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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. 326 (L.), pl. 3, where it is said, that if the land be made frank-fee as to those in possession, yet it shall not be said to be frankfee as to those who claim paramount this making of it frank-fee.
(q) 3 E. 3, 33; 1 Roll. Abr. 326 (L.), pl. 3, cites 50 E. 3, 24 b. Therefore, if in such case judgment be given in the court of ancient demesne, and the recoveror enters, in trespass brought against him for the entry, he cannot justify by force of the
recovery there, for it was coram non judice ; F. N. B. 13 C.; ib. (n. a), cites 7 H. 4, 3. And see 2 Preston on Conv. 102.
(r) 20 H. 6, 33, 41, Ass. 7; F. N. B. 12 E.; 1 Roll. Abr. 325, pl. 17.
(s) 30 E. 3, 13, 41, Ass. 7; Fitz. Aunc. Dem. pl. 18; F. N. B. 12 E.; 1 Roll. Abr. 325, pl. 18.
But as to the writ of right close, vide reference to the act of 3 & 4 W. 4, c. 27, ante, p. 585, n. (d). And see the act in 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
(a) The style of the court is Curia Baronis E. C. militis manerii sui prædicti, (having the manor's name written in the margin,) tent' tali die, &c. Coram A. B. seneschallo ibidem; 4 Inst, 268.
Curia (court) is a place where justice is judicially administered, and is derived à cura, quia in curiis publicis curas gerebant; Co. Lit. 58 a. Curia, which occasionally seems to have implied the court or manor house only of the lord, in one or two entries in Domesday-book appears to have a more immediate reference to manorial jurisdiction; App. to 2nd General Report from Commiss. on Pub. Records, p. 442, cites tom. 1, fol. 35 b; ib. fol. 265 b.
Baronis.-The title of Baron, like all or most of the dignities or titles of honour now existing in England, originated in the feudal institutions of the Normans, and seems about the end of the Conqueror's reign to have supplanted the Saxon title of Thane. Those possessing original baronies, and other great lords, having, during the practice of subinfeudation, called their immediate vassals barons, the principal barons, who alone were summoned to attend the councils of the king, and who held of the king in capite [2 Inst. 7], were called barones majores, or barones regis (or regni), to distinguish them from the inferior barons, denominated burones minores, and who held by knight's service and escuage [4 Inst. 46]. The latter ap
pear about the end of the reign of King John to have lost the appellation of baron altogether.
Sir William Blackstone observes—“ A buron's is the most general and universal title of nobility, for originally every one of the peers of superior rank had also a barony annexed to his other titles. But it hath sometimes happened that when an ancient baron hath been raised to a new degree of peerage, in the course of a few generations the two titles have descended differently, one perhaps to the male descendants, the other to the heirs general; whereby the earldom or other superior title hath subsisted without a barony; and there are also modern instances where earls and viscounts have been created without annexing a barony to their other honours, so that now the rule doth not hold universally that all peers are barons. The original and antiquity of baronies have occasioned great inquiries among our English antiquaries. The most probable opinion seems to be that they were the same with our present lords of manors, to which the name of Court Baron (which is the lord's court, and incident to every manor) gives some countenance. It may be collected from King John's Magna Charta, that originally all lords of manors, or barons, that held of the king in capite, had seats in the great council or parliament; till about the reign of that prince
cord (b), 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 (ƒ) 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 (1).
It was adjudged in a late case in
the conflux of them became so large and troublesome that the king was obliged to divide them, and summon only the greater barons in person, leaving the small ones to be summoned by the sheriff, and (as it is said) to sit by representation in another house, which gave rise to the separation of the two houses of parliament. By degrees the title came to be confined to the greater barons, or lords of parliament only, and there were no other barons among the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies, till Richard the Second first made it a mere title of honour, by conferring it on divers persons by his letters patent." See 1 Com. 398, 399.
The principal mansion or castle of every barony was called the caput baronia, and was appropriated to the use of the person entitled to the barony, and when the barony descended to daughters the caput baronia was allotted to the eldest.
pears to have been subject to curtesy, but not to dower; 1 Inst. 39 b, 31 b; 2 Inst. 17.
(b) Co. Lit. 117 b; 2 Inst. 143; 4 Inst. 268.
(c) 8 H. 7, 1; Kitch. 7, 8, 70; 2 Inst. 99; 4 Inst. 268. Being incident to a manor of common right, it is not lost merely because no court hath, time out of mind, been holden within the manor; Ow. 35.
The entry is sometimes "The Great Court of, &c.:" this is but a Court Baron; Kitch. 156.
the Court of B. R. upon an ap
(d) 10 H. 8, 34; Kitch. 70; Brown v. Goldsmith, 1 Brownl. 175; Mo. 870; Hob. 108; Br. Incidents, pl. 34, cites 19 H. 8.
(e) Mo. 870, in Brown v. Goldsmith. See also Sir Robert Acton's case, Dy. 288 b. And it should seem from the same authority that the profits of court may be excepted, even by a common person; ib.; vide also Com. Dig. Cop. (R. 1, Court Baron.)
(f) Kitch. 6; Scroggs, in his Pract. of Courts Leet and Courts Baron, pp. 82, 83, says, that these courts were ordained for the three purposes of adjusting differences between lord and lord adjoining; between lord and tenant; and between tenant and tenant. See also ante, pt. 1,
(g) Ante, pt. 1, p. 2 to 5.
(i) Kitch. 146, cites 6 E. 2; 34 Hen. 6, 53. But not detinue of writings; F. N. B. 47 B.; Kitch. 148.
(k) 19 Hen. 6, 8; Kitch. 6, 146; 2 Inst. 311; 4 Inst. 264, 268. On attempt to hold plea in court baron of any matter of the value of forty shillings, writ of prohibition lies; Finch. L. 451; 3 Bl. Com. 112; but by charter or prescription, as in the case of the Castle of Dover, a court baron may hold pleas above forty shillings, and award a capias; Kitch. 187. These, however, are courts of record; Kitch. 187, 188, cites 6 E. 4, 3.
(/) Kitch. 146; Br. Court Baron, pl. 1.
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 (o).
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 (q); 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 the great 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 Knaresborough in Yorkshire (y).
When and where to be kept.
The Court Baron, it is clear, may be held at any place within the manor (z), but it appears formerly to have been thought that it must
(m) Rex v. The Steward & Suitors of the Manor of Havering Atte Bower, 5 Barn. & Ald. 691; and see Rex v. The Mayor & Jurats of Hastings, ib. 692, n.; ante, p. 601, n. (c).
(n) Kitch. 146, cites 43 E. 3, 19. (0) Co. Litt. 118 a; F. N. B. 47 A.; 2 Inst. 311, 312; Kitch. 146, 148; but see 7 E. 4, 23, cited Kitch. 146.
(p) 2 Bac. Abr. 205; Kitch. 147. (9) Kitch. 146, 151.
(") Booth's Real Actions, 86, n.; ib. 89, 90, 91. See further, as to the writ of right patent, post; and note, that it was abolished from 31st Dec. 1834; vide 3 & 4 Will. 4, c. 27, in the Appendix.
(s) See the act 59 Geo. 3, c. 46, abolishing appeals of murder, treason, felony, or
other offences, and trial by wager of battel in writs of right.
(t) F. N. B. 4 E.; Kitch. 147, who also says, "if plaint of debt or trespass be sued there, and foreign matter is pleaded, it shall not be tried in court baron," cites 1 Hen. 5, 12.
(u) Denham v. Stephenson, Salk. 41 ; Atkins v. Hill, Cowp. 286; 3 Bac. Abr. 39; Toll. Ex. 49.
(x) Off. of Ex. 43.
(y) See a recent interesting publication of the customs of the Forest of Knaresborough.
(z) Kitch. 186, cites 8 Hen. 7, 4, A. 24, E. 3; Co. Cop. s. 31, Tr. 50; Scroggs, 83; Ow. 35.
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 (ƒ).
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. 186 ; Co. Cop. s. 31, Tr. 50.
(b) Co. Litt. 58 a; Glanv. 19; Kitch. 186; Ow. 135.
(c) Ante, pt. 1, p. 5.
The provisions of the Commutation and Enfranchisement Act, 4 & 5 Vict. c. 35, are not applicable to the common law court baron; but the author apprehends that the enactments for facilitating the commutation of the lord's rights in "rents" and "heriots" must be held to embrace "rents" and "heriots" payable in respect of lands of freehold tenure, which intention is more particularly discoverable in the general words used in the first section of the act, viz. " and in respect of other lands subject to such payments [rents, fines, and heriots], or any of them," and in the form given in s. 12, of the appointment of an attorney [or agent], which commences
thus, “I, A. B. of &c., lord or copy-
(e) 1 Freem. 525, ca. 707.
(f) Co. Litt. 58 a; Com. Dig. Cop. (R. 2).
(g) Scroggs, 40, 83; Co. Cop. s. 31, Tr. 50; Co. Litt. 58 a.
(h) Post, sect. v.
(i) It has been decided that the court baron may be held even at night; Mo. 68, ca. 185; ante, pt. 1, p. 5.
(k) See 2 Bac. Abr. 206, marg. where it is said "The Court of B. R. has granted informations against lords and stewards, for oppressing the tenants, by warning courts baron every three weeks, and distraining them to appear or pay a certain sum of money upon no occasion at all, but to extort amercements from them;" but see Scroggs, 40.