for the great power it seems to allow to these surveyors, it is at their own peril if they destroy any victuals that are not really corrupt, for in an action, if they justify by virtue of the custom, the plaintiff may take issue that the victuals were not corrupt. But here the plaintiff has confessed it by the demurrer.' We think the reasons alleged in support of that custom were sound and good, and for the like reasons we hold the present custom to be valid. Such customs prevail in many manors, and they are, in our opinion, very useful to the public, as affording a protection against fraud and deceit. They are also recognised by the statute 35 G. 3. c. 102. s. 6., and 55 G. 3. c. 43. s. 12., two statutes making provision for preventing the use of false weights and measures, and containing a proviso that they shall not lessen the authority of persons appointed at a leet for the examining, breaking, and destroying weights or balances, or measures.

"An objection was taken with reference to this part of the case, that the averment was not that the plaintiff's pots were, in fact, false, deceitful, and deficient, and not according to, but less than the legal standard, but only that the jury found them to be so; and for this Palmer v. Barfoot [Lutw. 440.] may be cited. But in that case the custom alleged was, that the inspectors should seise, and take as forfeited, the bread of foreign bakers, if it should not be of just weight, or should be deceitfully or insufficiently made or baked; and the averment was that the defendant found it, on view and inspection, to be insufficiently baked. The justification, therefore, did not bring the case within the words of the custom, and the plea was holden to be bad, without the court throwing out any opinion against the custom itself, which seems to have been acquiesced in as good. But here the custom laid and the justification coincide. The custom is, if any of the said weights and measures shall be found to be false, &c., and the averment corresponds. We think also that the objection arising out of the adjournment cannot prevail. It is averred to have been made according to the usage and custom of the said manor, and

nothing appears to prove that the length of time for which it was made was of necessity unreasonable or disproportioned to the occasion. In large and populous manors, such as this of Clerkenwell, it would be impossible for a jury to execute this function of examining all weights and measures within a day, or even within a short space of time. An adjournment, therefore, must in such cases be necessary, and the period of it must be governed by circumstances, and in some degree be left to the discretion of the court-leet, that discretion being, of course, to be exercised duly, and subject to control. The case of Davidson v. Moscrop [2 East 56.] is very distinguishable from the present. All that was decided there was, that a custom for the jurors to be charged and sworn at one court, to enquire and present, and to return such their presentments at the then next court, was bad. But here the adjournment is of the same court; and if the jury present the plaintiff's offence on the adjournment day, the presentment will not be made at another court. We are of opinion, therefore, that there must be judgment for the defendants."

A custom for the jury of the court leet to examine weights and measures, and seise them if defective, also exists in the manor of Stepney, and was recognised in the late case of Sheppard v. Hall and three others (a). There the four defendants pleaded that they with divers, to wit, twenty others, were duly sworn as a leet jury of the manor court, to inquire of weights, &c. according to the custom, and that the jury were authorised by the custom to seise and carry away defective weights, &c., and to enter shops within the manor by day for the purpose of their inquiry; and they alleged that they being on such jury examined and seised the plaintiff's weights, &c. which they found defective. Replication, de injuriâ, whereupon issue was joined. At the trial before Lord Tenterden it appeared in evidence, that only five of the jury were in the plaintiff's shop when the examination and seisure took place, the

(a) 3 Barn. and Ad. 433.

rest being in another shop in the same street. It was contended on the behalf of the plaintiff, that upon this evidence it did not appear that twelve jurors were together, when the proceedings were taken. But Lord Tenterden was of opinion that the objection, if it arose, was upon the record; and he therefore left to the jury, as the only question of fact in the case, whether or not the defendants took away any weights, &c. that were not defective, and a verdict was found for the defendants. A rule was afterwards obtained calling upon them to show cause why judgment should not be entered for the plaintiff, non obstante veredicto, or a new trial had.

And upon cause being shown, it was argued on the part of the defendants that, admitting the averment to be ambiguous, and that it was not alleged with sufficient precision that the defendants and the rest of the jury were acting together, yet that there was a constructive presence of the jurors who were outside the shop, and that the defective statement was cured by verdict, for which Lord Huntingtower v. Gardiner (a), and other authorities, were cited. The court held that the objection was a valid one on the record, and that the defendants, as four only of the jury, did not bring themselves within the custom relied upon; and Mr. Just. Patteson was of opinion that there was no ambiguity in the expression being on such jury," and that the question of an ambiguous expression being cured by verdict did not properly arise in Lord Huntingtower & Gardiner. Judgment for the plaintiff, non obstante veredicto.

66

Every presentment in leet must be certain, and state the precise day of holding the court (b), and before whom it was held (c); and should set forth the power under which the court acts, that is, whether it exists under a grant or by prescription (d); though this does not appear to be absolutely essential (e). In Lawson v. Hare (f), in replevin, it was held, on

(a) 1 Barn. and Cress. 297.

(b) Dacon's case, Vent. 107. S. C. 2 Saund. 290.

(c) That is coram seneschallo. 3 Keb. 251,

(d) Jerrat v. Caldewell, Cro. Jac.

184.

(e) Scroggs 8. Rex v. Gilbert, 1 Salk. 200. S. C. 12 Mod. 4.

(f) 2 Lco. 74.

demurrer, that the leet being claimed out of the hundred, it was sufficient for the defendant to allege that he was seised of the hundred, without showing any other title, though it Iwould have been otherwise if the hundred itself had been in question.

In the case of a nuisance it must be shown at what place it was committed, and that such place is within the jurisdiction of the court (a); and the presentment must conclude to the common nuisance of all the King's subjects (b); for it is not sufficient to say ad nocumentum diversorum (c), or ad nocumentum habitantium (d), as the leet cannot amerce for a particular trespass or injury to the lord of the manor, or any other person, where an action will lie to recover damages, but for public nuisances only (e).

And in the case of presentments for stopping the common highways, the locus ad quem, as well as the locus a quo, should be stated (f).

The proper mode of inquiring of felonies in leet is by indictment or inquisition, by roll indented under the seals of the jurors, to be afterwards certified to the King's justices at the next gaol delivery (g).

The inquisition of a leet jury in cases of felony, is in nature of a bill of indictment by the grand jury; but probably, before the introduction of the petit jury, the finding of the leet jury was conclusive (h).

According to the Mirror (i), all presentments in a court

(a) Br. Leet 33, cites 5 H. 7. 2. And see Keilw. 89 a, pl. 9.

(b) Anon. 1 Vent. 26. Prat v. Stearn, Cro. Jac. 382. 2 Keb. 500. Sir T. Raym. 160.

(c) Hughs v. Bishop of London, 3 Keb. 106. Rex v. Ayers, 2 Keb. 139.

(d) Mo. 356.

(e) Rex v. Dickenson, 1 Saund. 135. Lex. Man. App. pl. 30. Ante, p. 852. (f) Ayerl's case, 3 Keb. 644. But objections on account of informalities

in presentment for not repairing a common highway are not favoured. Rex v. Inhabitants of Limehouse, 2 Sho. 455.

(g) See 1 Ed. 3. st. 2. c. 17. Cromp. J. P. 151. Presentment of felony in leet, and the steward certifies it to the justices at the next sessions by indenture, this shall serve for indictment. Br. Indictm. 1, cites 27 H. 8. 2. Ib. Leet 1, cites S. C.

(h) Rits. 15, 16.
(i) c. 1. s. 17.

leet are to be sealed with the seals of the jurors, so that none may do fraud by increasing or diminishing them; yet it would seem that it is not necessary that ordinary presentments in leet should be either sealed or indented.

In the case of Sir George Colebrook v. Elliott (a), the offence charged in the presentment was the defendant's having in his custody, and exposing to sale, a loaf of bread not of the weight required by 3 Geo. 3. c. 11, which act did not fix the price, and on that account the court of B. R. held that the offence was not cognizable in the leet, the assise not having been broken. An objection had been taken to the presentment in this case, that it was neither sealed nor indented; but the court were agreed, that the latter objection was not maintainable.

Of Offences cognizable in the Court Leet; and the general Articles presentable there.

In former ages most offences were punished by imprisonment, or by a mulct or pecuniary fine, which payment is supposed in many cases to have been a fixed sum proportionate to the magnitude of the crime, or the degree in society of the person injured (b); but even in the reign of William the Conqueror, many offences were punished with death or mutilation (c). Indeed the punishment of death may be traced back to the Anglo-Saxon æra (d); for it is recorded of King Alfred that he hanged thirty unjust judges in one year; who are said to have been the judges in the tourns, ealdermen of counties, or their deputies, the sheriffs (e).

(a) 3 Burr. 1860.

(b) See Sulliv. F. L. 275.

for rape; which by 3 Edw. 1. was punished as a trespass only, but was

(c) Reeve's Hist. Engl. L. 1 vol. again made felony by 13 Ed. 1. and

16, 83, 193.

(d) Treason, murder, rape, and robbery, were punished as capital offences, but mutilation was afterwards substituted as the punishment

benefit of clergy was taken away by 18 Eliz. Sulliv. 275. Bract. 3. c. 28; post. articles inquirable in leet, (tit. Rape).

(e) Sulliv. 275.