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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 on himself the office of chief constable in they send for him."-On its being suga hundred, without any statement that he gested that there might be extensive comrefused to be sworn.
mons in the parish, the learned judge (8) See the pleadings in Randall v. added, “ I should hold them to fall within Whiston, in which a prescription was al- the same rule as the lanes."--It was leged for a leet and a market, and a cus- urged, that if the cattle had got to the tom for the ale-tasters chosen at the leet pound, and had been rescued from it, the to cut any butter exposed to sale, which offence would be pound breach, and Mr. was deficient in weight; Lex Man. App. Justice Coleridge said, “ Yes, but I take 93, pl. 27.
it that the office of hayward and of (t) In the case of The King v. Brad- pound keeper may be distinct, and I beshaw, 7 Car. & Pa. (N. P.) 235, which lieve that in some places they are so, and was an indictment at the assizes at Glouces- are held by different persons;" and added, ter, for rescuing cattle distrained by a “ if the hayward had driven cattle to the hayward, not in the public lanes, but on pound which he had found straying in private land, and in which the defendant one of the lanes, I should hold that they was acquitted, Coleridge J. said, “ it is were in the custody of the law from the not yet very distinctly shown, but we first, and that the rescue of them on their may take it, I think, that the duty of way to the pound would be indictable; the bayward is to keep the lanes clear, but in this case, till the cattle got to the by impounding stray cattle that he may pound, the hayward was merely acting as find there; but that with respect to stray the servant of Mr. Stone, in whose lands cattle found on private land, the bayward the cattle were found." is only the private servant of the parties if Note.—The person who under 5 & 6
a public annual office, conferring a settlement under 3 Will. & Mary, c. 11, s. 6 (u).
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 (z); 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 (6); 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 If all the resiants should refuse to perthe animal impounded with food, is the form their suit, so that no court could be party at whose instance it is put in the held, a mandamus against the persons impound; and semble, that the pound-keeper panelled by the bailiff as jurors would is not obliged to do so, although if he seem to be the lord's proper remedy, as a does it by the direction of the party im- distress cannot be taken for suit real, ante, pounding, they are to be considered as p. 686. Should some of the resiants atone; Mason v. Newland, 9 Car. & Pa. tend, but not a sufficient number to con(N. P.) 575.
stitute a jury, see ante, pp. 702, 703, 706. (u) Rex v. Inhabitants of Whittlesea, 4 (y) Scroggs, 84, cites Old Book of EnT. R. 807; 3 Adol. & Eli. 153. The tries, 392; Kitch. 89, cites 6 Hen. 4, 1; hog-ringer is a public officer, but the pin
45 Ed. 3, 26; Br. Leet, 7; Cutler o. der is not necessarily so; Rex v. In- Creswick, 3 Keb. 362; and see Kitch. 13, habitants of Clixby, 4 Barn. & Adol. 155; who there says, " and it used very often Rex v. Inhabitants of Newmarket St. to be fifteen, sixteen, or seventeen, of the Mary, 3 Adol. & Ell. 153, 154. The jury in the leet." office to gain a settlement must be an- (2) See Shepp. 20, who there says, nual; Rex v. Inhabitants of Middlewich, “ If the custom of the place be to make 3 Adol. & Ell. 156.
two or more juries, or one grand jury and (x) But see ante, p. 702, 703, of the power divers petits juries, it is good to observe of the steward to swear strangers, if there it." are not twelve suitors. And note, that in (a) Dy. 13 b, pl. 64; 1 Hawk. P. C. The Rector of Wigan's case, 2 Str. 1207, 217, s. 72; Scroggs, 84; Kitch. 84, citing the in-burgesses of Wigan, who were 19 Hen. 8, 11; 41 Ed. 3, 27; 2 R. 3, 12. bound by usage to act as jurors at the But he also says in the same page, that court leet of the lord of the manor, having though presentments by twelve shall not refused to attend at two courts, so that no be traversed, yet you shall have recovery business could be done, the Court of B. R. by writ of false presentment; cites 5 Ed. 3, granted a mandamus to enforce their at- 26; 21 Ed. 3; Tit. Bar. 271. tendance.
(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 cou 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 ().
(c) Rex v. Roupell, Cowp. 458 ; 2 tom, 1; 1 Roll. Abr. 560, pl. 13, 14. Hawk. P. C. c. 10, s. 13, 76. In 11 Ante, p. 693, n. (s). Mod. 228, it is said, that where a present. But by 6 Geo. 4, c. 50, it is enacted, ment in a leet is removed by certiorarı, that " it shall not be lawful either for the style of the court must be set out ex- the king or any one on his behalf, or actly, but that there needs no such nicety for any party or parties in any case whatin pleading.
soever, to commence and prosecute any It is too late for a removal of the pre- writ of attaint against any jury or jurors sentment, after the amercement has been for the verdict by them given, or against estreated into the Duchy Court of Lancas- the party or parties who shall have judgter; ante, pp. 710, 711.
ment upon such verdict; and that no in(d) In Dyer's Reports, 13 b, pl. 64, quest shall be taken to inquire of the con. Fitzherbert cited Britton as an authority, cealments of other inquests, but that all that every presentment in leet and tourn such attaints and inquests shall henceforth is traversable; Cowp. 460, per Aston, J. cease, become void and be utterly aboIt is to be recollected, that in an action, lished, any law, statute or usage to the founded on the mere right, as in replevin, contrary notwithstanding." or in debt for an amercement, the present- (i) Loader v. Samuel, Cro. Jac. 551; ment is clearly traversable; Carth. 73, 74; Kitch. 84; ante, pp. 689, 716. But the 1 Lord Raym. 470.
neglect is to be pleaded and cannot be (e) Br. Presentment in Court, 1, cites 41 presumed; 2 Hawk. P. C. c. 10, s. 6 t. Ed. 3, 26; Rits. 132, 143; and see Keilw. (k) Kitch. 84, cites 41 Ed. 3, 27; 10 66, 67 ; Scroggs, 85; 2 Hawk. P. C. c. 10, Hen. 4, 4. s. 76.
(1) Cook v. Stubbs, Cro. Jac. 583; () Ante, p. 720.
Rex v. King, 3 Keb. 197, 230, 251; ante, (8) Ante, p. 692, 693. And see this p. 689, (n.). The neglect of the lord of a stat. in the Appendix.
manor leet is not punishable in the hundred (h) Mirr. c. 1, s. 17, pp. 520, 521 ; 17 leet, but in the eyre; Br. Leet, 13, cites Ed. 2; Br. Custom, 3; Fitz. Abr. Cus. 21 Ed. 3, 3, 4. VOL. II.
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 Daridson & 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 (o).
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 (9).
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.
(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 the execution of the duties of their office. See the Duke of Bedford Alcock, 1
Wils. 248, which was an action of debt
(9) Post, p. 725.
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 manor, 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 bave 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 npon 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