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steward of a leet (ƒ): and we have seen that an information in nature of a quo warranto has been granted against a person for exercising the office of steward of a court leet (g); but the author has also shown that in one instance it was refused, as being a private right (h).
Deputy-steward.-It does not appear to have been decided whether the steward of a court leet can exercise the office by deputy; but at all events, as it has been doubted whether even a general steward of a manor can act by deputy in the absence of an express power, or an established custom, the author must suppose that the steward of a court leet, who presides there in a judicial character, could not depute a person to perform the duties of the office for him, unless an authority of that nature should be contained in his patent or deed of appointment, or he could show an established custom for it (i).
What Fines may be imposed by the Steward of a Court Leet.
The steward may set a fine on any man for a contempt or disturbance in court (k), and such fine is recoverable in an action of debt (1); but the fine must be reasonable (m), though it should seem that the reasonableness need not be averred (n); nor need the fine be affeered, as in the case of an amercement (o).
(f) Ile's case, 1 Vent. 153; The King v. The Churchwardens of Kingscleere, 2 Lev. 18; Stamp's case, 1 Sid. 40; Sir T. Raym. 12. But see 12 Mod. 666; Rex v. Cann, T. 10 & 11 G. 2, Andr. 14.
(g) The King v. Hulston, 1 Str. 621; The King & Medlicoat, 2 Barnard. B. R. 222; ante, tit. "Court Baron," p. 608, n. (e).
(h) Rex v. Cann, Andr. 14; ante, p. 608, n. (e).
(i) See Scambler v. Waters, Cro. Eliz. 637; The Earl of Rutland & Spencer's case, 4 Leo. 243, 244; Cro. Car. 50, 279, 556. Vide also Scroggs, 36, 37; ante, pt. 1, pp. 119, 120.
It is only when the office is purely ministerial that the duties may, as a matter of course, be performed by deputy, (ante, pt. 1, pp. 119, 120, 122,) and the deputy, though he may act in his own name, except in special cases, should act in the name of his principal; per Doderidge, Just. Roll. Rep. 274, pl. 49; Com. Dig. Officer, D. 5; ante, pt. 1, p. 120. N. B.
Under a grant of a franchise, all writs should be returned by or at least in the name of the principal, unless the grant contain a special provision authorizing the return to be made by the grantee of the liberty by his or their bailiff or bailiffs, as in Newland v. Cliffe, 3 Barn. & Adol. 647.
An infant cannot preside either as steward or deputy-steward in a court leet; Scambler v. Waters, Cro. Eliz. 637; ante, pt. 1, p. 111.
(k) Griesley's case, 8 Co. 38 b; Dy. 233 b, pl. 14; Kitch. 82, 86.
An action upon the case will lie by the lord of the leet against a person disturbing his steward in holding a court leet; 38 Hen. 6, 16; Br. Action on the Case, pl. 75.
(1) Br. Leet, 29; Kitch. 81, 82, 86, cites 7 Hen. 6, 13; 10 Hen. 6, 7.
(m) Griesley's case, sup. ; 2 East, 59, in Davidson v. Moscrop.
(n) Co. Ent. 571, 572; 2 East, 59. (0) Kitch. 82, cites 10 Hen. 6, 7.
In an action of debt for a fine imposed on the defendant at a court leet, the plaintiff set forth in his declaration that he had a leet within his manor of H., to which, &c., and that at a court held, &c., before J. S., his steward, he the said steward told the defendant that he was a suitor, and ought to be sworn to inquire, &c., who replied "in saying so thou liest," and for those words the steward set a fine of 20s., for which the action was brought. The case was at issue upon. a plea of nil debet, and a verdict was given for the plaintiff. It was moved in arrest of judgment, that this was not a contempt for which a fine ought to be imposed, but the court decided otherwise, and that the action was well brought (p).
And where the defendant had put on his hat in contempt of the court, and on being admonished by the steward of the impropriety, he replied that he did not value what he (the steward) could do to him, whereupon the steward set a fine of 40s., for which the lord of the leet brought an action of debt, and it was adjudged that the action lay (q). But in a case where the observation only implied a doubt of the right of holding the court in the particular place, it was adjudged that the steward was not justified in setting a fine of 5l. for the words spoken (r).
The refusal to make a presentment is a contempt for which the steward may assess a fine on the jury (s); but the fine must be set severally (t); and so in all cases, except only where there is an uncertainty of persons, as in a fine on a town for the escape of a felon (u); and if any suitor present in court refuse to be sworn on the jury (x), or if any of the jury depart without giving their verdict (y), or give it before all are agreed (2), they may be fined by the steward.
The steward is also authorized to set a reasonable fine on any person elected by the jury to fill the office of constable or tithing-man, who being present should refuse to be sworn (a); and on a constable or tithing-man refusing to make presentment (b).
(p) Earl of Lincoln v. Fisher, Cro. Eliz. 581; S. C. Ow. 113; S. C. Mo. 470. (9) Bathurst v. Cox, Sir T. Raym. 68; Scroggs, 150, 151.
(r) Berrington v. Brooks, T. Jones, 229. (s) 10 Ed. 3 (or Ed. 4); Powell, 32; Kitch. 82.
(1) Bullen v. Godfrey, 1 Roll. Rep. 73; 11 Co. 43; Dy. 211 b, pl. 31.
(u) 11 Co. 43 b, in Godfrey's case.
3, 15; Kitch. 82; ib. 86, cites 13 Hen. 6, Leet, 11. And see Swan v. Morgan, Lex Man. App. 80.
(y) Griesley's case, 8 Co. 38 b.
(z) 40 Ass. 10; 1 Roll. Abr. 219, (Y.) pl. 4.
(a) Fletcher v. Ingram, Salk. 175; S. C. 5 Mod. 130; S. C. 1 Lord Raym, 70; S. C. Skin. 635; 2 Hawk. P. C. 64.
(b) Griesley's case, sup., cites 10 Hen. 6, 7 a.
We have also seen that the bailiff's refusal to execute his office is an offence fineable by the steward of a court leet (c).
But a fine for contempt can only be set when the offence is committed in court; so where in replevin the defendant justified the taking a distress for a fine set on the plaintiff by the steward of the leet, for that he (the plaintiff) did not appear at the court to do suit and service there; upon demurrer to this plea the plaintiff had judgment, the court holding that the offence ought to have been presented, and the plaintiff amerced; and Periam said, "if the steward shall assess the fine, he will assess it too grievous, and so the party shall have no remedy, but for amercements a moderata misericordia lieth," citing 10 Hen. 6, 7 (d); but this writ, as it should seem, only lies where a person is amerced in a court baron, or other court which is not a court of record, and not even there if the amercement be affeered (e).
The author apprehends, however, that the steward of a court leet may set a moderate fine on any resiant summoned as a juror and not attending the court to be sworn; and that the lord's remedy for such fine is an action of debt (ƒ).
Of Amercements, &c.
An amercement is generally considered to be the act of the jury (g) and a fine the act of the court (h), though it has been said that the amercement is the act of the court, and the affeerment the act of the jury (i).
(c) Ante, p. 693.
(d) Hall v. Turbett, Cro. Eliz. 241. And see Lukin v. Eve, Mo. 88, 89; 8 Co. 41 a. This applies equally to a constable not present at the time of his election, whose refusal is to be presented at the next court, and then he shall be amerced; Fletcher v. Ingram, ubi sup.
In replevin the defendant avowed for distress for pain assessed in leet for not serving as constable, nor finding sufficient deputy, according to the custom that he that is chosen must serve per se or another. And it was held on demurrer that the presentment was ill, being that the plaintiff should find sufficient person to serve for him, not giving him liberty to serve for himself; Escourt v. Stokes, 1 Keb. 416.
(e) F. N. B. 75 A; ib. 76 D., and n. (a); Stubbs v. Flower, 1 Bulst. 125.
(f) Kitch. 86; 8 Co. 41b; Gery v. Wheatley, 1 H. Bl. 163, n. In the possible case of all the resiants refusing to attend so that no court could be held, see post, p. 720, n.
(g) 7 Hen. 6, 12, cited Br. Leet, 12; ib. Fine pur Contempts, 44; ib. Amercement, 65; 8 Co. 41; Palm. 7; 3 Keb. 362, in Cutler v. Creswick; Morgan's case, 8 Mod. 300; S. C. Gilb. Eq. 209; 2 East, 59.
(h) See Br. Abr. as in the last note; Keilw. 65, pl. 5; Godfrey's case, 11 Co. 43 b; 2 East, 59.
(i) See 8 Co. 406, in Griesley's case; 2 Keb. 613, in Rex v. Dickenson; 1 Sho. 62, in Matthews v. Cary; Stephens v. Hawton, 2 Str. 847. Vide also the case of an amercement for not appearing at the sheriff's tourn, where the assessment of it was considered to be a judicial act,
We have just seen that for not appearing at the court leet the suitor is to be amerced, as a fine can only be set by the steward for an offence in court (k), and the jury are to present that the party ought to do suit at the particular court (1). But it is not necessary to prove notice on the suitors (m).
No person can be amerced in leet for a private trespass done to the lord (n); nor could the right be upheld even by custom (o), though this was formerly doubted (p). But a deciner may be amerced for nonpayment of the certum leta if a prescription be shown for it, but clearly not without (q).
An amercement in a court leet, as in a court baron, should be reasonable (r) and must be affeered (s); and yet it has been said that if the jury will amerce in a certain amount, there needs not any affeerment (t).
The affeerment of an amercement must be in open court by two or more persons appointed by the steward, and sworn for that purpose, and not by the jurors at large (u); but the affeerors may be selected from the jury; and this is the constant practice (x).
The reasonableness of an amercement once affeered cannot be questioned in a writ of error, nor shall the party have a moderata misericordia (y); the latter writ, indeed, is only applicable to courts that are not courts of record (z).
When a nuisance is presented by the jury of the court leet, it is usual to conclude with an order for its removal under the penalty of some fixed sum (a); and should the order be disobeyed, then for the jury at the succeeding court to present the neglect, and that the pain
Gryffyth v. Biddle, Cro. Car. 275. The jury are to amerce, and the sum assessed is to be affeered by officers elected by the steward; Evelin v. Davies, 3 Lev. 206; Wilton v. Hardingham, Hob. 129. Per Dolbin, J., 1 Sho. 62, in Matthews v. Cary; 8 Mod. 298.
(k) Ante, pp. 704, 706.
(1) Hall & Turbett, Lukin & Eve, ubi sup.
(m) Ib.; Skin. 393, in George v. Lawley. (n) 1 Roll. Abr. 211 (C.), pl. 1, cites 12 Hen. 4, 8 b; Rex v. Dickenson, 1 Saund. 135; S. C. 2 Keb. 606, 613; Rex v. Ayres, 2 Keb. 139; 3 Keb. 644; Sir T. Raym. 160.
(0) Wood v. Lovatt, 6 T. R. 511. (p) 12 Hen. 4, 8, cited Br. Leet, 12; ib. Custom, 16; ib. Amercement, 19. (4) Ante, p. 686.
(r) Co. Lit. 126; 2 Inst 27; ante, p. 621 et seq.
(s) Mirr. c. 5, s. 1; Br. Amerciament, 50, cites 10 Hen. 6, 7; 8 Co. 39b; sup. n. (i).
(t) Per Holt, C. J., in Matthews v. Cary; 1 Sho. 62; and 11 Mod. 76, in Brook v. Hustler.
(u) Evelin v. Davies, 3 Lev. 206; Lex Man. 13, App.; sup. n. (i). And it must be made at the same court and be so pleaded; Cutler v. Creswick, 3 Keb. 363. (x) Ante, tit. Court Baron, p. 622. (y) Stubbs v. Flower, 1 Bulst. 125; Crompton of Courts, 225 b.
(2) F. N. B. 75 A; ante, p. 706.
(a) For a public nuisance a pain may be set on default of abatement; Rex v. Dickenson, 2 Keb. 613; S. C. 1 Saund. 135.
set at the former court is thereby forfeited. This penalty, which does not require to be affeered, being distinguishable from an amercement (b), may then be recovered by the lord in an action of debt, which the author apprehends is his only proper remedy (c).
Of the Remedies for Fines, Amercements, &c.
We have seen that a fine set by the steward in leet is recoverable in an action of debt (d). It may also be recovered by distress (e), even without a custom, a distress being incident to a court leet of common right (ƒ); and the lord may sell the distress (g); but when the fine is not of common right, or when it is for a private advantage of the lord, it cannot be distrained for without a prescription (h).
An amercement in a court leet is recoverable either by action of debt (i) or by distress; and though it is said in some of the books that a man may prescribe for amercement in leet to distrain and sell the distress (k), yet it should seem that the remedy by distress is of common right equally as for a fine (l).
And the distress may be taken in any place within the precinct of the leet (m), even in the common street (n); for the stat. of Marlb. c. 15, which prohibits the taking of a distress in the highway, is to be intended only of distresses taken for services due by way of tenure of lands (o). But the cattle of a stranger cannot be taken, as in a distress for non-performance of suit (p).
(b) Rex v. Dickenson, sup. Sed vide Pratt v. Stearn, Cro. Jac. 382, where the words "pain" and "amercement" were used as synonymous.
(c) Br. Leet, 37, cites 23 Hen. 8; Ritson, 115. But see Kitch. 86.
(d) Ante, pp. 704, 705. And see Doe v. Ball, Lex Man. 85, App.; Keilw. 66 b; Kitch. 86.
(e) Swan v. Morgan, Lex Man. 80, App.; Keilw. 66 b.
(f) 1 Roll. Abr. 668 F. pl. 2, 3; Pier
Ridley (or Ridge), 2 Keb. 701, 739, 745; Sir T. Raym. 204; 1 Vent. 105; Godfrey's case, 11 Co. 45 a; Griesley's case, 8 Co. 41 b; Kitch. 86.
(g) Br. Leet, 20; ib. Distress, 40, 72, cites 3 Hen. 7, 4.
(h) 11 Co. 44 b, in Godfrey's case. (i) Br. Dette, 180, cites 10 Hen. 6, 7; Keilw. 66b; 8 Co. 41 b; Kitch. 86. And wager of law was not allowed even before the stat. of 3 & 4 W. 4, c. 42 (ante, p. 624;) Kitch. 188; Br. Ley Gager, 99, cites 10 Hen. 6, 7.
ib. Prescrip. 40, "The lord may sell
(k) Br. Leet, 34; cites 21 Hen. 7, 40. the distress taken for an amercement in leet, as the king may sell the distress, for that it is the king's court; 3 Hen. 7, f. 4." Kitch. 85; Br. Distress, 72.
(1) 1 Roll. Abr. 666 F., pl. 2; 1 Brownl. 36; Kitch. 85, cites 10 Hen. 7, 15, and other cases from the Year-Books; Griesley's case, 8 Co. 41; Godfrey's case, 11 Co. 45 a; Br. Distress, 45; ib. Prescription, 61, cites 9 Hen. 7, 22; Scroggs, 145; Gilb. Dis. 12, 13. The power of distress is suspended by the possession of the king, Br. Leet, 8; Kitch. 85, 87; sup. n. (ƒ).
(m) Br. Leet, 28, cites 2 Hen. 4, 24; Kitch. 86, cites 8 R. 2, Avowry, 194. (n) Kitch. 86, cites 34 Ed. 2, 19 Ed. 2, A vowry, 221.
(0) 2 Bac. Abr. Distress, p. 355.
(p) Goosey v. Pot, Ow. 146; The Prior of Tindal's case, 41 Ed. 3, 26; Br. Leet, 4; Scroggs, 146; 2 Bac. Abr. 355. But see Kitch. 86; Noy, 20.