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able in leet, not being a common nuisance. Sed quære, whether it is not in the nature of rescue, and inquirable and punishable in leet accordingly.] Shepp. 16 (lack of stocks, pillory and tumbrel, ducking stool, common pound, cites old book of entries, 390, 495; Pow.
156); Greenw. 292. Purprestures.-Stat. 18 Ed. 2 (of purprestures made in lands and
waters to annoyance). And see Nuisances. Rape.-Stat. 18 Edw. 2 (of women ravished not presented before the
coroners). Kitch. 41, in his breviat of charge, says (of ravishing a woman, which is not presented before the coroner). See also Kitch. 16, 17 (citing Stamf. 23 b, Rastal, Rape, 2); Pow. 48; Kitch. 17 (rape as felony, which is felony made by the statute, is not inquirable in leet, nor anything given by statute, unless it be inquirable by express words, but that which is made petit treason by statute is inquirable as felony by the common law, cites 11 Hen. 7, 22); 2 Inst. 181 (if rape had not been made felony by the stat. of Will. 2, but had been felony when that act was made, then should the court of the leet have inquired of it, as of a felony by the common law; but seeing it was made felony by that statute, it hath been often adjudged that the leet cannot inquire thereof : for albeit it was once felony, yet the nature of the offence being changed, as is above said to be no felony, when another act made it felony again, yet could not the leet inquire thereof, as of a felony). And see Br. Abr. Leet, pl. 22 (cites 6 Hen. 7, 4; Fitz. Lete et Hundr. pl. 10, citing 7 Hen. 6, 12). Vide also Kitch. 16, 43; Pow. 53, 59 (rape as felony is not inquirable, but as trespass). Vide also Greenw. 286. But see Jenk. P. C. 9 (rape is also here to be inquired of). [Rits. on Courts Leet, p. 18, 19, urges on the authorities of Britt. Kitch. &c., that rape is inquirable in leet as a felony at common law, and observes that those who would allow it to be inquired of as trespass, should recollect that where a trespass is by statute turned into felony, the trespass is merged; for which he cites Bul. N. P. 32.] [N. B. By statute W. 1 (3 Ed. 1) c. 13, rape was made punishable as a trespass by two years' imprisonment and fine; and was made felony by W. 2 (13 Ed. 1, st. 1) c. 34; and benefit of clergy was taken away by 18 Eliz. c. 7. Previously to the stat. W. 1, rape was punishable by mutilation,
and in old time was felony; ante, p. 729, n. (o).] Rescue.—Kitch. 17 (the rescue of any taken for felony is felony, and
here inquirable), cites 1 Hen. 7, 9; Jenk P. C. 22; (if any rescue be made within the jurisdiction of the court, upon the sheriff or any of his bailiffs, or any other officers, it is to be inquired of and presented). And see Pow. 89; Shepp. 41; Scroggs, 21 ; Greenw. 288.
Scolds.-- Jenk. P. C. 21 (if there be any common barretors within
the jurisdiction of the leet, common scolds, or makers of debate, to the annoyance and disturbance of their neighbours, this is inquirable). And see Hob. 246; Pow. 90; Shepp. 48; Scroggs, 20. Per Cur. in The Queen v. Foxby, 6 Mod. 11, 178, 213 ("the frequent repetition of it to the disturbance of the neighbourhood makes it a nuisance, and as such it always has been punishable in leet, and ideo indictable”). Mo. 847; 2 Str. 1247. [A scold is said to be punishable by being put into the ducking-stool; Queen v. Foxby,
sup.; 1 Hawk. P. C. c. 75, s. 14.] Sorcerers.-Flet. 2, c. 52; Britt. c. 29 (of sorcerers, &c., and their
receivers). And see Pow. 60, 61; Greenw. 287. Stocks.—[Vide 4 Jac. 1, c. 5, s. 2, for repressing drunkenness. See
also Pillory, ante; Tiplers, post.] Suitors: Deciners.—Stat. 18 Ed. 2 (first you shall say unto us by
the oath that you have made, if all the jurors that owe suit to this court be come, and which not); ib. (" of customs and services due to this court withdrawn, how, and by whom, and in what bailiff's times”); Kitch. 19 (if the suitors and deciners, scil. if any of them which are resident appear in person, or not: and if any of them make default, to present their names); ib. 41 (suitors, viz. resiants, which owe suit royal [real], capital pledges and deciners, of those of twelve years and not sworn); Jenk. P. C. 20 (if all constables, headboroughs, deciners, tithing-men, and all others that owe any suit to this court, be present to do their suit and service, and to present the names of all that are absent or make default). And see Flet. 2, c. 52; Britt. c. 29; Mirr. c. 1, s. 17. Ante, Chief
Pledges. Swans.- Kitch. 18 (“ also the taking of tame deer, with a felonious
intent, is felony, the same law the taking of cygnets, swans, marked, and peacocks, and here inquirable,” cites Stamf. f. 25, C.; 18 Hen. 8, 2). Vide also as to swans, cygnets, or peacocks, marked, Shepp.
41; Pow. 73. Tiplers.—[By 1 Jac. c. 9, and 4 Jac. c. 5, presentment is to be made
in leet of persons who shall continue drinking or tipling, or shall suffer persons to continue drinking or tipling in alehouses, &c. See also 7 Jac. c. 10; 1 Car. 1, c. 4; Greenw. 293. And see Alehouse-keeper, ante. But note, the above acts, with others, were
repealed by 9 Geo. 4, c. 61, s. 35.] Tithing-men.-See Officers. Toll (Excessive Toll ).-Kitch. 22 (also if millers take excessive toll,
is inquirable); Jenk. P. C. 25 (if any millers take excessive toll, they are to be inquired of). And see Shepp. 17. Per Rhodes, Serjt., 4 Leo. 12 (“excessive toll is inquirable in leet”).
Treason : High-Treason.—Kitch. 16 (high-treason inquirable in leet
as felony); ib. 43 (it is said that treason, as forging of money, is inquirable, cites 9 Hen. 6, 44); Br. Leet, 2 (cites S. C.); Jenk. P. C. 8 (the jury is to inquire of all high-treasons). And see Pow. 46, 48, 49; Greenw. 286; Shepp. 10, 11 (“the things which are here only to be inquired of, and not to be punished, are all felonies, which were so by the common law, though now they be made treason, as of such as are enemies to the king; falsify or abuse the king's coin or seal”); ib. 39 (you are to inquire of all offences which are or were felonies by the common law, except about the death of a man; and in this consideration you are to inquire of those offences, that being treason do include felony, or be only felony, and those offences that being felonies by the common law are now by some statutes made treason ; so you were to have inquired of and presented all that did imagine or endeavour the taking away the life of the king, &c.; so you are to inquire of any that levy war against the kingdom, or adhere to the king's enemies; counterfeit any of the great seals or money; kill the justices of the one or other bench, in doing their offices, and such like offences); Scroggs. 84 (courts leet inquire of all offences under high-treason committed against the state and dignity of the king). Petit-Treason.—Br. Ley gager, 99 (of petit-treason, but not of high-treason, cites 10 Hen. 6,7); Kitch. 16, 43 (petty treason is inquirable, but as felony at the common law,) cites 12 Ass. 30; 19 Hen. 6, 47; 6 Hen. 7, 4; ib. (petty treason, and ancient felonies, that is to say, felonies at the common law, but not the death of a man); Jenk. P. C. 9 (petty treasons are, if any man kill his master or mistress, or a woman her husband; this is to be inquired
of here as felony). And see Pow. 46, 52; Kitch. 50. citing Stamf. 2. Treasure-Trove.-Stat 18 Ed. 2 (of treasure found). And see Stat.
Wall. Britt. c. 29; Flet. 2, c. 52; Mirr. c. 1, s. 17; Kitch. 22;
Greenw. 299; sed vid. Br. Leet, 43; ante, p. 655. Tumbrel.-- See Pillory, ante. Vagabonds, ( Wanderers ).-See Noctivagancy, ante. Victuals, ( unwholesome Victuals).—Scroggs, 21 (you are to inquire
of all bakers, butchers, poulterers, and others, that they vend good and wholesome meat and drink, fit for man's body; if any
offend herein, you are to present and punish the offenders); ib. 10. See also Br. Leet, 1; 4 Inst. 263; Kitch. 21 ; Shepp. 45, 54; Pow. 114, 115; Greenw. 294, 295; Vaughton v. Atwood (or Vaughan v. Wood), 1 Mod. 202; 2 Mod. 56; 3 Barn. & Adolp. 48; ante,
Villeins.-See Fugitives, ante.
And see Stat. Wall. Britt. c. 29; Flet. 2, c. 52; Mirr. c. 1, s. 17;
Shepp. 17. Waif, (bona fugitivorum ).--Br. Leet, 5 (the lord of the leet bath
power to try waif by inquest, but the lord of the hundred not, for he cannot try by jury, having no power to compel them to be sworn, cites 44 Ed. 3, 19); Kitch. 45 (cites S. C). Vide also, ib.
23; Jenk. P. C. 27 ; Shepp. 12; ante, p. 649, et seq. Weights, (false weights, scales and measures).-See Measures, ante. Wreck.-Kitch. 24 (by the stat. of 15 Rich. 2, c. 3, wreck of the sea
may be tried and determined by the law of the land; for that, and for the profit of the king and the lord, it is inquirable in the leet). Ante, p. 651, et seq.
END OF THE THIRD PART.
THE COPY HOL D E R (a).
Rules to be observed in holding a Customary Court Baron.
CALLING THE COURT. At the accustomed period of the year for holding a general court, the steward is to issue his pre to the bailiff of the manor, in the form [A](6), upon which the bailiff should affix a written notice of the place, day and hour appointed for the court, to the door of the parish church, or cause the notice to be read in the church by the clerk. The safer course is to give fifteen days' notice, but the author apprehends that a much shorter period would be deemed sufficient(c).
In order to lay a secure foundation for any proceeding at law against a copyholder for a forfeiture, by reason of his neglect of suit to the manor court, it would be advisable to serve a summons upon him personally(d).
And when a mise was joined upon a plaint in the nature of a writ of right(e), it was expedient not to trust to a general notice, but to summon all the homage personally, in order to secure the attendance of at least twelve customary tenants, as it is generally considered that every issue in every court shall be tried by twelve persons, and not by less (f).
(a) Part 1 (vol. 1.)
(e) Plaints in nature of writs of right, with some exceptions, post, 751, n., were abolished from the 31st December, 1834, by 3 & 4 Will. 4, c. 27.
See the act, post; and reference to it, ante, pt. 1, p. 473, n. (a); pt. 3, p. 629, n. (h).
(5) Kitch. 222, 223, cites Fortesc. fol. 54 and 57, and says,
The stat. Westm. 2, c. 13, is that the sheriff shall inquire
by twelve, and not by less, and the same law shall be in leet. And for that this statute doth not extend to court baron, presentment of articles there by less than twelve may be, for one may hold court baron though there be but two suitors, and then they may inquire by two of articles for the lord; but hard it is when every one is inheritable to the laws of the realm, and the trial of the law is by twelve, of issue joined between party and party, that by your not power, that is to say, that there should not be twelve te