will help to show the description of persons liable to serve the office.

In the above case of Rex v. Adlard, Abbott, C. J., said "It was argued, however, that a non-resident occupier may be appointed to this office, because it may be executed by deputy. I do not know that the appointee can substitute a deputy of his own authority alone, without the sanction or consent of some other authority; but supposing that he can, we think it by no means follows that he is therefore compellable to take upon him an office in its nature requiring personal services, especially where no necessity for his appointment is shown."

A barrister who regularly attends the courts at Westminster, and a practising attorney, are exempt from serving the office of constable, but a physician whose profession is private and exercisable at his residence, has not a claim to a similar exemption (a).

It has, however, been said, that if a gentleman of quality be chosen constable of a town which has sufficient persons besides to execute this office, and there be no special custom concerning it, perhaps he may be relieved by the court of King's Bench (b).

From the nature of the office it seems inconsistent that it should be imposed upon women (c), and in Prouse's case (d), the court of B. R. held a custom that every one should be a constable or tithing-man, according to their several houses, to

(a) Pordage's case, 2 Keb. 578. S. C. 1 Mod. 22. S. C. 1 Sid. 431. Vide Herson's case, 5 Vin. 429, 431; 6 Vin. 587, where a person who had been elected by the leet and discharged by the sessions, because he was a Master of Arts, and the court of B. R. granted a writ to compel him to be sworn at the leet.

A certificate under 10 & 11 W. 3. c. 23, discharging persons from serving parish offices, is no exemption from being sworn constable at a court

leet. Birmingham case, (Rex v. Darbyshire,) 2 Burr. 1182.

(b) 2 Hawk. P. C. c. 10. 1 Bac. Abr. 686. Rex v. Wright, ubi sup. But see Pordage's case, sup.

(c) Women were originally compellable to attend the tourn, but women, as well as men, who had entered into religion, were excused by the stat. of Marlborough, ante, pp. 824, 838.

(d) Cro. Car. 389.

be bad," for then a woman being an inhabitant in one of the said houses, it may come to her course to be constable, which the law will not permit."-But according to Vane's case (a), a custom in a vill where there are several houses, that every one shall be constable in turn, is good; "for though it shall happen to the turn of a widow, she may hire one to serve, and then he who so serves is sworn, and he is the constable and not a deputy."

And in the King v. Stubbs (b), where a woman had been appointed an overseer, Ashhurst, J., said " the only question is whether there be any thing in the nature of the office that should make a woman incompetent? and we think there is not. There are many instances where, in offices of a higher nature, they are held not to be disqualified, as in the case of the office of high-chamberlain, high-constable, and marshal; and that of a common constable."

TITHING-MAN (THIRDBOROUGH, &c.)-The term tithing-man is more frequently used as synonymous with constable (c), though it often imports a subordinate or assistant constable; and the constable chosen for a manor sometimes has jurisdiction over distinct hamlets or vills, for which a particular constable or tithing-man is appointed (d).

We have just seen that a person elected constable or tithingman, who refuses to be sworn, may be fined by the steward of the court leet, if the person so chosen be present, and that he may be amerced, if absent: it is also a settled principle that he may in either case be indicted at the assizes or quarter sessions (e). In all indictments for such offence it is proper

(a) 1 Sid. 355. Hil. 19 & 20 Car. 2. 5 Vin. 432, pl. 5. And see Comb. 243.

(b) 2 T. R. 406.

(c) So also the term Headborough.

Ante, p. 812. n. (a.)

v. Darbyshire,) ubi sup.

(e) Ib. 1 vol. Ca. & Opin. 237. Prigg's case, Aleyn. 78. 12 Mod. 180. And see Rex v. Lone, 2 Stra. 920, which was an indictment against a person who had been elected con

(d) See Birmingham case, (Rex stable at a wardmote court for the

to set forth the manner of every such election, before whom the court leet was holden, the notice and refusal, &c.; for it has been adjudged insufficient to say, in general terms, that the party was duly elected, or that he had notice thereof, without setting forth the special circumstances (a).

But the case of Rex v. Brain (b), is an authority, that a refusal to take the oath of office is, prima facie, evidence of a refusal 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 assise regulations were more highly valued, and consequently more rigidly enforced, the duties of those officers were deemed of no mean importance (c); 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 dis

city of London, for refusing to accept the office. And see Rex v. Brain, 3 Barn. & Adolp. 614.

(a) Prigg's case, ubi sup. 1 Burn's J. 496. Rex v. Fuller, 1 Bos. & Pul. 182.

(b) Suprà. See in Stark. Crim. Pleading, 2d Ed. p. 619, a precedent of an indictment against a person for not taking on himself the office of chief constable in a hundred, without

any statement that he refused to be

sworn.

(c) See the pleadings in Randall v. Whiston, in which a prescription was alleged for a leet and a market, and a custom for the ale - tasters chosen at the leet, to cut any butter exposed to sale, which was deficient in weight. Lex. Man. App. 93. pl. 27.

tinct 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.

SECT. 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 (a), sworn and charged as a jury for that purpose, and consisting of not less than twelve (b); and when more than twelve are sworn, if twelve agree it is good enough (c): 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 (d); the reason for which is, that no process is there awardable against the party to compel him to answer (e) but although a presentment in leet, not affecting either life or freehold, is probably not traversable at the leet,

(a) But see ante, p. 847, 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 attend

ance.

(b) Scroggs 84, cites Old Book of Entries, 392. Kitch. 89, cites 6 H. 4. 1; 45 E. 3. 26. Br. Leet 7.

Cutler v. Creswick, 3 Keb. 362.

(c) 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 petit juries, it is good to observe it."

(d) Dy. 13 b. pl. 64. 1 Hawk. P. C. 217. s. 72. Scroggs 84. Kitch. 84, citing 19 H. 8. 11. 41 E. 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 E. 3. 26. 21 E. 3. Tit. Bar. 271. (e) Scroggs 85.

yet it is settled, that all presentments in leet may be removed by certiorari into the Court of King's Bench, and there traversed (a). It is observable also that the jurisdiction of the court, if not the presentment itself (b), was at all times. traversable (c). And that an averment may be made against a presentment made by less than twelve (d).

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 (e). 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 (ƒ).

If presentment be not made in leet of articles of which that court has cognizance, then they are to be presented in tourn (g). And if not there, then before the Justices in Eyre, and if not there, then in the King's Bench (h). 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

(a) 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, p. 856-7.

(b) 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.

73-4. 1 Lord Raym. 470.

(c) Br. Presentment in court 1, cites 41 E. 3. 26. Rits. 132, 143. And see Keilw. 66-7. Scroggs 85. 2 Hawk. P. C. c. 10. s. 76.

(d) Ante, p. 868.

(e) Ante, p. 834. And see this stat. in the Appendix.

(f) Mirr. c. 1. s. 17. 520-1. 17 E. 2. Br. Custom, 3 Fitz. Abr. Custom, 1. 1 Roll. Abr. 560. pl. 13, 14. Ante, p. 834, n. (a).

(g) Loader v. Samuel, Cro. Jac. 551. Kitch. 84. Ante, pp. 830, 864. But the neglect is to be pleaded, and cannot be presumed. 2 Hawk. P. C. c. 10. s. 64.

(h) Kitch. 84, cites 41 E. 3. 27. 10 H. 4. 4.