case fletcher against ignorant queen whether the lord of a leet can without  state a prescription distrain for a amerciament S c salk S c comb S c holt S c  skin S c Mod S c lily Ent S c ld ray S c ld ray in replevin for take a mare at  Shewston in a certain place call the lane the defendant make cognizance as  bailiff of one Roland frith lord of the manor of Shewston whereof he be seize  in fee c then they allege a prescription to hold a courtleet there within a  month after Michaelmas every year and they set forth a custom within the say  manor to elect a constable at the say leet out of the inhabitant there which  person so elect have use to take upon he that office under a reasonable  penalty in that behalf to be impose by the jury that the plaintiff at a  courtleet hold for the say manor be elect constable by the jury that he be  order to take upon he the execution of that office under the penalty of forty  shilling which he neglect to do that this neglect be present at the next court  by which the plaintiff have forfeit forty shilling to the lord of the say  manor for which the distress be take c the plaintiff demurrer to the  cognizance and the defendant join in demurrer the exception take to the  cognizance be first that the defendant have not prescribe to any right in the  lord of the leet to distrain for a amerciament be a private benefit to he and  which he can have without a prescription to the distress   cro Elizabeth a  modern to this objection it be answer it be true this be a amerciament which  differ from a fine the first be always impose by the jury and the other by the  court and though it be a thing of less nature than a fine yet a distress may  be take for it without a custom allege so to do and this be the resolution in  Grieslys case second the jury order he to take his oath general to execute the  office of constable but do not say that he be summon to appear before a  justice of peace for that purpose or before who or where he shall come to take  his oath as to this second objection it be say that the defendant have allege  a custom every year to choose a fit person at the courtleet to be constable  for that year and that the plaintiff be elect constable which be a sufficient  obligation for he under a pain to come and take upon he the office and it be  also allege that he have notice so that the custom of the place operate upon  he which he be bind to obey now the administer the oath be subsequent to the  custom and he be thereby bind to do all reasonable act to qualify himself to  take the say office upon he though usual the steward certify under his hand  what person be choose which certificate be carry to a justice of the peace and  if the party refuse to take upon he the office the justice usual send his  warrant to compel he modern er p three they do not say that the forty shilling  impose on he for not take upon he the office be a reasonable pain as to the  three objection the law ought to judge whether the penalty impose on he be  reasonable or not and the aver it to be reasonable will be of little use if  the court shall be of another opinion in Hilary term follow this case be argue  again and it be object that it be a unreasonable custom and therefore void  first for the uncertainty of the time when the year shall begin in which the  plaintiff be to take upon he this office and so like the case where the  condition of a feoff in fee be for payment of a sum of money and no time limit  for the payment there the obligor have time during his life to do it and this  be a custom against commonlaw it must be take strict modern to which it be  answer that the time be certain enough for the plaintiff be to hold the office  pro to make one year fresh troops prox sequent that day whereon the court be  hold but it be as certain as where a custom have be allege for a copyholder to  pay a year value of the land upon a admittance and yet such a custom have be  hold good because the value may be reduce to a certaintyPerkins v Titus Mod S  c lev S c show a so where a custom be that the surrendee shall come and be  admit after three proclamation otherwise that the copyhold shall be forfeit  and the surrendee die and his heir within age refuse to be admit it be hold  that the lord may seize until what time the infant come of age which be as  uncertain as this for the heir may die before that time king v Dilliston Mod  and see Geo c S b so where a man be beyond sea it be uncertain when he may  return and yet his right be save by that mean cro James c second it be say  that the homage order he to take a oath duly to execute the office but do not  appoint before who he shall take it or from who he shall accept it and so not  like Grieslys case   d for there the custom be lie to choose a constable  within a month after Michaelmas to hold the office for one year next follow  and that if the person be present in court that he ought to be swear by the  steward so that not only the time but the person before who the oath shall be  take be ascertain which be whole omit in this case this objection be thus  answer videlicet that it be true where a man be oblige to do a act it must  appear to the court that it be possible for he to do it but that the court  will take notice without set it forth that a steward of a leet during the time  he hold the court may give a oath to a constable as well as a justice of peace  after the court be adjourn three it do not appear that the plaintiff be summon  to the leet or that he have any special notice that he be choose constable but  only general that notice to have which be not sufficient and for this reason  air indictment be quash ill this CourtRex v Harper Trinity term will e which  set forth that the defendant be fit to be a constable that he be debt is owed  modus dainties and that he have notice of it but do not take the oath c and  because it be not say that he be summon before a justice of peace for that  purpose the indictment be quash modern to which it be answer that by allege  notice to have it must be intend due and legal notice because the law require  he to take the oath before the steward of the leet or a justice of the peace  in prig case Allen f who be indict for that he be choose headborough refuse to  take the oath to execute that office there be no mention of notice or summons  before who to appear for that purpose but a writ be grant by the court of king  bench direct to he command he to go before a justice of the peace to take it  beside it be allege in this cognizance that the plaintiff statin postea ibidem  notice to have which word ibidem be a relative as well in a legal as  grammatical construction and must refer to the court be the place where he be  choose constable modern er p fourthly it be object that there be not a custom  allege to make any distress for this penalty and though it may be true that a  man may distrain for a amerciament and for a fine in a leet without allege a  custom yet for such a extraordinary thing as this there must be a custom  express lie to distrain c thus where a customGodfreys case   a be allege to  swear twelve man to inquire into the article give in charge at a courtleet and  that the man so swear have use inter alian to present themselves to pay to the  lord of the leet ten shilling pro certan letae for which the avowant distrain  but it be hold unlawful because it be for the particular benefit of the lord  and against common right he can justify the take a distress without a  prescription as he may for a fine or amerciament this objection be answer by  the counsel that a distress be incident as well for a penalty as for a fine or  a amerciament curian the steward may impose a fine upon a person who be elect  by the homage if he be present at the leet and refuse to be swear to execute  the office but if the person be not present the steward can fine he but he may  be amerce roll Rep     more cro Elizabeth kitchen a Bac Abr Bac Abr stram  fitzg will Andrews b which must be present at the next court and afeard and  after the court be over the justice of peace may administer the oath of  constable by the power which they have as conservator of the peace which power  they have at commonlaw and be now vest in they and the rather because a  constable be but a subordinate officer to they for the preservation of the  peace modern but the party ought to be summon and a time and place ought to be  appoint under a penalty when and where he shall come and before who to take  the oath and therefore notice to have general be not enough for though he be a  inhabitant yet be may be essoined and therefore for want of allege special  notice judgement be give for the plaintiff