debt by the lord, supposing the penalty given to him by the custom, and it would seem that the defendant might wage his law in this action, as well as in an action of debt for an amercement in court baron (a).

SECT. V.

Of Plaints in nature of Personal Actions.

ALL pleas in a court baron of common right, and of a personal nature, are, or rather were prior to the above mentioned act of parliament, determinable by wager of law (b); 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 (c).

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 (d), except, indeed, in a writ of right patent, wherein a plea is held of freehold, and then as the writ

(a) Tyndal v. Toller or Tucker, Bendl. 140. S. C. cited Mo. 277. 1 Leo. 204. Wager of law is now abolished, ante p. 746. n. (d).

(b) 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. 3 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.

(c) 33 H. 8. 143. Kitch. 225, 384.

(d) 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.

is mandatum regis, an oath may be administered (a). 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 (b), but the court has not power to make execution as in the superior courts (c); 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 (d):-Neither are the goods forfeited to the lord, even if the manor belong to the King (e).

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 (ƒ). Should a debt be divided in

(a) 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. 142–3. 2 Bac. Abr. 206.

(b) 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, & 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 cu

a court baron, so as to reduce

ria. Vide post.

(c) 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. Hil. 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.

(d) Vide Br. Abr. as in n. (c), sup. Trye v. Burgh, Noy 17. Pell

v. Towers. Ib. 20. Hewet v. Norberow, Bulst. 52.

(e) Gomersall v. Medgate, Yelv. 194. S. C. (Gomersale v. Ways), Cro. Eliz. 255. Lex. Man. 58-9. And see Hewet v. Norberow, sup.

(f) See the authorities, sup. n. (c) & (d). Sometimes, by custom, a venditioni exponas is awarded, after the third attachment, for sale of goods distrained on non-appearance. Scroggs 203.

each plaint below 40s., the defendant may have a supersedeas ; and of this the defendant might formerly have waged his law (a).

The want of summons in a plea of debt, in an inferior court, renders all the proceedings illegal (b); 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 (c).

The court baron not being a court of record, a capias cannot be awarded by it, except indeed by charter or prescription (d); 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 (e).

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 (f); 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 (g).

A regular interlocutory judgment may be set aside by the judge of every inferior court, in order to let in a trial of the merits (h); but he cannot grant a new trial, or set aside a verdict, except for irregularity, fraud, or surprise (i).

(a) F. N. B. 239 H. Br. Court Baron, pl. 20. Ante, p. 746. n. (d). (b) 1 Str. 457.

(c) Tubervill v. Tipper, ubi sup. (d) Kitch. 117. Ante, p. 717. n. (e).

(e) Scroggs 84, 93. Kitch. 187. Co. Lit. 117 b. Atwood's case, Lex. Man. App. pl. 17. Basset v. Harris, Ib. pl. 18. And see Br. Court Baron, pl. 21.

(f) Garret v. Higby, T. Jones 129. Scarling v. Crielt, or Scarning v. Cryer, Mo. 73. S. C. 3 Leo. 7. S. C. Bendl. 159. Lex. Man. 57.

(g) F. N. B 70 A. B. Gilb. Dis. 105. If after removal of the plaint, the party be distrained again for the same cause, he shall have the writ of recaption. F. N. B. 73 C. See further as to removal of plaints in courts baron, post p. 754. n. (g).

(h) Rex v. Peter, 1 Burr. 568. (i) Bailey v. Bourne, 1 Str. 392, Blacquiere v. Hawkins, Dougl. 379. Jewell v. Hill, 1 Str. 499. Rex v. Urling, Fortesc. 198.

See further as to proceedings in plaints of debt, &c. in Court Baron, post. Append. to 2d & 3d parts.

SECT. VI.

Of the Writ of Right Patent (a).

A WRIT of right patent, properly so called (b), is a writ brought by him who has the full and mere right of property in the fee simple of the land, to recover the right of possession, to which he cannot be restored without a judgment first had for him in the King's court, or some court baron (c).

The writ of right patent, like all other original writs in real actions, is sued out of the high court of Chancery, and is directed to the lord of the manor, of whom the land is holden, commanding him to do right to the demandant in his court:but if the lord is not in England, the writ is directed to his bailiff (d); and then the Chancellor of England is to be certified thereof (e).

The original thus sued forth is to be brought to the steward of the manor, of which the land is holden, at some court baron, who, after pledges to prosecute are given, and after entering the demand made by the writ, is to deliver the writ again to

(a) See the form of this writ in the Appendix to 2d & 3d parts.

Sed vide ante, pt. 1. p. 562. n. (d), referring to a bill introduced into parliament for abolishing real actions, and plaints in nature thereof, with some exceptions; and see the act since passed (3d & 4th W. 4. c. 27) in the Appendix; and reference to it, ante, pp. 671, 693, 695.

(b) Writs of right are of several sorts, as the Writ of right patent, (of which we are now speaking): Writ of right close of lands in ancient demesne (already fully treated of, ante, tit. Ancient Demesne'): Writ of right of London, (concerning lands in London, and directed to the mayor and sheriffs,) F. N. B. 6 A. Booth's

Real Actions, 117: And Writs of right de rationabili parte, and of advowson, Booth 119. 121. F. N. B. 9, 30 B. All other writs of right, as the Writ of dower unde nihil habet, the Writs of escheat, formedon, de rationabilibus divisis, quo jure, &c. are writs of right in their nature only. Booth 125.

(c) Bract. 1. 5. c. 1, &c. Booth 85.

(d) Booth 90. F. N. B. 1 H. Com. Dig. Droit (B. 3). Where the King. is lord, the writ is directed to the bailiff. Capell v. Church, Mo. 1.

(e) F. N. B. 1 F. There must be fifteen days at the least between the teste and the return of the writ. Booth 1, 92.

the demandant, with whom it is to remain, and which is not the case as to any other writ (a).

If the lord refuse to hold his court, there shall be a writ to him to do it; and upon that an alias, pluries, and attachment (b).

But where the lord remits his court to the King (c), or has no court (d), then the writ is directed to the sheriff(e); and though it was formerly the practice to commence this action in the court baron, and to remove it afterwards into the county court, by writ of tolt (ƒ), and from thence into the Common Pleas, by writ of pone (g), yet, without all this circuity, the (a) Booth 90. (g) Booth 86. n. See the form of (b) F. N. B. 3 E. Com. Dig. the writ of pone, 3 Bl. Com. App. Droit (B. 3).

(c) See form of license from the lord. Rast. 246. a. F. N. B. 3 A.

(d) But we read that, if the lord has no court for the poorness of his manor, the writ shall be directed to the lord paramount. F. N. B. 2 A. Com. Dig. Droit (B. 3).

(e) Sir Ed. Coke, [4 Inst. 271,] in treating of the jurisdiction of the coroner, says, "besides his judicial

66

place, he hath also authority mi"nisterial, as a sheriff, &c., viz. "where there is just exception taken "to the sheriff, judicial process shall "be awarded to the coroner for the "execution of the king's writs, in "which cases he is locum tenens vice"comitis, and in some special cases "the king's original writ shall be "immediately directed unto him."

(f) See the form of a writ of tolt. 3 Bl. Com. App. No. 1. s. 2. In Rex v. Morgan, 1 Sir W. Bl. 399, Wilmot, J. said the writ (of tolt) ought to have been directed to the suitors of the court, and not to the steward, who is only the prothonotary of the

court.'

No. 1. s. 3. When the bailiff or steward delay the demandant, and will not send out process, he may remove the plea into the county court by tolt, and afterwards, (on the return of the tolt,) into the Common Pleas, by pone, or recordari facias. Booth 89, 90. F. N. B. 3 F. Com. Dig. Droit (B. 5). The demandant might always remove the plea without cause, first by tolt into the county court, and then by pone into the Common Pleas; but the tenant, I conceive, cannot remove the plea by tolt, nor even by pone without alleging a cause, yet, with good cause shown, as if the bailiff favour the demandant, the tenant may remove the plea out of the lord's court by a recordari, per saltum, into the Common Pleas. Booth 90, 91. F. N. B. 3 G. 4 A. C. D. 69, 70, 119. Rast. Ent. 245. a. Com. Dig. Droit, (B. 5.) (B. 6). Rex v. Morgan, sup. The cause assigned at the end of the writ of pone is mere form, and cannot be traversed by the sheriff. Talbot v. Binns, 8 Bing. 71. Parkes v. Renton, 3 Barn. & Adolp. 105. And see F.