take the oath of office is primâ facie evidence of a refusul by the party to take upon himself the execution of the office; and upon a motion in arrest of judgment in that case, the Court of B. R. held, that it was not necessary to state that the defendant had refused to be sworn, but that the offence was sufficiently charged in the indictment, by alleging that he obstinately and contemptuously refused to take upon himself the execution of the office, although duly required so to do.

Aleconners: Leather-Sealers.-These and other similar officers are frequently chosen at courts leet; and when the assize regulations were more highly valued, and consequently more rigidly enforced, the duties of those officers were deemed of no mean importance (s); but at the present day they are but as the shadow to the substance.

Hayward.-Sometimes this officer is elected and sworn in at the court leet, but it is generally, if not universally, where a leet is appended to a manor, and the court leet and court baron are held together; and when it exists as a totally distinct office from that of bailiff, which is more frequently but not always the case, it partakes more of a private than a public character, the duties of the office being principally the care of the boundary fences, impounding of estrays, and the like (t). It is, however, established in some places as

a public annual office, conferring a settlement under 3 Will. & Mary, c. 11, s. 6 (u).

SECTION V.

Of the Jury and their Presentments.

All offences cognizable in the leet, are to be inquired of and presented by suitors of the court (x), sworn and charged as a jury for that purpose, and consisting of not less than twelve (y); and when more than twelve are sworn, if twelve agree it is good enough (2); and it has been said, that the day being passed, the presentments in leet, where neither life nor freehold are concerned, cannot be shaken or questioned by any tribunal whatever (a); the reason for which is, that no process is there awardable against the party to compel him to answer (b); but although a presentment in leet, not affecting either life or freehold, is probably not traversable at the leet, yet it is settled that all presentments in leet may be removed by certiorari into the

Will. 4, c. 56, s. 4, is bound to supply the animal impounded with food, is the party at whose instance it is put in the pound; and semble, that the pound-keeper is not obliged to do so, although if he does it by the direction of the party impounding, they are to be considered as one; Mason v. Newland, 9 Car. & Pa. (N. P.) 575.

(u) Rex v. Inhabitants of Whittlesea, 4 T. R. 807; 3 Adol. & Ell. 153. The hog-ringer is a public officer, but the pinder is not necessarily so; Rex v. Inhabitants of Clixby, 4 Barn. & Adol. 155; Rex v. Inhabitants of Newmarket St. Mary, 3 Adol. & Ell. 153, 154. The office to gain a settlement must be annual; Rex v. Inhabitants of Middlewich, 3 Adol. & Ell. 156.

(r) But see ante, p. 702, 703, of the power of the steward to swear strangers, if there are not twelve suitors. And note, that in The Rector of Wigan's case, 2 Str. 1207, the in-burgesses of Wigan, who were bound by usage to act as jurors at the court leet of the lord of the manor, having refused to attend at two courts, so that no business could be done, the Court of B. R. granted a mandamus to enforce their attendance.

If all the resiants should refuse to perform their suit, so that no court could be held, a mandamus against the persons impanelled by the bailiff as jurors would seem to be the lord's proper remedy, as a distress cannot be taken for suit real, ante, p. 686. Should some of the resiants attend, but not a sufficient number to constitute a jury, see ante, pp. 702, 703, 706.

(y) Scroggs, 84, cites Old Book of Entries, 392; Kitch. 89, cites 6 Hen. 4, 1; 45 Ed. 3, 26; Br. Leet, 7; Cutler v. Creswick, 3 Keb. 362; and see Kitch. 13, who there says, "and it used very often to be fifteen, sixteen, or seventeen, of the jury in the leet."

(2) See Shepp. 20, who there says, "If the custom of the place be to make two or more juries, or one grand jury and divers petits juries, it is good to observe it."

(a) Dy. 13 b, pl. 64; 1 Hawk. P. C. 217, s. 72; Scroggs, 84; Kitch, 84, citing 19 Hen. 8, 11; 41 Ed. 3, 27; 2 R. 3, 12. But he also says in the same page, that though presentments by twelve shall not be traversed, yet you shall have recovery by writ of false presentment; cites 5 Ed. 3, 26; 21 Ed. 3; Tit. Bar. 271.

(6) Scroggs, 85.

Court of King's Bench, and there traversed (c). It is observable also that the jurisdiction of the court, if not the presentment itself (d), was at all times traversable (e); and that an averment may be made against a presentment made by less than twelve (f).

We have seen that by the act of 1 Eliz. c. 17, for preserving the spawn and fry of fish, the steward of a court leet is authorised to impanel a second jury to inquire of any concealments by the jury originally sworn, and that a penalty of 20s. is imposed on every juryman so wilfully concealing and making default in presentments (g). And it should seem that the perjury or wilful concealment of a jury in leet was always inquirable there by another jury, and punishable by fine (h).

If presentment be not made in leet of articles of which that court has cognizance, then they are to be presented in tourn (i); and if not there, then before the justices in eyre; and if not there, then in the King's Bench (k). So if there should be any neglect of presentments in the leet of a manor situate within a hundred to which a court leet be appended, the articles neglected to be inquired of in the manor leet would be inquirable of in the hundred leet (1).

(c) Rex v. Roupell, Cowp. 458; 2 Hawk. P. C. c. 10, s. 13, 76. In 11 Mod. 228, it is said, that where a presentment in a leet is removed by certiorari, the style of the court must be set out exactly, but that there needs no such nicety in pleading.

It is too late for a removal of the presentment, after the amercement has been estreated into the Duchy Court of Lancaster; ante, pp. 710, 711.

(d) In Dyer's Reports, 13 b, pl. 64, Fitzherbert cited Britton as an authority, that every presentment in leet and tourn is traversable; Cowp. 460, per Aston, J. It is to be recollected, that in an action, founded on the mere right, as in replevin, or in debt for an amercement, the presentment is clearly traversable; Carth. 73, 74; 1 Lord Raym. 470.

(e) Br. Presentment in Court, 1, cites 41 Ed. 3, 26; Rits. 132, 143; and see Keilw. 66, 67; Scroggs, 85; 2 Hawk. P. C. c. 10,

s. 76.

(ƒ) Ante, p. 720.

(g) Ante, p. 692, 693. And see this stat. in the Appendix.

(h) Mirr. c. 1, s. 17, pp. 520, 521; 17 Ed. 2; Br. Custom, 3; Fitz. Abr. Cus

VOL. II.

tom, 1; 1 Roll. Abr. 560, pl. 13, 14. Ante, p. 693, n. (s).

But by 6 Geo. 4, c. 50, it is enacted, that "it shall not be lawful either for the king or any one on his behalf, or for any party or parties in any case whatsoever, to commence and prosecute any writ of attaint against any jury or jurors for the verdict by them given, or against the party or parties who shall have judgment upon such verdict; and that no inquest shall be taken to inquire of the concealments of other inquests, but that all such attaints and inquests shall henceforth cease, become void and be utterly abolished, any law, statute or usage to the contrary notwithstanding."

(i) Loader v. Samuel, Cro. Jac. 551; Kitch. 84; ante, pp. 689, 716. But the neglect is to be pleaded and cannot be presumed; 2 Hawk. P. C. c. 10, s. 64.

(k) Kitch. 84, cites 41 Ed. 3, 27; 10 Hen. 4, 4.

(1) Cook v. Stubbs, Cro. Jac. 583; Rex v. King, 3 Keb. 197, 230, 251; ante, p. 689, (n.). The neglect of the lord of a manor leet is not punishable in the hundred leet, but in the eyre; Br. Leet, 13, cites 21 Ed. 3, 3, 4.

M

The jurisdiction of a leet jury, like that of a grand jury, is confined to things done or neglected to be done since the last court (m); and it was decided in the case of Davidson & Moscrop (n), that a custom for the jurors to be charged and sworn at one court, to inquire and present and to return such their presentments at the then next court, was bad in law (0).

The case of Moore v. Wickers (p) has been looked upon as an authority against the validity of a custom for the jury of a leet to enter into shops for examining weights and measures, and to destroy any such that might be found to be deficient: but the author is about to show, by an extract from the judgment of the court of B. R. in Willcock v. Windsor, that too much importance has been attached to the observation made by Probyn, J., in the above case of Moore & Wickers (q).

The case of Willcock v. Windsor (r) was an action of trespass in the court of King's Bench for breaking and entering the plaintiff's dwelling house and yard in the parish of Saint James, Clerkenwell, and breaking, bruising, perforating and destroying divers pots of the plaintiff there found, &c. Pleas,-first, the general issue; secondly, that the defendant Windsor was the bailiff of a prescriptive court leet holden in and for the manor of Clerkenwell, otherwise called Saint John's, Clerkenwell, on Ascension day in every year; that the other defendants, being inhabitants of the manor and suitors of the court, were, at the said court holden on Ascension day, the 28th of May, 1829, sworn as a jury for the manor to inquire and make true presentment of all such matters and things as should be given them in charge, or appear to be the object of their inquiry, and particularly according to the custom of the said manor from time immemorial to examine weights and measures, and see they were just and according

(m) Keilw. 66 b.

(n) 2 East, 56; 3 Barn. & Adol. 49. (0) But it is said that in some manors the jury continue in office for a whole year; Rits. 9. And see Wicker & Norris, cited 1 Wils. 250.

(p) Andr. 47, 191. But note, in the manor of St. Giles in the Fields, Bloomsbury, there is a custom for six aleconners to be appointed by the steward, and for them or the major part of them to search into and weigh all loaves not exceeding three penny loaves or half-quartern loaves, and to present all bakers whose bread is found wanting in due weight, or who should hinder such aleconners in the execution of the duties of their office. See the Duke of Bedford v. Alcock, 1

Wils. 248, which was an action of debt for an amercement set on a baker within the above manor, who refused to permit the aleconners to weigh his bread, and wherein it was held, that a count upon a mutuatus might be joined with counts in debt for an amercement in a court leet; 2 Bro. Ent. 83, 84, was cited as an authority for it. And see Palmer v. Barfoot, Lutw. 440. Vide also Vaughton v. Atwood and others, 1 Mod. 202; S C. (Vaughan v. Wood), 2 Mod. 56; and the notice taken of it in the judgment delivered by Lord Tenterden in Willcock & Windsor, post, p. 725.

(9) Post, p. 725.

(r) 3 Barn. & Adol. 43.

to the legal standards in that behalf; and for the purpose of making such inquiry and examination the said court was then and there, according to the usage and custom of the said mauor, adjourned; and the said jurors so sworn as aforesaid had a day given them to bring in their presentments until the 15th of December in the said year 1829; and it was averred that there was and had been within the manor from time immemorial an ancient and laudable custom, viz., "that the jurors of the jury of the said court leet to the number of twelve or more for the time being, after they were and are so sworn as aforesaid, and during the adjournment of the said court, from time whereof, &c., have entered and have been used and accustomed to enter, and of right ought, &c, and still of right ought, &c., with or without the bailiff of the said manor for the time being, into any dwelling house with the appurtenances of and belonging to any person being an inhabitant and resiant within the said manor, and selling goods there by weights and measures, and having weights or measures in his custody therein used and to be used by him in and for the sale of goods within the said manor, at seasonable times in the day time by the outer door or doors of such dwelling house, with the appurtenances, the same being respectively open, for the purpose of searching for and examining and to search for and examine such weights or measures, and to see that they were and are just and according to the legal standard in that behalf; and if upon examination any of the said weights or measures have been or shall be found by the said jurors to be false, deceitful or deficient, and not according to the legal standards in that behalf, then the said jurors for all the time aforesaid have broken and destroyed, and have used and been accustomed to break and destroy, and of right ought, &c., and still of right ought, &c., such last mentioned weights or measures so being false, deceitful or deficient, to prevent the same from being afterwards fraudulently, deceitfully and unlawfully used within the said manor." The plea then stated that before and at the time when, &c., the plaintiff was a resiant within the manor, and carried on the business of an ale-house keeper there in the said dwelling house and yard; that the pots mentioned in the declaration were measures used by him in the sale of beer and ale there; that Windsor being bailiff of the manor, and the other defendants being the leet jury, in the execution of their duty during the said adjournment, entered into the said dwelling house at a seasonable time by the outer doors, which were then open, to search for and examine measures, and did examine the measures in question, (they not having been previously examined by the defendants,) and upon such examination the said jurors did find that the same were false, deceitful, deficient and less than the legal standard; wherefore the said jurors, according to the custom, broke and destroyed them