, and also a minister and register to enter things into the court rolls, and in both these to be indifferent between the lord and his tenants." (x) 2 Barn. & Ald. 473.
his cattle, &c.; the defendants first pleaded the general issue, and secondly justified, the one as steward of the court baron of the manor of Wakefield, and the other as his bailiff, stating that on the 12th of September, 1817, at a court of the said manor, holden before certain then suitors of the said court, according to the custom of the said court, one J. A. levied his plaint against Sarah Holroyd, and afterwards recovered on the plea aforesaid against her 97. 14s. for his damages and costs; and the defendant Breare on the 5th of December, 1817, as such steward of the manor, caused his precept to be issued to take the goods of the said Sarah Holroyd in execution, which precept was delivered to the defendant Holmes as bailiff, to be executed, and that by virtue of that precept, the goods in question were by him seized, and the trespasses committed. There was another similar justification, setting out a judgment recovered in the same court at the suit of J. C. against Sarah Holroyd. At the trial at the summer assizes 1818, for the county of York, before Bayley J., the principal question was, whether the goods which had been seized were wholly or in part the property of the plaintiff, or of Sarah Holroyd. The jury found a verdict for the plaintiff. It appeared also that the defendant Breare was not in any respect personally concerned in the seizure of the goods, but only as having, in his character of steward of the court baron, signed the precept for taking Sarah Holroyd's goods in execution and on this it was contended, that the steward acted in a judicial and not a ministerial character, and that he was not therefore liable for the acts of his bailiff. This was denied on the other side. The point was reserved by the learned judge, with leave for the defendant Breare to move to have a verdict entered for him, in case the court should be of opinion that he was not liable. A rule nisi to that effect having been obtained, the plaintiff's counsel now urged that the steward of a court baron was only a ministerial officer, the suitors being the judges of the court, and that it was his duty as their minister to see that their judgments were executed properly: and although no action would lie against a judge for what he might do judicially, yet that it was otherwise in the case of a ministerial officer. They also contended that the steward in the immediate case was answerable, precisely on the same principle as the sheriff was, viz. that the law holds it to be his duty to execute the office in person, and therefore makes him answerable civiliter for the acts of his officer.
For the defendants it was argued, that no instance being produced in which a similar action had been maintained, went strongly to show that the steward was not liable; and that the distinction between the principal case and that of the sheriff was obvious, for the sheriff was no part of the court out of which the process issued, but that the
steward of the court baron was so, and his situation to be compared to the signer of writs in the superior courts, who could not be liable for a mis-execution of them by the sheriff; and that the passages cited (a) only showed that the steward of a court baron was a minister of that court for some purposes, as, for instance, to register their proceedings, and the like; but that they did not show that he was their minister for the purpose of executing their process.
Abbott, C. J., in delivering the opinion of the court, noticed the argument by the plaintiff's counsel that in the court baron the free suitors are the judges, and observed that they certainly were so for the purposes stated in the authorities which had been cited. The court, however, were of opinion that the steward was not merely a minister of that court, but a constituent and essential part of it. The court could not be holden without him. No mandate was directed to him as an officer, but he made his mandate to the bailiff. His lordship further observed, that there was this material distinction between the mandate of the sheriff and that of a steward of a court baron; in the former, the sheriff commands the bailiff to make the levy, and it concludes thus, "so that I may have the same before the court, &c. :" but in the warrant of the steward the bailiff is directed to levy, so that he (the bailiff) may have the same before the court on the day appointed. This, therefore, was more like the writ of the superior court to the sheriff than the warrant of the sheriff to his bailiff. That (added his lordship) would seem to be decisive to show that the bailiff, and not the steward, is the minister of the court baron for the execution of its process, and that he is not the servant of the steward in this respect. The court was therefore of opinion that the steward was not for the particular purpose a minister, but part of the court itself; and if so, the action was not maintainable against him, and the rule for entering a verdict for him was therefore made absolute (b).
The above case of Holroyd v. Breare & Holmes having overruled the authorities that the steward of a court baron is a ministerial officer only (c), goes a great way towards confirming the opinion expressed in some of the books, that a mandamus will lie to be restored to the stewardship of a court baron.
(a) 4 Inst. 268, c. 57; 1 Inst. 58; Br. tit. Court Baron, pl. 11; ib., tit. Judgment, pl. 118. See these authorities, ante, p. 604, n. (q).
(b) It was held in a recent case, that the steward of a hundred court, or of a court baron, is not responsible for the misfeazance in the execution of process of the bailiffs of the lord of the hundred or manor, to whom process of execution awarded by
such court is usually directed. But that if the steward directs process to persons named by the party suing out such process, taking an indemnity from such party, he is liable; Bradley v. Carr, Maude & Wilkinson, 3 Mann. & Gr. 221.
(c) A mandamus is never granted to compel a mere ministerial officer to do his duty; Rex v. Dr. Walker, Bul. N. P. 199; ante, pt.1, p. 526.
In The King v. The Churchwardens of Kingscleere (d) Hale, C. J., said that a mandamus lay for the steward of a court baron "if he be not at will only, because he is an officer of justice (e)." But there are several authorities that a mandamus will not lie for a steward of a court baron, "as being a private thing and not concerning the administration of justice (ƒ).'
In Ile's case in B. R. (g) Twisden said, "it was ruled in 1652 in this court that a mandamus did not lie to be restored to a stewardship of a court baron, but of a court leet it did, for there the steward was judge, but of a court baron the suitors are judges." Hale said he was of another opinion, the steward being judge of that part of the court which concerns the copyholds, and register of the other.
The steward being the judge of a customary court would seem, however, to be an insufficient reason for a mandamus lying to restore him to the office (h). It is, the author apprehends, the public or private nature of the office alone by which the Court of King's Bench would be influenced at the present day in granting or refusing an application for a mandamus to be restored to the stewardship of a court baron; and it is obvious that the steward of the court baron, where pleas of debt are holden and real actions were always formerly commenced, is more in the nature of a public officer than the steward of a customary court, which is for copyhold purposes only, and in which the acts of the steward are chiefly of a ministerial nature.
This section may be properly concluded by reminding the reader that a grant for life by deed of the stewardship of a manor, and of the courts thereto belonging, is good (i); and by referring him to the (d) 2 Lev. 18. that being only a private right and no court of record.
(e) Ante, pt. 1, p. 526. And in the King v. Stanton, Cro. Jac. 259, (S. C. Yelv. 192,) Yelverton, Williams and Croke held against the opinion of Fleming, C. J., (Fenner doubting,) that a quo warranto lies of a court baron, because "it is matter of right to hold courts, and to administer justice, and to hold pleas, and to draw assemblies of men together, and to swear officers; which if any doth without right, he is to render an account thereof." And see Scroggs, 94; Rex v. Stafferton & Brown, 1 Bulst. 54; Br. Quo Warranto, pl. 4.
But in the King v. Hulston, 1 Str. 621, where an information was granted in the nature of a quo warranto against the defendant for exercising the office of steward of a court leet, the court said they would not grant it in the case of a court baron,
It has been refused for holding a court leet in a manor, being a private right; Rex v. Cann, T. 10 & 11 G. 2, Andr. 14. See further as to quo warranto of court baron, Com. Dig. Quo Warranto, (A. & B). And see as to quo warranto of court leet, post, ch. 22.
(f) See Stamp's case, 1 Sid. 40; Middleton's case, ib. 169; King v. Street, 8 Mod. 98; Comb. 127. But see Yelv. 191, in Rex v. Staverton, where a court baron is described to be a court of justice.
(g) 1 Vent. 153; ante, pt. 1, p. 526. (h) An application for a mandamus to swear in a steward of customary court was once refused by C. J. Holt. See Anon., 12 Mod. 665; ante, pt. 1, p. 526, n. (i).
(i) Bartlett v. Downes, 3 Barn. & Cress.