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under a paramount title must sue at common law, so long as the land remains frank-fee in the hands of the immediate possessor (p); but on recovery at common law by a disseissee of ancient demesne lands, after a fine by the disseissor, the lands would have been ancient demesne again (q). It appears, however, that the election to sue in the manor court for the recovery of ancient demesne lands is not taken away in all cases by the lands becoming frank-fee ; for although a disseisin by the lord will make ancient demesne lands frankfee as to him so long as they remain in his hands (r), yet the tenant had his option in such a case, to sue either by writ of right close or at common law (s).
(P) But see 50 E.3, 24 b; 1 Roll. Abr. recovery there, for it was coram non judice; 326 (L.), pl. 3, where it is said, that if the F. N. B. 13 C.; ib. (n. a), cites 7 H. 4,3. land be made frank-fee as to those in pos- And see 2 Preston on Conv. 102. session, yet it shall not be said to be frank- (r) 20 H. 6, 33, 41, Ass. 7; F. N. B. fee as to those who claim paramount this 12 E.; 1 Roll. Abr. 325, pl. 17. making of it frank-fee.
(8) 30 E. 3, 13, 41, Ass. 7; Fitz. Aunc. (9) 3 E. 3, 33 ; 1 Roll. Abr. 326 (L.), Dem. pl. 18; F. N. B. 12 E.; 1 Roll. pl. 3, cites 50 E. 3, 24 b. Therefore, if in Abr. 325, pl. 18. such case judgment be given in the court But as to the writ of right close, vide of ancient demesne, and the
reference to the act of 3 & 4 W. 4, c. 27, enters, in trespass brought against him for ante, p. 585, n.(d). And see the act in the entry, he cannot justify by force of the the Appendix.
END OF THE SECOND PART.
PART THE THIRD.
OF THE JURISDICTION OF COURTS BARON(a).
Origin and Nature of the Court Baron. A COURT BARON, which it is to be recollected is not a court of re
(u) The style of the court is Curia Ba- pear about the end of the reign of King ronis E. C. militis manerii sui prædicti, John to have lost the appellation of baron (having the manor's name written in the altogether. margin,) tent' tali die, &c. Coram A. B. Sir William Blackstone observes-"A seneschullo ibidem ; 4 Inst, 268.
buron's is the most general and universal Curia (court) is a place where justice is title of nobility, for originally every one of judicially administered, and is derived à the peers of superior rank had also a cura, quia in curiis publicis curus gerebant ; barony annexed to his other titles. But Co. Lit. 58 a. Curia, which occasionally it hath sometimes happened that when an seems to have implied the court or manor ancient baron hath been raised to a new house only of the lord, in one or two en- degree of peerage, in the course of a few tries in Domesday-book appears to have a generations the two titles have descended more immediate reference to manorial ju- differently, one perhaps to the male derisdiction; App. to 2nd General Reportscendants, the other to the heirs general; from Commiss. on Pub. Records, p. 442, whereby the earldom or other superior cites tom. 1, fol. 35 b; ib. fol. 265 b. title hath subsisted without a barony; and
Baronis.— The title of Baron, like all there are also modern instances where or most of the dignities or titles of honour earls and viscounts have been created now existing in England, originated in without annexing a barony to their other the feudal institutions of the Normans, honours, so that now the rule doth not and seems about the end of the Conqueror's hold universally that all peers are barons. reign to have supplanted the Saxon title of The original and antiquity of baronies Thune. Those possessing original baro- have occasioned great inquiries among our nies, and other great lords, having, during English antiquaries. The most probable the practice of subinfeudation, called their opinion seems to be that they were the immediate vassals barons, the principal same with our present lords of manors, to barons, who alone were summoned to at. which the name of Court Baron (which is tend the councils of the king, and who the lord's court, and incident to every held of the king in capite [2 Inst. 7], were manor) gives some countenance. It may called barones majores, or burones regis (or be collected from King John's Mugna regni), to distinguish them from the in- Charta, that originally all lords of manors, ferior barons, denominated burones mi- or barons, that held of the king in capite, nores, and who held by knight's service had seats in the great council or parliaand escuage [4 Inst. 46). The latter ap- ment; till about the reign of that prince
cord (6), is incident to every manor (c), and is incapable of severance under any grant of such court, or any reservation thereof in a grant of the manor (d), except only in the case of the king (e).
The Court Baron was ordained, as well for the maintenance of the services and duties stipulated for by lords of manors (f) on their granting out lands to others in fee, previous to the statute of Westminster 3 (g), as for the purpose of determining actions of a personal nature, as debt or trespass (h), or detinue of goods (i), where the debt or damage was under forty shillings (k); and it should seem not only as between the tenants of, but as against strangers coming within, the manor (I).
It was adjudged in a late case in the Court of B. R. upon an apthe conflux of them became so large and (d) 10 H. 8, 34; Kitch. 70; Brown v. troublesome that the king was obliged to Goldsmith, 1 Brownl. 175; Mo. 870; divide them, and summon only the greater Hob. 108; Br. Incidents, pl. 34, cites 19 barons in person, leaving the small ones
H. 8. to be summoned by the sheriff, and (as it (e) Mo. 870, in Brown v. Goldsmith. is said) to sit by representation in another See also Sir Robert Acton's case, Dy. house, which gave rise to the separation 288 b. And it should seem from the same of the two houses of parliament. By de- authority that the profits of court may be grees the title came to be confined to the excepted, even by a common person; ib.; greater barons, or lords of parliament only, vide also Com. Dig. Cop. (R. 1, Court and there were no other barons among the Baron.) peerage but such as were summoned by (8) Kitch. 6; Scroggs, in his Pract. writ, in respect of the tenure of their lands of Courts Leet and Courts Baron, pp. 82, or baronies, till Richard the Second first 83, says, that these courts were ordained made it a mere title of honour, by confer- for the three purposes of adjusting differring it on divers persons by his letters ences between lord and lord adjoining; patent." See 1 Com. 398, 399.
between lord and tenant; and between The principal mansion or castle of every tenant and tenant. See also ante, pt. 1, barony was called the caput baronia, and was appropriated to the use of the per- (8) Ante, pt. 1, p. 2 to 5. son entitled to the barony, and when the (h) Britt. 61; Kitch. 148. barony descended to daughters the caput (0) Kitch. 146, cites 6 E. 2; 34 Hen. baroniæ was allotted to the eldest.
6, 53. But not detinue of writings; F. pears to have been subject to curtesy, but
N. B. 47 B.; Kitch. 148. not to dower; 1 Inst. 39 b, 31 b; 2 Inst. (k) 19 Hen. 6, 8; Kitch. 6, 146; 2 17.
Inst. 311; 4 Inst. 264, 268. On attempt (b) Co. Lit. 117 b; 2 Inst. 143; 4 Inst. to hold plea in court baron of any matter 268.
of the value of forty shillings, writ of pro(c) 8 H. 7,1; Kitch. 7, 8, 70; 2 Inst. hibition lies; Finch. L. 451; 3 B). Com. 99; 4 Inst. 268. Being incident to a 112; but by charter or prescription, as in manor of common right, it is not lost the case of the Castle of Dover, a court merely because no court hath, time out of baron may hold pleas above forty shillings, mind, been holden within the manor ; and award a capias ; Kitch. 187. These, Ow. 35.
however, are courts of record; Kitch. 187, The entry is sometimes “ The Great 188, cites 6 E. 4, 3. Court of, &c. :" this is but a Court Baron; (1) Kitch. 146; Br. Court Baron, pl. 1. Kitch. 156.
plication for a mandamus to receive and admit a plaint in a manor court (of ancient demesne), that a chartered right in the steward and suitors of the court of determining plaints of debt, (though exceeding forty shillings,) trespass vi et armis, &c., was not lost by non-user fornear fifty years (m).
But account does not lie in a court baron (n); nor trespass vi et armis (0)
According to some ancient authorities, the court baron had conusance originally of all pleas of land within the manor, to the exclusion of all other jurisdictions, except by a remisit curiam from the lord (p), and this by the writ of right patent; but it is to be remembered that the writ of right patent was a command from the king to the lord that he would do right to the party complaining(9); and that the plea may be removed by writ of tolt into the county court, and from thence into the Court of Common Pleas by writ of pone (r): it is also to be observed that the issue by writ of right patent never could have been tried in the court baron by the great assize, but by wager of battel only (s), and that should issue have been joined there upon assize, or foreign plea been pleaded, prohibition lay(t).
The reader is here apprised that by prescription a court baron may have jurisdiction as a peculiar, to grant probate and administration, and to take cognizance of testamentary causes (u), as in the manor of Mansfield, and of Cowle and Caversham in Oxfordshire (x), and the honor of Knuresborough in Yorkshire (y).
When and where to be kept. The Court Baron, it is clear, may be held at any place within the manor (2), but it appears formerly to have been thought that it must
(m) Rex v. The Steward $ Suitors of other offences, and trial by wager of battel the Manor of Havering Atte Bower, 5 in writs of right. Barn. & Ald. 691; and see Rex v. The (1) F. N. B. 4 E.; Kitch. 147, who Mayor & Jurats of Hastings, ib. 692, n.; also
says, “ if plaint of debt or trespass be ante, p. 601, n. (c).
sued there, and foreign matter is pleaded, (n) Kitch. 146, cites 43 E. 3, 19. it shall not be tried in court baron," cites
(o) Co. Litt. 118 a; F. N. B. 47 A.; 1 Hen. 5, 12. 2 Inst. 311, 312; Kitch. 146, 148; but (u) Denham v. Stephenson, Salk. 41 ; see 7 E. 4, 23, cited Kitch. 146.
Atkins v. Hill, Cowp. 286; 3 Bac. Abr. (p) 2 Bac. Abr. 205 ; Kitch. 147. 39; Toll. Ex. 49. (9) Kitch. 146, 151,
(.r) Off. of Ex. 43. (1) Booth's Real Actions, 86, n.; ib. (y) See a recent interesting publication 89, 90, 91. See further, as to the writ of the customs of the Forest of Knaresboof right patent, post; and note, that it rough. was abolished from 31st Dec. 1834; vide (7) Kitch. 186, cites 8 Hen. 7, 4, A. 3 & 4 Will. 4, c. 27, in the Appendix. 24, E. 3; Co. Cop. s. 31, Tr. 50; Scroggs,
(s) See the act 59 Geo. 3, c. 46, abolish- 83; Ow. 35. ing appeals of murder, treason, felony, or
be held at a place certain (a). Although it would be void if held out of the manor (b), yet we have already seen that by custom courts for several manors may be held together in one of them (c).
It is proper and usual to give fifteen days' notice of the court, including three Sundays; but even three or four days would probably be deemed sufficient (d).
The Court Baron is frequently held with the Court Leet, and then the various acts are referred to the court to which they respectively apply (e) : and when there are both freehold and copyhold lands within the manor, the proceedings of the common law and customary court baron may be entered on the same roll (f).
The Court Baron was anciently held once in every three weeks (g), but this was for the convenience of the suitors : and where the jurisdiction as to plaints in nature of personal actions is not established by charter or prescription (h), or has fallen into desuetude, the court is more generally held once only in the year(i); and the author apprehends that the lord, in the absence of an established usage, could not compel a more frequent attendance of the suitors, without some good cause for it being shown (k).
Of the Suitors to the Court, and before whom it is to be kept; and
herein of the Steward. Freehold tenants alone are suitors to the Court Baron, and it is essential to the existence of the court that there should be two suitors
(a) So the opinion of Brian, Kitch. thus, “ I, A. B. of &c., lord or copy186; Co. Cop, s, 31, Tr. 50.
holder, customary tenant, or freeholder." (6) Co. Litt. 58 a; Glanv. 19; Kitch. (d) Ante, pt. 1, p. 5. 186; Ow. 135.
(e) 1 Freem. 525, ca. 707. (c) Ante, pt. 1, p. 5.
(1) Co. Litt. 58 a; Com. Dig. Cop. The provisions of the Commutation and (R. 2). Enfranchisement Act, 4 & 5 Vict. c. 35, (8) Scroggs, 40, 83; Co. Cop. s. 31, are not applicable to the common law Tr. 50; Co. Litt. 58 a. court baron; but the author apprehends (h) Post, sect. v. that the enactments for facilitating the (i) It has been decided that the court commutation of the lord's rights in "rents" baron may be held even at night; Mo. and “heriots" must be held to embrace 68, ca. 185 ; ante, pt. 1, p. 5. "rents” and “heriots " payable in respect (k) See 2 Bac. Abr. 206, marg. where of lands of freehold tenure, which intention it is said “ The Court of B. R. has granted is more particularly discoverable in the informations against lords and stewards, general words used in the first section of for oppressing the tenants, by warning the act, viz." and in respect of other lands courts baron every three weeks, and dissubject to such payments (rents, fines, and training them to appear or pay a certain heriots), or any of them," and in the form sum of money upon no occasion at all, given in s. 12, of the appointment of an but to extort amercements from them;" attorney (or agent), which commences but see Scroggs, 40.