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Every Subpœna to attend and give Evidence upon any Trial in the Small Barmote Court, if served personally upon the Person required to give Evidence in any Part of England or Wales Seven clear Days at the least before the Day fixed for the holding the Court at which such Trial is to be had, shall be as valid and effectual in Law, and shall entitle the Party suing out such Subpœna to all and the like Remedies by Action, as if the same had been issued out of the [F1High Court] in any Cause depending in that Court; and in case the Person served shall not appear as required by the said Subpœna, it shall be lawful for the said Steward, upon Oath or Affirmation taken in open Court of the personal Service of such Subpœna, and of the Tender to the Person so served at the Time of such Service of a reasonable and sufficient Sum of Money to defray the Expenses of coming and attending to give Evidence, and of returning from giving such Evidence, to give to the Party complaining of such Default a Certificate of such Default under the Hand and Seal of the said Steward, and the Party complaining of such Default having obtained such Certificate may apply to the [F1High Court], and the said last-mentioned Court shall thereupon (if it seems to them just to do so) proceed by Attachment or otherwise, according to the Course and Practice of the same Court, against the Person so having made default, in like Manner as the same Court might have done if such Person had neglected or refused to appear in obedience to a Writ of Subpœna issued to compel the Attendance of Witnesses out of such last-mentioned Court, but such Certificate shall not be conclusive either of the due Service of the Subpœna or of the same having been disobeyed, or of any other Matter.
F1Words substituted by virtue of Supreme Court of Judicature (Consolidation) Act 1925 (c. 49), ss. 18(2), 224(1)
Where a Plaintiff obtains Judgment in an Action of Title, and the Defendant shall refuse for the Space of Three Days next after the Day on which Judgment is given to deliver Possession to the Plaintiff, it shall be lawful for the Plaintiff to apply to the Steward, and the Steward shall thereupon issue a Warrant in the Form herein-after mentioned, and the Barmaster shall forthwith execute such Warrant and deliver Possession accordingly: Provided always, that no Entry or Seizure under any such Warrant, or under the Warrant next herein-after mentioned, shall be made on a Sunday, Good Friday, or Christmas Day, or on any Day appointed for a Public Fast or Thanksgiving, or at any Time except between the Hours of Nine in the Morning and Four in the Afternoon; and where a Defendant shall for the Space of Three Days after the Day when the Judgment is given or Order made omit to pay any Debt or Damages recovered or awarded to be paid by any Judgment of the Small Barmote Court, or where either Plaintiff or Defendant shall for the Space of Three Days omit to pay any Money or Costs recovered or awarded to be paid by any such Judgment or by any Order made by the Steward, or where any Person shall omit to pay any Penalty imposed by the Steward under the Authority of this Act within the Time appointed by the Steward for Payment thereof, it shall be lawful for the Steward and he is hereby required, upon the Application of the Party in whose Favour or for whose Benefit such Judgment or Order shall have been given or made, or in the Case of a Penalty at his own Discretion, to issue a Warrant in the Form herein-after mentioned, and the Barmaster shall thereupon forthwith take possession of any Mineral Property within the Jurisdiction of the said Barmote Courts which shall belong to the Party so omitting to pay such Debt or Damages, or Money or Costs, or Penalty, and shall sell the same either by Ticket or by Public Auction, or so much thereof as may be necessary to raise the Sum mentioned in such Warrant, and the Fees and Expenses allowed by this Act for executing the same, and shall return any surplus Monies arising from such Sale that may remain, after paying such Debt or Damages, or Money or Costs, or Penalty, and Fees and Expenses as aforesaid, to the Defaulter; and if the Party against whom the Warrant issues has, before the issuing of such Warrant, in fact paid the Debt, Damages, Money, Costs, or Penalty, or any Part thereof, and the Warrant issues for too much, the Steward shall not therefore be liable to any Action, except in Cases where he issues the Warrant of his own Motion and with Knowledge of the Payment, but the Party who sues out the Warrant, or the Steward if he issues it of his own Motion, and with such Knowledge as aforesaid, shall be alone responsible in such Cases for the improper issuing of the Warrant, and for what is done thereunder; and in case the Person against whose Mineral Property such Warrant shall have been issued shall not have any Mineral Property within the Jurisdiction of the said Barmote Courts, or not sufficient to answer the Amount mentioned in such Warrant, after deducting such Fees and Expenses as aforesaid, it shall be lawful for the Person who shall have obtained such Judgment or Order, or in case of a Penalty for the Steward, to recover the Amount or Deficiency by Action of Debt in the County Court, if the Amount of the Debt or Deficiency shall not exceed Fifty Pounds, otherwise in any Superior Court [F1at the Royal Courts of Justice] ; and the Certificate of the said Steward of the Amount of the Debt or Damages, or Money or Costs, or Penalty, or of the Proportion thereof, which has not been recovered under such Warrant, shall be Evidence, but not conclusive Evidence, that the Sum therein mentioned to be not recovered was due and unpaid at the Date of such Certificate; and the Count in the Declaration in any such Action in One of the Superior Courts may be simply to the Effect that the Defendant was indebted to the Plaintiff in a Sum, naming it, by virtue of this Act, and of a Certificate thereunder granted by the Steward of the Barmote Courts of the High Peak, which Sum the Defendant had not paid.
F1Words substituted by virtue of Supreme Court of Judicature (Consolidation) Act 1925 (c. 49), s. 224(1)
All Warrants issued by the Steward shall be in force for One Calendar Month from the Date thereof, and shall be returned by the Barmaster to the Steward within Six Weeks from the Date thereof, with a Memorandum or Return endorsed thereon, and signed by the Barmaster, stating when it was executed, or if from any Cause the Barmaster shall have been unable to execute it, then stating why it has not been executed, and in the latter Case the Warrant may be renewed and Returns made from Time to Time until it is executed, and every renewed Warrant shall be in force for One Calendar Month from the Date thereof; and every Return to a renewed Warrant shall be made within Six Weeks after the re-issuing of the Warrant, but the Omission to return any such Warrant shall not make any One a Trespasser for having obeyed the same, nor shall it be necessary to state or prove any such Return in order to justify anything done in obedience to the same.
The Barmaster, with the Assistance of his Deputies, shall every Year make out in Writing a List of not less than Forty-eight Owners or Maintainers of Mines situate within the Jurisdiction of the Barmote Courts, not being Members of the Grand Jury for the Time being, but being resident within the County of Derby, and fix the same upon the Door of the Court where the April Great Barmote Court is held, and shall afterwards copy such List into a Book, to be called the Jury Book, and to be kept by him, and One Week before any Small Barmote Court the Barmaster shall cause to be summoned Twenty-four Persons named in the said Book to attend at the Time and Place appointed for holding the said Small Barmote Court; and every such Summons shall be in the Form or to the Effect given in the Schedule hereto, and shall be served either personally on such Person, or by leaving it at his usual or last known Place of Abode; and no Person shall be summoned oftener than once in Three Years, unless there shall be a Deficiency in the Number of Jurors, so that a Jury could not be formed without summoning Jurors who have served within Three Years, but no Proceeding shall be held void on the Ground that a Person served on the Jury who was not liable to be summoned.
The Barmaster shall make a List of the Jurors so summoned, together with their Places of Abode and Conditions, and shall permit such List to be inspected by the Plaintiff and Defendant, if they shall require it, and the Barmaster shall cause the Names of the Jurors to be written severally on Slips of Paper and put into a Box, and the Names shall be drawn out of the Box by the Barmaster, and each Party may, until no more than Twelve remain, object to any Person whose Name is drawn out, without assigning any Cause, but so that not more than Six such Objections be made by either Party, and if any Objection is made to the Twelve so remaining it must be stated to, and the Validity or Invalidity thereof decided upon by, the Steward, and the Twelve first Persons to whom no Objection has been made shall be the Jury to be sworn for the Trial; and any Person against whom an Objection has been made and disallowed by the Steward shall be considered as a Person against whom no Objection has been made; and if after drawing out the Names of all the Jurors there shall not appear to be Twelve Persons against whom no Objection has been made, then the Names of all the Jurors against whom Objections have been made shall be returned to the Box, and drawn again, without any further Objection being allowed to any of them, until a sufficient Number be drawn to make a Jury of Twelve, and such Jury of Twelve shall be the Jury to be sworn for the Trial to take place at such Small Barmote Court; and the Jury so drawn as aforesaid shall be sworn by the Steward, and shall hear the Evidence of the Witnesses in the Cause, and shall be required to give an unanimous Verdict or Verdicts upon all Matters of Fact at issue in such Trial, which Matters of Fact shall be submitted by the Steward to the Jury for their Determination.
The there shall be more than One Cause to be tried at any Small Barmote Court, the Jury sworn for the Trial of the First Cause may and shall, with the Consent of the Parties to the Second or other subsequent Causes, be sworn for and be the Jury for the Trial of such Second and subsequent Causes: Provided always, that any Party to such Second or subsequent Causes, or the Steward, may require a fresh Jury to be drawn.
If any Person liable to serve as a Juryman in the Small Barmote Court shall have been duly summoned to attend as a Juror, and shall not attend in pursuance of such Summons, or being thrice called in Court shall not answer to his Name, or if any such Person being present in Court after having been called shall not duly appear, or, after his Appearance, shall wilfully withdraw himself from the Presence of the said Court, or shall refuse to act as a Juryman, it shall be lawful for the said Steward to impose such Penalty, not exceeding Ten Pounds, upon every such Person so making default as to the said Steward shall seem meet, unless some reasonable Excuse shall be given to the Satisfaction of the said Steward, and the Steward shall fix a Day on or before which, and a Person to whom, such Penalty shall be paid; and if such Penalty shall not be paid within the Time ordered by the said Steward, it shall be lawful for the said Steward to issue his Warrant in the Form herein-after mentioned for the levying thereof, with all the Costs and Charges attending such levying; and such Penalty may be imposed in the Absence of the Party making default, and without calling on him to show Cause why it should not be imposed; and it shall be no Objection to the Execution of such Warrant that the Party had no Notice of such Penalty, but if any Person shall think himself aggrieved by the Imposition of such Penalty or the Execution of such Warrant, the Steward may grant him such Relief as to the Steward may seem just.
If any Person liable to act as a Grand Juryman shall have been duly summoned to attend at the Great Barmote Court, or on any other Occasion on which the Grand Jury are by this Act required to attend, and shall not attend in pursuance of such Summons, or being called shall not answer to his Name, or if any such Person being present after having been called shall not duly appear, or after his Appearance shall wilfully withdraw himself, or shall refuse to act on the Grand Jury, or to perform the Duties required of him, it shall be lawful for the said Steward to impose such Penalty, not exceeding Ten Pounds, upon every such Person so making default, as to the said Steward shall seem meet, unless some reasonable Excuse shall be given to the Satisfaction of the said Steward, and the Steward shall fix a Day on or before which, and a Person to whom, such Penalty shall be paid; and if such Penalty shall not be paid within the Time ordered by the said Steward, it shall be lawful for the said Steward to issue his Warrant in the Form herein-after mentioned for the levying thereof, with all the Costs and Charges attending such levying; and such Penalty may be imposed in the Absence of the Party making default, and without calling on him to show Cause why it should not be imposed; and it shall be no Objection to the Execution of such Warrant that the Party had no Notice of such Penalty; but if any Person shall think himself aggrieved by the Imposition of such Penalty or the Execution of such Warrant, the Steward may grant him such Relief as to the Steward may seem just.
All Persons for the Time being exempted by Law from serving on Juries shall be exempt from serving either on the Grand Jury or on any Jury for the Trial of Causes in the Small Barmote Court, notwithstanding such Persons may in other respects be qualified to serve on such Grand Jury, or on any Jury for the Trial of Causes as aforesaid.
The Parties to the Suit or any other Proceeding under this Act may obtain at or from the Office of the Steward Subpœnas to compel the Attendance of Witnesses, with or without a Clause requiring the Production of Books, Deeds, Papers, and Writings in their Possession or Control; and in any such Subpœna any Number of Names may be inserted, and such Subpœnas shall be served upon the Witnesses in like Manner as Subpœnas issuing out of the Superior Courts [F1at the Royal Courts of Justice].
F1Words substituted by virtue of Supreme Court of Judicature (Consolidation) Act 1925 (c. 49), s. 224(1)
If the Party against whom an Execution shall be issued shall, before an actual Sale of the Property seized, pay or cause to be paid or tendered unto the Barmaster the Sum or Sums of Money ordered to be levied, or such Part thereof as the Person entitled thereto shall agree to accept in full of his Debt or Damages and Costs, together with the Fees hereby allowed, the Execution shall be superseded, and the Property of the said Party shall be discharged and set at liberty.
No Barmaster or Deputy Barmaster, and no Person acting at the Request and in aid of any Barmaster or Deputy Barmaster, shall be liable to any Action for anything done or authorized by such Barmaster or Deputy Barmaster in obedience or necessary for Obedience to any Writ, Precept, Warrant, or Process signed by the Steward and sealed with the said Seal, although the same be void or irregular or an Excess of Jurisdiction, nor shall any Act done by any such Barmaster, Deputy Barmaster, or other Person, while acting under any such Writ, Precept, Warrant, or Process, make him a Trespasser ab initio, though it be not in obedience or not necessary for Obedience to such Writ, Precept, Warrant, or Process, but the Party committing such last-mentioned Act shall be liable to an Action for the same if it be illegal.
The Steward shall not be liable to any Action for anything done in obedience or necessary for Obedience to any Writ, Warrant, Precept, or Process signed by him, and sealed with the said Seal, if such Writ, Warrant, Precept, or Process be not an Excess of his Jurisdiction.
The Steward shall carefully preserve the Books and Accounts mentioned in the Fifth and Fourteenth Sections, and shall also cause a Register of all Summonses, Subp^nas, Orders, Judgments, Warrants, Executions, and Returns thereto, and of all Penalties, and of all other Proceedings of the Great and Small Barmote Courts, and of all Bills of Directions, Cross Bills of Directions, Opinions of the Grand Jury, and other Proceedings on Views, to be fairly entered from Time to Time in a Book belonging to the Courts which shall be kept at the Office of the Steward; and such Entries in the said Book, or Copies thereof or of any of them, and also Copies of the Entries in the Books and Accounts mentioned in the Fifth and Fourteenth Sections, or of any Part thereof, and also Copies of the new or additional Customs, Articles, Rules, and Orders mentioned in the Fifty-sixth Section, purporting to bear the Seal of the Court, and purporting to be signed and certified as a true Copy by the Steward, which Copies the Steward is hereby required to furnish to all Persons requiring the same, upon Payment of the Fees herein-after specified, shall at all Times be admitted in all Courts and Places whatsoever as Evidence of such Entries, Articles, Rules, and Orders, and of the Proceedings referred to by such Entry, and of the Regularity of such Proceeding, without any further Proof.
All Persons shall be at liberty, at convenient Times in the Daytime, to search and examine all Documents in the Custody of the Steward by virtue of this Act, upon Payment of the Fees herein-after specified.
If any Claim shall be made to or in respect of any Mineral Property taken in Execution under the Process of any Great or Small Barmote Court, or in respect of the Proceeds or Value thereof, by any Person not being the Party against whom such Process has issued, it shall be lawful for the Steward, upon the Application of the Officer charged with the Execution of such Process, as well before as after any Action brought against such Officer, to appoint and hold a Small Barmote Court, and to issue a Summons calling before the said Court as well the Party issuing such Process as the Party making such Claim; and upon the issuing of such Summons any Action which shall have been brought in any of Her Majesty’s Superior Courts of Record, or any Local or Inferior Court, in respect of such Claim, shall be stayed, and the Court in which such Action shall have been brought, or any Judge thereof, or, if the Action be in any Superior Court [F1at the Royal Courts of Justice], any Judge of any of the other Superior Courts, on Proof of the Issue of such Summons, and that such Mineral Property was so taken in Execution, may order the Party bringing such Action to pay the Costs of all Proceedings had upon such Action after the Issue of such Summons by the Steward; and if either of the Parties so summoned appear, the Steward shall, whether the other Party appear or not, adjudicate upon such Claim, and make such Order between the Parties in respect thereof, and of the Costs of the Proceedings before him, and of the Proceedings in the Action prior to such Summons, and of the Payment of Compensation to any Party by any other Party, as to him shall seem fit; and such Order, so far as the same may be for Payment of Money or Costs, shall be enforced in like Manner as any Order made in any Suit brought in the Small Barmote Court, and, so far as such Order be not for the Payment of Money or Costs, Disobedience to the same may be punished in manner following; that is to say, any Person considering himself aggrieved by such Disobedience may complain to the Steward, who may thereupon summon the disobedient Party before him, and may, if he thinks the Complaint proved, and whether the Party complained of shall appear or not, order the Party complained of to pay to the complaining Party such Sum of Money as he may think a sufficient Compensation, with or without the Costs of the Application, at his Discretion, and if he thinks the Complaint not proved he may make an Order dismissing the same Complaint, with or without Costs, at his Discretion, and the Order which the Steward shall make in the Premises may also be enforced in like Manner as any Order made in the Small Barmote Court.
F1Words substituted by virtue of Supreme Court of Judicature (Consolidation) Act 1925 (c. 49), s. 224(1)
All Penalties imposed by virtue of this Act (except the Penalties imposed upon the Barmaster, and which are otherwise provided for,) shall be recovered by levying the same under a Warrant of the Steward upon the Mineral Property of the Person upon whom such Penalty shall be imposed, which shall be within the Jurisdiction of the Barmote Courts; and if the Barmaster shall make a Return to the Steward that there is no Mineral Property within such Jurisdiction, or not sufficient to raise the whole of the Penalty and the Fees and Expenses allowed for the Execution of the Warrant, then such Penalty, or so much thereof as the Produce of the Sale of such Mineral Property shall not, after paying the Fees and Expenses allowed for the Execution of the Warrant, be sufficient to satisfy, shall be recovered by Action of Debt in the County Court, such Action to be brought in the Name of the Steward; and a Certificate signed by him, and sealed with the said Seal, certifying the Imposition of such Penalty and the Amount thereof, or so much thereof as shall not have been satisfied by such Execution, shall be Evidence, but not conclusive Evidence, that the Sum therein mentioned not to be recovered was due and unpaid at the Date of the Certificate.
The Proceedings of the Barmote Courts shall be in the Forms given in the Second Schedule annexed to this Act, or to the like Effect, and in any Proceeding not thereby provided for it shall be lawful for the said Steward to adopt such Form as he shall think fit and applicable to such Proceeding.
The Fees and Payments which shall be paid, had, and taken by the Steward, Head Barmaster, Deputy Barmasters, Grand Jury, [F1solicitors] , and other Persons, shall be such as are contained in the Third and Fourth Schedules to this Act, and no other Fee, Gratuity, or Reward whatever shall be demanded, had, or taken by any of the said Persons on any Pretence whatever.
F1Word substituted by virtue of Solicitors Act 1974 (c. 47), s. 89(6)
An Account shall be kept by the Steward of all Penalties imposed upon any Person under the Authority of this Act, and such Penalties shall, except in Cases where it is by this Act otherwise provided, be received by or on account of the said Steward, and shall be paid by the said Steward, when received, as to One Moiety thereof to Her Majesty and Her Successors in right of Her said Duchy of Lancaster, and as to the other Moiety thereof to the Lessee for the Time being of the Duties of Lot and Cope, if there shall be any such Lessee, and if there shall be no such Lessee then the whole of such Penalties shall be paid to Her Majesty and Her Successors in right of Her said Duchy of Lancaster; and if any Action or other Proceedings other than an Execution under the Warrant of the said Steward shall be necessary for the Recovery of any Penalty, such Action or other Proceedings shall be taken in the Name of the Steward.
For the Protection of Persons acting in the Execution of this Act, it is hereby declared, that all Actions and Prosecutions to be commenced against any Person for anything done in pursuance of this Act shall be laid and tried in the County where the Fact was committed, and shall be commenced within Six Calendar Months after the Fact committed, and not afterwards or otherwise; and Notice in Writing of such Action, and of the Cause thereof, shall be given to the Defendant One Calendar Month at least before the Commencement of the Action; and no Plaintiff shall recover in any such Action if Tender of sufficient Amends shall have been made before such Action brought, or if after Action brought a sufficient Sum of Money shall have been paid into Court, with Costs, by or on behalf of the Defendant; and in any such Action the Defendant may not only plead the Tender or Payment into Court, as the Case may be, but may also plead any other Plea or Pleas in bar, or a general Demurrer.
No Proceedings in the said Courts or either of them, or before the Steward or Barmaster, shall be removed into any other Court by Certiorari or otherwise, except in the Cases herein provided for.
In any Action brought under the Provisions of this Act in the County Court, or in any of the Superior Courts, the Plaintiff and Defendant shall respectively be entitled to recover Costs in the same Cases and to the same Extent as they would be entitled if the Action were a common Action of Debt on Simple Contract in the County Court or in any of the Superior Courts respectively.
Nothing in this Act contained shall affect any Action, Suit, or other Proceeding now pending in any Court of Law or Equity, but such Action, Suit, or other Proceeding shall be dealt with and determined as if this Act had not been passed.
Nothing in this Act contained shall preclude any Person from proceeding in any other Court, having Jurisdiction therein, in respect of any Matter hereby made triable in the Small Barmote Court.
It shall be lawful for the Steward and Grand Jury at any Great Barmote Court to make such new and additional Customs, Articles, Rules, and Orders, as to them shall seem expedient for the better Regulation of the working and carrying on of the Mines within the District under the Provisions of this Act, and for the Guidance and Protection of the Mines in reference to the working and carrying on of Mines within the said District, and also for regulating the Practice and Proceedings of the Great and Small Barmote Courts, or of any Views or other Proceedings, and for the Execution of any Process of such Courts, and in relation to any of the Provisions of this Act, or of the Articles and Customs hereby established; and all such new and additional Customs, Articles, Rules, and Orders as aforesaid shall be certified under the Hand of the Steward and Seal of the said Court to the Chancellor for the Time being of Her Majesty’s Duchy of Lancaster, the same having been previously submitted to the Lessee, if any, for the Time being, of the Duties of Lot and Cope, and approved of in Writing by him; and the same shall be published for Three Weeks consecutively in some Newspaper printed in the County of Derby;and such Chancellor may, after such Publication, either allow or disallow such View and additional Customs, Articles, Rules, and Orders, or any of them; and such of the new and additional Customs, Articles, Rules, and Orders as shall be so allowed by such Chancellor shall forthwith, after the Approval thereof, be sealed with the Seal of the said Duchy of Lancaster, and laid before both Houses of Parliament, (if Parliament be then sitting, or, if Parliament be not sitting, then within Five Days after the next Meeting thereof,) and no such new or additional Custom, Article, Rule, or Order shall have effect until Six Weeks after the same shall have been so laid before both Houses of Parliament; and any new or additional Custom, Article, Rule, or Order so allowed and laid before Parliament as aforesaid shall, from and after the Expiration of such Period of Six Weeks, be of the same Force and Effect as if the same had been enacted by Authority of Parliament, unless the same shall by Vote or Resolution of either House of Parliament be objected to; and such new and additional Customs, Articles, Rules, and Orders, shall be carefully preserved by the Steward: Provided always, that such new and additional Customs, Articles, Rules, and Orders shall not in any way affect the Rights and Interests of Owners or Occupiers of Land.
Provided always, That, except as is herein provided, nothing in this Act contained shall extend to prejudice, diminish, alter, or take away any of the Rights, Privileges, Powers, or Authorities vested in or enjoyed by the Queen’s most Excellent Majesty, Her Heirs and Successors, either in right of Her Crown or in right of Her Duchy of Lancaster.
High Peak Mining Customs and Mineral Courts Act 1851