The lord of a manor cannot distrain for an amercement in a court baron, as of common right (g), for he shall not have a double distress, and he may distrain for the service itself (h); but the remedy for an amercement is action of debt (i), in which action the defendant, prior to a late act (k), was allowed to wage his law (4). It should seem, however, that the king by his prerogative may distrain for an amercement as of common right (m); and that a distress for an amercement in a court baron for non-performance of suit, may be good by prescription (n), but the goods of an under-tenant could not be distrained under such a prescription (o). The bailiff of a manor cannot distrain ex officio, nor per mandatum of the lord, but must have a special warrant from the lord or steward (p), and it should seem that the precept must be set forth in the pleadings (q). The bailiff is not punishable in trespass for levying damages by command of the steward, although the party plead to the jurisdiction, unless, indeed, the verdict be defeated by a writ of false judgment (r). In trespass on distress for an amercement in a court baron, the defendant must plead the exact title of the court before whom it was held, that the trespass was committed intra manerium, and not merely that it was presented that a trespass was committed (s), and that the distress was made intra jurisdictionem curiæ (t). It would seem that the amercement is lost by the death of the tenant before it is levied, as it is quasi actio personalis (u), and (g) Pell or Pill v. Towers, Noy, 20; Cro. Eliz. 792; Rowletson v. Alman, ib. 748; Blunt v. Whitacre, ubi sup.; Scroggs, 145; but see Co. Cop. s. 31, Tr. 45; 1 Brownl. 36. (h) Gilb. Dis. 16; Goosey v. Pot, Ow. 146; Allen v. Givers, Mo. 185; Godfrey's case, 11 Co. 45 a; Pell or Pill v. Towers, sup.; ante, pt. 1, 364. (i) 12 R. 2; Statham, f. 62; Kitch. 86; ib. 145, 153, 154; Gilb. Dis. 11. (k) By 3 & 4 Will. 4, c. 42, s. 13, wager of law was abolished. (1) Kitch. 153; Scroggs, 137; Co. Lit. 295 a; contrà in debt for fine or amercement in court leet, because the leet is a court of record; Co. Lit. 295 a; Scroggs, 137. See as to the mode of waging law, post, sect. v. (m) Rowletson v. Alman, sup. (n) Ib.; and see cases, ante, 623, n. (ƒ); sup. n. (g). (0) Cro. Eliz. 792. (p) Rowletson v. Alman, sup.; Steverton v. Scrogs, Cro. Eliz. 698. (q) Lamb v. Mills, 4 Mod. 377. The bailiff should be sworn to the due discharge of the duties of his office; see Scroggs, 99; 1 Roll. Rep. 338. (r) Kitch. 148. (s) Armyn v. Appletoft, Cro. Jac. 582; Scarning v. Cryer, 3 Leo. 7; S. C. Mo. 75; S. C. Bendl. 160; and see Parham v. Norton, Cro. Eliz. 886; Blunt v. Whitacre, ubi sup.; but see Lukin v. Eve, Mo. 89. (t) Anon. 1 Mod. 75. (u) Jackman v. Hoddesdon, Cro. Eliz. 351. Being a personal default, the cattle of a stranger or lessee of the tenant could not be distrained; Pell or Pill v. Towers, ubi sup. And see 41 E. 3, 26 b, p. 23, cited Dy. 317 b, n. a; Goosey v. Pot, ubi sup. not like the case of relief, where action lies against an executor (v). SECTION IV. Of By-Laws. The tenants of a manor or vill, it is said, may make by-laws, touching their commons and the like, to bind themselves, but not strangers (r); and again it is said, that where a by-law is for the public good, as to make a causeway or bridge, it is binding on all, ie. of the will though all do not agree (y), and even without a custom (z); but the author apprehends that a by-law in a Court Baron will bind such tenants only as are assenting, unless it be made under an immemorial custom, or by prescription (a). And even with a custom in favour of a by-law, a stranger could not be bound by it (b), as every custom must be reasonable in its commencement. So where the by-law was that no tenant should put a steer on the common, being a year old or more, upon pain of sixpence for every offence, and that it should be lawful to distrain for the same, it was adjudged on demurrer in replevin that this by-law was void; for where a man hath right of common for all commonable cattle, it is against common right to restrain him from one particular sort of cattle; but if the by-law had been that none should put in his cattle before a particular day it had been good, for that would not take away, but only order the inheritance (c). And where the homage, under a custom to make by-laws for the well ordering of a common, ordained that no commoner should put his sheep in a particular part of the common, under a penalty of 3s. 4d. to the lord, upon demurrer in replevin, this was adjudged to be a good law, especially since it did not take all the common, but only for sheep, and in a particular place (d ). (v) Co. Lit. 295 a; ante, p. 620. () Vide Br. tit. Customs, pl. 32, cites 21 H. 7, 40; Lex Man. 42, pl. 1; Hob. 212, in Norris v. Staps. (y) Vide Kitch. 89, 156, cites 44 E. 3, 19; Br. tit. Customs, pl. 6. And see 1 Mod. 194, in Rogers v. Davenant; 8 E. 1, Ass. 413, cited Kitch. 89. (z) 5 Co. 63 a, in the Chamberlain of London's case. In that case a by-law for repairing a church or a highway was considered equally for the public good, and therefore binding; Scroggs, 140. But some of the books distinguish between the VOL. II. two cases, and deem the latter only good ; (a) See Kitch. 89, 156; Hob. 212; Mo. (b) 11 H. 7, 14; 21 H. 7, 40; Fitz. (c) Erbery v. Latton, 1 Leo. 189; S. C. (d) James v. Tintney or Tutney, Cro. F And again, where the inhabitants of a particular place used to repair a bridge for the convenience of the commoners, and a by-law was made that the inhabitants should repair the bridge before a certain day under a penalty, and this not being done, the default was presented at the next court, and one of the inhabitants was distrained; on demurrer in replevin the plaintiff had judgment, because the defendant had set forth that the steward made this by-law with the consent of the homage, whereas all by-laws are to be made by the homage (e). When a by-law is made by custom, the breach of it need not be presented by the homage, nor is it necessary in replevin to aver the necessity of a by-law (f). And notice of it is unnecessary, it being proclaimed in court, where every tenant is bound to attend (g). And when a penalty is inflicted for a breach of a by-law, for which the law distrains, and does not say whose cattle they were, yet it is said they shall be intended to be the cattle of the offender (h). The penalty for a breach of a by-law made at a Court Baron is in the nature of a fine rather than an amercement, and is not affeerable (i). In the case of Scarning v. Cryer (k), under a custom to make bylaws, and to set penalties on those who offended against them, and distrain for the same, a by-law was made, and at another court the defendant was presented for a breach of it, by which the penalty (which was 20s.) was forfeited, but ex gr. cur'. the penalty was affeered at 6s. 8d.; and upon a demurrer to the conuzance it was adjudged ill, not only because a pain of a certain sum, as this was, could not be altered, but also because the defendant pleaded that the presentment was made coram sectatoribus, without showing their names (1). Where the custom of the manor authorising the homage to make by-laws, and assess penalties on breach thereof, should be silent as to the remedy, and there should be no prescription for a distress, the penalty could only be recovered by action of debt by the lord, supposing the penalty given to him by the custom, and it would seem Car. 497; S. C. W. Jones, 430; S. C. Win. 30. And see the argument of the Ch. J. in S C. Mar. 28. (e) Wells v. Cottrell, 3 Lev. 48; vide the pleadings in this case, Lex Man. App. p. 31, pl. 11. But see the report of James & Tintney, in Mar. 28; and Lord Exeter's case, Scroggs, 140. (f) Lord Cromwell's case, S. C. Dy. 323; Lex Man. 42. 3 Leo. 38; by-laws bind the tenants as well freeholders (g) James v. Tintney, sup. (k) 3 Leo. 7; S. C. Bendl. 159; S. C. (Scarling v. Criett), Mo. 75. (1) Vide also Garrett v. Higby, T. Jones, 129. that the defendant might have waged his law in this action, as well as in an action of debt for an amercement in Court Baron (m). SECTION V. Of Plaints in nature of Personal Actions. All pleas in a Court Baron of common right, and of a personal nature were, prior to the abovementioned act of parliament, determinable by wager of law (n); yet by prescription they could only be determined by a jury, and the trial might always have been by jury, with the consent of the parties (0). But unless warranted by charter or prescription the lord cannot compel the suitors of the Court Baron to be sworn, as between party and party (p); though in a writ of right patent, wherein a plea was held of freehold, as the writ was mandatum regis, an oath might have been administered (q). So that it must frequently happen that for want of evidence of a charter or prescription, pleas of debt, even under 40s., cannot be tried in the Court Baron. The process on plaint in a Court Baron is summons, and distress infinite, till the defendant appears (r), but the court has not power to (m) Tyndal v. Toller or Tucker, Bendl. 140; S. C. cited Mo. 277; 1 Leo. 204. Wager of law was abolished by 3 & 4 W. 4, c. 42; ante, p. 624, n. (k). (n) 2 Inst. 143; Kitch. 225, 384. In waging his law the defendant was to bring with him eleven persons, of his neighbours, that would avow upon their oath that in their consciences he said the truth; Scroggs, 136; Co. Lit. 295 a. But it would seem to be doubtful whether six or eleven were necessary; 2 Vent. 171; 2 Bl. Com. 343. In the case of the King v. Williams, 2 Barn. & Cress. 538, the court refused to assign compurgators. But see 1 N. R. 297, in Barry v. Robinson. (0) 33 H. 8, 143; Kitch. 225, 384. (p) 2 Inst. 142; Br. Court Baron, pl. 2, 23; and see Kitch. 82. But to inquire for the lord of the articles belonging to the Court Baron, or hundred, they may be sworn; 2 Inst. 142. N. B. The stat. of Westm. 2, c. 36, subjecting lords and stewards of courts procuring suits to be instituted, to a fine to the King, and to treble damages to the party grieved, (and who at common law could only recover single damages,) extends to Courts Baron and Courts Leet; 2 Inst. 444. Vide reference in the Appendix to 1 [2] Jac. 1, c. 5, and stat. Westm. 1, c. 33. (q) By stat. of Marlb. 52 H. 3, c. 22, none may distrain his freeholders to answer for their freeholds, nor for any things touching their freehold, without the king's writ; nor shall cause his freeholders to swear against their wills, for no man may do that without the king's commandment. And this act was confirmed and enlarged by 15 R. 2, c. 12; 16 R. 2, c. 2; vide Bract. lib. 3, fo. 106; Kitch. 225, 384; 2 Inst. 142, 143; 2 Bac. Abr. 206. (r) In Tubervill v. Tipper, 2 Roll. Rep. 493, it was agreed that process in Court Baron was summons, attachment, and distress infinite; and see 38 E. 3, 3; 1 E. 4, 10, cited Br. Court Baron, pl. 5, 10; Bulst. 53; vide also 34 H. 6, 53, and 37 H. 6, 53, cited Kitch. 152; Scroggs, 84; Lex Man. 58. But N. B. the attachment in the above case of Tubervill & Tipper appears to have been awarded secundum consuetudinem curia; vide post. make execution as in the superior courts (s); and the distress in a Court Baron, even of goods taken upon a judgment, is only in nature of a pledge, and cannot be sold, except by special custom (t): neither are the goods forfeited to the lord, even if the manor belong to the king (u). Yet by special custom a levari facias may be awarded in a Court Baron, and the goods sold; but in any proceedings consequent on the execution the custom must be pleaded (x). Should a debt be divided in a Court Baron, so as to reduce each plaint below 40s., the defendant may have a supersedeas; and of this the defendant might formerly have waged his law (y). The want of summons in a plea of debt in an inferior court renders all the proceedings illegal (2): but where, in trespass, the defendant pleaded that an attachment was awarded on non-appearance, secundum consuetudinem curia, and the plea was demurred to for irregularity, a summons being the first process, and not an attachment, it was adjudged that the attachment should be intended to be after the summons (a). The Court Baron not being a court of record, a capias cannot be awarded by it, except indeed by charter or prescription (b); and for the same reason a writ of error does not lie on a judgment in the Court Baron, but the party may have a writ of false judgment (c). The proceedings in the Court Baron, as in all other inferior courts, are traversable, and should therefore be set forth at length in the pleadings (d); but in replevin in Court Baron the plaint cannot be removed, either by plaintiff or defendant, by pone or recordari, without cause shown in the writ (e). (s) 4 H. 6, 17; Br. Court Baron, pl. 6, 7; ib. Execution, pl. 80, cites 22 Ass. 72; Fitz. Execution, pl. 110. But in Doe & Parmiter, B. R. Hill. 24 Car. 2, it was said per Cur. that the constant course in all courts was levari facias, which was meant in the old books by a distringas; see Scroggs, 93. () Vide Br. Abr. as in n. (s), sup.; Trye v. Burgh, Noy, 17; Pell v. Towers, ib. 20; Hewet v. Norberow, Bulst. 52. (u) Gomersall v. Medgate, Yelv. 194; S. C. (Gomersale v. Ways) Cro. Eliz. 255; Lex Man. 58, 59; and see Hewet v. Norberow, sup. (r) See the authorities, sup. n. (s) and (t). Sometimes, by custom, a venditioni exponas is awarded, after the third attachment, for sale of goods distrained on non |