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In justifying a distress for an amercement, the defendant must show that the offence was committed within the jurisdiction of the leet; and for this purpose he ought to plead the bounds of the leet with certainty (9); and it is requisite also to show in what sum the plaintiff was amerced, or rather the particular sum set by the affeerors (r).
The bailiff in justifying the distress for an amercement may plead the amercement without averring the fact, but this is in trespass only; in replevin it is otherwise, for there he must recover on the merits, as he makes a title for the return of the goods (s).
And the better opinion is, that the bailiff of a court leet cannot distrain for an amercement ex officio (t), but only by a special warrant from the steward; not even by command of the lord of the manor (u).
In debt for an amercement, the declaration ought to express the names of the affeerors, or it shall be intended to be done by the steward (w): and it should also aver that the affeerment was made at the same court as the amercement(y).
And in Monnop v. Thomas (2), upon a distress for an amercement in leet, it was held that the issue whether C. and H. were afferratores curia prædicta ought to have been tried by the record.
In an avowry for an amercement in leet, it is not sufficient to say prasentatum fuit at the leet that the plaintiff did such an act, but he must aver the act, and not rely upon the presentment (a).
And in debt for an amercement in leet, the declaration must also aver inhabitancy as well at the time of the amercement as of the offence; but this will be cured by verdict, for it must be proved at the trial (6)
(9) George v. Lawley, Skin. 393; It should seem that the bailiff of a liWilton v. Hardingham, Hob. 129. berty of the duchy may distrain er officio
(r) Evelin v. Davies, 3 Lev. 206; for fines and amercements for the king, Wilton v. Hardingham, sup. ; Brook v. and keep the same fifteen days, and that Hustler, 1 Salk. 56.
such distress may then be sold unless the (s) Stephens v. Haughton, 2 Stra. 847; party enter into bond or show good cause, Lamb v. Mills, Skin. 587; S. C. 4 Mod. but that he cannot replevy. See Ritson 378; Matthews v. Carey, Carth. 73; S. on Courts Leet, 121, n. C. 3 Salk. 52.
Whether the bailiff is punishable if (1) Rowleston v. Alman, Cro. Eliz. 748; there be any irregularity in the distress, Steverton v. Scrogs, ib. 698; S. C. Mo. see Keilw. 52, pl. 3; ib. 66 b. 573, 607.
(r) 8 Co. 40 b, in Griesley's case ; (u) Carth. 75, in Matthews v. Carey. Cutler v. Creswick, 3 Keb. 362, 363; And see Lamb v. Mills, sup. “Not with- Keilw. 66 a. out an especial warrant from the steward (y) Cutler v. Creswick, sup. or lord,” per Popham, in Steverton v. (3) Cro. Eliz. 860. Scrogs, sup. “ The bailiff may distrain (u) Sir T. Raym. 337. for lawful amercements by reason of the (6) Bul. N. P. 167, cites Wicker & office;" per Gawdy, ib. See 9 Vin. Abr. Norris, 8 Geo. 2. pp. 134, 136.
Where in debt for amercement the declaration stated it to have been affeered at a court holden before the steward, but it appeared in evidence that the court was really holden before the deputy steward, the variance was held to be fatal (c). And where in debt for an amercement the declaration stated that the defendant was summoned to serve on the jury of the court leet and court baron, but the summons was to serve on the jury of the leet only, the plaintiff was nonsuited, Lord Mansfield observing that this was a matter of strict law, and the plaintiff was bound to prove the averment in the declaration, which the summons did not prove (d).
It should seem that in debt for a penalty in leet for not abating a nuisance, it is not necessary to allege notice of the order, for the party being within the jurisdiction of the leet is to take notice of it at his peril (e); and this rule applies equally to a penalty in leet for breach of a bye-law (f).
The defendant may traverse the fact of the presentment in debt for amercement in leet (g): but where an amercement had been estreated into the duchy court of Lancaster and paid, the court of B. R. would not grant a certiorari to remove the record and proceedings out of a court leet in order to inquire into the propriety of an amercement, Rex v. Heaton (h). The case was this; the manor and liberty of the Savoy is parcel of the possessions of the duchy of Lancaster. Previous to the Easter court the steward issued his warrant to the chief bailiff, requiring him to summon all resiants, &c. to appear and do suit and service, and also to warn a sufficient number of resiants to be upon pain to serve offices, &c.; whereupon the chief bailiff issued his precept to the deputy to summon them accordingly. Heaton had been so summoned to attend the court at twelve o'clock on the 3rd of May, 1787; he came accordingly at the exact time, and waited a few minutes at the court-house, but the steward not being there, he desired one of the officers present to take notice that he had duly attended, and that being elsewhere engaged he was obliged to go -away. Though it was the practice to issue the summonses for twelve o'clock, it had not been usual to open the court till near one o'clock, and this was generally known. The court was opened on this occasion at the usual time, and Heaton not appearing, the jury presented him, and amerced him for his default in the usual sum of 51., and the amercement was duly affeered. In Trinity term following the amercements were estreated by the steward, and the estreat roll delivered by
(c) Wyvill v. Shepherd, 1 H. Bl. 162.
(e) Lee v. Boothby, M. 11 Car. B. R.; Vin. Abr. Incroachment, pl. 2; ib. Condition (B, d.), pl. 6.
(f) Ante, p. 625.
(8) Carth. 74; 1 Lord Raym. 470; Bul. N. P. 167. See further as to traverse, post, s. 5.
(h) 2 T. R. 184.
him upon oath into the court of the duchy chamber of Lancaster; in consequence of which the usual writ of levari facias et capias issued under the duchy seal to the bailiff of the liberty (i), into whose hands Heaton paid the 5l.
A rule was obtained in the Court of B. R., calling on the steward of the manor and liberty of the Savoy to show cause why a writ of certiorari should not issue to remove into that court the record and proceedings of the court leet, held as above mentioned, in order that the same might be quashed for irregularity; and it was urged against the rule that Heaton had no claim to this indulgence, his attendance being merely illusory, and a certiorari, being originally a prerogative writ, was never granted of course; and that in point of law it was a decisive objection to the application, that the fine had been estreated and paid; that the records and proceedings of the leet were become part of the records of the duchy chamber, and could no more be removed than the presentments and fines of any other inferior court, after they were etreated into the Exchequer (k); nor was Heaton without remedy, for he might have applied to the duchy court to remit or mitigate the fine (amercement) according to equity. In support of the rule it was contended, first, on the merits, that Heaton having attended as above stated, had thereby showed his respect to the court, and that on a certiorari he would be intitled to traverse the presentment itself (1); and secondly, on form, the party being intitled to his certiorari if the presentment appeared on the face of it to be informal (m); and that there were two objections to the presentment; lst, that it was an amercement without affeerment, but even if in truth affeered, yet not being recorded, it must be taken that there was none, for that fact could not be tried per pais (n); 2ndly, that the amercement ought to have been by the court and not by the jury (o). But the court, without hearing the other side on the objection to the presentment, were clearly of opinion that a certorari would not lie, as the fine (amercement) had been estreated and paid.
Amercements in the king's leet are to be estreated into the Exchequer (p), and may be levied by levari facias; and action of trespass for any thing done in the execution of that process must be
(1) See as to a distress by the bailiff of a liberty of the duchy, ante, p. 709, in notis.
(k) The case of The Sheriff of London and Middlesex, T. Jones, 169, was cited.
(1) Rex v. Roupell, Cowp. 458; Dy. 13, pl. 64.
(m) Cowp. 460; 1 Saund. 135.
ante, p. 709.
(0) Ante, p. 706; Fitzg. 46, 109; 1 Barnard. 214.
(p) Anon. Hardr. 471. In ordinary cases the amercements are estreated or extracted from the court roll, or record of proceedings in the leet, and a warrant from the steward to the bailiff to levy the same subjoined.
brought in the office of pleas in the Exchequer, the bailiff levying the distress as officer of that court (9).
And the above cited case of The King & Heaton shows that amercements set at courts, of which the king is lord in right of his Duchy of Lancaster, are to be recovered by a similar process out of the duchy court.
Of By-Laws. By-laws may by custom be good in the court leet (r), as well as in the court baron (s), and they are to be embodied in the presentments and verdict of the jury and homage; but it is clear that they are not binding of common right (t), except as to matters properly cognisable in the leet, such as the neglect of repairing highways, bridges, &c. (u). And in pleading the custom, the by-law must be set forth (x).
And the author must suppose that a custom to make by-laws at a court leet, regarding matters of a private nature, and not naturally belonging to the leet, could not be supported (y). But in the case just cited from Hardres's Reports (z), it appeared that at a court leet held for the king within the honour of Grafton, a person was fined 201., according to a by-law for the payment of 5l. a month by every one within the leet that should receive or place an inmate within any house there, without giving security to the overseers of the parish to discharge the parish. The fine was estreated into the Exchequer, and process issued to levy it; and Hale C. Baron held it to be a good bylaw, and frequent in leets, but said that it was hard to estreat the fine thither without taking the usual remedy for it by distress, and to extend the party's lands upon it, when, perhaps he might have something to plead to it, as that he was not within the leet, or that he re
(9) 1 Roll. Abr. 533; Lane, 55, 56.
(r) Lane, 56; Br. Custom, 32; ib. Prescrip. 40; Fitz. Prescrip. 67; Ruddock's case, 6 Co. 25 a; S. C. Cro. Eliz. 648, 649.
(s) Ante, p. 625 et seq.
(1) Wormleighton v. Burton, Cro. Eliz. 448; Lane, 56.
(u) 5 Co. 63 a, in The Chamberlain of London's case; vide also Kitch. 82, 156, cites 11 Hen. 7, 14; 21 Hen. 7, 40; ib. 89, cites 44 Ed. 3, 19; Jeffrey's case, 5 Co. 66 b; Gateward's case, 6 Co. 60 b; Abbot v. Weekly, 1 Lev. 176. And a by-law must be just and reasonable to be
supported, per Parker, C. J., 10 Mod. 133.
(r) Gerrish v. Rodman (or Rodborne), 3 Wils. 155, 164.
(y) Gouldsb. 79, pl. 13; Scroggs, 141; Rex v. Arnould, Tr. 21 Car. 2, B. R. cited ib. 142; Kitch. 89; per Tirrel, in Earl of Exeter v. Smith, Carter, 173; S. C. 2 Keb. 368; but see contrà in the last case (per Wild & Archer); vide also Clarke's case, 5 Co. 64 a. Whether a bylaw for repairing a church is for the public good, and therefore binding, see ante, p. 625, n. (); Co. Lit. 110 b.
(2) Anon. 471; ante, p. 711; Scroggs, 11; and see Lane, 55, 56.
ceived no inmate. But the party was put to plead, the officers of the court observing that it was usual to estreat such fines into the Exchequer, when they belonged to the king.
We have seen that the freehold tenants of a manor are bound to take notice of a by-law in a court baron (a).--When, therefore, a bylaw in court leet is established by custom, the author apprehends that personal notice of it would be unnecessary, as every inhabitant (6) within the precinct of a leet is bound to attend the court.
Of the Election of Officers at the Court Leet. Chief Magistrates, &c.—We have seen that in some manors the jury of the court leet are invested with the highly important power
of choosing the mayor, portreeve, or other chief municipal officer of the borough or town to which the leet jurisdiction is appended (c), but that in others the jury merely present in writing the candidate who may have the majority of votes, and have no control over the poll (d); and that in places where no charter of incorporation exists, vianders or other functionaries are chosen at the leet, who are the returning officers for the year (e).
Bailiff.–We have also seen that in some manors the bailiff is chosen by the jury, and sworn in with the other officers elected at
(a) Ante, p. 626.
cause why a mandamus should not issue, (6) Rex v. Davie, ante, p. 686, n. (i). requiring the lord and his steward to hold (c) Ante, pp. 698, 699, 700.
a court leet, and the bailiff, or in his ab. When a resiant inrolled as such at the sence the deputy bailiff, to return and decourt leet of a borough, becomes thereby liver unto the court leet the panel or list intitled to vote at the election of members of the jury summoned by the bailiff, and of parliament, the inrolment will be com- requiring the steward to swear the jury, pelled by a mandamus to the mayor or and the jurors to be sworn, and to proceed other proper officer; but it is essential to to the election of a mayor, (and which establish the connexion between the leet rule had been amended by inserting the and corporation by affidavit; Rex v. Mayor, name of the mayor de fucto :)—the ground &c., of West Looe, 3 Barn. & Cress. 683; for discharging the rule appears to have ante, p. 690, n. (k).
been that the election was not merely (d) Ante, p. 699, n. (e).; and see The colourable, (and clearly therefore void,) King v. Bankes, 3 Burr. 1452, in which but doubtful, and fit to be tried on an inthe Court of B. R. discharged a rule pre- formation in nature of a quo warranto. viously granted, calling on the lord of the Vide also the act 11 Geo. 1, c. 4, in the leet for the borough manor of Corfe Castle, Appendix ; Rex v. The Lord of the HunDorsetshire, and on the steward, the bailiff, dred of Milverton, 3 Adol. & El. 284; and deputy bailiff, and upon the jury sum- ante, pt. 1, tit. “ Mandamus,” p. 532. moned and ready to be returned, to show (e) Ante, p. 690, n. (k).