case fletcher against ignorant Qure whether the lord of a leet can distrain  for a amerciament without a special custom so to do S c Mod S c salk S c comb  S c holt S c skin S c lily S c ld ray S c ray Ent steward can fine a person  for not execute the office of constable unless he refuse in open court but it  must be present by the homage at the next leet and be amerce and that  amerciament afeard sir t Jones replevin the defendant justify as bailiff to  sir r g that the place where be within the manor of d and that they have by  prescription a courtleet there that they have a custom that the jury shall  choose a constable and impose a penalty upon he of forty shilling if be refuse  that the plaintiff be elect at a courtleet under the penalty et ind notice to  have but do not execute the office whereby be incur the penalty of forty  shilling of which there be a presentment the next modern report court but be  total omit to pay it and therefore the defendant distrain the plaintiff  demurrer and per holt chief justice a constable belong to every leet of common  right but whether of common right the steward or jury ought to choose he have  be controvert but suppose of common right the steward ought and by custom the  homage do if the person thus elect do refuse in court the steward may impose a  fine upon he indeed if he be not present the steward can fine he because the  omission or refusal be out of court and therefore be be to be present to the  homage at the next leet and to be amerce and the amercement to be afeard which  fine and amerciament be by common right may be levy by distress now here be a  customary penalty contrary to common right you tax the penalty before the  refusal and so this be not of common right you can not have distrain without  allege a particular custom for so do then as to the notice notice to have be  too general you shall have plead that he be summon within a convenient time to  take the oath before a justice of peace which be the course usual take for the  steward after the adjournment of the court have no authority and though before  the statute of car the justice of peace can not make constable yet swear they  they can but if it be object that justice of peace can not swear they for they  be within memory of man and leet have be by custom temps doubt c I answer  though as to the form of their commission and authority they be of late yet  they have the same power as conservator of the peace at commonlaw have all the  conservator power be vest in the justice and in that quality they shall be  intend to swear constable Rokeby justice the defendant have fail in not allege  before who the oath ought to have be take and have not allege a custom for the  distress judgement be give for the plaintiff