procefs, after judgment, where the perfon or effects of the defendant are not within the limits of this inferior jurifdiction; which may poffibly occafion the revival of the practice and proceedings in these courts, which are now in a manner forgotten. The reafon of their original inftitution feems to have been, to do juftice expeditiously among the variety of perfons, that refort from distant places to a fair or market: fince it is probable that no other inferior court might be able to ferve it's procefs, or execute it's judgments, on both or perhaps either of the parties; and therefore, unless this court had been erected, the complaint must neceffarily have reforted even in the first inftance to fome fuperior judicature.

II. THE court-baron is a court incident to every manor in the kingdom, to be holden by the fteward within the faid manor. This court-baron is of two natures': the one is a customary-court, of which we formerly spoke *, appertaining entirely to the copyholders in which their eftates are transferred by furrender and admittance, and other matters tranfacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is the court of the barons, by which name the freeholders were fometimes antiently called (1): for that it is held before the freeholders who owe fuit and service to the manor, the stew- [ 34 ] ard being rather the registrar than the judge. These courts, though in their nature diftinct, are frequently confounded together. The court we are now confidering, viz. the freeholder's court, was compofed of the lord's tenants, who were the pares of each other, and were bound by their feodal te* Book II. ch.4 ch. 6. and ch. 22.

Co. Litt. 58.

(1) All the freeholders of the king were called barons, but the Editor is not aware that it appears from any authority that this word was ever applied to thofe who held freeholds of a subject. See an account of the antient barons, 1 vol. 398. n. 3. It seems to be the more obvious explanation of the court-baron, that it was the court of the baron or lord of the manor, to which his freeholders owed fuit and fervice. In like manner we fay the king's court and the fheriff's court.

nure to affift their lord in the dispensation of domestic justice. This was formerly held every three weeks; and it's most important business is to determine, by writ of right, all controverfies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass on the cafe, or the like, where the debt or damages do not amount to forty fhillings; which is the fame fum, or three marks, that bounded the jurisdiction of the antient Gothic courts in their lowest instance, or fierding-courts, so called, because four were inftituted within every fuperior district or hundred. But the proceedings on a writ of right may be removed into the county court by a precept from the sheriff called a tolt", "quia tollit atque eximit caufam e curia ba"ronum." And the proceedings in all other actions may be removed into the fuperior courts by the king's writs of pone, or accedas ad curiam, according the nature of the fuit. After judgment given, a writ also of falfe judgment lies to the courts at Westminster to rehear and review the cause, and not a writ of error; for this is not a court of record: and therefore, in fome of these writs of removal, the firft direction given is to caufe the plaint to be recorded, recordari facias loquelam.

III. A HUNDRED court is only a larger court-baron, being held for all the inhabitants of a particular hundred instead of a manor. The free fuitors are here alfo the judges and the fteward the regiftrar, as in the cafe of a court baron. It is likewise no court of record; resembling the former in all points, except that in point of territory it is of a greater jurifdiction. This is faid by fir Edward Coke to have been derived out of the county court for the ease of the people, that they might have juftice done to them at their own doors, without any charge or lofs of time'; but it's inftitution was probably co-eval with that of hundreds themselves, which were formerly observed to have been introduced though not

invented by Alfred, being derived from the polity of the antient Germans. The centeni, we may remember, were the principal inhabitants of a district compofed of different villages, originally in number an hundred, but afterwards only called by that name"; and who probably gave the fame denomination to the diftrict out of which they were chofen. Cæfar speaks pofitively of the judicial power exercised in their hundred courts and courts-baron. "Principes regionum, at

que pagorum," (which we may fairly conftrue, the lords of hundreds and manors,) "inter fuos jus dicunt, controverfi "afque minuunt "." And Tacitus, who had examined their conftitution still more attentively, informs us not only of the authority of the lords, but of that of the centeni, the hundredors, or jury; who were taken out of the common freeholders, and had themselves a fhare in the determination. "Eliguntur in conciliis et principes, qui jura per pagos vicofque "reddunt: centeni fingulis, ex plebe comites, confilium fimul et "auctoritas, adfunt" This hundred-court was denominated haereda in the Gothic conftitution. But this court, as caufes are equally liable to removal from hence, as from the common court-baron, and by the fame writs, and may alfo be reviewed by writ of falfe judgment, is therefore fallen into equal difufe with regard to the trial of actions.

IV. THE County court is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under the value of forty fhillings2. [ 36 ] Over fome of which causes thefe inferior courts have, by the exprefs words of the ftatute of Gloucefter, a jurisdiction totally exclufive of the king's fuperior courts. For in order to be entitled to fue an action of trefpafs for goods before the king's jufticiars, the plaintiff is directed to make affidavit that the cause of action does really and bona fide amount to 40 s.; which affidavit is now unaccountably difufed, except in the

court of exchequer (2). The ftatute alfo 43 Eliz. c. 6. which gives the judges in many perfonal actions, where the jury affefs less damages than 40s. a power to certify the fame and abridge the plaintiff of his full cofts, was alfo meant to prevent vexation by litigious plaintiffs; who, for purposes of mere oppreffion, might be inclinable to inftitute fuits in the fuperior courts for injuries of a trifling value. The county court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ called a jufticies; which is a writ empowering the fheriff for the fake of dispatch to do the fame juftice in his county court, as might otherwife be had at Westminster. The freeholders of the county are the real judges in this court, and the sheriff is the minifterial officer. The great conflux of freeholders, which are fuppofed always to attend at the county court, (which Spelman calls forum plebeiae juftitiae et theatrum comitivae poteftatis,) is the reason why all acts of parliament at the end of every feffion were wont to be there published by the fheriff; why all outlawries of abfconding offenders are there proclaimed; and why all popular elections which the freeholders are to make, as formerly of fheriffs and confervators of the peace, and ftill of coroners, verderors, and knights of the fhire, muft ever be made in pleno comitatu, or, in full county court. By the ftatute 2 Edw. VI. c. 25. no county court shall be adjourned longer than for one month, confifting of twenty-eight days. And this was [37] alfo the antient ufage, as appears from the laws of king Edward the elder : "praepofitus (that is, the fheriff) ad quar"tam circiter feptimanam frequentem populi concionem celebrato: "cuique jus dicito; litefque fingulas dirimito." In thofe times the county court was a court of great dignity and splendor, the bishop and the ealdorman (or earl) with the principal

(2) But if an action is inftituted in any of the courts of Weftminfter, and if the defendant makes an affidavit that the debt is under 40s. the proceedings will be stayed, unless the plaintiff will alfo make an affidavit to the contrary. 4 T. R. 495. 5 T. R. 64.

men

men of the fhire fitting therein to adminifter juftice both in lay and ecclefiaftical caufes. But it's dignity was much impaired, when the bishop was prohibited and the earl neglected to attend it. And, in modern times, as proceedings are removeable from hence into the king's fuperior courts, by writ of pone or recordari, in the fame manner as from hundred courts, and courts-baron; and as the fame writ of falfe judgment may be had, in nature of a wri: of error; this has occafioned the fame difufe of bringing actions therein.

THESE are the feveral fpecies of common law courts, which though difperfed univerfally throughout the realm, are nevertheless of a partial jurifdiction, and confined to particular diftricts: yet communicating with, and as it were members of, the fuperior courts of a more extended and general nature; which are calculated for the adminiftration of redrefs, not in any one lordfhip, hundred, or county only, but throughout the whole kingdom at large. Of which fort is,

V. THE court of common pleas, or, as it is frequently termed in law, the court of common bench.

By the ancient Saxon conftitution there was only one fuperior court of justice in the kingdom; and that court had cognizance both of civil and spiritual caufes: viz. the wittenagemate, or general council, which affembled annually or oftener, wherever the king kept his Christmas, Eafter, or Whitfuntide, as well to do private juftice as to confult upon public bufinefs. At the conqueft the ecclefiaftical jurisdiction was diverted into another channel; and the conqueror, fearing [ 38 ] danger from these annual parliaments, contrived alfo to feparate their minifterial power, as judges, from their deliberative, as counsellors to the crown. He therefore established a conftant court in his own hall, thence called by Bracton and other antient authors aula regia or aula regis. This court was compofed of the king's great officers of state refident in his palace, and usually attendant on his perfon: such as the lord high conftable and lord marefchal, who chiefly prefided

LL. Eadgari. c. 5.

F. N. B. 70. Finch. 445.

1. 3, tr. 1.0 7.