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to prevent their being afterwards fraudulently used within the manor, as they the defendants lawfully might, &c.; and they traversed being guilty in any place out of the manor. There were other pleas setting up a similar justification. The plaintiff demurred generally to the special pleas. The defendants joined in the demurrer.
In support of the demurrer it was contended, that a custom to break deficient measures could not be valid, inasmuch as the duty of the jury was only to examine and present, and that by breaking the vessels they destroyed that which ought regularly to be the evidence for or against their presentment; that it did not appear on the pleadings that the measures were, but only that they were found by the jury to be defective; and lastly that the adjournment stated in the pleadings was unreasonable, and could not be grounded on valid custom.
The following is a copy of the judgment of the court delivered by Lord Tenterden, C. J., as reported by Messrs. Barnewall and Adolphus.
"The demurrer in this case is founded on two objections to the several pleas, the one to the custom set forth (which his Lordship read as stated in the pleadings), the other to the adjournment of the court, and the time given to the jury to bring in their presentments until the 15th day of December, 1829, which was said to be an unreasonable length of time on the face of the plea, the court having been holden on the 28th day of May in the same year. The objection to the custom was principally founded on the case of Moore v. Wickers (Andr. 47, 191). In that case, which was an action of debt in the court leet of the manor of Stepney to recover the amount of an amerciament affeered, the plaintiff declared that he was lord of the manor, and prescribed for a court leet, and set out a custom that the jurors sworn, and charged at any such leet to present, have presented and used at such leet to present, after their being sworn, all such things as have been before or after their being sworn presentable, and that such jury had been used to be adjourned, &c. The plaintiff further declared that the defendant was a cheesemonger within the jurisdiction, and obstructed the jurors then in the execution of their duty from entering into his shop and trying his weights and balances; that the jury at a subsequent court presented this obstruction, whereupon the defendant was amerced, and the amerciament affeered to 47. 19s. There was a verdict for the plaintiff, and a writ of error brought wherein several errors were assigned, of which the second was that the presentment was ill, because the jury have no authority to enter into the shops of persons to examine their weights and measures; if the jury of a leet have such a power it must be by custom, and none was set out on that record; and if it was, it was a question whether it would be reasonable. On the argument the judges threw out their several
impressions on the points raised, the only one of which relating to the present question is that of Probyn, J., who is reported to have said, that a custom for the jury of a leet to enter into houses for examining weights and measures, they being only sworn to present, he thought would not be good. But the case was adjourned, all the court intimating an opinion that the proceeding was erroneous in not setting out the time of the obstruction, and afterwards when the case was stirred again, no one appearing for the defendant in error, the judgment was reversed, the court saying there was a strong objection in the case, but not intimating what it was. We do not consider that decision any authority against the validity of the custom here, because there no such custom was pleaded, and there was no judgment of the court against it. On the other hand there is a case in which a similar custom was adjudged good. In Vaughan v. Attwood and others (1 Mod. 202), the custom justified under was, that the homage used to choose every year two surveyors to take care that no unwholesome victuals were sold within the manor, and that they were sworn to execute their office truly for the space of one year, and that they had power to destroy whatever corrupt victuals they found exposed to sale. The plea then stated that the defendants being chosen surveyors and sworn to execute the office truly, examining the plaintiff's meat, found a side of beef corrupt and unwholesome, and that therefore they took it away and burned it. North, C. J., it seems, doubted; but the other three judges said, 'It is a good reasonable custom; it is to prevent evil, and laws for prevention are better than laws for punishment. As 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 protection against fraud and deceit. They are also recognised by the statute 35 Geo. 3, c. 102, s. 6, and 55 Geo. 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 seize, 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. And 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 inquire 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 seize them if defective, also exists in the manor of Stepney, and was recognized in the late case of Sheppard v. Hall and three others (s). 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 authorized by the custom to seize 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 seized the plaintiff's weights, &c., which they found defective. Replication, de injuria, whereupon issue was joined.
(s) 3 Barn. & Ad. 433.
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 seizure took place, the 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 obsíante 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 (t) 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. Justice 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.
Every presentment in leet must be certain, and state the precise day of holding the court (u), and before whom it was held (x); and should set forth the power under which the court acts, that is, whether it exists under a grant or by prescription (y); though this does not appear to be absolutely essential (2). In Lawson v. Hare (a), in replevin, it was held on 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 would 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 (b); and the presentment must conclude to the common nui
(t) 1 Barn. & Cress. 297.
(u) Dacon's case, Vent. 107; S. C. 2 Saund. 290.
(r) That is, corum seneschallo; 3 Keb. 251.
(y) Jerrat v. Caldewell, Cro. Jac. 184.
(2) Scroggs, 8; Rex v. Gilbert, 1 Salk. 200; S. C. 12 Mod. 4.
(u) 2 Leo. 74.
(b) Br. Leet, 33, cites 5 Hen. 7, 2; and sce Keilw. 89 a, pl. 9.
sance of all the king's subjects (c); for it is not sufficient to say ad nocumentum diversorum (d), or ad nocumentum habitantium (e), as the seet cannot amerce for a particular trespass or injury to the lord of manor, or any other person, where an action will lie to recover damages, but for public nuisances only (f).
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 (g),
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 (h).
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 (i).
According to the Mirror (k), all presentments in a court 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 (l), 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 assize 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.
highway are not favoured; Rex v. Inhabitants of Limehouse, 2 Sho. 455.
(h) 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 Hen. 8, 2; ib. Leet 1, cites S. C. (i) Rits. 15, 16. (k) c. 1, s. 17. (l) 3 Burr. 1860.