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panelling the jury (d), and without any distinction in the office when the lord of the leet possesses only an ordinary jurisdiction, and when a leet franchise exists in a borough or town, of which the head municipal officer is elected by the jury of the court leet (e).
(d) It should seem that peculiar customs exist in particular places on the point adverted to. The author infers from the MS. note of Mr. Serjt. Hill, just referred to, that a custom of this nature was relied upon in The King & Harrison. And it is settled that by custom the steward may nominate the persons to be summoned as jurors; The King v. Joliffe, ante, p. 690, n. (1). In that case Abbott, C. J., said, "The leet jury is rather in the nature of a grand jury."
(e) See The King v. Joliffe, sup. Sometimes the jury merely present, in writing, the candidate who may have the most votes, but have no control over the poll. In The King v. Rowland, 3 Barn. & Ald. 130, the plea to a quo warranto against the defendant, as Mayor of the Borough of Holt in Denbighshire, after stating an immemorial court leet, and view of frankpledge, holden within the borough, set out a charter of 13 Hen. 4, confirmed by letters patent of Queen Elizabeth, and a bylaw that the mayor and burgesses, or such of them as chose to attend, should assemble at the court leet, held within one month after Michaelmas, and should elect one of the burgesses to be mayor for the ensuing year; and that since the by-law the usage had been conformable to it, and the court in part holden in the morning and in part in the evening, the one being called the morning and the other the evening court; and that the custom had been to elect the mayor at the morning court, which burgess was sworn into office by the steward of the lordship, or his deputy. It then stated that on the 27th October, 1818, a court leet was held before C. W. W. W. Esq. the steward, in the morning, which was duly adjourned to the evening of the same day; and that the defendant was duly elected at the morning, and sworn in at the evening court. The replication, after tendering is
sues on the different facts alleged in the plea, denied that the mode of election had been according to the supposed by-law, or that the defendant was duly sworn.
At the trial at the Shrewsbury Summer Assizes, 1819, the mode of election set out in the defendant's plea was proved, with the addition that the custom had been to swear the jury of the leet at the morning court, and then to take the poll for mayor; and that at the evening court the jury used to make a written presentment of the person who had the majority of votes to the steward to be sworn in. The jury had on this occasion presented to the steward the candidate opposed to the defendant, but the latter having the majority of legal votes, the steward swore him into the office of mayor. The jury did not appear ever to have exercised any discretion over the poll.
It was contended for the Crown that the presentment by the jury should have been stated in the plea. Holroyd, J., over-ruled the objection, but with liberty to enter a verdict for the Crown, if the Court of B. R. should be of a different opinion.
A rule nisi having been moved for accordingly, the above objection was urged on the part of the crown, and judgment asked at all events on the issue, "not duly sworn." But Abbott, C. J., observed, that all that was alleged in the defendant's plea was proved, and that the presentment was merely ministerial on the part of the jury. That it was their duty to present the person having the majority of legal votes, and they had no discretion on the subject; and that the presentment was as an entry by a town clerk, and not forming a material part of the appointment, it was not necessary to allege it in the defendants's plea. Holroyd, J., added, that if the presentment were an essential part of the custom, it would put it in the
Sometimes, indeed, the bailiff of a leet, when appended to a manor or borough, is chosen by the jury of the court (f), and possesses a clear prescriptive right to exercise a discretionary power in impanelling the jury; and in the case of the King v. Bingham (g), Lord Ellenborough deemed that very important function a sufficient ground for an information in nature of a quo warranto, calling upon the defendant to show by what authority he claimed to be bailiff of the manor and borough of Gosport in the county of Southampton. His lordship's observation was, that he did not doubt that the office, as appendant to a court leet, was such for which the information would lie, and noticed particularly the argument that the bailiff was an officer having a discretionary power as to the persons whom he should select for the jury; adding, that the bailiff having no fees annexed to his office, there was no other convenient civil mode of trying the right to it.
The general practice and forms of court keeping appear to the author also to be favourable to the opinion, that all ministerial acts in a court leet are to be executed by the bailiff; and, so far at least as his own experience extends, the steward of the court is totally ignorant even of the names of the jurors until the delivery to him by the bailiff of the list of persons summoned as jurymen, together with the resiant roll, or names of those who are liable to perform suit to the lord at the particular court.
But the author has suggested that the general practice for the bailiff to exercise an uncontrolled power of impanelling the jury of a court leet, may possibly be opposed by a special custom prevailing in some few manors, and that such a custom would be good (h).
The case of Crane v. Holland (i) would seem to have established the legality of such a custom, for it was there held that one may be judge and officer, diversis respectibus. In that case, which was error of a judgment in Northampton, where the court is held before the mayor and two bailiffs, the error assigned was, because the bailiffs, being judges of the court, could not also be officers to whom process should be directed, "there being no custom that can maintain any to be both officer and judge."-But the Court of B. R. held that it might be good by custom.
And in the case of The King v. Joliffe (k), which was a quo war
power of the jury to defeat any election,
(f) See The King v. Joliffe, infra.
this case that the bailiff was sworn in with the other officers chosen by the jury. (h) Ante, p. 699, n. (d).
(i) Cro. Car. 138; 2 Barn. & Cress.
(k) 2 Barn. & Cress. 54.
ranto, calling upon the defendant to show upon what authority he claimed to exercise the office of mayor of the borough of Petersfield, it appeared by the defendant's plea that at the court leet of the borough the jury presented a fit person to be mayor of the borough for a year, and that the person so presented had always been sworn in at that court before the steward, and that the defendant had been presented and sworn in as mayor according to that usage (7); and by the eighth replication it further appeared, that the court leet had immemorially presented a fit person to be bailiff, who was always attendant upon the court; and that at the court mentioned in the plea, the steward nominated the fourteen persons who served on the jury, and issued his precept to the bailiff to summon those persons, and that the bailiff did accordingly summon them, whereas, (as it was alleged in the replication,)" by the law of the land, the steward should have issued his precept to the bailiff to summon a jury, and the particular persons should have been selected by the bailiff." Rejoinder, that from time immemorial the steward had been used to nominate the jurors; and issue thereon. At the trial the defendant proved, that for more than twenty years the precept to the bailiff had always contained a list of persons whom the steward directed him to summon as jurors. The learned judge (Mr. J. Burrough) told the jury that slight evidence, if uncontradicted, became cogent proof; and they found a verdict for the defendant. A rule nisi for a new trial was obtained, on the ground that there was not sufficient evidence to warrant the finding of the jury, or to enter judgment for the crown non obstante veredicto, on the ground that the custom set out in the rejoinder was bad in law. On cause being shown against the rule, the court held that there was no ground for a new trial, but that the observations of the judge, and the verdict of the jury, were well warranted by the evidence.
Abbott, C. J., expressed an opinion that there was nothing in the usage proved to contravene the public policy, or any known rule or principle of law. And that in reference to the passage in Hawk. P. C. b. 2, c. 10, s. 15, which had been relied upon as showing that the bailiff was to select the jury, because the sheriff might fine him for not making a panel, there was nothing inconsistent in saying that it is the bailiff's duty to make the panel, although the sheriff decides upon the persons to be named in it. His lordship added that
(1) It has been decided that a custom for the jurors of a court leet for a borough and manor to present persons to be admitted burgesses, and for the persons so
presented to be admitted and sworn in burgesses by the steward of the borough and manor, is good; Rex v. Duke of Beaufort, 5 Barn. & Adol. 442.
there was also another answer to the argument, viz., that the passage might refer to the traverse jury, and not to the grand inquest.
The author submits, in conclusion of these observations, that it is most difficult to suppose that the steward of a court leet is capable of discharging any ministerial or subordinate duty, either in or out of court, as being wholly inconsistent with his judicial character, and with those organic principles of the leet jurisdiction, which, even in its present faded form, are not wholly screened from the searching eye of the antiquary (m).
We will now proceed to a more general consideration of the duties and powers of the steward of a court leet (n).
It has been said that the steward of a leet may take a recognizance of the peace (o), and not only fine but imprison: and it is the better opinion that he may fine for a contempt of court, and commit the person guilty of the act of contempt until the fine be paid (p), and also that the steward may award a person to prison for a gross misdemeanor in face of the court (q); and again it is said, that in matters within the province of the leet, the steward hath powers equal with the justices of the bench (r).
In one particular instance, indeed, it should seem that he has a still greater power, for if there are not sufficient suitors present to constitute a jury, he may compel a stranger passing by to be sworn (s), and
(m) It certainly would not be easy to reconcile the performance of a ministerial duty by the steward of a court leet with the notion that he is a man "indifferent between the lord and the law;" ante, p. 689. "It is of the greatest consequence to the law of England, and to the subject, that the powers of the judge and jury are kept distinct," &c. Per Hardwicke, C. J., in Rex v. Poole, Com. Dig. Enquest, (A. 1).
(n) And see post, sect. 5, “Of the Jury and their Presentments."
(0) 7 Hen. 6, 12; 10 Hen. 6, 8; 11 Hen. 6, 7; 4 Inst. 263, 264; Powell, of Leet, 32, 33; Br. Leet, 29. But this has been denied; Shepp. 9.
(p) But that course would be very unadvisable, as an action of debt lies; post, P. 704.
(g) 31 Hen. 6; Fitz. Abr. Lete, 11; Earl of Lincoln v. Fisher, Ow. 113; 13 Hen. 4, 12; 10 Hen. 6, 7; 21 Hen. 7, 32; Cromp. J. P. 92 b, 130 b. These
authorities are strengthened by the act of 1 Ed. 4, c. 2 (see Appendix), declaring that sheriffs in their tourns or law-days should not have power to fine or imprison on indictment or presentment there, in which act there is an express exception of persons holding liberties and franchises by grant or prescription. But the steward's power to imprison has been denied ; Godfrey's case, 11 Co. 43 b. And see 1 Roll. Rep. 35, 74; Scroggs, 5, 16; Shepp. 9; Kitch. 81, says, quære of committing a tenant to prison since Magna Charta, c. 29. (r) Br. Leet, 14, cites 7 Hen. 6, 12. (s) 7 Hen. 6, 12; 12 Hen. 7, 15; Br. Leet, 14, 24; Kitch. 13; ib. 89, cites 2 Hen. 7, 4; ib. 224, cites 3 Hen. 7, 4; 1 Roll. Abr. 542 (Y.), pl. 1, cites 7 Hen. 6, 13. "This power must, however, be confined to those courts in which it is the usage to swear and discharge the jury in the course of the day;" Rits. 6, n. See post, sect. 5.
consequently impose a fine on him for his refusal (t).
We shall presently see that all felonies are inquirable at the court leet, those, at least, which were so at common law, and those of which the leet has express jurisdiction by statute law :-this is to be done by indictment or inquisition by roll indented under the seals of the jurors, consisting of not less than twelve persons, whereof one part is to remain with the person indicting, and the other part with the steward, to be certified by him to the king's justices at the next gaol delivery (u); and persons against whom such charges by indictment or inquisition are found, may be committed by the steward to prison (x); but the leet cannot arraign and deliver the persons indicted (y) :—and except for felony, the steward hath no power to inquire by indictment or inquisition, therefore an indictment in leet of assault and battery without bloodshed is not good, for such indictment before the sheriff in his tourn was adjudged void (z); nor can a steward in leet take indictment of robbery out of his precinct (a).
It is generally supposed that the steward of a court leet may be retained by parol (b), except in the case of the king or a corporation, when it is certain that a patent or deed is essential (c).
The better opinion is, that the office of steward of a court leet, being a judicial appointment, is not grantable in reversion, even in the case of the king (d), and that such office is forfeitable for nonuser or mis-user (e).
It would clearly appear that a mandamus lies to restore the
(z) Dy. 233 b, pl. 14, cites 13 Ed. 4, 10.
(a) Br. Corone, pl. 194, where it mentions that a capius was awarded against the lord of the leet and his steward for taking such an indictment, cites 41 Ass. 30; ib. Leet, 18, cites S. C.
(b) Co. Lit. 61 b; Dy. 248 a; Scroggs, 28. But see Scroggs, 35; Comb. 285. It is better to retain the steward of a court leet by deed, and certainly is essential if
the appointment be for life or years, or to enable the steward to recover his salary by writ of annuity; ante, pt. 1, pp. 110,
(c) Com. Dig. Cop. R. 5; ib. Leet, M. 1; 19 Vin. tit. Steward of Courts, F.; 11 Co. 4, in Curle's case; ante, pt. 1, pp. 109, 110.
(d) Curle's case, 11 Co. 4; Howard v. Wood, T. Jones, 126, 127; S. C. 1 Freem. 473; S. C. 2 Lev. 245; S. C. 2 Sho. 21; Co. Lit. 3b; ante, pt. 1, p. 116; ante, p. 608, 609. But it has been thought that a judicial office could be granted in reversion by usage; W. Jones, 311; Hardr. 357; 2 Vent. 188. And that the king may so grant without usage; Savage's case, cited Mar. 42; 4 Mod. 280; Co. Lit. 3 b, n. 5; ante, pt. 1, p. 116.
(e) 9 Co. 50 a. Per Chock, Br. Forfeit. de Terres, pl. 54.