2 Hale, 70, 71. 142.

S. P. C. 87. 4 E. 4. 31. F. Torn, 3.

1 Jones, 301. C. Car. 275.

(a) Bengough v. Rossiter,

4 T. Rep. 505.

"of peace at their next county sessions, on pain of forty "pounds."

66

And by 1 Edw. 4. c. 2. it is further enacted, "That the said justices of peace shall have power to award process upon all "such indictments and presentments as the law doth require, " and in like form as if the said indictments and presentments were taken before the said justices of peace; and also to arraign and deliver all such persons so indicted and presented "before the said sheriffs, &c. And such persons which shall "be indicted or presented of trespass, shall make such a fine as "shall seem lawful by their discretions. And the estreats of "the said fines and amercements shall be enrolled, and by "indenture be delivered to the said sheriffs, under-sheriffs, their "clerks, bailiffs, or ministers, or some of them, to the use and profit of him that was sheriff at the time of such indictments " or presentments taken."

And by 1 Edw. 4. c. 2. "If any of the said sheriffs, their "under-sheriffs, clerks, bailiffs, or their ministers, do arrest, "attach, or put in prison, or cause any fine or ransom to be "taken, or levy any amercement, of any person or persons so "indicted or presented, by reason or colour of any such indict"ment or presentment taken before them, at their torns or lawdays above rehearsed, before that they have process from the "said justice of peace, or estreats delivered out, of the said "indictments or presentments so brought, delivered, and pre"sented to them, that then the sheriffs which so do, shall forfeit "an hundred pounds."

66

Sect. 74. It is observable, that by the words of this statute, justices of peace may award process on any such indictments, in like manner as if they had been taken before themselves; and yet it is clear, that if the sheriff's torn had no authority to take the indictment removed before such justices, they have no power to proceed upon it, as they might have done, if it had been taken before themselves; for the statute, in giving them such power to proceed upon indictments in the sheriff's torn, must be intended to mean such only as were there lawfully taken, not those which were void ab initio, as being taken coram non judice; nor is there the least intimation in the statute of an intent to enlarge the sheriff's power in taking indictments, but the whole purport of it is to restrain him from proceeding on them. And to this purpose it hath been so largely construed, that not only the judge of the court is punishable for awarding such process, but also the officer for obeying it. It has also been held, that this statute takes away the power which sheriffs had by the common law, and the statute 23 Hen. 6. c. 9. of bailing persons indicted before him in his torn, (a) and obliges him to return such indictments to the justices at the next sessions.

As to the NINTH GENERAL POINT of this chapter, viz. In what manner indictments in the sheriff's torn are to be traversed and determined.

Sect.

3 Modern, 138.

41 Ed. 3. 28.

Keilw. 52. 66.

Sect. 75. It seems to be (a) agreed, that a presentment by (b) (a) Finch, 386. twelve or more in a torn or leet, of any offence within the juris- Keilw. 52. 66. diction of the court, being neither capital nor concerning any Dyer, 13. freehold, subjects the party to a fine or amerciament without (6) Keilw. 141. any further proceeding, and binds him for ever after the day on 45 E. 3. 26, 27. which it is found, and admits of no traverse to the truth of it; but some (c) say, that the party may have a writ of false pre- (c) F. Bar. 271. sentment against the jurors the same day on which the indict- Keilw. 66. ment is found; yet it seems agreed, that no instance can be shewn of any such writ being actually brought. But if the presentment concern the party's life or (d) freehold, as if it charge (d) 5 H. 7. 4. him with not repairing such a highway, which he is charged to B. Trav. 183. be bound to repair by the tenure of his land; it seems clear, that Dyer, 13. he may remove it into the King's Bench and traverse it; but not if it barely charge his person, as for digging a ditch in the highway, or not cutting the branches of his trees hanging over it, &c. Also it (e) seems, that a man may in like manner traverse an (e) Keil. 66. indictment of an offence wholly out of the jurisdiction of a courtleet; as of an affray or nusance done out of the precinct of it, or of the non-appearance of a person at a leet, who lives out of the precinct of it. But if the affray or nusance were within the precinct of the leet, it seems, that no one can traverse it in respect of his own not living in it; and that a person who lives within the precinct of a leet, shall have no traverse to a presentment for not appearing at it.

Sect. 76. But it seems certain, that at this day neither the torn nor the leet have any power to try any traverse whatsoever, as hath been more fully shewn, section the thirteenth.

Sect. 77. But it is certain, that the justices of peace may by force of the above-mentioned statute of 1 Edw. 4. try a man indicted of felony before the sheriff in his torn.

Sect. 78. Also it seems, that they may try a person upon any other indictment in the torn, which is traversable at common law; but that they have no power to take any traverse of any other indictment in the torn, for that the words of the statute are only that they may award process on any such indictments as if they had been taken before themselves, and also arraign and deliver the persons indicted, which must be intended of those indicted of felony, who only are said to be arraigned, and that persons indicted of trespass shall make fines, &c. by their discretion, without saying, that they shall be tried; by which it seems to be implied, that persons so indicted shall be fined, as they usually were before in the torn, and still are in the leet, and that in some cases without any further trial, as is more fully shewn in the precedent section. (11)

(11) For the sheriff's oath of office, vide 3 Geo. 1. c. 15.; for the manner of passing his ac

counts, 3 Geo. 2. c. 15, 16.; and for further particulars, vide Impey's Office of Sheriff.

CHAP.

Finch, 246.

(a) Sect. 45, &c.

(b) Sect. 10, &c.
(c) Sect. 13, &c.
(d) Sect. 17,
&c.
Sect. 33, &c.

CHAP. XI.

OF THE COURT-LEET.

4 Comm. 270. A COURT-LEET is a court of record, having the same jurisdiction within some particular precinct, which the sheriff's torn hath in the county. And therefore since it hath been shewn in the precedent chapter, at what (a) time and in what place the sheriff's torn is to be holden; and what persons owe suit to it; and what (b) authority the judge of it hath in relation to his proceeding on (c) indictments; and also in relation to (d) fines and amercements; and the (e) appointment of constables; and having also shewn what (ƒ) kind of offences are inquirable in this court; and within what (g) place such offences must arise; and by what (h) jurors, and in what manner indictments in it are to be found; and in what manner they are to be (i) proceeded upon, traversed, and determined; and since the court-leet hath regularly the very same jurisdiction with the sheriff's torn as to (i) Sect. 74, &c. all these points, except in some special cases, which have been already taken notice of in the chapter concerning the Sheriff's Torn; I shall refer the reader to the said chapter for all these particulars.

(f) Sect. 51. &c.

(g) Sect. 64, &c.

(h) Sect. 65, &c.

2 Inst. 71, 72. 22 Ed. 4. 22.

12 H. 7. 18.
2 Inst. 71, 72.

(k) Sect. 2.
1 Jones, 283.
6 Coke, 77.

Dyer, 30.

13 H. 4. 9.

11 Coke, 42.

And I shall only consider in this place,

1. The end of instituting the court-leet.

2. How far it exempts those who live within its precincts from the torn.

3. How far it is subject to the oversight of the torn.

4. For what causes it may be forfeited.

5. What ought to be the form of a caption of an indictment in it.

As to the FIRST POINT, the end of instituting the court-leet. Sect. 2. It seems that anciently all people who now owe suit to any court-leet were bound to come to the sheriff's torn, in order there to take the oath of allegiance to the king, and to be incorporated into some tithing, and for such other purposes as are set forth more at large in the precedent chapter. (k) But it being more for the ease of the people, to have courts of this kind holden in their own townships or manors, by degrees grants of such courts were obtained from the king for most manors and towns, not only by the lords of manors, but also by other persons who had no lands in the places for which they obtained such grants, and for a recompense to such grantees, for the charge and trouble they were supposed to have been at in procuring such grants, it was usual for the inhabitants who had the benefit of them to agree to pay a certain sum of money, called Capitage, or certum leta, &c. at every such court-leet; and for the non-payment of this duty, or refusal to present it, such

grantees

grantees may prescribe to amerce the defaulters, and to distrain 1 Roll, 32. 73. for the amercement; but no such prescription shall be allowed 1 R. Abr. 211. other matter whatsoever of a private nature.

for

any

As to the SECOND POINT, viz. How far a court-leet exempts those who live within the precincts of it from the torn.

4 Burrow, 1861.

6 Coke, 77. 18 H. 6. 13. F. Leet, 1.

1 Jones, 283.

C. Jac. 584.

Post, c. 10.

34.
1 R. Abr. 542.

Sect. 3. It seems to be a general (a) rule, that no man can be (a) Dalt. Sher. within two leets at the same time, and in the same respect; from 402, 403. whence it follows, that he who resides within the precincts of a leet, the lord whereof doth duly hold his court, cannot be compelled to come to the torn, or any other superior leet, for the taking the oath of allegiance, or any other such like purpose, which may be as well answered by his attendance at his own sect. 12. leet. Yet if such private leet have not the general jurisdiction Con. Kitchen, of the torn, but be (b) specially granted for two or three articles R of it only, it seems, that the inhabitants within its precinct must (b) Keilw. attend the sheriff's torn for all such matters of which such pri- 141, 142. vate leet hath no jurisdiction. Also it (c) seems to be a good (c) C. Jac. 583. prescription for a grand leet (to which other inferior leets may Raymond, 204. be subordinate in the same manner as that is to the torn) to C. Car. 75, 76. oblige the chief pledges, and a certain number of the inhabitants sect. 12. 64. of every town within its precinct, to appear at every such grand leet, to inquire of such offences as have not been inquired of in the inferior leets.

As to the THIRD POINT, viz. How far the court-leet is subject to the oversight of the torn.

2 R. Abr. 203.

See chap. 10.

sect. 64.

Sect. 4. It is said, that the sheriff's torn as an (d) overseer of (d) Finch, 246. this court, is to inquire whether the tithings be whole or no, and See c. 10. to present defaults that are not redressed in the leet; and it seems Dalt. Sher. 387. also, that it may of common right inquire of the concealment of 391. offences inquirable in leets, and of the defaults of the lords of

such courts. However it (e) seems clear, that a prescription to (e) C. Jac. 584. this purpose is good. And there is no doubt, but that if a leet (f) 2 R. Abr. be (f) seized into the king's hands, all those who owed suit to 203. it ought to come to the torn.

As to the FOURTH POINT, viz. For what causes a court-leet may be forfeited.

Finch, 246.

9 Co. 50.

Sect. 5. It seems, that this being a franchise not intended to be granted for the private benefit of the grantee, but for the (g) Co. Lit. good of the public, for the more easy and convenient administra- 233. tion of justice, shall not only be forfeited by acts of gross and Kitchen, 33. palpable oppression and injustice, (g) but also by bare omis- C. Jac. 155. sions, in not making it answer the end of its institution; as in 2 R. Abr. 155. the not (h) punishing offenders in the same manner as the law 11 Ed. 4. 1. requires, or in (i) neglecting to hold a court when it ought to be 2H. 7. 11. holden (at least if such neglects be often repeated, and without Keilw. 148. a reasonable excuse), or in not (k) providing an able steward to 152. discharge the office, or in not taking care to have such other Kitchen, 33. (k) 1 Jones, officers, or other things as are necessary for the execution of jus- 283. tice, as constables and ale-tasters, &c. and (1) pillory and tumbrel; ( F. Leet, 12.

(h) 1 Jon. 283.

VOL. II.

I

but Mo. 573, 574. 607.

C. Eliz. 125.
698.
1 Jones, 283.

(a) C. Eliz.
698.
Moor, 607.

(b) Kitchen, 13.

(c) Vide sup.

c. 10. sect. 9. Salkeld, 195.

Salk, 200.

but it is (a) said, that a vill may be bound by prescription to provide a pillory and tumbrel, and (b) that every vill is bound of common right to provide a pair of stocks. Quære.

Carter, 29. Con. Moor, 575, 574. 1 Jon. 283.

As to the FIFTH POINT, viz. What ought to be the form of the caption of an indictment in a court-leet.

It hath been (c) resolved,

Sect. 6. FIRST, That the caption of an indictment, ad cur. vis. franc. pleg. cum cur. baron. &c. is good; for that the words cum cur. baron. shall be rejected; and it cannot but be intended that the indictment was taken by that court, which alone hath the colour of authority to take it.

Sect. 7. SECONDLY, That the not setting forth in the caption whether such court be holden by grant or prescription, is helped by a multitude of precedents.

CHAP. XII.

OF ARRESTS BY PRIVATE PERSONS.

HAVING thus endeavoured to shew the nature of the courts which have jurisdiction over criminal offences, I am now to shew in what manner offenders are to be proceeded against by such

courts.

And in order hereto I shall consider,

1. How they are to be apprehended.

2. In what manner, and in what cases, they are to be bailed.

3. In what cases, and in what manner, they are to be committed to prison.

4. How far they and their assistants are punishable for a hinderance in bringing them to public justice.

As to the first of these points I shall consider,

FIRST, In what manner such offenders are to be apprehended by private persons.

SECONDLY, In what manner by public officers.

THIRDLY, In what cases it is lawful to break open doors in order to apprehend them.

As to arrests of such offenders by private persons, I shall

examine :

1. Where arrests of this kind are commanded and enjoined by law.

2. Where they are permitted by law.

S. Where they are rewarded.

As