dispose of them Fourthly the Commissioners have a Clerk proper to themselves to Register their Laws Fifthly the Commissioners have power to make Orders and Decrees which are Judgements in effect and some of them cannot be reversed but by Act of Parliament And lastly Writs of Error have been brought to reverse Judgement given in that Court For all which causes I do conclude That the Commissioners of Sewers have a Court of Record although it be not holden in aliquo loco certo So was the Kings Bench a Court of more Eminency then this But ubicunque fuerimus in Angliae and for express Authority in the point of Gregories Case in the 6 Report of Cook chief Justice that the Sewers is a Court of Record Imprisonment imposed by the Commissioners of Sewers IT is a point of high consequence whether Commissioners of Sewers have power by these Laws to Imprison the body of a man for any thing touching the same for that Imprisonment of the body seemeth to sway somewhat against the grand Charter of England and against the liberty of a free-born Subject and it is said in Bonhams case 28 H. 8. in Dyer that liberty is a thing which the Law much favoreth and I finde in our Books of Law That the Judges have been very careful and curious in not extending words contained in Charters to the Imprisonment of mens bodies unless they were express in the point And therefore in Clerks case in Sir Ed. Cooks 5 Report fol. 64. Clarks Case The case is That the Term was to be kept at St. Albans and the Major there and his brethren did assess every townsman towards erecting and building of the Courts of Justice and made an Order That he which should refuse to assist and pay should be imprisoned and one being Arrested and imprisoned brought his Action of false imprisonment against the Major who pleaded in effect That they were incorporate by King Edward 6. and had power granted to them in their Major of St. Albans Charters to make Ordinances by reason whereof they made the said Order and so justified the imprisonment But it was adjudged against the Major for that by the said Charter they had not any power to make an Ordinance to imprison a mans body for that were against the grand Charter in Magna Charta cap. 29. Quod nullus liber homo imprisonetur Magna Charta nisi per legem terrae But by that Book they might have inflicted a penalty and have distrained or brought an Action of Debt for it In Doctor Bonhams case in the 8. Report King Hen. 8. incorporated the Physitians of London and gave them power by Charter to examine the Imperites to finde out the defects Et pro delictis suis in non bene exequendo faciendo utendo illos per punitionem eorum delinquentium per fines amerciamentum imprisonomentum corporum suorum So hereby it appears that by the Kings Letters Patents they had power to imprison the Body but I finde their Charters confirmed by Act of Parliament Yet in 2 Eliz. Dier fol. 175. the Case is That the Queen did award a Commission directed to certain Commissioners to Hear and Determine the controversies betwixt Scrogs and Colshil touching the Office of the Exigenter and that if Scrogs should refuse to obey to make answer before them they should commit him to Prison but the validity of this last Commission I much doubt of I am of Opinion That the Commissioners of Bankrupts and charitable uses have no power to commit any man but if any abuse or misdemeanor be committed in contempt or derogation of their Authorities they may make Certificate thereof into the Chancery and refer the punishment thereof to the will and discretion of the Lord Chancelor or Lord Keeper for the time being In Godfreys Case in the 11 Report there is a discourse what Godfreys Case Courts have power to Imprison and which not and there it is said Some Courts may Fine but not Imprison as the Courts Leet and Sheriff turn some others could neither Fine nor Imprison as Courts Baron and County Courts and some could neither Fine Imprison nor Amerce as Ecclesiastical Courts And some may Imprison and not Fine as chief Constables at their Petty Sessions for an affray done in disturbance of them And other Courts there were which might Fine Imprison and Amerce as the eminent Courts of Westminster So that Imprisonment is not incident to every Court nor to every offence Yet I am of opinion that the Commissioners of Sewers may Imprison the body for it is not only a Court of Record but is authorized by Act of Parliament and I suppose that there be words in the Commission and Statute which will bear this construction which are as follow viz. And all such as ye shall finde negligent gainsaying or rebelling in the works reparation or reformation of the premises or negligent in the due execution of the Commissioners That ye Compel them by Distress Fines and Amerciaments and by other Punishments ways or means c. Which words are strong and large enough to authorize the Commissioners of Sewers upon just Cause to Imprison the body But here they are to be careful and not to think that they may Imprison Fine or Amerce in any case because the words be generally put together But this construction must be thereof made That they may Imprison where Imprisonment is due and Fine in cases Fineable and Amerce in cases Amerciable and Distrain where a Distress properly lyeth by the Rules of Law and they may not Imprison where by the Laws Imprisonment is not due but every one of the said punnishments is to be used in its proper kinde for these words promiscuously put together must be ordered by a just and legal construction according to the Rules of Law and Reason And I have known the words of a Statute generally and promiscuously put together have been marshalled according to their distributive operations as the Statute of 1 Rich. 3. which is That all Feoffments Gifts Grants Releases and Confirmations of Lands made by Cestui que use should be good Yet though these words were generally put together notwithstanding the wise and discreet Sages and Expositors of our Laws have so Marshalled the words of this Statute that they made construction thereof according to the Rules and reason of the Laws That is That Cestui que use in Possession might make a Feoffment and that Cestui que use in Reversion or Remainder might grant the Land and Cestui que use of a discontinued Estate might release or confirm and yet the words of this Statute were general howsoever Reason must be the Expositor that every thing be done in due form of Law and not in preposterous maner And these matters being thus passed over I shall endeavor my self to declare in what cases Commissioners of Sewers may Imprison Fine and Amerce and where not Imprisonment Fine and Amerciament Fines IF one
what maner Repealing of Laws What grounds to be observed in Repealing of Laws How far the power of Commissioners extends therein The Readers Conclusion of all his Labors Lectura prima MY most worthy Fellows and Companions of this noble and renowned Society the Hour-glass of my puisne time is run and I am now come to take possession of your Readers place wherein I must hazard to your censures the fortunes of my inability These Twenty and six years compleat I have had continuance here and in that time I have only taken the measure and length of your Hall And herein I acknowledge Grayes-Inn to be the Patron of my best fortunes and your selves the best Companions of my forepast and present life I made a question when it came to my turn to reade Whether I should turn therefrom or not being then troubled about Two things Charge and Care both which I put into a pair of Scales wherein I thought Charge weighed heavy and solid for ibi ponebantur solidi Care notwithstanding had his equal weight with the other and poised the Scales even Yet I considered the small Substance I had got came by my Profession I therefore took my self both in Credit and Conscience bound to undertake this burthensome place for the maintenance and preservation of the honor of this house and with that I put Charge and Care in one Scale and Resolution in the other which scaled them both up Twenty years likewise of my last past time I have in the practise of my Profession spent but I hope little consumed thereof In which time I lanched forth my Ship In profundum maris for a Voyage to the Sea and now she is returned to your Shores furnish'd and ballist with Merchandize of several estimates By my Ship I mean my Statute which I read on which be the Laws of Sewers the Merchandize be the weighty matters therein contained By the Governors and Rulers of this Ship I mean the grave and prudent Commissioners who are put in charge and trust with the execution of these Laws By the Mariners I intend the Officers of this Law the Merchants place I reserve unto my self The Wares brought home be of divers sorts some only fit for the Imperial Majesty of a King and these be Royal Prerogatives shewing forth their splendor like the Flower de Lice in the Crown others belong to high Nobility and some be useful for the homely Commonalty the rest which shall remain I have cast under Hatches for my last days Mart when I mean to make chaffer on them all But though I seem to make these Markets of my Legal Merchandize yet I do not mean to set such Rates upon them as Merchants use to do which be all for utile dulce for I only set one price upon all which is your kinde acceptance Marvel not I pray you at these my Sea-like salutations for this day I am become god Neptunes Orator and I mean to display the power of his Empire for my Statute my Cases and my Argument will all depend upon the Element of Water over which as Poets feign Neptune hath chief predominance Well now my Ship is at shore and I have cast Anchor there and to my great comfort I see many Chapmen attending the Market and therefore now presently I will unlock and set open the closet of my Store which be contained in the fair Volumns of the Law and especially in that Law made and Enacted in the Parliament held in the 23. year of Hen. the 8. Chapt. 5. which is A general Act concerning the Commissioners of Sewers for all the Realm of England The causes wherefore I made choice to read upon this Law be five in number Viz. First For the Antiquity of these Laws of Sewers though this Statute bear date but 23. Henry 8. Secondly For the Largity and extent thereof which appears in the stile of this Statute and there termed A general Act for all the Realm of England Thirdly For the necessary use thereof which continual practise and daily experience teacheth us Fourthly I have had a more desire to read upon these Laws because never any Reader did heretofore undertake the same and upon perusal of this Statute and upon due consideration taken of others I thought I could not make my choice of a more fitting and more necessary Law nor more profitable for my Native Countrey of Lincolnshire and other Maritine places of this Kingdom then this is And Fifthly His Majesties general care which these Laws require at His hands and his special care by the which His Highness of late hath taken these Laws into His gracious and provident protection And upon due consideration taken of all these Cases I resolved to proceed in the Exposition of this Statute being made perpetual by the Statute of 3. Edward 6. cap. 8. And to speak something of the three first causes I am of Antiquity of these Laws Opinion for the Reasons and Authorities ensuing That the Laws of Sewers have been and be of great Antiquity and have told over as much time and as many years as any other Laws of this Realm have done For as Mr. Cambden in his Cambden Britannia saith Quod insula Britannia avida in mare omni ex parte se projecit Therefore this Realm adjoyning on every side upon the Sea could not be safe without those provident Laws made and used for the defence thereof And although it is said in Scripture That Almighty God In Manasses Prayer King of Judah hath bound the Seas by the word of his Commandment and had shut up the Deep and sealed it with his terrible and glorious Name yet God who bestowed wisedom on man it was his pleasure he should providently use it over the rest of the Creatures not giving way that he should be remiss or presumptuous in any thing which by his foresight or judgement might be prevented helped and relieved It is true that at the Flood Cum cateracta Coeli fuerint Genesis cap. 7. operta when the windows of Heaven were by Gods determinate will set open and that the Seas did Suum excedere modum no power of mans hand could stay the swallowing and devouring surges of the Seas and Waters yet then notwithstanding had God appointed that his Servant Noah and his Children and such Creatures as he appointed should be preserved by the Ark which was a work of their own hands Therefore the Laws of God and Nature have appointed man to make provision for the necessary defence and safety of himself and of his Countrey And the Laws of this Realm most of which have received their primam essentiam from the Divine Laws of the Almighty and have fetched their Pedigree from the Law of Nature have a principio bene so predominant in this Kingdom of England that they have never been wanting at any time to provide for the safety thereof And if the Register be so ancient a Book as Sir Edward Cook
into his Office and therefore the Offence is greater in him then in another man I have learned in Books that a Fine hath these qualities with it First the party in that case is imprisonable Secondly the cause for which it is imposed is not traversable being meerly the Act of the Court but if it be imposed upon a presentment found by Jury then the cause is traversable Thirdly all fines ought to be assessed abated or increased in Plena curia and not elswhere Fourthly every Fine ought to be reasonable And therefore I shall put the Commissioners of Sewers in minde as the Statute of 34 Ed. 3. cap 1. did the Justices of Peace that those Fines that they should impose for any 34 Ed. 3. offence coming before them should be reasonable having respect to the quantity and quallity of the offence for Excessus in re qualibit jure reprobatur communi But because in Godfries Case it is said that Commitment of the body to Prison is incident to a Fine as by a Gapias pro Fine also may be collected Yet I hold it questionable whether the Fine shall precede the commitment or the commitment the Fine But for my own opinion I hold that this lyeth much in the discretion of the Justices and I finde cases and presidents both ways for in 41 Assiz plac 12. an Officer was imprisoned quousque finem fecerit where the Imprisonment preceded the fine and with this agreeth 7 H. 6. fol. 25. 7 H. 6. and in 33 H. 6. fol. 21. one was fined and after Imprisoned for it and there the fine did precede the Imprisonment 33 H. 6. But upon all these I take the Law to be that if one be fined and this Fine may be levied by the Justices as Justices of the Peace may do but not Justices of Sewers there the Imprisonment may be quousque finem fecit because the Fine is leviable by them But the Law is not so of Commissioners of Sewers because they have no power to Levy but to extreat the Fines into the Kings Exchequer Howsoever one before them may be both imprisoned and fined Diversis tamen respectibus The one for the wrong done the other for the contempt or disobedience to the Court As for example if one refuse to be a Collector he is finable to the King because hereby the Commonweal is without an Officer and he may also be imprisoned for disobeying the Justices command and yet in my opinion it lieth much if not altogether in the discretion of the Commissioners to impose or inflict both the said punishments or one of them at their pleasures being not therein precisely limited by this Statute Amerciaments AMerciaments be not so grievous as Fines be for they be derived of the word Miserecordia which signifieth moderation mercy and to that end was the Writ in the Register Moderata miserecordia devised where one is outragiously amereed he might be relieved by suing forth that writ which writ and the Law in that case is grounded upon the grand Charter Magna Charta cap 14. Quod nullus liber homo amercietur nisi secundum quantitatem delicti And that none of the said Amerciaments be imposed Sed per Juramentum legalium hominum de viceneto Glanvil in his Book saith Est autem miserecordia Domini Glauvil Regis qua quis per Juramentum legalium hominum de viceneto eatenus amerciand ' est And Fleta lib. 1. cap. 48. saith Quod Fleta liber home non amercietur nisi per sacramentum parium suorum And with these agreeth Bracton lib. 3. cap. 1. and Fitz. Nat. bre fol. 72. and if the Steward set an Amerciament upon a Bracton man on his own head it is void By which authorities it plainly appeareth that Amerciaments are to be imposed by a Jury or by the Oaths of good and lawful men and therefore I have heretofore much marvelled when sometimes I have seen Justices of Sewers take upon them to set down Amerciaments without assistance of the Jury which act of theirs was directly against the said great Charter of England and contrary to the said authorities of Law So that there is a difference between the imposing of Fines which are done by the Justices and Amerciaments which be by Jury or otherwise per sacramentum parium So is there great diversity between the offences of the one kinde and the other For if one do suffer a Wall Bank or other work of Sewers to fall into decay for want of repairing which he was bound to maintain by Frontage Tenure Custom or Covenant he is in this case to be Amerced therefore And so if one be bound by any of the said tyes to repair a Bridge Calcey Goat Getty Sluce or to Cleanse a River if the same by his neglect be left undone or unrepaired he is therefore amerceable So if one be presented for casting Dirt Sand Ballast or other anoyance into the Rivers or Streams or for digging down the Banks or for pulling down the Walls thereof if the presentment do not express the same to be done with force or therein be wanting the word Purpresture the party presented is then but amerceable therefore So when one is tyed to cleanse the Rivers for passage of Boats and Ballangers or for the draining of the waters if he suffer Sand-beds to lye and choak up the Channel he is Amerceable and not Fineable therefore for no permission sufferance neglect or Nonfeasans can be found to be by force because they consist not in Agendo sic in similibus casibus Yet some cases following fall out of these rules pro ut sequuntur As if the violence of waters was so great either by breaking in of the sea in an extraordinary maner or by a sudden flood or inundation of fresh waters after a Rain that thereby the defences are broken down or caused Sand-beds or other Nusances to be these being presented no man is Amerceable therefore because the same could not have been prevented by policy nor resisted by strength In 42 lib. Assiz plac 15. a Presentment was That I. S. 42 lib. Ass had suffered trees to grow into the water and lay in the Stream by reason whereof ships were hindred in their passage and there was a Writ awarded directed to the Sheriff to remove the Nusans but Knivet Justice said there That I. S. should not be Amerced because the Nusans was no act of his but the Trees grew so naturally of themselves But perhaps it will be objected to me Can no Amerciaments be set but by a Jury or by the Oathes of twelve men Yes I am opinion it may be done by the presentment of the Surveyors of the Sewers for that is per Sacramentum parium as the Law appoints and in a Nonsuit we see daily that in such case the Plaintiff is to be amerced and this Amerciament shall be assessed by the Coroners of the county as appears in Greisleys
debtors goods for non-payment of his sesse and it is consonant to other Laws also in another part of this Statute are used these words And the Clerk by the Commissioners to be assigned to have Two shillings per diem of the Rates Taxes Lots and Waives as shall be assessed or lost by authority of the said Commission to be levied or paid by their discretions And so it seemeth by the very expresse letter of this Law the Taxes Sesses and Rates may be levied by the discretion of the Commissioners which if they please may be by sale of the offendors goods And in many parts of this Starute the Justices of Sewers have power to make Laws Ordinances and Decrees which being done according to reason shall be held for firm and inviolable And therefore upon just cause in my opinion the Commissioners may make a Law or Ordinance for the sale of goods in furtherance of this service and this being a Law which tendeth so much to the service of the Commonwealth and is so profitable and commodious for the same it is therefore good reason to extend the same and the exposition thereof as far as the letter and intent of the letter shall reach which may be as far as shall stand with reason and rules of other Laws Statutes Customs and Usages of other Courts which have power in sale of goods in causes of this nature is not altogether without president For in the Charter of Romney Marsh pag. 36 37. Ch. Romney Marsh It is said in these words in a debate between Hamo and Godfrey Et predictus Hamo concessit prose aliis quod computabit cor ' vigint ' quatuor Jurat ' elect ' de patria super districtionibus averiis capt ' predicti Godfredi pro predict ' Walliis watergangiis repar ' ab initio istius placiti usque nunc c. districtiones illas secundum quantitatem portionis sibi contingent interim pro predict ' Walliis watergangiis reparandum sicut predict ' est per predict ' districtiones quod idem Hamo alii satisfacient in omnibus quod injunctum fuerit per predicti comput ' inter eos de surplusagio recepto de averiis venditis predict ' Godfredi occasione praedict ' Hereby it is manifest that Hamo the Bailiff sold the cattel of Godfrey to make the repairs of the Walls and the Waterganges and our Statute gives power to the Commissioners of Sewers to do after the customs of Romney Marsh which by this president formerly vouched warrants the sale of goods yet herein I am of opinion that the Bailiffs which distrain cannot Ex osficio without a special Warrant first directed to them for that purpose from the Commissioners make sale of goods distrained for a Lay Tax or a Sesse of Sewers And I take it it were a good Warrant for the Commissioners to make an advised special Law of Sewers for sale of goods distrained upon a just occasion before they direct any Warrant Ex subito to the Bailiffs or for any such purpose But now herein follows a matter of some consequence and worthy the handling That if by the Laws of Sewers goods may be sold towards the repairs of these works as in my opinion they may Then whose goods may be sold is the question next to be decided wherein to be brief I am firm of opinion That no goods can or ought to be sold by the power of these Laws of Sewers but only the proper goods of the party Sessed and Taxed though the goods and chattels of other men be Levant and Couchant on the grounds Sessed to the repairs For I hold it not consonant to reason nor that it stands with any rule of Law That the goods and chattels of a stranger should be absolutely taken away from him and sold for the debt and default of another man And to this purpose the Case put in the 3 Eliz. Dier fol. 199. may fitly be applied to this point where 3 Eliz. a Custom is alleaged for a Lord of a Manor to have and take the best which his Tenant had at his death and if such best beast should be esloyned that then he might have and take the best beast of any other Levant and Couchant upon the Land and this was adjudged a void custom as to the goods of a stranger to be made subject to such a forfeiture Thus far I have pursued my Argument in discoursing upon these Distresses and touching such matters as do depend thereon because in my experience I have found them the readiest part of the execution of these Laws and I have heretofore beheld much enormious proceedings therein both in the Commissioners and in their Officers and therefore I thought it very needful to have treated thereon for their better directions in these affairs hereafter Replevins YEt as I finde Distresse to be the most useful execution of these Laws of Sewers so I have seen the proceedings therein much stayed and interrupted by the usual suing of Replevins by which means the said Distresses taken by the authority of these Laws have been set at liberty and the works of Sewers have been much letted and hindred thereby And therefore the fifth point in my Case doth minister a good occasion to enter into the serious examination of them And now my intent is to declare in what case a Replevin doth lie and where not and surely this point hath heretofore been much stirred in and not without some cause for the very Statute seemeth to allow of Replevins in these words viz. That if any Action of Trespass or any other Action shal be attempted against any person for taking any Distress or for any other thing concerning the Law of Sewers that the Defendant in such Action may make Avowry cognisance or justification for the taking of the said Distress Trespass or other Act whereof the Plaintiff complained was done by the authority of the Commission of Sewers for a Lot or Tax assessed by the said Commission or for other such act or cause as the Defendant did by the said Commission And in what action can a man so properly make his Avowry Cognisance or Justification as in a Replevin being a word only apt for that action and a Distresse is de sua natura properly replevisable by the Common Law and for direct authority in the point it appears in Rooks Case that a Replevin was there sued for the delivery of the Distresse taken by the power of these Laws of Sewers But I must here distinguish for I am of opinion a Replevin doth not lie nor ought not to be granted from the Sheriff or any of his Deputies for that the Sewer is a Judicial Court of Record of greater authority then the power of the Sheriff which in these cases was but Ministerial and the highest authority that he hath is but vicontiel which is much inferior to the power of this Commission and therefore the Sheriff
decree of the sale must be directed by and depend upon the sesse But if after the general sesse be laid the same be after assessed upon particular persons by particular sums by the said Commissioners then upon default of payment their Lands making default may be decreed from them by the power of this Statute If an assesse or charge of payment be laid upon certain Lands without mentioning the Owner the Lands cannot be decreed from him by this Law for the words of the Statute be That if any person or persons assessed to any Lot or Charge do not pay So that I shall take it that no decree for sale of Land can be made but where there is a person certainly assessed by name Lands cannot be decreed away from the owners for default of payment of Fines Amerciaments or Pains for though these be sums of money or charges imposed by the Commissioners of Sewers of persons certain for matters touching these Laws yet because they were not sessed or rated towards the repairs of any works of Sewers but be set upon the parties as mulcts and punishments and be due to the King therefore no decree of Lands can be made for any of them Now the second part of this clause is what Lands may be decreed by the authority of the said Statute and thereby it appears they must be such Lands as lie and be within the power of this Commission of Sewers and herein rests a difference between the case of a Distresse for a sesse which may be taken in any place within this Realm and the decree of sale of Lands for Non-payment of a sesse which must lie within the bounds and extent of the Commission for this Distresse is circumscribed to the extent of the Statute which is over the whole Realm and the sale is tyed to the limits of the Commission And I am also of opinion that no Land can be sold away by the decree of the Commissioners of Sewers but such as were charged with the sesse If one hold his Lands in Comitat ' Eborum to repair a Sea-bank in the County of Lincoln and the Owner is assessed therefore and makes default of payment the Commissioners of Sewers in the county of Lincoln may give warrant to distrain for this sesse in the county of York but they cannot decree away by sale those Lands lying there which were charged with the sesse A Copyholders Land cannot be decreed against him by this Law for if it might then these customary Lands should be transferred from one to another contrary to the Customs of the Manors whereof they be parcel and it would infringe that rule which is delivered in Heidons Case Heidons Case in Cooks 3 Report which is when an Act of Parliament doth alter the service Tenure and interest of the Land or other thing in prejudice of the Lord or of the Custom of the Manor or of the Tenant there the general words of such a Statute doth not extend to Copyholds And in this case if any sale should be made by the Commissioners all the said rules should be infringed for it were contrary to the Custom to passe these Lands without surrender it were in prejudice of the Lord to have Copyhold-land passed and he to have no Fine And I am likewise of opinion that the Freehold of these Lands could not be passed away for a sesse or a lay because the Lord hath but the shadow and the Copyholder hath the substance But if the Lords Rents of Assize should be assessed as they ought to be and he do neglect to pay then these Rents might be decreed from him and so may all other Lands Tenements and Hereditaments decreed in respect whereof one is sessable and sessed by the Laws The third Branch of this clause is the direct point in my case viz. What persons what estates be bound by these decrees And first of the Heirs in Tail whether they be bound by a decree made against the Donees in Tail their Ancestors is the question In the handling whereof I hold it sitting to shew in what cases the Heirs in Tail have been bound by the act of their Ancestors and the reasons and causes thereof And therefore if a Disseisor make a Gift in Tail and the Donee in Tail grant a Rent to the Dissessee for release of his right this will binde the Heir in Tail for that by this release his Estate which before was defeisable is now confirmed as by the Books of 44 Ed. 3. 22. and 20 Ed. 4. 13. 44 Ed. 3. 20 Ed. 4. 46 Ed. 3. appeareth and so in 46 Ed. 3. a gift in Tail was made Ita quod the Donee might alien to the benefit of the Heirs in Tail and and this by Judge Welbey was held a condition which bound the Heir in Tail for his benefit And in 12. Ed. 4. 1. Tregouse and Taltarms Case was That a recovery against Tenant 12 Ed. 4. in Tail with a Voucher by him over did binde the heirs in Tail by the Common Law by reason of the intended recompence which was to come to him by the Voucher and so a lineal warranty with assets and a collateral warranty without assets were and be both of them bars to the Issues by reason also of the intended recompences and these are things which were originally tied to those Estates and were incidents to them ab initio And therefore this shall suffice to treat of bars to the Issues in Tail by the Common Laws and now I shall proceed to shew in what cases they were barred of their Estates by the Statutes of this Realm By the Statute of 16 R. 2. cap. 5. The Lands and Tenements 16 R. 2. of one attaint in a Premunire are to be forfeited to the King and in 21 Eliz. one Trudgin was Tenant in Tail 11 El. and was attainted in a Premunire and the question was Whether Intailed Lands were forfeited against the Issues in Tail or not And in Doctor Forsters case in Cooks 11 Report C. 11 Rep. it is there said to be resolved that the general words of that Statute did not repeal the Statute of Westminster 2. of Intails and so the forfeiture was there resolved to continue but for the life of Trudgin and did not binde the Issues in Tail A Judgement in Debt against Tenant in Tail or if he be bound in a Statute or in a Recognizance in the nature of a Statute the Lands Intailed were not extendable nor to be held in extent by the Statutes of Westminster 2. Acton Burnel or by the Statute de Mercatoribus by any of the general words of these Laws but the Statute of 33 H. 8. cap. 39. by expresse words bindeth the heir in Tail for their Lands 23 H. 8. whose Ancestors stood indebted to the King by Judgement Recognizance Obligation or other specialty But the Statute of 26 H. 8. cap. 13. Enacts That every 26 H. 8. one which shall be
the words of this Statute are sufficient to yield the party the benefit of a Traverse if there be cause and for president in the point Chart. of Romney Marsh pag. 23 and 24. one Godfrey Ro. Marsh being presented that he ought to repair a Bank or Wall and that he did neglect to do the same and he came in and pleaded a Plea thereto before the said Commissioners and in 19 lib. Assiz plac 6. there were divers Presentments before Commissioners of Oyer and Terminer for Nusances done in the River of Lee and the same were there traversed and tryed And the Statute of 1 H. 4. cap. 12. 1 H. 4. doth plainly admit of a Traverse wherein the words be That in case if any feel himself greived by execution or otherwise against right and reason let him pursue and he shall have right But I verily suppose that those things which the Justices of Sewers do by their view or by survey and discretion are so binding as in those cases no Traverses are to be admitted because these things are meerly the acts of the Court and of the Justices themselves and if they Fine a man for his contempt in Court by a Record of their own view and not upon a Presentment the party shall not be received to Traverse this and in Doctor Bonhams Case it is said That the act of a Judge is not Traversable if he be the absolute Judge of the Cause But in cases done or certified by such as be no absolute Judges of the Cause as Commissioners of Bankrupts which certifie one a Bankrupt he may Traverse this in an action brought as was done in the Case of Cut and Delaber in 7 Jac. in the Cut and Delaber 7 Jac. common place and Vernies Case 1 Mar. Dier fol. 89. no Averment could be taken to the certificate of a Judge and with this agreeth 7 H. 7. fol. 4. 7 H. 7. But although a Traverse may be taken to a Presentment in the Court of Sewers yet times and seasons must be observed for if a Presentment be there made it may be Traversed for the reasons cause presidents formerly mentioned Yet if the cause have been there so far proceeded in as the Commissioners make a decree thereupon I take it then no Traverse at all can be taken because a decree is the final Judgement of the Court and is an act Judicial which cannot be traversed and tryed by a Jury for that were to refer the Judgement of the Court to be examined by a Jury which may not be admitted and at the Common Law after Judgement no Traverse can be taken And if one be Indicted at the general Session of the Peace this is traversable but if the party suffer himself to be Outlawed upon the said Indictment there no Traverse lieth but a Writ of Error So if in our Sessions of the Sewers the cause proceed to a decree the party grieved is to take his way by preferring a Bill of Reversal in maner as is done in the High Court of Chancery and so he may have the cause here throughly examined Other legal proceedings THe words of the Statute which give the legal proceedings be these viz. That the Commissioners of Sewers may hear and determine all and singular the Premises as well at our suit as at the suit of any other complaining before them after the Laws and Customs aforesaid or otherwise by any other ways or means these words give the party remedy to sue before the Justices of Sewers for such things as are contained within these Laws and which have their dependency thereon In Colshils case in Dier fol. 175. the party preferred his Colshils case Bill of complaint to the Commissioners containing the effect of his Title to the Office in question and these were special Commissioners of Oyer and Terminer Justices of the general Oyer and Terminer may hear and determine Usury by the Statute of 13 Eliz. cap. 8. yet if I. S. be bound 13 Eliz. in a Bond of Ten pounds principal debt and for Forty shillings for Interest although this Bond be for payment for usury yet an Action of Debt doth not lie thereupon before the said Commissioners but an information may be preferred against the lender there to punish him So by our Statute of Sewers an Action of Trespass lieth not for a Trespass done within the reach of this Commission yet Distinguendum est for put the case a sesse is laid upon a man and the goods of I. S. not chargeable thereto be taken and distrained who is not chargeable to the payment thereof I. S. in my opnion though this case have but the countenance of this Commission may have his Action or prefer his complaint before the Commissioners in this Court of Sewers for the recovery of his damages And although this be but a private Action yet the Distress being taken by an authority drawn from the power of this Commission the party distrained may have his remedy in this Court by his private Action because it sprung by the colour of the general power of this Court If A. B. have a several Pischary in the River of Witham which is a River within the Commission of Sewers and the said Pischary by these Laws is chargeable to the repairs thereof if C. D. disseiz him thereof or commit a Trespasse by Fishing therein A. B. can neither have an Assize nor Action of Trespasse within this Court So if a Royal or common River hath his current through the town of Dale and one A. B. is tyed to repair the Banks there by Tenure Prescription or otherwise which notwithstanding in his default are broken down and the waters breaking out overflow the grounds of C. D. thereto adjoyning yet C. D. hath not any remedy to recover his damages against A. B. in this Court for the losse of his grounds but he is put to his private Action therefore at the Common Law and with this agreeth the Case of Keighley But if A. B. be presented therefore before our Commissioners of Sewers they may order A. B. to repair the breach but cannot award damages to C. D. for our Commissioners of Sewers are herein like to Justices of Peace and to Stewards of Leets and Law-days which have power originally to meddle only with the publike wrong Yet by the power of their Commission and of this Statute they many times accidentally meet with private injuries as by the insuing cases may appear If a Township be assessed by a Law of Sewers and the goods of one of the Inhabitants be taken for the sesse that party upon his complaint to these Justices of Sewers may have processe out of this Court to call before them the rest of the Inhabitants which were subject to the said sess to cause them to contribute towards the parties damage who was solely distrained for them all for otherwise this Court should fail of justice in his own proper materials the Statute of 1