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Where to be held, and of the proper Notice.
The leet of the tourn, or sheriff's frank-pledge, is by the statute of Magna Charta, c. 35, to be kept in certo loco uc determinato within the precinct (1); but it should seem that courts leet of lords of hundreds or manors may be held in any place within the precinct where the lord shall please (m), and they are sometimes held in the church or chapel. There is, however, a canon prohibiting the keeping of temporal courts, leets, or lay juries, in the church, chapel or churchyard (n).
It is usual for the bailiff to give fifteen days' notice of the court leet (o), by virtue of a precept from the steward of the manor, which, in the more ordinary form, commands the bailiff to warn the tenants and resiants to appear at the place and time appointed for holding the court, and to summon twenty-four honest and lawful men of the hundred or manor to inquire for the king of all matters appertaining to the leet, and the bailiff to attend with the names of the persons he may have summoned.
The author apprehends that notice of the court leet need not be personally served on the suitors, but that it may be given in the church or market, according to the general usage of the particular place; though if it be not an ancient leet (p), personal notice is said to be necessary; and clearly no person could be amerced for nonattendance, unless the accustomed warning had been given (q).
Suit Real.-Prior to the statute of Marlborough (r), (as may be collected from the preceding observations illustrative of the AngloSaxon jurisprudence,) all persons of whatever rank in life, both men and women (s), servants (t) as well as masters, from the age of twelve
(1) Scroggs, 83; Co. Cop. s. 31, Tr. 50.
(m) Br. Court Baron, 8, cites 8 Hen. 7, 3; Ow. 35; per Bryan, Kitch. 88, citing 8 Hen. 7, 4.
(n) 1 Burn. E. L. 361, Can. 88; ante, p. 680, n. (m).
(0) "About fourteen days," Jenk. Pac. Cons. 2, 3. "Six or more days," Scroggs, 13. But in the absence of an established usage, three or four days' notice only would seem to be sufficient. Greenw. of County Courts, &c. p. 283, in his instructions for holding the sheriff's tourn or court leet, says, "Let the sheriff (or steward) make a precept unto the bailiffs to summon the
court by a reasonable time, to wit, fifteen or sixteen days before the court be kept (if it be less time it is sufficient in law). And see Br. Action upon the Case, 75; Rits. on Courts Leet, 41.
(p) Brook v. Hustler, 11 Mod. 76; ante, p. 683.
(9) Br. Action upon the Case, 75, cites 38 Hen. 6, 16.
(r) 52 Hen. 3, c. 10.
(s) But women were never sworn to allegiance in tourns or leets; Co. Lit. 122b; Br. Leet, &c. 38; for women and infants under twelve years are equally out of the law; F. N. B. 161 A.
(t) Fitz. Lete et Hundr. 5, cites 2 Hen.
to sixty years (u), were compellable to attend the tourn in which they had been commorant or conversant for a year and a day (x), with the exception only of clergy having curam animarum (y), and to be sworn to their fealty and allegiance (2); but by that statute, archbishops, bishops, abbots, priors, earls, barons, religious men and women were excused from attending tourns, "unless their appearance should be especially required thereat for some other cause (a);" and persons having tenements in different hundreds are by the same statute excused from attending any tourn but in the bailiwick where they dwell (b).
We have seen that Lord Coke was of opinion that the statute of 9 Hen. III. c. 35, extended only to the leet of the tourn, and not to the leets of private persons (c); but we learn that he put an opposite construction on the above statute of 52 Hen. III., and thought that the exemption of the latter act extended not only to the king's view of frank-pledge, but the views of frank-pledge of other lords (d). It is difficult, however, to reconcile this distinction with the language of the two statutes. The first expressly limits the period of holding the view of frank-pledge to the feast of Saint Michael, and then, having used a term equally applicable to the franchises of individual persons, it excepts all existing liberties of the like nature (e); but the latter statute, it is to be observed, speaks only of the tourns of sheriffs, and
4, 16. A custom for servants to be sworn before the constable and portreeve, who have no power to hold a leet, is not good; Br. Leet, 10, cites 2 Hen. 4, 15.
(u) Britt. c. 29; Flet. 1. 2, c. 52; Mirror, c. 1, s. 17; 2 Inst. 120, 121; Br. Incidents, 28.
(x) 7 Ed. 2, 204; 8 Ed. 2, 276, 277. (y) 2 Inst. 121.
(z) 2 Inst. 120, 121; 1 Bl. Com. c. 10; Rits. 8.
(a) Britt. c. 29; F. N. B. 160 C.; 2 Inst. 120, 121. But the exemption is personal, and therefore the proprietor of lands which are parcel of a dissolved monastery held in frank-almoign, and discharged of secular services, is not exempt from attending the court leet; Dacre v. Nixon, 2 Roll. Rep. 56.
Tenants in ancient demesne are also exempt from suit to the sheriff's tourn, and probably from suit to any leet, except that of the particular manor to which they are tributary, and of which the tenants were considered in ancient times to form an in
dependent community; ante, p. 583, n.
(d) 2 Inst. 121, 122.
(e) And see in the Appendix the act of 1 Ed. 4, c. 2, interdicting sheriffs, &c. in their tourns or law days from fining and imprisoning upon any indictment or presentment, and which expressly excepts out of the operation of the act persons having liberties or franchises by grant or prescription.
of bailiwicks within which such tourns were held, and does not use
the term frank-pledge.
It is, at all events, the better opinion that no man can be of two leets (f). So if a man hath a house within different leets, he shall be taken to be conversant where his bed is (g). And if a leet jurisdiction be annexed to a manor within a hundred to which a leet is also appendant, the lord of the hundred has not even a concurrent jurisdiction with the lord of the manor, for the one jurisdiction is as high as the other (h).
Suit to the leet is due by reason of resiancy, and has no reference to tenure; it is therefore called suit-real, and not suit-service (i).
Suit real cannot be done by attorney (k), the statute of Merton, 20 Hen. III., being confined to suit-service by freeholders (); nor, as it should seem, can suit-real be released (m); but the attendance may be essoigned (n), which is generally done by the payment of a penny,
or some such nominal sum.
And the non-performance of suit-real is to be punished by amercement, "because for suit-real no distress can be taken, but for the amercement in default thereof (o)."
Cert-money-Common Fine.-It should seem to have been the practice for the lord of a hundred or manor, who had a sufficient influence with the crown to obtain the grant of a leet franchise, to claim from his tenants a certain annual sum pro certo leta, as a mean of fixing them with a contribution towards the purchase of the franchise, which secured to them not only an exemption from attending the sheriff's tourn, as we have already noticed, but likewise the advantages of a summary redress in all matters within the jurisdiction of the leet (p).
The money thus paid to the lord was in some places called cert or certainty money, and in others chief or King's silver; and in others again, as some suppose, common fine, or head money, or head pence ;
(ƒ) F. N. B. 159, n. c; ib. 160 A.; Kitch. 65, 66, cites 18 Hen. 6, 13.
(g) 2 Inst. 122. And see The King v. Adlard, 4 Barn. & Cress. 780, where Abbott C. J., in quoting this passage from Lord Coke, said "This is a plain authority that the word inhabitant, when the view of frank-pledge is spoken of, cannot mean an occupier." The term "inhabitant" may receive its interpretation from usage; Rex v. Davie, 6 Adol. & Ell. 374.
(h) Br. Leet, pl. 13, cites 21 Ed. 3, 3.
82, cites 45 Ed. 3, 23; ib. 145; ib. 291;
(k) Kitch. 145; F. N. B. 25 C.
(m) Tott v. Ingram, 1 Brownl. 186. But see Fitz. Abr. Avow. 211, 212; Br. Incidents, pl. 28.
(n) Mirr. c. 1, s. 17. See as to essoign, ante, pt. 1, p. 363.
(o) 2 Inst. 118. And see Gilb. Dis. 13; F. N. B. 159 D. (n. a), 161 D. (n. a).
(p) Bullen's case, 6 Co. 77 b; Scroggs, 2.
but it has been thought that the common fine was originally a payment to essoign the appearance of all the suitors, except the chief pledges (q).
The proper remedy for this payment is action of debt (r); but where the cert-money is to be paid at the day of the leet, the defaulters may be amerced; yet as it is for the private advantage of the lord, he cannot distrain for cert-money or chief silver, without he can also prescribe in the distress (s). And this is the only matter of a private nature where a prescription to amerce is allowable (t).
Mandamus to enforce a Court: Forfeiture of Leet.
As the leet was originally granted for the more convenient administration of justice, the lord is compellable to hold a court by writ of mandamus (u): and a leet is forfeitable by non-user, and by acts of abuser (x).
A long disuser of the franchise will induce the suspicion of a defect in title:-so in Darell (or The King) v. Bridge (y), on a motion for an information in nature of quo warranto for holding a court leet, there appeared to have been a grant from the crown in 14 Jac. I., to R. M., his heirs and assigns, of the privilege of holding courts leet, and a court was held by the defendant in 1740, claiming under a conveyance of the manor of S. with all courts, &c., in 1739, wherein courts leet were expressly mentioned, but there were no mesne conveyances between the original grant of the leet and 1702, when and previous to 1739 conveyances were made of the manor, "with all courts thereunto belonging;" and the Court of B. R. observed, that as there appeared to have been no exercise of the grant till 1740, there was strong suspicion of some defect in title, and therefore it must go to be tried by a jury.
The usurpation of a leet is indeed accounted so great a grievance to the people, as to have been adjudged to be an indictable offence (z).
(9) Ritson on Courts Leet, p. 120. (r) A court of equity will not entertain a bill for law-day silver; Thornhagh v. Hartshorn, Bunb. 237.
(8) Godfrey's case, 11 Co. 44b; 1 Roll. Abr. 211, (A. 2,) (C. 2,) cites 13 Hen. 4, 9.
(t) Scroggs, 2.
(u) Rex v. Willis, Andr. 279; Com. Dig. Mandamus (A); 2 Roll. Rep. 107; Rex v. Colebrooke, 2 Ld. Ken. 163; Harrison's Index, 1480; Rex v. The Corporation of Grantham, 2 Sir W. Bl. 716;
Rex v. The Lord of the Hundred of Milverton, 3 Adol. & Ell. 284; ante, pt. 1, p. 532; and see 11 Geo. 1, c. 4, post, towards the end of the Appendix, as to courts baron and courts leet.
(x) 2 Hawk. P. C. c. 11, s. 5; Bro. Abr. Franchise, pl. 10, 26; Tottersall's case, W. Jones, 283; Cro. Jac. 155; F. N. B. 160. A. (n. d); 9 Co. 50; Scroggs, 3, 4.
(y) 1 Sir W. Bl. 47.
By the opinion of some, a leet is forfeited by the neglect of appointing an able steward, or of electing such officers as are essential to the exercise of justice, as constables, aleconners, &c., or of providing particular instruments of punishment, as pillory, tumbrel, stocks, &c. (a); and clearly the franchise may be seized quousque for any such neglect (b).
Of the Steward of the Court Leet, (and herein of his Authority to impose Fines;)—And of the Office of Bailiff.
Whether the steward of a court leet is to be considered as judge of the court, not only in the absence of the lord, but also in his presence, or whether he is to be deemed an assistant judge, assessor or lawgiver only, when the lord happens to be present, (analogous to the shiregerieve in the Anglo-Saxon shire-gemot court,) the office of steward of a leet court is obviously one of very high importance, and such as ought only to be filled by a person of considerable legal learning, and of sound judgment and discretion (c).
The author has already ventured an opinion, that the steward presides in a customary court in a representative character only, and that there is no principle of law to prevent the lord of a manor from holding his own customary court in person (d), and the same rule would seem to extend to a court baron, where the suitors are judges of the court. But in a court leet, which we have seen is a juridical franchise held under a grant from the crown, and not necessarily incident to a hundred or manor, the steward appears to the author to be an essential officer, filling exactly the same judicial character as
(a) Steverton v. Scrogs, Cro. Eliz. 698; S. C. Mo. 573, 607; Tottersall's case, ubi sup.; per Popham, Cro. Eliz. 125, in Partridge's case; Kitch. 24; Br. Quo warranto, pl. 8; and see Keilw. 138, &c.; but as to stocks, see Carter, 29, in Davis v. Lowden, where Bridgman, C. J., distinguished between stocks and pillory, &c., and said that the former were originallly not to punish, but only as the constable's gaol, to keep men in hold, but that as to pillory and tumbrel the lord was bound to find them, and not the inhabitants.
It should seem that for the neglect of providing stocks, a vill is punishable by amercement in leet, and that any of the inhabitants may be distrained for the amercement; Steverton v. Scrogs, sup.
So also as to pillory and the like instruments of punishment, if a prescription be alleged; ib.
(b) Lex Man. 25.
(c) 4 Inst. 261, &c. The steward of the court leet ought to be a barrister; per C. J. Holt, Scroggs, 33; ante, pt. 1, p. 109.
In a recent case the Court of B. R. adverted to the necessity of a steward's possessing legal knowledge, and considered the charges of an attorney for holding a court leet as charges made in his professional character, and therefore taxable; Luxmore v. Lethbridge, 4 Barn. & Ald. 898.
(d) Ante, pt. 1, p. 119.