case the king against Hewson if there be a will and no courtleet hold within  it the justice at session may appoint a constable although no constable have  ever be appoint there before S c salk S c holt at the general quarter session  at Leicester a order be make that whereas the will of Charley have no  constable and no courtleet be keep there the court do order that Thomas Hewson  inhabitant of Charley aforesaid shall be swear to execute the office of  constable for the year ensue there or until another be swear in his place and  that on the death or removal of the say Thomas Hewson from the say office that  some one or other of the inhabitant shall take upon they the say office so  often how often there shall be any vacancy and afterward at the same session  another order be make recite the appointment of the say Thomas Hewson and that  he be present in court be diverse time request to take upon he the say office  yet he peremptory refuse the same in contempt of the court for which he be  commit to the county gaol until he shall take upon he the say office or  otherwise be legal discharge which order be remove by certiorari it be move to  quash they because the justice of peace have no power for the election of  constable belong original to the leet and tourns and the car c S give power to  justice of peace only in case of death or removal of the constable out of the  parish or continuance of a constable beyond a year and this only in default of  the leet which be not this case for they appoint a constable where be never  one before then they can not have imprison he for refusal but he shall have be  indict quod cur to go away and as to the first matter per holt chief justice  every will must have a constable otherwise it be but a hamlet they be  commensurate one with another and though a constable be proper of a certain  division yet if a warrant be direct to he by name to execute it out of his  division he may do it but if it be general d Leon e Leon a sand b hut modern  report er p to all constable headborough then it must be take respective and  they can then act only in their division a if there be no leet at all then you  must go to the sheriff tourn the leet be but a franchise derive out of it and  any matter do at the sheriff tourn which be within the leet jurisdiction be  not void modern report and in person non judge but only a infringement of the  franchise how can justice of peace make a constable who be a officer at  commonlaw and they only by statute only there may have be such a usage from  the neglect of those to who it proper belong perhaps there may be some old  statute for it which be lose ancient usage for three or four hundred year be  good evidence of a law if a Act of parliament be lose or embezzle the law  remain still may be the conservator of the peace do it at commonlaw that his  opinion be that the justice of peace can not create a constable where there be  none before though he have hear it say in my Lord chief justice Keilings time  that if a town be new build and they want a constable that the justice of  peace may b and it be in this case contest whether there be a constable before  it be order to be try