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
cannot be imparted to another It is true that the personal view cannot be lent to another or divided from the person no more can the personal touch or act of my hand be imparted to another and yet express Livery which is the deed and act of the hand may be done per auter maine Sir Francis Englefields Case in the seventh Report of Sir 7. Reports Englefields Case Edward Cook gives us a pretty difference where the act to be done is unseparably tied to ones person and where not as in the Case of Thomas Duke of Norfolk where upon conveyance of divers Mannors to Philip Earl of Arundel his Son there was a Proviso That the Duke might revoke the same upon signifying of his minde under his own proper hand in writing c. This power of Revocation was not transferred to the Queen by the Attainder of the Duke because it was inseparably tied to his own proper hand But the principal Case there of Englefield where the Canc. in Combs Case Lands were setled upon his Kinsman with power That upon tender of a Ring by him he might revoke the uses and this was forfeit by his attainder and the Queen by a Letter of Attorney made to two did tender the Ring for this was not precisely or literally tied to Englefields person no more then payment of Money or such like And so in our Case though by the Law I take it that Livery within the view must be in the view of both the parties yet this may be done by Attorneys for as my own hand is not precisely tied by the Law to an express Livery no more is my own eye expresly tied to this view And we see in views in an Assize the under Sheriff or 36. H. 8. Dier the Sheriffs Bailiffs by his direction may make the view and yet the Writ is direct to the Sheriff to do the same Morse Penningtons Case and in those Cases an intellectual view will serve as if the Jurors know the Land but such an intellectual view will not serve in a Feoffment but there the view must be actual Yet I take this difference that if a Letter of Attorney be directed to A. B. to make Livery and Seisin he cannot do the same within the view for therein he doth not pursue his warrant but if the Letter of Attorney be special to give or take Livery within the view I am of Opinion then the Livery may in such a Case be given and taken by Attorneys within the view as well as in Combes Case in Sir Edwards Cooks 9. Report where it is affirmed that a surrender of a Copy-hold may be given and taken by Attorneys which is as personal as this is in the taking part because Fealty ought to be made Some things may in this Case be further aleaged in this third point which I now have in hand that is Who must make the Letter of Attorney on the Feoffees part whether the Lessee for years or he in the remainder or both of them For Lessee for years it is to be noted that his Estate hath not any perfection thereby and he seems himself but a Deputy and if so then a Deputy cannot make a Deputy but yet he is not meerly a Deputy for if there be two Lessees the Remainder in Fee to I. S. one of the Lessees may take the Livery and Seisin yet if a letter of Attorney be made to two joyntly one of them cannot take it and if in our Case the Lessee had dyed before entry the Livery might have been made to his Executors and powers and authorities cannot be apportioned and come to Executors in such maner Ergo It is more then a power of a Letter of Attorney for the reasons aforesaid and for these insuing For the Lessee for years cannot be prohibited from taking his Livery by the Lessor but a Letter of Attorney may be countermanded yet the Lessee alone cannot make this Letter of Attorney neither can he in the remainder make the same because he could not himself accept of the present Livery neither can he meddle with the present possession which a Livery and Scisin yields But I am of Opinion That Lessee for years and he in remainder must joyn in the Letter of Attorney for these Reasons First they were both one party to the Deed so ought they to be to the Letter of Attorney which is to give life thereunto Secondly they be but in Law one Tenant Thirdly they should joyn in Advoury And in many Cases the Lessee shall have ayd of him in remainder for the privity between their Estates and although the Lessee gets no Estate by the Livery yet he assists himself thereby with the ayd and strength of him in the remainder and the Livery goes through his Estate and so passeth into the remainder Therefore my conclusion is that they shall joyn in this Letter of Attorney and hereby I suppose I have conveyed a good Estate in the maner to I. S. in the remainder to maintain my position for him in the end of my Case and here I end my three Common Law points and now am come to the Statute The Readers Argument upon the Statute and Commission The Sea within the Realm of England FIrst touching our Mare Anglicum in whom the interest therein is and by what Law the Government thereof is is a fit question and worth the handling And in my Argument therein I hope to make it manifest by many proofs and precidents of great worth and esteem that the King hath therein these powers and properties videlicet 1. Imperium Regale 2. Potestatem legalem 3. Proprietatem tam soli quam aquae 4. Possessionem Proficuum tam Reale quam Personale And all these he hath by the Common Laws of England in the 6. R. 2. Fitz. Prot. 46. it is said That the Sea is within 6. R. 2. the Legiance of the King as of his Crown of England This proves that on the Seas the King hath Dominationem Imperium ut Rex Angliae and this by the Common Law of England The Charter of the Admiral of England hath these words Admirals Charter in it Quod habeat potestatem in causis maritimis ac omnia bona waviata Flotsan Ietsan Lagan ac omnia bona Mercimonia catalla in mare depordita seu extra mare projecta ac omnia singula casualia tam in vel super mare vel littora crecas vel coster as maris quam in vel super aquas dulces portus flumina rivos aut alios locos superinundatos quoscunque inter Fluxum refluxum maris ceu aquae ad plenitudinem à quibuscunque primis pontibus versus Mare per totum Regnum Angliae Imprimis this Charter is under the great Seal of England quod est Lex Angliae The King grants to the Admiral thereby power in Maritine Causes which proves the Kings legal power and jurisdiction on
high ways or streams as to erect Bridges or other Engines thereon without lawful Warrant Bridges in highways where there is no stream under but onely some petty Land stream at rain and wet seasons these be dry Bridges and be not within this Statute of Sewers but yet they be within the Statute of 22 H. 8. if they stand on highways In 14 Jacobi Regis it was found by inquisition taken at the city of Lincoln in the Guild-Hall there 14 Jac. before Sir Thomas Grantham Knight and my self and other Commissioners of the Sewers that the great Bridge at Bracebridge near the city of Lincoln and standing upon the River of Wytham thirty miles from the Sea was fallen into great decay whereby carts carriages men on horse-back could not pass over the same as in times past had been used in defect of Hen. Sapcots Esq who ought to repair a part thereof by reason of his Mannor of Bracebridge and of Bartholmew Gregge who by reason of his house standing at the Bridge foot called the Hermitage on the North side of the River ought to repair another part and of the Corporation of Lincoln who was to repair a part thereof and of the country of Moreland who used to repair another part And the same was decreed accordingly But Mr. Sapcot without cause finding himself grieved thereat preferred his Bill into the Exchequer Chamber against Sir Thomas Grantham and others to be relieved therein and did alleage That the same stood far from the sea pretending thereby that the Commissioners of Sewers had no power to deal with the same but at the hearing of the Cause in Anno 16. Jac. he was over-ruled in that and all other parts of this Suit A Calcey A Calcey or Calsway is a passage made by art of Earth Gravel Stones and such like on or over some high or Common way leading through surrounded grounds for the safe passage of the Kings liege people and these Calceys have always been expressed in the ancient Commissions of the Sewers in the Register Fitz. nat bre and in the Statute of 6 H. 6. cap 5. but not any Calceys be in these Laws but Register F. H. N. B. 6. H. 6. such as be over surrounded and low grounds as that of Barston Bank Southy Bank and such like but touching Calceys lying in Towns and Villages which be in the high uplandish Countries this Law doth not in any sort extend unto them but all Calceys leading over the said Bridges and near unto them are provided for by this Law yet no private Calceys are to be dealt withal by the said Commissioners Goats GOats be usual Engines erected and built with Percullesses and doors of timber stone or brick invented first in Lower Germany and after brought into England and used here by imitation and experience hath given so great approbation of them as they are now and that with good reason and cause inducing the same accounted the most useful instruments for draining the waters out of the Land into the Sea There is a twofold use made of them the one when fresh waters flows and descends upon the low grounds where these Engines are always placed and whereto all the channels where they stand have their currents and drains directed the same is let out by these into some creek of the Sea and if at some great floods the Seas break into the Lands the salt water usually have their returns through these back to the Sea Many of these Goats which are placed on highways serve also for Bridges This Goat is no such imaginary Engine as the Mills be which some rare wise men of late have invented but this Invention is warranted by experience the other is rejected as altogether chargeable and illusory Yet these Engines seems to me not to be very ancient here in this Kingdom for that I do not finde them mentioned in any of the ancient Cōmissions granted before this statute did express the same and surely this Statute was so curious in the special repetition of such defences in specie as it intended to defend and maintain that I am of Opinion it can scarce be drawn to extend to any other And therefore I do agree with the Opinion of Sir Edward Cook in his Case of the Isle of Ely that an artificial Mill and such like new invented Engines are not to be erected by the power of these Laws but being once erected and proved by experience to be beneficial to the publique State they may be continued and maintained by the authority of this Statute New defences HItherto I have proceeded onely in the handling and discoursing of the old and ancient defences which be helpful both to Sea and Land And therefore I am now desirous to enter into the argument of new defences being a matter very fit and apt to be disputed on And to give some warrant to my argument therein I have so composed my Case as both old and new be therein contained wherein the point will be shortly this Whether the new River and new Bank mentioned in my Case could be ordered to be made by the power and authority of these Laws And those which would take a part to argue on the contrary may alleage much matter and many reasons to make good their arguments first out of the words of the Law it self for thereby it seemeth that this Statute can bear no such exposition by reason the words thereof literally taken seem to extend onely to the old and ancient defences and not to the erecting of new And the words thereof in this point be these Forasmuch as the Walls Banks Ditches c. by the rage of the Seas and by the fresh waters descending be so lacerate dirupt and broken the Commission therefore doth authorize the Earls of Lincoln Rutland and Exeter Robert Lord Willoughby of Grimsthrop Sir William Welby Sir Thomas Grantham and Sir John Hatcher Knights whereof three to be of the Quorum to survey and amend the said Walls and Banks Ditches c. in all places necessary and the same as oft as need shall be to make new Upon these words of the Statute do those which argue against the new Defences infer That the Commissioners have not any power to cause new Banks new Walls or other defences to be erected and so take a difference between the words nova construere de novo construere the first extending to erect new ones where none were before and the other purporting the erecting of a new one where before an old one stood and the words which inforce this exposition be penned strongly to that purpose for first they have power to repair and amend What such Walls and Banks as were before and the same to build new which words The same literally taken must needs extend to such old fences as were before and the construction being so made excludes clearly the power to make new ones where none was before and this exposition may be exampled
and discretion The words of this Commission upon which I framed this part of the Case be these videlicet We have assigned you Theophilus Earl of Lincoln Robert Lord Willoughby of Earsby Sir George Manners Knight Sir Philip Tyrwhit and Sir John Wray Knights and Baronets Sir William Pelham Sir John Read Sir Edward Ascough Sir Hamond Knights Anthony Erby Esq Quor ' the said Earl Lord and Sir George Manners we will to be three to survey the Walls Banks Drains Sewers c. and the same to cause to be repaired amended or put down as cause shall require after your wisdom and discretions and to do after our Statutes as also to inquire by the oathes of lawful and honest men of those places where such default be By the Tenor of which words I conceive That Commissioners of Sewers have power by their Commission to proceed three maner of ways viz. first By Survey 2. By Jury 3. By discretion wherein it behoveth Commissioners of Sewers to know perfectly how to use and dispose of their powers with due understanding of these parts of this Commission and Law And the better to prepare them herein I shall take some pains to declare unto them what they may do by survey without a Jury and what by Jury and what by their discretion without both Survey and Jury View and Survey VIew is the primary part of Survey and Survey is much but not altogether directed by view It is true that view is of great use in the Common Law and it is to be done and performed in person and such views are taken in Tryals of Assizes yet by the 36 Hen. 8. in Dyer fol. 61. Peningtons Case a very personal view needeth not in an Assize if upon examination of the Jurors it may appear that a competent number of them know the grounds in question in such sort as they can put the party in possession if he recover but in an Action of Waste an express personal view is both required and requisite for the words of that Writ directs the Sheriff Accedere ad locum vastatum In a word there is a diversity between a view and a survey for by the view one is to take notice only by the eye but to survey is not only to take notice of a thing by the eye but also by using other ceremonies and circumstances as the hand to measure and the foot to pace the distances And the Commissioners Surveyors have power to take information by examination of others And although Judge Fitz. in 27 H. 8. fol. 27. holds a Surveyor of very small esteem in his power and authority that is That he may hear see and say nothing Oier voier rien dier Yet under the favor of that book I take a Surveyor to be of more esteem and authority for by an old Statute made in 4 Edw. 1. Rastal Surveyors first he is there described to be a man which is to view the work and to make inquity 4 Ed. 1. and to set down which be Copyholds which be Freeholds c. whereby it appeareth that a Surveyor is an actor and not a looker on as Mr. Fitzherbert would have him so by these descriptions the Commissioners may inform themselves what is meant by the word Survey put in the Statute And many of our Statutes take notice of such an Officer as a Surveyor For in the Statute of Bridges and highways there be such Officers appointed and in the Statute made for the erection of the Court of Wards and Liveries there is a grave Officer appointed who is called the Surveyor general of that Court and he is a Judge in matters there handled And there is also an Officer in this Statute of Sewers called a Surveyor who hath no judicial power but is meerly an Officer What things Officers of Sewers may do by Survey onely EVery thing which Commissioners of Sewers are to do must be by true understanding of their authorities and this must be so done that they make such distinctions differences and applications as may stand with knowledge skil and learning or otherwise their proceedings will prove irregular And therefore it is not only meet to describe the Officer Surveyor as formerly I have done but also his Office which I now mean to do First Commissioners of Sewers may view the Defences and thereby may inform themselves which stands in need of repairing and amending and which not and wherein the defaults and defects appear to be and what they be Secondly they may by survey take notice and knowledge by conference with Carpenters Masons Smiths and other Officers what things are fitting to be provided for effecting the works and what sums of money will be spent for the finishing thereof Thirdly the Commissioners may by view and survey take knowledge of the lets impediments and annoyances in the Banks Walls Rivers Streams Gutters Sewers and of the height and lowness of the said Banks and Walls and may thereby discover and finde out the wants imperfections weakness and strength of them and so may cause the lets and impediments to be removed and the wants to be supplied and the weak places strengthned as cause shall require Fourthly also by survey onely they may sufficiently inform themselves of the incroachment and of the straitness depth wideness and shallowness of the Rivers Streams Gutters and Sewers and may view the defects in these kindes These things I have produced as proper to be performed by view and survey of the Commissioners and now I shall proceed to the rest Things to be done by a Iury. FIrst what person or persons did erect and set up any let and impediments as a Floodgate Mill-dam or such like must be found by Jury for here the words of the Statute are to be observed which are these And also to inquire by the oathes of good and lawful men of the said shire or shires place or places where such defaults or annoyances be as well within liberties as without by whom the truth may rather be known through whose default the said hurts and damages have happend or who hath or holdeth any Lands or Tenements or Common of pasture or profit of fishing or hath or may have any hurt loss or disadvantage by any maner of means in the said places as well near to the said Dangers Lets or Impediments as inhabit or dwell thereabouts by the said Walls Ditches c. So that the first Article is full within the words of this Statute and therefore it must be done by Jury and no other accusation is of sufficient strength in the Law to put a man to his answer And herein the makers of these Laws did sagely for how should Commissioners of Sewers take notice by view or survey of such things as are done or committed in their absence Secondly if any Wall Bank River Sewer or other defence be defective by neglect or sufferance of such as should repair the same the Commissioners of Sewers are to inquire by
give evil Language to Commissioners in Court or disturb the peace there or hinder the business of the Court in a Turbulent fashion he may be by them Fined or committed to Prison or both at the discretion of the Commissioners for by 34 H. 6. fol. 24. in every case when a man is fined he may be imprisoned and by 19 H. 6. fol. 67 in every case where one is Imprisoned he may be Fined and 34 H. 6. our Law in express words gives the Commissioners power 19 H. 6. to set fines and then by the opinion of the said Books ex consequenti they may Imprison If one oppose against a Law of Sewers not legally in questioning the same but refractory contemning thereof or by disswading persons assessed not to pay such or not to obey the Law I am of opinion that a person is both Fineable and Imprisonable and if this be done in facie Curiae it aggravates the contempt and this is the Rebelling which this Statute speaketh of If one do refuse to obey the Decree Rule Order of the Court especially if it be done in affront of the Commissioners when they be in execution of their Commission This is a contempt and he is to be imprisoned for such his disobedience and this agreeth with 37 H. 6. fol. 14. In Termino Pasche 12 Jac. in the Kings Bench the Case 37. H. 6. there was in debate between Hitley and Carier where certain 12 Jac. Commissioners of Sewers in the counties of Huntington and Northampton made a Law That certain Townships in those counties were assessed to a work of Sewers and one town was rated to Five pounds and because the same was not paid the Commissioners caused a Warrant to be directed to the said Carier to distrain for it and he distrained the cattel of Hetley one of the Inhabitants and Hetley brought an Action of Trespass in the Kings Bench against Carier and arrested him thereupon and upon complaint made to Sir Anthony Mildmay and Sir John Boyer Knights and other the Commissioners of Sewers they caused Hetley to be attached by their Warrant and committed him till he should release his Actions brought against Carier and until he should be delivered out of the Prison by Warrant to be granted by them But afterwards Hetley procured a Habeas corpus cum causa out of the Kings Bench and was removed where all the said matter appeared and thereupon Attachments were awarded against the said Commissioners and Sir John Boyer appearing was by Cook chief Justice Crook Dodderidg and Houghton Justices committed to the Kings Bench Prison and was fined Two hundred pounds but was after delivered Ex favore Regis sed non ex Rigore Legis And in my opinion The said Commissioners in this case in making a Warrant to attache Hetley and in imprisoning of him for the said causes did exceedingly erre and the rather because they took upon them to overrule the Justices of the Kings Bench being of a higher and greater authority then they were of But this is no president to impeach the power of the Commissioners of Sewers for committing persons offending their authorities to Prison if their proceedings therein be consonant to the Laws of this Realm but they were punished in this Case not for executing their power but for exceeding their limits and the bounds of their Commission If a Collector or Expenditor or other Officer of Sewers have been negligent in the execution of his Office and place he his fineable therefore though his offence be but neglect because he was an Officer and was also sworn to execute the same duly But I take it a neglect in another ordinary person is not to be punished And if one be rated to pay towards repairs and he neglect to pay the same at the days and times appointed he is not fineable therefore but is to be Amerced in this Case If a Collector or Officer of Sewers do distrain a man or do any other act contrary to an Inhibition of Sewers to him directed by the Commissioners of Sewers he may be fined and imprisoned simile factum fuit in 7 H. 4. fol. 33. 7 H. 4. If a Purpresture be committed in the Kings streams as in fixing Piles or Stakes therein or in stopping straitning or diverting the course of the waters from their ancient chanels or courses these offences being presented the offenders are fineable therefore if in the Presentment they be found to be done vi armis or be presented by the name of Purprestures for by 19 H. 6. fol. 8. if the offence be done 19 H. 6. with force and so presented then the offender is fineable Beechers Case but otherwise it is if the offence be not found but omitted for then an Amerciament is onely due And it is said in Dier 7 Eliz. fol. 240. That for a Purpresture one is fineable and a Purpresture may be committed in aquis Regiis as well 1 Eliz. fol. 240. as in viis Regiis by the opinion of Glanvil And in Keleways Report fol. 141. And a Purpresture is taken to be an offence done to the King imediately or to His possessions But if the like offence Purpresture be done to a Subject or to his Lands it is termed a Nusans Nusans The Abbot of Mellefont was fined for erecting a Were in the royal River of Boyne in Ireland which is expressed in the Irish Reports in the Case of the Royal Pischary of the Ban in Ireland and this was a Purpresture If one do refuse to accept an Office of Sewers being thereto duly elected by the Commissioners he is fineable therefore for in Greslies Case 8. Report One being elected Greslies Case and chosen Constable did refuse to take the Office and he was fined And if an Officer do misdemean himself in his Office he is fineable for in 10 H. 6. fol. 6. A Tythingman did refuse 10. H. 6. to make Presentment being thereto required and he was fined therefore So in case of the Sewers if one of the Jury or which is a Surveyor refuse to make Presentment when he is required by the Commissioners he is to be fined So if a Juror depart after he is sworn on the Jury or before he be sworn after his appearance be recorded he is to be fined And if an Expenditor or Collector Officers of Sewers be required by the Court to accompt for the moneys received and laid out by them and they refuse they may be punished by fines And if the Sheriff upon Writ or Warrant directed to him to return a Jury before the Commissioners and he make no return thereof nor doth not attend when he is required he is to be fined by the Commissioners Also an Officer of this Court is fineable for falsities done by him in his Office for these are a violation of his Oath and is a breach of that trust which the Court reposed in him at his election and entrance
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
case and so the words of the Statute and of the Law may herein be satisfied Now I hope I have fully instructed the Commissioners wherein they may learn whom to Imprison when to Fine and how to Amerce in a legal and orderly sort and according to the ancient and approved Rules of Law and of the grand Charter for in those things they are to direct their discretions by the said Rules and they are to be guided thereby and are not to proceed therein according to their own wills And herein I shall conclude the second point of this part of the Law that is That Commissioners of Sewers have power to Imprison to Fine and to Amerce And that B. for refusing to obey their Order was justly imprisoned and C. was as justly fined And for the reasons and causes aforesaid the Commissioners in their discretions though the offences of both were alike yet they had power to imprison the one and to fine the other And now I do intend to proceed to the fourth point of my Case and the third point I intend to handle in a more convenient place Distress THe point of Distress in my Case is grounded upon these 4 Point words of this Law viz. And all those persons and every of them to tax assess distrain and punish as well within the metes limits and bounds of old time accustomed or otherwise or elswhere within the Realm of England Three sorts of Distresses First there be divers kindes of Distresses viz. Judicial which always issueth out of the Rolls of the Court. Secondly Ministerial and such Distresse is to be performed by the Officers of these Laws without any judgement directing the same Thirdly and there is a Distress of Common right not given nor awarded by Judgement in Court or by Warrant of the Commissioners but incident to the thing it self And first of the Iudicial Distress which is awarded by the Court upon a presentment found of a Nusans or in the recovery of an assize of Nusans or in an Action of the case as it appears by the 42 Assiz plac 15. 32 Ed. 3. 23. and 7 H. 4. 8. there a Distringas ad Amovendum shall be 32 Ed. 3. 7 H. 4. awarded to remove the Nusans and so in case of a decay presented As if I. S. suffer a Bank or Wall to decay and that be presented a Distringas ad reparandum shall be directed to the Sheriff to distrain I. S. to repair the same Secondly a Distress Ministerial is where one is assessed or rated to pay a certain sum of mony towards the repairing of a Wall Bank Sewer or Goat here upon Warrant from the Commissioners of Sewers the Officer expressed in that Warrant may distrain the cattel of the party which ought to pay the said Rate and Sess and which did neglect to pay the same And yet where there is a Rate and Sess imposed upon one by the Commissioners of Sewers I am of opinion that the Collector or Officer may distrain therefore without any express Warrant from the Commissioners so to do and my reason is grounded upon the Statute which is this because the Statute and Commission which be the general Laws do of themselves in this case give a distress And therefore in these cases the Warrant of the Commissioners is superfluous like to the Case in 20 Eliz. Dyer 20 Eliz. fol. 362. where a Fine was levied of Lands to the intent that I. S. should have and receive a yearly Rent thereout although in the conveyances there was no mention made that the party might distrain for the same Yet in that Book it is mentioned to be adjudged That the owner of that Rent might distrain for the same because the Statute of 27 H. 8. in 27 H. 8. that Case gave a distress Upon which Statute the said conveyance was grounded So if their be two coparceners to whom Land doth descend and they make partition and for more equality she that hath the better part doth grant to the other and her Heirs a yearly Rent out of her Land but limits no clause or power of distress she to whom this yearly Rent is granted may distrain therefore And so may a Bailiff distrain for an Amerciament in a Leet without a Warrant because the general Law gives a Distress in these cases Thirdly and as touching a Distress of common right It is in case where one doth hold his Land of his Lord as of his Mannor to repair a Bank Wall or other work of Sewers the Lord of whom these Lands be holden may distrain his Tenant of common right to compel him to make these repairs and the Distress given in the said Case of the coparceners and in the said Case of Amerciament in a Court of Leet seem both to be Distresses of Common right And that the Law is that a Distress lyeth for a Rate Lot or Tax imposed by the Commissioners of Sewers it is manifest by the Case of Rooks in Cooks 5 Report which is full and direct authority in the point In what place a Distress is to be taken NOw touching the place where these distresses are to be taken comes next into our consideration wherein the quality of the matter distrained for and the power from whence the distresses are derived are to be considered of And therefore if a Lord do distrain his Tenant Ratione tenurae for to repair a Wall Bank or other defence this Distress must be taken on the Ground holden by this Tenure and not elsewhere for these grounds are chargeable therewithal as the opinion of Iustice Sylliard is 21 Ed. 4. fol. 38. But not as that Case is but in point of Tenure 21 Ed. 4. for there the Case was That a presentment was found in hec verba videlicet Iuratores present ' quod est communis Regia via in Parochia Sancti Martini in Campis in Com' Middlesex inter Hospitia Epis ' Dunelmensis Epis ' Norwich totalitur superundat ' aquis quod tam domini spirituales quam temporales Justiciarii domini Regis Servientes ad legem omnes alii Legis ministri omnes alii per viam illam versus Westmonaster ' itinerantes pro legibus domini Regis ibidem ministrandis observandis sepius impediuntur per quod via illa totalliter superinundata existit excessu emanationis aquae pluvialis ibidem remanent ' quam quidem aquam Episcopus Norwicensis rationae tenurae suae ibidem evacuaere debuit quod ipse omnes predecessores sui ratione Tenurae suae ibidem evacuaere debent And in this case I take it the Land was charged not as in respect the Bishop of Norwich did hold the same of some Lord by the Tenure to repair the Sewer to avoid the water but his Land stood charged with the same as a charge imposed thereon by Custom or Prescription as by the president it self appeareth for if the Bishop of Norwich had been
by the Tenure of his house or lands bound to avoid the waters there needed no Prescription to have been alleaged Also in 5 H. 7. fol. 3. there is a like Presentment made 5 H. 7. against an Abbot Quod ipse predecessores sui ought to repair a gutter ratione tenurae terrar ' suar ' but because in that case the Presentment did not set forth where those Lands lay which were charged the Presentment for that cause was holden to be void So that there is a great difference between a Tenure charge and a charge imposed upon Land by Prescription For in the case where a Tenant holdeth his Land to repair a Bridge Wall or Bank of the Lord of the Fee The Lord in this case may distrain the Tenant of Common right by the Common Laws of England But where ones Land is charged by Prescription and Custom there is no remedy to force and compel the Tenant to do the repairs but by Presentment and upon a Presentment process may be awarded against him to distrain him to make the repairs And if upon a Presentment made by the Laws of Sewers I. S. is charged to repair a Sewer and a Distringas ad reparandum be awarded against him the Sheriff may distrain the party in any place within the power of the Commission of Sewers But this being a judicial Distress which issueth out of the Rolls the Justices are tied to the limits and bounds of the Commission Yet in 19 H. 6. fol. 7. the 19 H. 6. Case was That the Admiral of England hath jurisdiction in causes arising onely on the Seas and he hath no jurisdiction or power to meddle with any thing done upon the Land Yet upon a Presentment made in the Admiral Court one was Presented and Amerced and a Distress for this Amerciament was taken on the Land and exception was thereto taken that the Distress was taken out of the jurisdiction of that Court But there Newton chief Justice and the rest of the Iustices said That the power of the Admiral to hold plea was restrained by Statute to matters arising on the Seas but Executions were not so And I have further observed by the Book of 8. R. 2. Fitzher 8. R. 2. Avoury 253. that where no place is certainly prescribed to distrain in that in such a case the Distress may be taken in any place within the power and jurisdiction of the Court out of which the Writ or Warrant of Distress doth issue As if one be amerced in a Court Leet or in a Court Baron he may be distrained for these Amerciaments in any place within the jurisdiction of these Courts and for an Amerciament set and imposed in the Sheriffs Turn a Distress may be taken for it in any place of the county for so far the power of that Court doth extend it self But in the case of a sess rate or tax imposed by the Commissioners of Sewers a Distress for any of those may be taken in any place within the Realm of England for in this case the Distress is meerly grounded upon the Statute and is bounded by the same limits which is as large as the Realm of England And hereupon by this construction made in this legal maner all the words in the said clause of this Statute have their full operation And although in Rooks case the Distress was there taken on the ground charged yet that doth not prove but that a Distress might have been taken in any other place for I verily take it that the place where the distress was taken in that case was not intended any material point though in my succeeding argument for another purpose I shall make it one So that my opinion touching distresses to be taken in cases of Sewers appears to stand upon these three distinctions First that the Lord of whom the grounds be holden to make the repairs must distrain on the the grounds so holden and not elswhere Secondly that upon a Distringas ad reparandum or Amovendum upon a Presentment which issueth out of the Rolls of that Court and is a judicial process a Distress must thereupon be taken within the bounds of the Commission of Sewers Ex congruitate Thirdly a Distress for a rate or sesse or tax assessed and imposed by the Commissioners of Sewers may be taken in any part or place within the Realm of England for this is a Distress grounded upon the Statute and is as large as the extent thereof And so the difference appears where the Distress is guided by the Commission and where by the Statute Whose goods may be distrained IT comes now in turn to be handled whose goods may be distrained and taken within these Laws For the words of Distress be put so generally in this Statute that they must receive their exposition by the Rules of the Common Law in regard these Laws do give no special direction therein and therefore the Distress mentioned in Rooks case may in this place be questioned For there Carter was assessed but the goods of Rooks were distrained and taken for the said Assess and no challenge or exception was there made of it and no marvel for it was specially found that the goods were taken and distrained on the grounds charged for otherwise that Distress had been tortious wherein I take this diversity That where grounds are chargeable to repairs of defences and a Sess is thereon imposed by the Commissioners of Sewers the goods of a Stranger may be taken therefore on the grounds Sessed and this is warranted by Rooks Case But Rooks being a Stranger his goods could not in any sort have been taken for the Sess imposed upon Carter but on the grounds charged and the like Law for Rents and Services issuing out of Lands the goods of a Stranger Levant and Couchant on the grounds so holden may be distrained for Rents and Services by 7 H. 7. 2. and 11 H. 7. 4. 7 H. 7. 11 H. 7. But put the case a little further that in the Sessions Court of the Sewers A. B. is amerced for Non-payment of his Sesse towards the repairs of a work of Sewers and in this case I am of opinion that the proper goods of A. B. are to be distrained for this Amerciament and not the goods of a stranger going on his grounds charged to the said assess because this Amerciament is a collateral charge which falls on the person of the offendor who was to pay the Assels and doth not in any sort charge the grounds and this opinion hath warrant from the Case in 41 Ed. 3. fol. 26. Br. Leet 4. for there A. B. was amerced in a 41 Ed. 3. Court of Leet for receiving and keeping one in his house which was not sworn to the King in which Case it was holden that no goods could be distrained for this Amerciament but only the proper goods of the party amerced although the goods of others were Levant and Couchant on his ground And
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
is not of sufficient power to supercede a Court of higher power Yet if one sue a Replevin which afterward in Bank was abated and a return of the Cattel there awarded another Replevin did lie by the opinion of the Book of 34 H. 6. fol. 37. and so it appeareth by the Statute of Westminster cap. 2. but these new Replevins came out of the 34 H. 6. said Courts where the former was for it is not likely that the Sheriff could make deliverance by his warrant of Cattel contrary to the award and return of a Court of Justice in a Retorno habendo and therefore by the same Statute of Secunda deliberatione is now to be awarded out of the Rolls of the Court whence the Retorno habendo came And if one would resemble this case with other authorities and with the reason of other Book cases of the Law it will be made thereby apparant that the higher Court may take or remove a cause out of the inferior Court but not Econtra neither can the inferior Court supersede the superior For if one be impleaded in the Kings Court at Westminster and in coming towards London he is arrested in a Corporation Court he may be delivered thence by the power of the superior Court to the which he was attendant the power of the inferior Court shall be superceded thereby as the Law is declared in divers of our Books By the which it is plain that ones person being in the priviledge and protection of the Kings Court could not justly be Imprisoned by the power of an inferior Court And in Stringfellows Case in 3 Ed. 6. Dier fol. 67. The goods of one were seized by the 3 Ed. 6. Sheriff by processe out of the Chancery for a Subject and after seisure and before delivery thereof was made a Writ of Prerogative came out of the Exchequer rehearsing thereby that the King was to be served before any other and command the Sheriff to levy the same on the goods of the same Debtor And whether these goods that lay under the power of a Processe in one Court might be taken from thence by the power of another Court was the question and the better opinion therein as I take it was that they could not for that by the former Processe they were priviledged from all other Jurisdictions Powers and Authorities especially if they were of an inferior degree Yet there be two cases which not being curiously looked into make shew as if the Law were otherwise the one is in the 11 H. 4. fol. 2. where the goods of I. S. were taken in Execution by the Sheriff by a fieri facias which came out of 11 H. 4. the Kings Court of Westminster and the Sheriff sold them to I. D. and there was a Replevin sued in that case but no deliverance made of the Cattel in Court and the other case is in 7 H. 4. fol. 28. goods were taken by a Levy which issued out of a Court Baron and they were sold by the 7 H. 4. Bailiff there was also a Replevin sued but no deliverance made of the Cattel in Court neither would the Court order the Defendant to gage deliverance so that by these two cases it may seem what a Replevin did lie though another Court had formerly the Jurisdiction of the Cattel taken by the Distresse But under favor I hope I shall easily reconcile these books and shall make it to appear that they do not make against my opinion formerly delivered upon this diversity That when the goods were seized or taken by Processe and remained by the vertue thereof in the hands of the Sheriff or of his Bailiffs during that time no Replevin did lie in the Case but after such time as the goods or cattel were sold away as in the said two Cases formerly alleaged they were then against the party that bought them or any other a Replevin did lie in the Case for after the sale they were out of the protection of the former parties and then a Replevin might well take hold of them being out of all other Jurisdiction And the same difference I take in this Case of the Sewers that is That so long as goods distrained by Warrant and Process out of this Court of Sewers remain in the custody thereof they be not replevisable by the Warrant of the Sheriff or of his Deputies but after they be sold away then by the sale thereof they are out of the protection and priviledge of the Court of Sewers and then the Sheriff may cause them to be delivered by Replevin Yet it may be objected unto me that in Rooks case a Replevin was taken against him which detained the distresse by Warrant of the Commissioners of Sewers it is true the Book is so which case I admit and that the Replevin was well granted there yet I take it it doth not contradict my said opinion because there Carter was assessed but the goods of Rooks were taken and detained for the Sesse and Rooks did sue the Replevin which he might well do because against him or his goods there was not any Law of Sewers extant or in force neither was he or his goods within the priviledge or jurisdiction of these Laws of Sewers But if Carters Cattel had been taken who was the very party sessed he could have had no Replevin from the Sheriff or his Deputies to deliver his Cattel But although a Replevin doth not lie in the case aforesaid from the Sheriff or his Deputies Ex officio to deliver a Distresse of Sewers yet out of the Kings Courts at Westminster a Replevin doth lie in those cases And the Charter of Romney Marsh pag. 18. doth afford us in this Ch Romney Marsh case a very good president for there complaint was made to the King setting forth thereby That whereas his Highnesse had appointed and authorized Henry de Bathonia to be his Justice and to determine the differences depending and touching the repairing of the defences of the said Marsh he had ordained that Distresses might be taken according to the 24. Jurators It a quod nullus vicecomes aut alius balivus noster intromittat in districtionibus illis tu tamen meaning the Sheriff of Kent nihilominus districtiones illas propter hoc factum per vigint quatuor Juratores in prejudicio considerationis eorundem reluxasti tibi igitur precipimus quod districtionibus illis in nullo te intromittas and in the same Charter the like matter is there also so determined of pag. 7. By the which may be collected that the Sheriff Ex officio might not meddle with such Distresses and in the same Charter pag. 8. the words be further Quod siquis de consideratione predict ' districtionis se injuste gravat ' sentiret inde conqueri vellet ad ipsum Dominum Regem querelam suam deferret ipse in Curia sua justiciam fieri facere reservasset whereby it is manifest that a Replevin lay
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
H. 4. c. 12. saith That he which is grieved let him have remedy And if the goods of a man taken for his tax or 1 H. 4. sess be sold for the payment thereof for more moneys then his sess came to the Justices of Sewers have power to cause the Officer to restore the overplus Et cum hoc concordat the Charter of Rom. Marsh If the Commissioners of Sewers appoint the Officers to take so many trees of I. S. at such a price for the repairing of a defence against the sea or to make a trench over the grounds of I. D. and thereto erect something toward these actions I. S. hath remedy to come by his moneys in this Court and the other party over whose grounds this trench is made may be relieved in recompence to be made to him for the hurt in his grounds If Laborers or Workmen as Carpenters Masons Smiths Dikers or other persons be set on work by the power of these Laws they may by the same power recover their wages before the Justices of Sewers for the original cause sprung out of the power of this Commission and this is there determinable as incident to the authority of that Court But if the original cause did not arise out of this Commission as in some of the preceding cases they did not then hath this Court no Jurisdiction of the matters depending thereon And I do ground this diversity upon the reason of the Book case put in 1 R. 3. fol. 4. where it is said 1 R. 3. That if the original cause do belong to the Court Christian although in the proceedings therein some matters happen which depend on the principal which do belong to the Temporal Court Yet Accessarium sequitur suum principale and these matters shall also be determined in the Court Christian And so if in a cause at the Temporal Law as in a Quare impedit and in the proceedings therein some matter do arise depending on the principal cause which belongeth to the Court Christian yet the Temporal Court shall continue his Jurisdiction thereof And with this diversity agreeth Kelleways Kelleways Rep. Report fol. 110. so in our Court of Sewers although a thing happen in the proceedings which if it stood meerly of it self would not pertain ad eor ' examen notwithstanding if it be but a matter accidental and have his dependance upon a principal matter which is determinable in this Court the other also sh a be here determinable Exemptions IT may be a grand question Whether these Laws of Sewers will permit any Exemptions to any person or persons and by the strict penning of the words of this Commission it seems to oppose all such priviledges and discharges as Exemptions be The ancient Commission which is in the Register and in Fitz. Nat. Br. are exceeding strict for the words therein be Ita quod aliquibus tenentibus terrarum seu Tenementum seu communiam pasturae seu Pischariae habentibus diviti vel pauperi vel alteri cujuscunque fuerit conditionis Status aut dignitatis qui defension ' habere potuerint per predict ' Wallias Guttur as Fossata sueras portes calceta gurgites seu etiam damnum per trencheas predict ' sustinent vel poterint sustinere sive fuerint infra libertates sivè extra non parcantur in hac parte And the words in our Statute be in effect And all such which reap profit or sustain damage shall be assessed which words seem not to admit of discharges Yet in my opinion out of the strict words of these Commissions there be some Exemptions though not expressed in words yet supplyed in reason and are to be added in construction First for the grounds lying betwixt the Seabanks and the Seas are in reason exempted from the charge of the Banks and Walls because they can take no safety thereby Secondly those grounds which be upon an assent and not on the Level are also by the rule of reason exempted from assesses to be imposed only by the power of these Laws Thirdly where one or moe be tyed to repair a Bank Wall or other defence by Custom Prescription Tenure or otherwise all others be in Law and reason exempted Fourthly a Parson Vicar with cure are not to be assessed for their Tythes and divers of the Hereditaments formerly mentioned in Assesses be by the rule of reason exempted Fifthly but whether one may be discharged and exempted from the repairs of the works of Sewers by any special Custom or Prescription is a great question of our case in regard both the old and new Commissions Quod nullus in hac parte parcatur seem to Toll all Prescriptions and Customs of discharge and to admit of none of them And the Charter of Romney Marsh pag. 31 32 and 33. beareth the same exposition for there Godfrey pleaded a Plea to discharge him of the repairs of the Walls and Watergauges because he claims his Lands by Charter from the King and also prescribed generally in non reparando but he durst not abide his Plea for there pag. 39. it is said That all having Lands should contribute and that none might be spared and also pag. 53. be these words Quod starent ordinationi Jurator ' predictor ' nulla consuetudine resistente which words be direct in the point against such general discharges claimed by blinde customs Yet I have been credibly informed that Sir George Fitzwilliams Knight had a Custom in his Town and Manor of Mabblethorp in the County of Lincoln called Swiftage whereby he challenged to be freed from being charged to the repairs of the Seabanks because in consideration thereof he and his Ancestors have used in regard of their Manor there to do some other repairs as beneficial for the Commonwealth and in my opinion in such a special Custom one may be exempted like to the case of Tithes wherein one could not by the Common Laws prescribe in a non decimando yet in a modus decimandi he may because there is some competent consideration given in lieu thereof And so in my opinion one cannot generally prescribe or alleage a Custom to be freed and clearly exempted from the repairs of Sewers but by special Custom he may as in the said case of sir George Fitzwilliams And therefore the Commissioners of Sewers in my case did very justly and discreetly refuse the said general pleas of discharge tendred to them by A. and E. and so I super totam materiam conclude my Argument as I did my Case That the Commissioners of Sewers did administer true Justice in all the parts of these Laws Finis hujus tertiae Lecturae Lectura quarta IT appeareth by this Statute I read on that the Law makers made it not the least part of their care to have such persons put in trust with the execution thereof as should be of great wisdom and approved experience And because that persons of profound wisdoms deep Experience tryed Learning generous