do not repeal the Statute of Mortmain in my opinion And herein I shall end my Argument touching decrees and I take it though the interest of E. was intail yet the sale thereof might be made by this Statute for the causes and reasons aforesaid And now only remains under my censure to declare my opinion whether the Commissioners of Sewers did Justice in refusing to admit of Pleas of discharge which were tendred to them by A. and E. wherein may come justly into our considerations these things viz. Whether Traverses Pleas of Exemptions and other legal proceedings may be had in this Court of Sewers or not saving I adde this that these decrees of sale being binding must be certified into the Chancery with the Kings Royal assent had thereto Legal proceedings Traverse TO enter into these parts of my Law I think it fit to begin with Traverse and to deliver my opinion whether such Pleas and Proceedings are to be admitted into this Court for a Traverse is a Plea of the party containing matter to the contrary of that that the party stands accused of or which is laid to his charge And in some cases our books and authorities of Law admit the party to a Traverse and in other cases the same is to be denyed for in the 5 H. 7. fol. 9. 45 Ed. 3. fol. 28 H. 8. in Dier fol. 13. if one be presented in a Leet Court for a Blowipe or any other personal 5 H. 7. 45 Ed. 3. 28 H. 8. wrong this Presentment is not Traversable but the party is without remedy therein though the Presentment be false and the matter of it untrue and the Law is so also of such a Presentment made in a Sheriffs Turn and herewithall agreeth the books of 2 R. 3. 11. and 19 H. 8. 11. 2 R. 3 19 H. 8. 5 H. 7. 8 Ed. 4. Fitz Assiz plac 442. and 8 Ed. 4. 5. and the reason thereof is delivered in 5 H. 7. because no Processe is there awardable against the party to call him to answer Yet in the same Book of 5 H. 7. it is said That if a Presentment be made which toucheth a mans Freehold he may there Traverse the same But I take it the party must first remove the Presentment into the Kings Bench and there Traverse it for in the Court Leet in my opinion there can be no Traverse taken or tryed no more where the Presentment toucheth Freehold then where it only concerneth a personal wrong Therefore the reason alleaged in 5 H. 7. cannot be the true cause wherefore in personal wrongs the Presentments cannot be traversed but the very true reason therein is as I take it because these petty Presentments be of such petty trifling matters that in avoidance of trouble the Law esteemed them not worthy of Traverse and Tryal and Justice Fairfax in 5 H. 7. is of opinion That a Presentment made before Iustices of Peace in a Sessions is traversable and with this agreeth Stanford fol. 183. and in other Courts of Law there oftentimes fall out matters which one shall not be admitted to take a Traverse unto and in some other cases he shall as by these succeeding authorities may appear In the 37 Assiz plac 7. a Presentment was taken before Green and Ingham Justices of the Kings Bench That I. S. who had killed A. had goods to the value of Eighty pounds in the hands of one John Lombard and upon this Presentment a Scire-facias was awarded against John Lombard to shew cause wherefore these goods should not be seized to the Kings use John Lombard came in and tendred a Plea to the Presentment that these goods were not the felons but that they were delivered to him to keep to the use of a Cardinal of Rome and he was there admitted to this Plea and with this agreeth 45 Ed. 3. fol. 26. expresly Yet in that book and Mr. Stanford fol. 185. it is holden for Law That if it be presented before a Coroner that I. S. killed A. B. and fled for the same fact and after upon his tryal he is acquit yet he shall forfeit his goods upon the Fugam fecit before the Coroner and he shall not be received to take any traverse to the said Presentment in that point The difference in which two cases is this in my opinion that a stranger as Iohn Lombard was in the the first Case shall not be peremptorily concluded for it were no reason one mans goods should be forfeited in another mans default and he should have no answer thereunto But in the other Case in Terror of Felons though he be acquitted of the Felony yet he is not acquitted of the flying and he may be guilty notwithstanding his acquittal There be other cases in the Law which admit no Traverse as in James Bags case Cook 11. Rep. James Bagâ— Case where a Writ was directed to the Major and Burgesses of Plymouth to restore Bag to his Aldermans place there which they had put him from and they return a cause sufficient to bar him which notwithstanding is false yet he shall not be received to his Traverse therein neither could a Traverse be admitted in the Certificate of the Bishop wherein was contained that I. A. Parson of Dle had refused to pay his dismes to the King by means whereof the Parson lost his benefice which case is in Br. cases temp He. 8. pl. 332. Br. Case 7 H. 4. 21 H. 7. and Dier fol. 116. and 7 H. 4. fol. 4. and 21 H. 7. 8. and many other Books be that no Averments shall be taken to the returns of Sheriffs to take any Issue thereupon And in Dr Bonhams case upon a Habeas corpus the Physitians returned the cause of his imprisonment which was false yet he could not be admitted to traverse the same But yet by the opinion of these Books an Action upon the case lieth against the Major and Aldermen against the Bishop for their certificates and against the Sheriff for their false returns and if Justifications be made by them they may be traversed But these will not reduce the parties to their former liberties viz not the Alderman to his place nor the Parson to his Church but damages in those cases are only recoverable These cases I have put as Reasons and Arguments against our Case of Sewers But yet I am of opinion that a Traverse may be taken to a Presentment made in this Court of Sewers and herein this Court may be resembled to a Sessions of the peace And this Commission of Sewers gives the Commissioners of Sewers power to hear to determine at the Kings suit as well as at the suit of the party and a Traverse lyeth of a Presentment found before Commissioners of Oyer and Terminer and is triable before them by the Books of 29 Assiz pl. 33. and 12. lib. Assiz 21. and 29 Assiz 12 Assiz pl. Com. the Earl of Leicesters Case in Plow Com. fol. 397. and
Gen. cap. 1. of all other creatures being finished the Heavens adorned and the Earth replenished God said Let us make man in our own Image after our likeness and let him have Dominion over the fish of the Sea and over all the Earth and every creeping thing that creepeth upon the Earth So God Created man in his own Image in the Image of God Created he him Male and Female Created he them and said unto them Be fruitful and multiply and replenish the earth and subdue it and have Dominion over the fish of the Sea and over the foul of Heaven and over every living thing that moveth upon the earth This was the first Commission that ever was granted and it passed under the Divine immediate Seal of the Almighty extended over the whole world and by the vertue of the word Dominamini in the Plural number God coupled the woman in Commission with the man But in the 18 Chapter of Exodus Verse 21. Jethro adviseth and counselleth Exodus 18. Moses his Son in law to provide out of all the people men of truth hating covetousness and place such over them to be Rulers of Thousands Rulers of Hundreds and over Fifties Tens where by the word Men twice repeated by Jethro and this place of Scripture seemed to exclude wholly from Government and the former Commission extended over Fishes Birds and Beasts and neither over men nor women And in the first of the Corinthians Chapter 14. it is said by Saint Paul Let the women keep silence in the Churches for it is not permitted to them 1 Cor. 14. to speak And in Grendons Case in the Comment fol. 497. Dyer saith That women could not administer the Sacraments nor were they permitted to say Divine Service And in the second Chapter of Timothy Verse 12. he saith We suffer not the woman 2 Tim. to rule over the man but this last of Timothy may be most aptly applyed to husband and wife I remember out of the Abbey Book of Evesham this Note worthy of observation Quod Alicia Peeres Regis miniona supra modum mulierum nimis supergressa sui etiam sexus fragilitatis feminiae Immemor nunc Justiciarios Regis nunc in foro ecclesiastico juxta doctores sedendo pro defensione causarum suadere etiam contra jus postulare minime verebatur unde propter scandalum petierunt à rege in Parliament ' tent ' An. 50. Ed. 3. penitùs amoveri but hereby I collect that she was not in Commission with the Judges Temporal or Spiritual but was a favorite of the Kings and took upon her to intermeddle in businesses nothing concerning her But whether the Text meant it for a woman to sit Judge in a Court of Justice was contra modum mulierum or because she sate there to wrest righteous Judgement I refer to the readers of that History For Debora was Judge of Israel and Judged the people as the fourth of Judges hath it Dyer indeed saith in Grendons Case That divers Churches were appropriated to Prioresses and Nanneries whereof women were the Governesses whereby and by the said Chapter of the Corinthians it appears that women might be admitted to have Rule and Government over the possessions and persons Temporal and Ecclesiastical but were not admitted to have curam animarum nor to meddle with the administration of the Service or Sacraments And for Temporal Governments I have observed women to have from time to time been admitted to the highest places For in ancient Roman Histories I finde Endochia and Theodora admitted at several times into the sole Government of the Empire and here in England our late famous Queen Elizabeth whose Government was most renowned And Semiramis governed Syria and the Queen of the South which came to visit Solomon for any thing that appears to the contrary was a sole Queen And to fall a degree lower we have presidents that King Richard the first and King Henry the fifth appointed and deputed by Commissions their Mothers to be Regents of this Realm in their absence in France And the wise and renowned Lady Margaret Countess of Richmond was put in Commission and Humfrey de Bohune Earl of Hereford was by Tenure Constable of England which is a Judge in Martial affairs and he died without issue Male by reason whereof the Office amongst other things descended to his two Daughters and Co-heirs And in the 12 of Elizabeth in Dier it is holden for Law That although this was an Office of Justice yet they might execute the same by deputy for in truth women were unfit Martialists to judge of matters of that nature and yet it is clear a deputy doth nothing in his own name but in the name of his Master or Mistriss therefore the Martial Court was to be kept in their names But yet I will descend a step lower doth not our Law Temporal and Spiritual admit of women to be Executrixes and Administratrixes and hereby they have the rule or ordering of great Estates and many times they are Gardianesses in Chivalry and have thereby also the government of many great Heirs in the Kingdom and of their Estates And in 10 H. 7. a man devised his Lands to be sold by a 10 H. 7 woman and died and she sold the same to her husband So by these Cases it appeareth that the Common Law of this Kingdom submitted and committed many things to their government yet the Statute of Justices of the Peace is like to Jethroes counsel to Moses for there they speak of men to be Justices and seemeth thereby to exclude women But our Statute of Sewers is Commission of Sewers shall be granted by the King to such person and persons as the said Lords should appoint So the words persons stands indifferently for either Sex And therefore although by the weakness of their Sex they are unfit to travel and they be for the most part uncapable of learning to direct in matters of Judicature for which causes they have been discreetly spared yet I am of opinion for the authorities reasons and causes aforesaid that this honorable Countess being put into Commission of the Sewers the same is warrantable by the Law and the Ordinances and Decrees of Sewers made by her and the other Commissioners of Sewers are not to be impeached for that cause of her Sex And I conclude here that although in discretion women have been secluded as unfit yet they are not in Law to be excluded as uncapable If an Infant above the age of Fourteen and under the age of One and twenty be made a Commissioner his infancy shall be no cause to disable the Laws made by him yong Daniel was Judge over both the Elders And in Little Brook fol. The case is a Parson or Prebend being within age made a Lease for years of his benefice and would but could not after avoid it for his Nonage for seeing the Church had made him of full age to discharge the spiritual
depending upon others and many such double contingents may be put The Case of Sir Edward Cook put in the end of the Rector of Cheddingtons Case out of 12 Lib. Ass pl. 5. in my 12 lib. Assize opinion doth not disalow the second Condition for there the Case is That A. Leased to B. upon condition That if A. or his heirs pay to B. Ten pounds within a certain day that they might re-enter and if A. nor his heirs should not pay the Ten pounds within the time Then if B. paid to A. Ten pounds at another day that he should have Fee Both A. and B. failed in payment and A. entred and being put out brought an Assize and nihil Caepit per breve this doth not prove that one condition cannot depend upon another neither can I see well what Exposition to make of so uncertain a Case so that I take this Case to be no evidence against mine But in the 14 H. 8. fol. 15. there is a Case which in my 14 H. 8. fol. 15. opinion makes more against my double condition then any other which is put by Brudnel Chief Justice that is If A. be bound in an Obligation to B. upon condition to infeoff I. S. before Easter ensuing then the Obligation to be void and if he do not infeoff him then to pay Ten pounds at Pentecost then the Obligation to be void The Feoffment is not made before Easter therefore Brudnel held the Obligation was forfeit and that the second Condition was not good But there is a Quaere set upon that Case and so it may well be for I see it commonly done that if a defesans be made of a Statute which is broken and so the Statute becomes forfeit yet a new defesans may defeat it and so in my opinion may the second Condition in this Case avoid the Obligation if the first conclusion had not been in the Case I shall adde this Case also as a conceit that is A. infeoffs B. upon condition if A. go to Lincoln he shall have the A Conceit Lands to him and the heirs of his body and if he go to Boston he shall have it for Ten years and he goes first to Boston I do here hold these Conditions being put promiscuously without distinction of the times of the Conditions which shall be first performed and which the second that the Fee is decreased into an Estate for years and can never increase into an Estate in tail by performing of the second Condition because the Livery out of which it should grow was quite destroyed by the first decreaser So that my intent Sâ—â—ond Point appears that one Condition may depend upon another upon the said distinction but whether by the performance of the first Condition in my Case there will an Estate come to B. or not I meant it for a question for B. had before an Estate for his own life then is it not possible that his Estate can hereby be increased by having the Land also for the life of C. if it be admitted argumenti gratia that B. shall or may have both these Estates stand in him both at one time for if C. dyed first then is B. never like to have any benefit thereof And if B. himself should dye before C. then also were it impossible for B. to make any use of this Estate for the life of C. unless it were in him to grant away to another as in the Case of the Office in the 1 H. 7. where an Office 1 H. 7. 29. Crofts Case is granted to the King the King could not have the Office himself and so in that point for the King to take by the grant he could not yet by that book it was in him to grant over to another which might have it And like to this is the Case where I. S. is Parson of the Church of Dale and the Patron grants the next avoidance this grant can he himself take no benefit by unless he resign yet if he dye it shall come to his Executors But I take the Law to be in my Case that B. shall not by the first Condition have both the Estates in him at once that is for his own life and after for the life of C. but that the Estate of B. by the first Condition shall be decreased or changed from his own life into the life of C. and shall be melted and newly molded by this Condition for an Estate may as well decrease as increase by a Condition and yet the Lord Staffords principal Case was That Queen Elizabeth did grant the Mannor to Tindal and the heirs of his body upon condition upon payment of Twenty shillings to her by Tindal that he should have the Reversion to him and his heirs and there it is holden for Law that by the payment of Twenty shillings the Reversion in Fee simple shall increase to Tindal and shall not alter or drown the Estate Tail which is an excellent Case but alter the putting of that Case and then it may alter the Law also that is I give Land to I. S. and the heirs of his body upon condition A Conceit if he pay me Twenty shillings that he shall have the said Lands to him and his heirs In my conceit by the performance of this condition the Estate Tail is by increase changed into a Fee simple in which note the difference between Tindals Case and this where upon payment of 20. s. the reversion is granted to him and his heirs and where the words be That upon payment of Twenty shillings he shal have the Lands to him and his heirs In the first Case the Fee-simple accrewing shall not alter the Estate Tail but in the second Case by the Fee increasing the Estate Tail is determined and changed into a Fee simple quod quaere Admitting the first condition did increase the Estate of B. from his own life to the life of C. and the second condition is performed by the which another Estate will accrew to B. as I take it will because an Estate decreased is parcel of the first Estate then what Estate B. hath got by this new Limitation is the question And in my Opinion he hath at the most but gotten an Estate again for his own life and that the Limitation to the heirs of the body of his father is utterly void be his father dead or alive for if his father be dead his elder brother is the heir of his body within these words of Limitation who cannot take the Lands by descent Littleton estate Tail from B. his Brother or from his Father but as the Case is put in Littletons Title Tail and in the 4 and 5 Ma. in Dier Ereswoulds 4 5 Ma. Dier Case where Lands were given to the eldest son and the heirs of the body of his father this is a good Estate in Tail being made to the eldest son because he is capable to take the Lands in
Jury in whose default the same happened Thirdly the Commissioners are to enquire What person or persons ought or be bound by Custom Prescription Tenure Covenant or otherwise or for or by reason of what lands or grounds he or they be tyed or bound to do the repairs and where those grounds do lye and who be the owners thereof Fourthly also it must be inquired by Jury What grounds lye within the hurt or danger of waters either within the surrounder by the sea or the inundation of the fresh waters and to whom they do belong Fifthly and if a new Sluce Goat or other defence is to be erected built and made or a new Sewer Gutter or Trench to be cast this may be determined of by the view and survey of the Commissioners and so may the aptness of the places where they are to be set or cast and the length height bredth and depth of them for these things are proper for a view and survey But what persons hold Lands and Tenements within the Level which are fit to be chargeable thereunto and the quantity of their Lands are to be inquired of by Jury And these few causes I have put for example sake and if any other fall out within the like reason then they are to receive the same construction Sixthly in every case where an Amerciament is to be imposed it must be by presentment of good and lawful men upon their Oaths Et hoc per statutum de Magna Charta cap. 14. nulla miserecord ' ponatur nisi per Sacramentum proborum legalium hominum de viceneto c. Surveyors presentment BUt it hath been used that Surveyors of the Sewers have made presentments of defaults of things governed by these Laws but whether such a presentment be binding or not is a good point It is clear in my opinion that they can make no presentment but such as happeneth within their view and survey and what those things be they formerly appeared They cannot present that I. S. is bound by prescription custom covenant or otherwise to repair such a Wall Bank or Sewer for this is not within their Office In Kelloways Reports fol. 141. there is a custom alleaged that Kelloways Rep. fol. 141. two men within the provost might present the Articles of the Leet But I doubt of such Presentment though it have a custom to strengthen it I take this difference that an Original Presentment Surveyors cannot make as to present I. S. that by the Tenure of his Lands he ought to repair such a Bridge Wall Bank or other Defence But the Surveyors may make a supplemental Presentment as for example if it hath been presented before by a Jury that I. S. ought to have repaired such a Ditch and hath not done the same and day is given him by the Commissioners of Sewers to do the same if the same be not repaired at the day the Surveyor may present in this case the not repairing because this is but an Oath of assistance ad informandum conscientiam Judicis for the Amerciament shall be imposed by the force of the said former Presentment and this latter Presentment by the Surveyors is onely to give the Justices notice of the parties farther neglect to the end they may impose the greater Amerciament And a Presentment by Surveyors is not traversable being of so smal esteem in Law as our Law will not vouchsafe to take an issue upon it for their act herein is not in the ordinary legal form What Commissioners of Sewers may do by Discretion DIscretion is the herb of grace that I could wish every Commissioner of Sewers well stored withal for the makers of this Statute had an intention to make it of great use being literally nominated nine or ten times in this Law for this cause I have inserted in my Case but note that the word Wisdom is coupled with it and the word Good is annexed to them both as best shewing of what pure mettal they should be made of After your good wisdom and discretion There be three several degrees of discretion Discretio generalis Discretio legalis Discretio specialis Discretio generalis is required of every one in every thing that he is to do or attempt Legalis discretio is that which Sir Edward Cook meaneth and setteth forth in Rooks and Keighlies Cases Hoc est scire pro legem quod sit justum and this is meerly to administer Iustice according to the prescribed rules of the Law and herein is this discretion limited that it go not beyond or besides those Laws which are to be executed And this discretion is to be governed by the Laws for Cicero saith Sapientis est judicis cogitare tantum sibi esse permissum quantum Cicero sit Commissum aut creditum The third discretion is where the Laws have given no certain rule to be directed by in a case within the power of this Commission there the Commissioners are to order these affairs with such wisdom and judgement that although their censure be not framed in a Rule of Law yet they are to do therein secundum aequum bonum and herein discretion is the absolute Iudge of the Cause and gives the rule But in the case of Legal discretion there discretion is but a servant and is tyed to attend upon the Law and there the Law directs the censure and discretion is but to do the same wisely temporally for ipsae etenim leges cupiunt ut jure regantur Sir Ed. Cook in Book Case 5 Report gives this rule to the Cato Commissioners That although the words of the Commission be That they should do according to their discretions yet their proceedings ought to be limited and bounded within the Rules of Law and Reason for that discretion is a Science to discern betwixt falsity and truth between right and wrong between shadows and substance betwixt equity and colourable glosses and the Commissioners ought not to follow their wills and private affections for That talis discretio discretionem confundit And therefore now I will declare in few words in what things these Commissioners are to be ruled by good discretion First the quantity of Fines be left to the discretion of the Commissioners Item Imprisonment of the bodies of the offenders when they deserve and the time how long lieth much in their discretion Item it lieth in their grave wisdoms and discretions when and where to erect new Walls Banks and other Defences and what sums of Money to Raise and Levy therefore The election of Officers lieth in their discretion It lieth many times in their discretion whom to fine and whom to imprison I take it this word Discretion used in the Statute giveth power to the Commissioners to order businesses there arising in course of equity for hoc nihil aliud est but to proceed secundum aequum bonum I have put these few Cases as examples to direct and instruct what may be done by
petty matters the Lessee for years shall be at the sole charge for these may be spent in his own time So I suppose my meaning is herein well perceived which is That in petty annual and ordinary repairs the Lessee alone shall do the same but where the same wants in great timber or when a new defence is to be built they shall both be at the charge And with this the Statute of 7 Jac. cap. 20. doth directly in reason agree withal out of 7 Jac. cap. 20. which Statute it is plainly to be observed that in the great repairs as also in the new building as well the Lessor as the Lessee shall be both at the charge Yet in the Statute of 3 Ed. 6. cap. 8. there is a clause in effect That all Lots Scots and sums of money hereafter to be rated by the Commissioners of Sewers upon the Kings Lands shall be gathered or levied by distress on those grounds as in case of other persons and that all Bills of acquittance signed with the hand of such Receiver or Collector shall be a sufficient Warrant to the Auditors and Receivers and other the Kings Officers for allowance to the Farmer or Tenant to the Kings Majesty Whereby it appeareth that the Farmer of the King shall not be at the charge but His Majesty yet by the Statute 13 Eliz. cap. 9. it may be collected that the Lessor for years shall be charged but all 13 Eliz cap. 9. these are to be reconciled with my said diversity But now it may be objected to me Sir do you think it reasonable or possible for Commissioners of Sewers to take notice at the Nota. first of every private mans inheritance and the several Estates which the parties have therein when it will scarce be possible by private search to finde them out To this I answer That it is not reasonable to tie the Commissioners to such difficult and obscure businesses but it is sufficient for the Commissioners to impose or lay the rate tax or sesse on the grounds or on the visible possessors thereof and if the money so rated be demanded on the Lessee for years or for life or if the goods be distrained therefore or they be compelled to pay the same then they may come before the Commissioners and shew forth their lease and make it appear that I. S. hath the Reversion and as the case is to be charged as well as himself and upon due proof thereon made the Commissioners upon hearing the parties on both sides may apportion the tax on either of them as in Justice Discretion and true Judgement is requisite And so if a tax be set upon Land the owner may come in before the Commissioners and make it to appear before them that I. D. hath a common and Rent thereout and upon proof thereof made the Commissioners are to lay the charge accordingly And so it shall not tie the Commissioners at the first to lay the charge upon every particular person for that were opus in finitum impossibile but to relieve the parties upon their complaint and this may be easily done and it stands with the Justice of these Laws so to do And if the parties grieved will not complain for relief let it be justly accompted their own folly and no injustice of the Commissioners for the very Statute directs that such as are 1 H. 4. ch 12. grieved shall have relief upon their complaints which confirms my opinion in this point Taxes Rates and Sessments imposed meerly by the Laws of Sewers I Have formerly put nine several matters to tie men to the repairs and this by the Laws of Sewers is the last but not the least of them I propose these to be by the Laws of Sewers because they be not backed helped aided or assisted by Customs Prescriptions Common right or by any other Rule of the Common Law or by Tenure or Covenant or any act of the party as all the rest be but are only composed made ordered and directed by the sole power and authority of these Laws of Sewers and these are such as fall out of all the fomer rules and therefore in nova causa novum remedium est adhibendum But yet before I enter into my own works I will set down and declare the opinions delivered in Rooks and Keighleys Case which seemed one of them opposite to the other for in Rooks Case it is said That if one be bound in respect of his Lands to repair a Wall or Bank by Tenure Prescription or otherwise that yet the Commissioners of Sewers could not assess the said party alone to repair the same and said that the Commissioners were not tied to the Rules of Prescription Tenure Custom or otherwise but ought to assess all the Level to do the same which are to have good thereby But this being mistaken is very justly and discreetly altered in the said Case of Keighley by the Author himself for how could it be presumed that the learned makers of this worthy Law would have stricken down at one blow so many thousand Prescriptions Customs Tenures Covenants and uses as be within this Realm which be tied and bound to do and make the repairs in this kinde some in consideration of houses and land others for yearly Rents and for other causes which to have set at liberty and to have imposed the charge on the Levellers would have wrought and brought a wondrous innovation change and alteration in these works all which by this exposition are freed and saved But yet there be certain Cases which of meer necessity lay the charge upon the Level which are as follows The charge upon the Level FIrst if any grounds were heretofore by Custom Prescription Tenure or otherwise obliged and bound to repair any Wall Bank River Sewer Goat Sluce Jetty or other Defence which grounds so charged have been of late devoured and overflown by the Sea and so remain The Commissioners of Sewers are in that case tied to lay the charge now upon the Level which stand in danger of taking hurt by the not making the repairs or which are to receive good by the doing thereof Secondly also if A. B. be bound by the Tenure of his land to repair a Bridge Calcey or Bank and he dieth without heirs whereby the Land escheateth to the Lord of the Fee in this Case the Tenure is ended and the chief Lord is not bound to the repairs and therefore now the charge must lie on the the Level and so is the Law if this Tenure had been in other sort extinguished Thirdly where no persons or grounds can be known which ought to make the repairs by Tenure Prescription Custom Covenant or otherwise then the Commissioners of Sewers are to lay the charge on the Level Fourthly if John à Stile be chargeable to make the repairs and be not able to do the same here the Level are to be charged to assist him therein as appears in Keighleys
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
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
further in proof of my said opinion the Case of the Lord Cromwel in 15 El. in Dier fol. 322. doth come fully thereto which is That a Replevin in an Avowry was made for a pain and forfeiture of Ten shillings due for the breach of a By-law Contra ordinem Curiae and alleaged to make By-laws within the Manor by the Custom thereof In which Case it is apparant that the proper goods of the party are to be distrained therefore and not the goods of a Stranger Levant and Couchant on the grounds And in the 47 Ed. 3. fol. 12. the Prior of Tindals Case 47 Ed. 3. where the Prior was amerced and another mans goods were taken and distrained on the grounds of the Prior for the said Amerciament and the Distress was not well taken and so my opinion may be conceived that for an assess the goods of a Stranger may be distrained on the grounds charged but may not there be taken for a Fine or Amerciament which be collateral duties and attends upon the person and do not charge the Soil This discourse being thus ended I shall now enter into a matter of greater moment and yet because these matters be frequent in businesses of the Sewers that which I shall here pretermit I will in some other place more fully discourse of Goods sold THe further matter of this point will rest upon this whether goods distrained and taken for a Sess and Rate of Sewers may be sold or not which point hath been oftner practised then the Law truly decided But before I shall touch upon the main I will make an Ingresse to treat of such matters whereby the property of a mans goods may be altered without his consent And first at the Common Law if a mans goods be wrecked waived or taken as strays or sold in Market overt the property may be altered Secondly by Custom as in London upon a Foraign attachment goods may be attached and sold to another and in 10 El. Dyer fol. 279. B. a Custom is alleaged to be in York of Foraign goods there bought and sold are seizeable by the Corporation and so in case of a Heriot Custom Thirdly But the King by his Charter cannot take the properties of my goods from me as in the Case of London Cooks Rep. the Case of Austen and Waltham where King Henry the 6. granted to the Corporation of Dyers there by Charter That if upon search they should finde any Clothes died with Logwood that they seized them as forfeit but resolved that this Grant was in that point void Fourthly by a By-law in a Court Leet or Baron the property of my goods cannot be taken from me And fifthly by a Judgement against one at the Common Law although a mans person nor his Lands were lyable thereto yet his goods were These five grounds being first taken I shall now examine the particular of our Case in question touching the Law made by the Commissioners for sale of goods and against this sale many things may be alleaged First this Statute I read on gives a Distresse and a Distresse is but a gage or pledge and cannot be sold for if a Lord distrain his Tenants Cattel for Rent and Services he cannot sell the Distresse And although in 10 11 El. Dier fol. 280. a return irreplevisable was awarded to the Lord or Avowant yet he cannot sell this Distresse nor work them by the opinion of that Book Secondly the Statute of 7 Jac. cap. 20. Rastal Marshes and Fens doth enact that a Commission in the nature of this of ours should be directed to the Bishop of Norwich and others for the Recovery of Fen-grounds where for an assess imposed and for Fines and Amerciaments expresse power is given by that Statute to sell the parties goods which doth refuse to pay Ergo without such an expresse clause a sale of goods could not have been lawful And by the Statute of 1 and 3 Jac. the forfeitures of Alehousekeepers 1 3 Jac. may be levied by sale of their goods by the expresse letter of these Laws and so it may be inferred that our Statute wanting such an express clause to authorize a sale therefore no sale can be But much may be said to the contrary for although in cases of sale the Laws be tender yet it is plain that both our Common Law Customs and Courts of Justice daily use them and are frequent in those sales And we know that a Distresse is properly a pledge to be detained till satisfaction be made and then to be restored and is not to be sold Yet in 3 H. 7. fol. 4. a Distresse taken for an Amerciament 3. H. 7. in a Leet or Law-day may be sold as well in the case where the Subject hath by Charter or Prescription the profits of the said Courts as where the King himself hath them and all the reason which that Book yieldeth for it is because they be the Kings Courts But a Distress taken for an Americament in a Court Baron cannot be sold and in 22 Assiz plac 72. it is said That if one recover a Debt in a Court Baron the goods of the Debtor could not be sold therefore 22 Assiz Yet I have seen always in practise that for Debts and Damages recovered in the County Courts the goods of the Debtors have and be usually sold for them by Levarifacias and in my opinion this is used per totam Angliam and a sale in such a case in a Court Baron by Custom is good and with this agreeth the Book of 7 H. 4. fol. 27. and 21 H. 7. fo 40. in a Leet Court one prescribed and alleaged a Custom to 7 H. 4. 21 H. 7. have of every one which made an affray within his Liberty a certain sum of money and prescribed also to distrain for it and to sell the Distresse and with this agreeth 11 H. 4. 14. and 11 H. 4. fol. 2. A Distresse taken for the Knights Fees of the Parliament was sold Therefore now let us see and examine well by what authority our Officers of Sewers may sell the Distresses taken The words in our Statute which are most powerful in this point be these viz. To depute and assign diligent faithful and true Keepers Bailiffs Surveyors Collectors Expenditors and other Officers for the safety conservation reparation and making repairing reforming and amending of the Premises and every of them and to hear the accompt of the Collectors and other Ministers of and for the receipt and laying out of the money that shall be levied and paid in and about the same Here is the word Levy used and money levied is properly upon a Sale Execution or Forfeiture And the words of our Statute go furthet viz. And to distrain or otherwise to punish the debtors and distrainers of the same by Fines Amerciaments Pains or other like means after their good discretious and no likelier means to these is there any then to make sale of the
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
for a Distresse taken in the Kings Court for that they be of a superior authority and jurisdiction to these inferior Courts of Sewers And therefore the Replevins which our Statute aims to give way to are intended to be taken out of the Kings Courts which in Law and Justice ought to be obeyed and not from the Sheriff or his Officers by vertue of their Office only But in my case the Commissioners made a Law that the goods of A. should be sold without allowance of Replevin which is a good Law upon the distinctions and diversities aforesaid that is that A. who was the person assessed might not have or take a Replevin because he was a person bound expresly by the Law nor that the Sheriff or his Officers Ex Officio might grant a Replevin to deliver the same being under the power of this Law of Sewers But the Kings Courts at Westminster may in those cases of Sewers deliver the Distresses and this construction made of this Statute as I take it stands with Law and reason And in the 31 Ed. 3. Brook Replevin plac 60. the Case is put a man did grant to A. B. a rent out of his grounds 13 Ed. 3. with power that if it were behinde that he might distrain therefore and detain the Distresse against gages and pledges and yes it was adjudged that if the Rent were behinde and the grantor distrained he could not detain this Distresse against the Replevin Yet here were the direct words of the party himself to the contrary but his words could not overrule the Law So that upon all these matters I hold these Tenents following Imprimis To make a general Law to restrain all Replevins granted either from the Sheriff or the Kings Courts is no good Law or Ordinance of Sewers for that Replevins de jure are in such cases grantable out of the Kings Courts and such a general Law savors too much of oppression in stopping up the Gates of Justice Secondly for a Sheriff or his Deputy to grant and award Warrants of Replevin Ex officio to deliver goods or cattle distrained and detained for a Tax and Law of Sewers is in my opinion against Law and need not to be obeyed for that the Distres was Sub protectione superioris Curiae which is of a higher degree then a Sheriffs Ministerial Warrant Thirdly if a Distresse be taken and sold for a Sesse of Sewers a Replevin lyeth against the buyer for by the sale the goods and cattel were put out of the protection of the Court of Sewers Fourthly if a Rate or Tax be imposed by the Laws of Sewers upon I. S. the goods of Iohn a Downs be taken therefore on the ground of I. S. which were charged I. D. may sue a Replevin of his said cattel from the Sheriff for that he nor his goods were not expresly bound by the Laws of Sewers Fifthly a Replevin lyeth out of the Kings Courts of Westminster to deliver a Distresse taken and detained by the Laws of Sewers for that they be Courts de altiore natura Sixthly a Distresse taken by a Lord on his Tenant for not repairing a work of Sewers which by the Tenure of his Land he ought to do and repair the Tenant may sue a Replevin from the Sheriff Ex officio to deliver the Distresse for that this Distresse was not taken or detained by Warrant Judgement or Decree of Sewers Seventhly If upon a Judgement given in the Kings Court or upon a Decree made in this Court of Sewers a Writ or Warrant of Distringas ad Reparandum or of that nature be awarded and the parties goods be thereby taken these goods ought not to be delivered by Replevin to be taken either out of this Court or out of any other Court of the Kings because it is an Execution out of a Judgement Eighthly although one grant a Rent out of his Land with clause of Distresse and with Grant or Covenant that the Grantee may distrain and detain this Distresse till he shall be satisfied his Rent Yet a Replevin lieth in that Case A perpetual charge SO now I have fully and at large declared my opinion touching Distresses and Replevins wherein I hope I have fully satisfied the first point of my Case I intend therefore now to proceed to the sixth point which concerns charges and sales of Lands to be made by the Commissioners of Sewers by the power and authority of this Law And first I suppose the question may be extended to this that is Whether the Commissioners of Sewers can impose a perpetual charge upon Land to repair a work of Sewers for ever by the power of these Laws I do here acknowledge that this is a knotty Point yet something may be alleaged in maintenance of this Opinion Affirmatively For in the parts of Holland in the County of Lincoln almost every one knows which part he is to repair and maintain in perpetuity And Experientia est optima interpres rerum And it appeareth by the Charter of Romney Marsh pag. 12. That the use there was to impose perpetual charges on singular persons Char. Romney Marsh pag. 12. For the words there be these Juratores per eor ' sacrament ' mensur abunt per perticam omnes terr as Tenementa quae infra dictum Mariscum periculo subiacent quibus mensueration ' factis viginti quatuor per communitatem prius electi jurati habito respectu ad quantitatem Walliar ' terrar ' Tenement ' quae periculo subiacent per eor ' Sacramentum ordinabunt quantum ad predictarum Walliar ' sustentationem reperationem faciend ' sustinend ' ad quemlibet pertineat ita quod proportion ' acrar ' terrar ' periculo subiacent ' singulis assignetur sua portio perticar ' predict ' assignatio fiat per locos certos ita ut scietur ubi per quae loca ad quantum singuli defendere teneantur These words in this Charter seem to be plain That by the Laws established in Romney Marsh the Commissioners had power to assign to every man his portion to repair in perpetuity but I finde no such words in our Statute And whereas it may be said that our Commissioners have power to make sale of the Lands Ergo They may charge them perpetually but this is a non sequitur for that for the sale they have expresse Warrant but not so for the charge And powers and authorities must be duly pursued and are not to be taken by equitable or argumentable collections or implications so that it may seem the Laws of Sewers were never held so perdurable as to binde mens Lands with perpetual charges And therefore this difference I take That by the Custom of a town or country every one may know his particular portion which the owners of grounds are obliged and bound to repair perpetually but without such a Custom it hath been held That the Commissioners of Sewers cannot binde any mans inheritance to a
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
sit Commissioners by this Statute for they have these Lands in eorum usu during the time they continue in their places which in intendment of Law is for their lives but yet by the intendment of Law they are not to sit in the execution of any humane affairs and therefore seeing their persons are out of the intendment of this Law so likewise should their Church livings be but this is but a conceit for although they be not persons having these Lands within the Statute of 32 H. 8. of Wills which is a having to dispose yet they may be within our Statute which is a having to retain If an Executor have a Villain for years which purchaseth Land of Forty Marks per annum he may sit in the execution of this Commission for till his Lord enter he hath them to his own use but if the Executor enter then neither the Villain nor Executor can sit a Commissioner by this Law If an Alien purchase Lands of sufficient value in Fee he in respect of his person is a disabled person to sit neither is he a person having Lands because he is not seised thereof to his own use but to the use of the King But if he be made a Denizen then in his person he is made capable The Warden of the Fleet who hath Lands belonging to his Office may in respect thereof sit a Commissioner by this Law But shall a Termor or Lessee for years of Land of good value be thrust out of Commission and be counted neither a sufficient Landed man nor his Term and Lease to be accepted moveable substance and not only so but that his Farm shall be a further disablement unto him as the Statute of 13 El. cap. 9. seemeth to purport the words of which Statute be That no Farmer or Farmers for Term of years of any Maners Lands or Tenements lying or being within the Precincts or Limits of any such Commission of Sewers which be or which hereafter may be ordered and chargeable by any Laws Ordinances and Constructions made or to be made by vertue of any such Commission wherein he or they shall be named or appointed Commissioner or Commissioners not having Estate in Freehold within the Realm of or in Manors Lands or Tenements of the yearly value of Forty pounds shall any time hereafter have power to sit or in any wise intermeddle with the execution of such Commission or Commissions during the time he or they shall continue or be such Farmer or Farmers of any such Maner Lands and Tenements and shall not have Estate of Freehold as aforesaid but that every such Commission having respect only to every such person or persons for such and so long time as he or they shall be or continue Farmer or Farmers of any such Manors Lands or Tenements shall be denied and judged in Law as void But yet in the closing up of that Statute of 13 El. there is a Proviso to this effect Provided always that it shall be lawful for any Commissioner being also a Farmer and not having Lands or Tenements to the clear yearly value of Forty pounds of Freehold to sit by vertue of the said Commission and have his voice and full authority with others to make and establish Ordinances for Sewers according to the Tenure of the Commission touching and concerning all Lands and Tenements within the Precinct of every such Commission other then such Lands and Tenements as he or they for the time hold and enjoy as Farmer as he or they might have done before the making of that Statute but he could not have sitten in execution of this Commission before the making of this Statute unless he had besides his lease Lands to the value of Forty Marks per annum And therefore a Lease for years is no inablement at all but a disablement as this Statute declares But the times when this having of Lands c. will suffice to qualifie a Commissioner to sit within this Law is now to be considered of wherein I am opinion that the When having must be referred to the Then sitting For the words of the Statute be That none take upon him to sit not having Lands to the yearly value of Forty Marks so that if he have not Lands of that value when he is first made a Commissioner yet if he have so much when he sitteth upon the Commission it will satisfie this Law and if once he have Land of that value and sitteth and after sell the Land away or if they be evicted from him he is then disabled to sit as a Commissioner by this Statute And so if he were but Tenant for the life of I. S. and I. S. dieth he ought not to sit In 12 H. 7. 7. a Juror which was to pass upon tryal of Land was to have Forty shillings per annum of Freehold and 12 H. 7. 7. after he was impanelled and before he was sworn he sold away his Land and when he came to be sworn he was challenged for want of Freehold but the chalenge was disalow'd for after he was impanelled his land though after sold away was chargeable with the issues which he after might lose in that matter and with this agreeth 14 H. 7. 2. by Frowick But our Statute is more precisely penned which is That none do presume to sit unless he have Lands of that value or be c. therefore when he sits he must have the Lands And if A. do bargain and sell his Lands to B. by Deed intended of that value and before the Inrolment of the Deed B. do sit as Commissioner and after the Deed is Inrolled yet this doth not qualifie his offence and the relation of the working of this Deed doth not assist him to take off the penalty of this Law Also a man disseised is during the Disseisin disabled to sit for he had not then power to devise the Lands by the Statute of 32 H. 8. of Wills for that Statute doth as ours doth use the word Having in presenti and not in futuro And thus much I thought convenient upon this occasion to deliver my opinion when the Commissioner must have his Lands of Forty Marks per annum to inable him to sit as a Commissioner within this Statute To Treat of the utter Barister I need not for when he hath taken the Oath mentioned in the Statute he is an absolute and compleat Commissioner within this Law to all purposes although he have neither Lands or Goods according as the Statute appointeth others to have The second question The second question in my case touching this Statute is Whether the Countess of Warwick be a compatible Commissioner within this Statute Although it is uncouth in our Law to have women Justices and Commissioners and to sit in places of Judicature yet by the Authorities ensuing you shall finde this a point worth insisting upon both in Humane and in Divine learning for in Genesis Chapter the first after the creation
Office our Common Law thought it fit to inable him to dispose of his Temporalties and in 21 H. 7. fol. 12 13. 11 H. 7. the case is put by Bridges and confirmed by Justice Sylliard and was not denied by any that an Obligation made by a Major and Commonalty Dean and Chapter Abbot and Covent shall not be avoided for the Nonage of the Major Dean or Abbot yet all these serve in place of government howbeit in the said matters their Nonages shall not impeach them And in the third of Isaiah it is said I will give them 3 Isa children to their Princes and babes to rule over them noting thereby an unfitness in them to govern but debarred them not of the place and of this matter this shall suffice But now admit as oftentimes it falls out that Commissioners shall sit in the execution of this Commission of Sewers which have not taken the Oath which have not Lands of value or which is not a free Citizen and yet there be Ordinances Decrees and Laws made at those times Now whether those Laws and Ordinances so made by a disabled Commissioner be void or not is the question or whether the disabled Commissioner shall only undergo the penalty of Forty pounds There was a Statute made in 6 H. 8. cap. 10. whereby it 6. H. 8. was Enacted That the Chancellor of England for the time being should make no Commission to any person or persons except he had Lands and Tenements of Estate of Freehold to the yearly value of Twenty pounds or else be Justice of the Quorum within any of the shires where he should be made a Commissioner and if any such Commission were directed to any person or persons not having Lands or Tenements to the yearly value of Twenty pounds or not being one of the Justices learned of the Quorum as aforesaid That then every such Commission and all Presentments and Accusations had and presented before any such Commissioners be utterly void and of none effect But this Statute is in time expired long ago and therefore it is no interruption to our Commissioner for although the Statute of 23 H. 8. which I read on hath a Clause in it in effect That all every Statute and Ordinance heretofore made concerning the Premises made in the time of the said King or of any of his Progenitors not being contrary to that Statute should stand in force yet these words do not set on foot a Statute expired in time as that of 6 H. 8. is Also in the said Statute of 13 Eliz. if a Termor or Lessee for years be in Commission all Laws made which concern Lands whereof he is a Farmer are void as to him vide antea But to relie on our Statute of 23 H. 8. in my opinion it 23 H. 8. doth not avoid any of the Laws and Ordinances made by disabled Commissioners but doth onely inflict the punishment and penalty of Forty pounds a piece upon every of them for every time they and every of them shall sit in or about the execution of this Commission yet it seemed in the case de Jure Regis Ecclesiastico That whereas the Statute of first of Elizabeth which authorized the Queen to grant Commissions to natural born subjects that if she had granted the same to an Alien that acts done by him had been void But now my case proceeds to the next point or step and that is touching the Law and Ordinance made to race the said Were I inferred this clause in my case because I had not formerly occasion or fit opportunity to treat of the Lets Impediments and Annoyances which be contained within this Statute of 23 H. 8. and therefore I took this occasion to close up this days exercise with the discourse of them These by name are such Impediments Annoyances as this Statute speaketh of 1. Streams 2. Mills 3. Bridges 4. Ponds 5. Fishgarths 6. Mildams 7. Locks 8. Hebbingweres 9. Hecks and 10. Floodgates And the rest must be cōprised within these general words videlicet Other like Lets and Impediments And the discourse upon all these will rest most upon the Statutes heretofore made touching the same And the first Statute thereof made is in Magna Charta Mag. Chart. cap. 23. cap. 23. Omnes kidelli deponantur de cetero penitus per Thamesiam Medweyam per totam Angliam nisi per costeram maris This extends not to the Kings keddles per keble in 13 H. 7. 35. what this word kidellum signifieth appeareh by the title of that Statute which is Weres The next Statute to this is 25 Ed 3. cap. 4. which doth Enact That all Mills Weres Stanks Stakes Kiddels were levied 25. E. 3. and set in the time of King Edward that Kings Grandfather and after whereby Ships and Boats were disturbed that they might not pass the Rivers as they were wont should be cut and pulled down without being relieved The said first Statute is general that all Weres should be put down but by the Seacosts yet this word All are intended of such only as were erected without lawful Warrant and the said Statute of 25 Ed. 3. doth explain the generality of the said former Statute For thereby it appears That Weres erected in Navigable Rivers where Ships and Boats were wont to sail should be extirped because they were a hinderance to Navigation but this extends only to Navigable Streams which have been Navigable by use and Custom and it is manifest by this Statute that these Weres which were so to be put down must be only such as were erected in the time of Ed. the first and sithence because those seemed to be erected without lawful authority and being but erected in those times they had not the countenance of Custom and Prescription to strengthen them The next Statute in time is that of 45 Ed. 3. cap. 2. which confirms the said Statute of 25. Ed. 3. and then adding thereto that if any such annoyance be done it shall be pulled down and that he which shall relevy such annoyance and be thereof duly attainted he shall incur the penalty of One hundred Marks to the King to be levied by the Estreats of the Exchequer and the penalty is thereby given for the inhauncing of such Weres Mills Stanks Stakes and Kiddels This Statute is in part a confirmation of the said Statute of 25 Ed. 3. and in other part thereof it is a new 45 Ed. 3. Act in these points First in the forfeiture of a Hundred Marks Secondly this is the first Statute in my opinion made against inhauncing of such things which are counted annoyances And Thirdly it gives the like penalty against him which shall relevy the annoyance as against the inhauncer And because this Statute depends upon the said Statute of 25 Ed. 3. it extendeth therefore but to Navigable Streams The Statute of 1 H. 4. cap. 12. is a Statute in these points of great