to take notice of a by-law in a court baron (a):-When, therefore, a by-law in court leet is established by custom, I apprehend that personal notice of it would be unnecessary, as every inhabitant within the precinct of a leet is bound to attend the court. SECT. IV. Of the Election of Officers at the Court Leet. CHIEF MAGISTRATES, &c. - We have seen that in some manors the jury of the court leet are invested with the highly important power of choosing the mayor, portreeve, or other chief municipal officer of the borough or town to which the leet jurisdiction is appended (b), but that in others the jury merely present in writing the candidate who may have the majority of votes; and have no control over the poll (c). (c). And that in places where no charter of incorporation exists, vianders or other functionaries are chosen at the leet, who are the returning officers for the year (d). Mayor, &c., of West Looe. 3 Barn. & Cress. 633. Ante, p. 830. n. (a). (c) Ante, p. 842 n. (b). And see The King v. Bankes, 3 Burr. 1452, in which the court of B. R. discharged a rule previously granted calling on the lord of the leet for the borough manor of Corfe Castle, Dorsetshire, and on the steward, the bailiff, and deputy bailiff, and upon the jury summoned and ready to be returned, to show cause why a mandamus should not issue, requiring the lord and his steward to hold a court leet, and the bailiff, or in his absence, the deputy bailiff, to return and deliver unto the court leet, the panel or list of the jury summoned by the bailiff, and requiring the steward to swear the jury, and the jurors to be sworn, and to proceed to the election of a mayor, (and which rule had been amended by inserting the name of the mayor de facto):— the ground for discharging the rule appears to have been that the election was not merely colourable, (and clearly therefore void,) but doubtful, and fit to be tried on an information in nature of a quo warranto. Vide also the act 11 Geo. 1, c. 4. in the Appendix. (d) Ante, p. 830, n. (a). BAILIFF.-We have also seen that in some manors the bailiff is chosen by the jury, and sworn in with the other officers elected at the court leet (a). When that custom does not prevail, he is more usually appointed by the steward, but sometimes by the lord. CONSTABLES.-The better opinion is that both high and petit constables were recognised by the common law, the former being officers of hundreds, and the latter officers of tithings (b): And they appear in ancient times to have been chosen at the court leet, or, when no leet existed, at the tourn (c). It has, however, been doubted whether the high constable is an officer of which the common law took notice (d). Lord Coke supposed that a petit constable was an officer at common law, but that the constable of a hundred was created by the statute of Winchester (e); yet that statute has on the contrary been thought to furnish evidence of the previous existence of such officers (ƒ). There is a singular paucity of authorities as to the power of the court leet to elect a constable for a vill or hamlet, where no such office previously existed, or to elect a second constable or tithing-man, where there had previously been one (a) Ante, pp. 843, 845. (b) Crompt. 6 b. 2 Hawk. P. C. c. 8. s. 6. Ib. c. 10. s. 33. The King v. King, 3 Keb. 231, cites The King v. Samois, Hil. 16 & 17 Jac. Lamb. office of Constable, 16. 1 Mod. 13. The Queen v. Wyatt, 2 Lord Raym. 1193. 1 Salk. 175, 381. Fortesc. 127. 1 Bac. Abr. 683. (c) 4 Inst. 265. The King v. Bernard, 2 Salk. 502. S. C. Comb. 416. Rex v. Goudge, 2 Str. 1213. Rex v. Hewson, 12 Mod. 180. Rex v. Adlard, 4 Barn. & Cress. 779. (d) Abbot v. Moore, 1 Mod. 13. (e) 4 Inst. 267. And see two useful little works, the one called the Exact Constable,' published in 1680, and the other called The Complete Constable,' published in 1692. Lamb. office of Constable, 5. 3 Keb. 231. Cro. Eliz. 375-6, in Sharrock v. Hannemer. 2 Lord Raym. 1195. Per Twisden, 1 Mod. 13. (f) 2 Hawk. P. C. c. 10. s. 33. James v. Green, 6 T. R. 232. Sed qu. and see extract from this stat. (13 Ed. 1. st. 2. c. 6) in the Appendix. constable only; yet it is generally supposed that the court leet, in either the one case or the other, possesses a discretionary power; for, as at common law, the constables were subordinate officers to the conservators of the peace, so are they now the proper officers of the justices (a). And in James v. Green (b), Lord Kenyon said, "It is no new thing, if we may have recourse to analogous cases, at this day to appoint officers in places where none were in fact appointed before, if by law such an appointment may be made. In the case of vills, the court have, in modern times, frequently granted writs of mandamus to appoint overseers of the poor for the first time, as soon as the exigencies of the place required it." But in Abbot v. Moore (c), Moreton said "The book of Villarum in the Exchequer sets out all the vills, and there cannot be a constablewick created at this day." It has been the subject of great controversy whether the election of constable belongs of common right to the jury of the court leet, or to the steward (d); but it clearly appears that the right of election is in the jury (e). A refusal to serve the office by a person not present at the time he is elected may be punished by amercement (ƒ), but his act of contempt should be presented at the succeeding court. When a constable or tithing-man chosen at the leet is present and refuses to be sworn, the steward may set a fine upon him (g); and when absent, or if the steward refuse to ad 70. (a) 1 Salk. 381. (b) 6 T. R. 232. case, 1 Lord Raym. 175. S. C. 1 Lord Raym. 70. S. C. (c) 1 Mod. 13. Vide also, per Holt, 12 Mod. 181, in Rex v. Hewson. Yet see Village of Chorley 1 Salk. 176, in which Holl said, a village and a constable are correlatives, but a hamlet has no constable." Vide also 12 Mod. 180, per Keiling, C. J. cited ib. 181. (d) The King v. Bernard, ubi sup. (e) Fletcher v. Ingram, 1 Salk. The (ƒ) Ante, p. 851, n. (b). (g) Ante, p. 850. And see Doe & Ball, Lex. Man. App. 85. pl. 24. The King v. Harpur, 5 Mod. 96. Griesley's case, Sav. 93, 8 Co. 38. minister the oath to him (a), he is to go before a justice of the peace to be sworn (b). And a refusal to accept the office of constable is an indictable offence (c). Should the leet neglect or refuse to choose a constable, the justices in sessions may appoint one (d), but only until the lord shall hold a court (e); and the sessions cannot discharge a constable appointed at the leet, except under the provisions of the act of 13 and 14 Car. 2. c. 12. which directs that in case any constable shall die, or go out of the parish, any two justices may make and swear a new one, until the lord of the manor shall hold a court leet; and that if any officer shall continue above a year in his office, the justices in their Quarter Sessions may discharge him, and put another in his place, until the lord of the manor shall hold a court (ƒ). If a person be elected constable in a court leet by spleen, although the sessions cannot interfere, yet the Court of King's Bench will discharge such person, and the constable previously appointed must act until another be duly chosen and sworn (g). (a) But the steward is compellable by mandamus to administer the oath to him. Comb. 285. (b) Rex v. Dr. Franchard, 2 Str. 1149. Rex v. Stevens, ubi sup. Prigg's case, Aleyn, 78. Fletcher v. Ingram, ubi sup. (c) Post. p. 866. (Tithing Man.') (d) Abbot v. Moore, 1 Mod. 13. (e) Rex v. Davis & Gosling, 2 Stra. 1050. And see Rex v. Goudge, Ib. 1213. Rex v. Stevens, T. Jones 212. Village of Chorley case, 1 Salk. 176. S. C. Holt, 153. Rex v. Hewson, 12 Mod. 180. So where there is no leet, Lord Wentworth's case, 1 Bulst. 174. Terry & Furnese, 21 Car. 2. B. R., Scroggs 85. The justices should issue their summons, signifying to the party that he has been elected constable, and requiring him to take the oath, &c. Rex v. Halford, Comb. 328-9. And see Prigg's case, sup. (f) 1 Bulst. 174. Rex v. Davis & Gosling, sup. Limington case, 2 Stra. 798. Rex v. Burden & Wakeford, Barnard. B. R. 51. Herson's case, 5 Vin. Abr. 429, pl. 3; 6 Vin. 587, pl. 5. See extract from the above mentioned stat. in the Appendix. (g) The King v. Wright, 1 Keb. 439. Anon. 12 Mod. 256. A person elected constable who is not idoneus, (that is, not possessing honesty, knowledge and ability,) may be discharged by the leet, or by the court of B. R. Griesley's case, 8 Co. 41 b. 42 a. 1 Bulst. 174. Though it is generally considered that a person is not bound to attend two leets (a), yet when a leet is held for a manor within a hundred, it has been held that a tenant of the manor leet is not excused from serving the office of constable for the hundred; but that a custom for the exemption might be good (b). The office of a constable would appear to be a personal and not a pecuniary service, and therefore a person is not liable to serve the office unless he be resiant in the parish (c); this, indeed, seems to be deducible from the custom of appointing constables at the court leet, and that practice in ancient times (a) Ante, p. 825. And see Cro. Jac. 584. Rex v. Routledge, 2 Dougl. 537. Scroggs 2. Hughes' Abr. tit. Avoury, p. 170. But if a private leet has only a partial jurisdiction, the resiants, as to all matters not cognizable there, must attend the superior leet, if any exist, otherwise the sheriff's tourn. 1 Roll. Abr. 542. Scroggs 3. It may be a good custom for the chief pledges of the inferior leet, and a limited number of resiants, to attend the grand leet. Cro Jac. 584. Scroggs 3. Shepp. (p. 7.) says " If a man dwell within the precinct of another leet, and have lands only in my leet, I may not compel him to do service to my leet: And yet if he dwell sometimes in one place and sometimes in another, and one of those places is within my leet, where he dwells at the time my leet is held, in this case and at this time, he must do service at my leet, for he may do suit at both places at several times." And see the next note. (b) Rex v. King, 3 Keb. 197, 230. Keene's case, 1 Freem. 348. The Queen v. Jennings, 11 Mod. 215. In the above case of Rex v. King, Hale, C. J., said "there was this difference between a leet in ancient borough, who in Eyre appeared by four, and was always looked on as distinct from the hundred, and leet in upland towns is far different, and regularly he that owes suit to the leet owes none to the hundred, but by custom may do so." See as to the authority of that case, Cowp. 15. "The privilege of having special customs derogating from the common law is in general denied to inferior places, such as upland towns, not being either cities or boroughs, and hamlets; though it is allowed to larger or more important districts, such as counties, manors, hundreds, honors, cities and boroughs." Co. Lit. 110 b. n. (2). And see 43 E. 3. 32 |