fol. 57. in Winbish and Tailboys Case it is said That if there be a Bastard Eigne and Mulier puisne and the Bastard after the death of the Ancestor entreth into intailed Lands and dyeth seized this doth not binde the Mulier in case of Estates Tail as it doth in an Estate of Fee simple and voucheth for Authority in the point 39 Ed. 3. plac ultimo where the Case is That Lands were given in Tail to I. S. the Remainder 39 Ed. 3. in Tail to C. and I. S. hath Issue by a woman a Bastard and dyeth seized and then the Bastard dyeth seized having Issue he in the Remainder may recover the Land against the Issue of the Bastard affirming That the continuance of possession in the Bastard shall not be prejudicial to him in Remainder To which Opinion I do subscribe because he in the Remainder is a stranger in blood and so cannot be concluded as the Mulier shall be for a Mulier indeed is like a graft drawn out of both the bloods of Father and Mother so the Bastard is a slip which is derived from the same Stock and had his being therefrom And for my own Opinion considering the Statute of Westminster 2. de Donis doth accept of Gifts in Tail made before Mariage upon the hope and expectation of a succeeding Mariage to perfect the same even so the Mariage succeeding to a Bastards birth gives him and his Issue a priviledge in these cases of descent which is denied to other Bastards or meer Strangers And I see no reason wherefore that maxime and principle of Law should be altered by the said Statute of West 2. but because Mountagues Opinion in Mr. Plow Com. sways the other way I will therefore submit this Point to men of greater judgement then my own So that if the Law fall out for the Bastard Issue then she should have title to the half part belonging to the Females and to no part belonging to the heirs Males And with this Conclusion I do here end my Common Law Points and will now resort to the handling of my Statute Points The Sewers are a Court of Iustice I Am desirous to attribute to this Law all the honor and dignity which may in any sort belong to it and therefore I am unwilling to forget any thing which may materially tend to the upholding and maintaining thereof wherein amongst the rest and the chiefest of them all it is To prove the Commissioners of Sewers a Court of Justice I know some Opinion hath been to the contrary and held That the Commissioners had only the power of a Commission and not any Court and I suppose much may be said to maintain that opinion First because in expressis terminis there is no Court ordained by this Statute or by any other and without words express in the point they can have no Court. Secondly by presidents in the like case it hath been held no Court as in the Case of the City of London in Sir Edward Cooks 8 Report The King granted to the Major and Commonalty Plenum integrum scrutinium gubernationem The Case of the City of London correctionem omnium singularum misteriarum and it was resolved That they had no Court in this case because no Court was granted to them by the Patent as it is holden in Doctor Bonhams Case fol. 119 in the same Report wherein the principal Case there put sways the same ways for there the Physitians had power to imprison and to fine offendors yet they had not any Court thereby And so if a Commission issue out of the Chancery to examine matters in a Suit there depending and to Oyer and Terminer the same yet hereby these Commissioners have not any Court for in that case the Commission is derived out of the proper power of the Chancery which is the Court for that cause eo instante when it is in Commission And one Cause cannot uno eodemque tempore depend in several Courts neither have the Commissioners upon the Statutes of Bankrupts and charitable uses any Courts nor the Commissioners in the Case of 1 2 Eliz. Dier fol. 175. which had power to hear and determine the Office of the Exigenter had not any Court but only the power of a Commission For in truth these are all of them rather Ministerial then Judicial Commissions and so a Court is not proper to them Yet I am of Opinion That the Commissioners of Sewers have an eminent Court of Record It is true that Courts had their beginnings in three sorts First by Prescription Secondly by Charter-grant from the Crown And Thirdly by Act of Parliament 1. The Courts Hundred and Leet began by custom and so did the eminent Courts of Westminster-Hall 2. Courts in Corporations most of them took their beginnings by Charters And 3. The Courts of first Fruits and Tenths and the Court of Wards and Liveries were erected by Act of Parliament the one in 32 the other in 33 Hen. 8. But to bring the question nearer home to our Statute of Sewers which is but additamentum legibus antiquis Sewerarum for they have been used from the beginning of Laws though perhaps not known by that name And yet before the 6 H. 6. they were known by that name as by the perusal of that Statute may be collected And therefore for the causes and reasons hereafter ensuing I hold the same to be a Court. First for that the Statute of 12 Ed. 4. cap. 7. and our very Statute of 23 H. 8. calls the Commissioners of Sewers 12 Ed. 4. Justices and one cannot properly be a Justice or a Judge but in a Court. Secondly here be legal Proceedings and Process for this Statute saith That the Commissioners may make and direct all Writs Precepts Warrants and other Commandments to all Sheriffs Bailiffs and other Ministers c. And the Statute of 1 H. 4. cap. 12. hath these words in it That he that thinks 1 H. 4. himself grieved may pursue and he shall have right and where there be legal proceedings and where parties grieved may come in and have remedies for the wrongs and injuries done to them there is properly a Court of Justice to have them in But in Doctor Bonhams Case the Physitians had no legal proceedings and therefore parties grieved could have no remedy which was the reason they had not a Court. And thirdly the chief reason wherefore I take it that Commissioners of Sewers have a Court is Because the Commission of Sewers is a member of the ancient and renowned Court of Oyer and Terminer which was and is a Court of great esteem power and authority and so it was needless to erect a new Court in this case as it was needful to erect and found the Court of Wards and first Fruits the first would else have remained in the Chancery to the which primarily it did belong and the other was a new revenue and wanted a Court to direct or
examine this part of the Statute which produceth these matters I have framed a Case which doth give occasion in this days exercise to dispute of all them The Case for the second Lecture A. Leaseth his Mannor in the county of Lincoln in which Second Case be Copyholds to B. a yonger Son for his life upon condition to have it for the life of C. upon condition to have it to him and the heirs of the body of his Father A Copyhold is forfeit the first Condition is performed the Commissioners of Sewers in that county upon view survey and by their discretion decree a new bank where none was before to resist the Sea and a new River to be cut to drain the superfluous waters in S. and an old Sewer in D. to be repaired and by inquisition assesses B. the Lessee for the Mannor the Copyholder for the Copyhold Land and the Town of S. and also the Parson there for his Tythes because they lie all in the Level the second condition is performed B. enters in the Copyhold My conclusion is That this new Bank new River and old Sewer be well decreed but the said sesse is void in toto in qualibet parte Points at the Common Law The Points of this Case are three at the Common Law and three upon this Statute but all of them are so woven within another that every one of them go hand in hand from the beginning to the end of the Case Imprimis Whether the Duplicate Condition be good or not Secondly What Estate B. the yonger Son hath by the first Condition and what Estate he hath got by the second Thirdly A Copyhold becomes forfeit to the Lord and before the Lord take advantage of it his Estate is changed Whether by the change of his Estate the benefit of the forfeiture be lost or not Points upon the Statute Imprimis Whether Commissioners have power to decree a new bank a new drain and other new defences or not And herein the qualities and properties of Rivers Streams and Banks and their dependants are to be treated of Secondly Whether they may decree the said new defences by view and survey And herein is to be handled What Commissioners of Sewers may do by survey and what they may do by their discretion and what they may do by Jury Thirdly in what cases Assesses and Taxes may be laid and imposed and on what things and in what maner they are to be imposed and whether the Rates set upon the persons in any case be well done or not and where the fault is if any be Argumentum Lectoris Seeing it hath been the ancient order for the Reader of this place to maintain the Conclusions of his Case I shall therefore endeavor my self to perform that order which Custom hath imposed upon me and accordingly as I have concluded so I take the Law to be And touching the first Point it hath been challenged and drawn in question upon some Opinion delivered in the Rector of Cheddingtons Case in Sir Edward Cooks first Report where it said That one contingent cannot depend upon another Sir Ed. Cooks 1 Report But more strictly it is called to an accompt in the Lord Staffords Case in Sir Edward Cooks eighth Report for there it is Cook Rep. 8. held That one possibility cannot depend upon another possibility and this Case is there put That if A. let Lands to B. for years upon condition to have it for life and upon condition to have Fee that the Fee simple can never increase by the second condition but as he saith in another Case Amicus Plato Amicus Socrates sed magis amica veritas his rule taken in the first Case is very general and the Lord Staffords Case admits distinctions which in my Argument I shall apply my self unto And some differences I shall take in this Point in question therefore I shall thus distinguish That if upon performance of the first Condition the Original Estate be determined upon which both the first and second Condition were built and grounded the second Condition and increase thereupon is utterly void but if the first Estate be not destroyed nor confounded upon the first Condition performed the second Condition and Estate thereof which shall be gotten thereby may then well grow upon the old stock To explain this by Example If A. give Land to B. in Fee simple upon condition to have the Land in Tail upon condition to have for Life here because the first Estate and Livery by the first Condition is not destroyed therefore the second Condition should well stand in force So I do make a Lease to A. for twenty years upon condition to have the Land for forty years upon condition to have Fee this first Condition and second Condition may have both their full operations for by the performance of the first Condition the lease of twenty years is not destroyed but stands on foot and therefore the original Estate remaining unconfounded the Fee simple may well increase by the performance of the second Condition But if a Lease be made to A. for his life upon condition to have in Tail upon condition to have Fee the second Condition here is utterly void because by the performance of the first Condition A. had an Estate in Tail which drowned and destroyed his Estate for life and so because every decreasing and increasing Estate is to depend upon the first Estate which receives the Livery which is the life of all therefore the second Estate can never accrew in this case and this is true reason as I take it of the said Case put in the Lord Staffords Case for there the Case for years was destroyed by the Lease for life which came by the first Lord Staffords Case Condition and so the Fee simple there could never accrew by the second Condition And in answer to the said general ground taken in the Rector of Cheddingtons Case That one Rector de Cheddingtons Case contingent or possibility cannot depend upon another under favor I take it not that I am bound thereby neither was it the meaning of Sir Edward Cook as I take it to extend the same so largely as they are there put because I finde many Authorities of great account which are against the said general position And first in the 38 H. 8. Br. Feoffments pl. 71. a Feoffment 38 H. S. was made to the use of A. and his heirs until I. S. paid him Ten pounds and then to I. S. and his heirs and so to the third person and what is this but one condition contingent and possibility to depend upon another for these contingents there were held good and were built upon a sure foundation And so in Digs Case in Sir Edward Cooks Reports where a Feoffment is made to the use of A. and his heirs with Digs Case power of Revocation and after of new Limitation of Estates these be also contingents and possibilities
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
again to their Successors And in the Case of Sir Henry Nevil in Plo. Com. an Office of a Parker was granted to two and an Annuity for the exercise of it and it is there resolved that the Annuity might not be severed from the Office and so it might be said in my Case That the Mannor which belongs to the Office was at the first laid thereto or given therewithal for the maintenance of the Officer in his place by the Founder and so may not be severed therefrom without his consent And touching the intailing of the Office of the Ranger of a Forest it is held in Mancels Case in the Comment of Mr. Plowden that the Office of a Bayliff or Receiver of the Rents of a Mannor may be intailed So an use and a Copy-hold because these concerned and depended upon Land But the Office of the Master of the Hawks or the Mastership of the Horse could not be given in Tail within the Statute of West 2. de donis conditionalibus nor an Annuity which chargeth the person Yet all these may be given or granted within these intailed limitations but yet they are no intails within that Statute I am of opinion That the Office of a Ranger of a Forest cannot of it self be given in Tail but having a Mannor belonging to it make the question of more moment For as the Office Dese is not intailable so the Land per se may be intailed But Land in our case is not the principal but the accessary accessorium sequitur suum principale and therefore seeing the Land follows the Office as the shadow doth the body and passeth out of his own kinde by the ceremony belonging to the Office and not by the ceremony by which Land is transferred and passed I should therefore take it that the Estate of the Land should be such as the Office of it self might bear which could not be intailed yet because in the said Case of the Forester with Land belonging to it is taken to be in Tail in 1 H. 7. aforesaid with a remainder 1 H. 7. thereof over in Fee I am therefore concluded to make any further question of it and so I leave it as I found it and do passe to the argument of the other points Second Point The second Common Law Point is Whether this gift in my Case be a Frank-mariage or another intail I have observed in Books that there be five things incident to a gift in Frank-mariage viz. First it must be to or with a Cosin within the four degrees Secondly the word Frank-mariage must be literally expressed Thirdly the Reversion must be left at the time of the gift in the donor and then there be two other things follow as consequents Fourthly acquital of payment of Rents and services And Fiftly warranty to secure the Estate And the want of these or any of these in the creation doth destroy that Estate in the conception Here seems to be two Impediments in my Case to hinder this gift to take root as a Frank mariage It is made abnepti which is the Cosin in the fourth degree and the last in those gifts whereby the gift that way cannot have his full operation for that the first Heir of their bodies is out of the former priviledges But in regard I take it that a Frank mariage doth more respect his original creation In incepto then the descent of the priviledges to the Heirs In suo progressu I take this to be no impediment to hinder this from being a gift in Frank mariage But here the words in the gift preceding the words Frank mariage do differ much from it for by the special limitation the Heirs Females shall inherit with the Heirs Males Simul Semel as Heirs in common But in the Case of the Frank mariage Heirs Males shall first inherit single and for want of them then the Females I do agree the Law that in cases where the special words of limitation may in construction be made to agree with the word and limitation of Art contained in Frank mariage the gift shall be taken a Frank mariage as in the Case of 2 H. 3. It. suff Fitz. Mordanc plac 52. where Lands were given 2 H. 3. in Frank mariage to R. S. cum Alicia sorore le donor it a quod post mortem dictae Aliciae puerorum suorum the Land should revert to the donor and this was adjudged a Gift in Frank mariage and the words It a quod were holden of no validity neither will the words of Reservandum Redendum Tenendum or Warrantizandum though they vary from the nature of a Frank mariage yet they shall not destroy the same as an Habendum may do which is the word whose proper place is to create the Estate and therefore if any thing come therein which is repugnant thereunto the same will alter the quality of the gift And with this agreeth the Case in 45 Edward the 3. Title Tail 14 and 31. where Lands were given to I. S. in Frank mariage with B. the daughter 45 E. 3. of the donor Habendum to them and their heirs and this was held a Fee simple and no Frank mariage And the like Law is where Lands are granted in Frank mariage the remainder in Fee to I. S. and his heirs the Frank mariage is defeated by the opinion in Br. Cases and so in my Case because there can be no reconciliation between the special words of limitation in my Case and the word Frank mariage I am therefore of opinion that this gift is an Estate in Tail according to the special limitation and no Frank mariage Third Point Whether the Bastard shall inherit to have an Estate in Tail is the third Common Law question for I am clear of opinion that a Bastard cannot inherit to a gift in Frank mariage because adultery and fornication which is the seed of every Bastard is opposite to mariage and in breach of that powerful link and knot of Matrimony which is an Ordinance derived from the Divine power of the Almighty And therefore seeing mariage is the material consideration of such a gift Bastardy the opposite can never being out of the consideration come within the priviledges to inherit this Estate So if I give Lands to I. and S. and to the heirs of their two bodies lawfully begotten their Bastard cannot inherit to this gift because he is not heir of their two bodies lawfully begotten But if the word Lawfully had been out of the limitation then I see no reason but that a Bastard may inherit to an Estate in Tail as to a Fee simple conditional which he might have done at the Common Law seeing an Estate Tail may be made before mariage as expecting to be confirmed thereby and so a Bastard born before mariage is by the consummation of a succeeding Mariage made capable to inherit to them if his possession continue without disturbance to his death Yet in Plow Com.
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
attainted of Treason shall forfeit the Lands whereof he is seized of any Estate of Inheritance and by this Statute Intailed Lands were forfeited and the words Of any Estate of Inheritance were the words which gave that forfeiture the one in Fee simple the other in Fee tail and the word any presupposeth more Estates of Inheritance then one But whether a Decree of sale of Lands made by Commissioners of Sewers shall binde the heirs in Tail is the point of my case and in my opinion I think they shall be barred for the causes and reasons following First the words of the Statute of Sewers be That such a Decree shall binde all and every person and persons that at the making of the same Decree had any interest in such Lands Tenements Hereditaments in Uso Possession Remainder or Reversion their heirs and assigns So that by expresse words it bindes the heirs and it would have bound the heirs of a Tenant in Fee simple without the word Heirs expressed in the Statute therefore the word Heirs needed not but onely for the binding of the heirs in Tail Also if these Lands were charged by Prescription as many Lands be then were the Lands originally bound and the heirs in Tail stand charged with these sesses as well as Land in Fee simple And lastly this is a Law enacted for the preservation of the Commonweal and is more to be favored then particular Estates of heirs in Tail But the case of the Premunire was penal in point of a forfeiture which is to be strictly taken for the King and favorably for the subject and therefore in my opinion the heirs in Tail shall be bound in these cases of sale and the rather because they be within the words of the Statute videlicet Heirs generally put which extends to heirs in Tail as well as to heirs in Fee simple and because the sesse and charge shall binde both alike so in my opinion the sale shall binde both in regard the sale depends upon the charge and sesse If a Prebend Parson or Vicar Dean Bishop or such like which be seized of Lands in their politique capacity be sessed to repairs of works of Sewers their Lands cannot be decreed away from them in such sort as to binde their successors for as this Statute of Sewers extend to binde Lands by decrees in perpetuity so the Statute of 1 and 13 and 14 Eliz. restrain Alienations and where those Statutes restrain them I am of opinion that this general Statute of Sewers doth not dispence with those Statutes In Croft Crofts and Howels Case and Howels Case in Plow Comment a fine with Proclamations and non-claim by five years did binde the Corporation of the Mystery of the Cooks in London for their right in Lands and so all other Corporations which are absolute of themselves and needed not the assent of any other as Majors and Commonalties Deans and Chapters Master and Fellows of Colledges But the Law is otherwise of Parsons Vicars Prebends and such like And the like exposition do I make of them in this Statute of Sewers But I will here make a distinction I am notwithstanding of opinion That the Parsons Vicars Prebends and such like for their own neglect are bound during their times but not their successors after them And note this Statute though it mention heirs yet it doth not at all mention successors which is worthy of consideration also And in my opinion this Statute as to Decrees to be made of Lands will binde women Covert Baron Infants persons that be non sanae mentis and such like because it is a Law made for the safety of the Commonwealth And so it is held in Zouches case in the Com. That the Statute of 4 H. 7. of fines had bound Infants Ideots and Women Court Baron had they not been excepted in that Statute A forciori Zouches Case shall they be comprised in this Statute for the Statute of fines was made for the peace of the Weal-publique but the Statute of Sewers was made for the safety thereof If there be two Tenants in Common which be sessed towards the repairs of a Wall Bank or such like work of Sewers and one of them do neglect to pay his proportionable part Whether Commissioners may decree a moyety without partition both of the sesse and Land is a question for their Estates are several though there be a community in taking of the profits And therefore the matter is whether the assesse shall attend upon the possession which is in Common or upon their Estates which be several And although Commissioners in assesse be not bound to take notice of their Estate yet if they take upon them to decree a mans Lands from him they are then to take notice of his Estate and of all other circumstances necessarily depending thereupon In 22 H. 6. fol. 12. if a Trespasse be done upon Lands which are held in Common they are to joyn in an Action but if one of them die that Action shall survive for though they were joynt in the personalty yet they disjoyned in the realty And if two Tenants in Common of Land joyn in a grant of Ten pounds rent charge out of their Lands the Grantee shall have Ten pounds yearly of either by the opinion of Mr. Perkins But if a sesse of Ten pounds be laid and imposed upon them by this Law of Sewers this sesse shall not double as the Rent should yet in this case of a joynt assess imposed upon Tenants in Common and one would pay his moyety and his companion refuseth the Commissioners of Sewers cannot sell a moyety of the Land for that it is a joynt sess and was not imposed by moyeties and the sale doth depend upon the sess and all may not be sold for that one Tenant in Common cannot prejudice his companion in things of Realty The fourth matter is to whom Lands may be decreed by this Law for by the words of the Statute it appeareth That the Commissioners have power to decree Lands for default of payment for years for life in Tail or in Fee simple whereby the Law intended they should make their decrees for sale according to the quantity of the sess and so should use moderation in the Estates they made or sold therefore and it was not intended they should sel the Feesimple away for sess which might be satisfied with the making of a less Estate And I am of opinion that this decree doth make the Estate with the help of this Statute according to the limitation which should therein be declared and that the party shall have Estate according as the same is thereby limited unto him and this is no equitable decree which bindes the person onely as Chancery decrees be but it bindes the Land and therefore the Commissioners may not decree Lands to a Corporation as to a Major and Commonalty Dean and Chapter or such like which be Mortmain for the general words of this Statute
left to the King Ratione regiae dignitatis suae whose Office doth as the Philosopher truly saith contain in it great Vertue high Understanding and Divine Wisedom to whose high Government as well our Persons as our Laws be committed and the defence thereof is applied to his grave foresight And truly I have taken upon me to reade on those Laws of Sewers as Mr. Marrow did in former times take upon him to Expound in his reading the Laws of the Justices of Peace hoping this work of mine may prove as acceptable to the Commissioners of Sewers as that of his was beneficial to the Justices of Peace the use whereof being no less commodious to the Commonwealth then that of the Peace being both general Laws of great use and esteem and my self being for many years past a Commissioner in the County of Lincoln I found that these Laws were dark and intricate and came not usually within the reach and understanding of such as were not well seen and studied in the Laws And because I found the use of them to be wondrous necessary I did intend when occasion served me to break the Ice and enter seriously into the Exposition of them And therefore seeing these Laws being in time most ancient in extent most large and for the use most necessary I have with your kinde favor made choise of them to frame my Reading upon wherein if upon your perusal you finde any scapes or errors which may soon fall from Opinion haec amice corrige and such of them as you shall bestow your liking upon hiis utere mecum and this shall suffice touching my choise made of this Statute And as I have formerly declared and delivered the causes which stirred me up and the reasons which confirmed me to read upon this Statute Now I do intend to break it up and I do divide it into these several branches or parts First to make provision to resist the over flowing of the Sea upon the large Marsh grounds lying in the Maritine Countreys which commonly be the surest for soundness the greatest for compass and the best for profit of all the Sheep-walks and Commons of this Realm which take prejudice and loss only by the rage of the Sea Secondly to provide also that the great fresh Rivers and Streams may have their passages made clear and that their Walls Banks and other Defences be repaired kept and maintained whereby the fair delightful pleasant and fruitful Meadows and Pasture grounds which lie in the greatest abundance upon or near the Rivers Brooks and Streams may be preserved from the inundation of fresh Waters which many times annoy them to the great and inestimable damage of His Majesties Subjects which be Owners and Farmers thereof Thirdly whereas Navigation both for the Exporting of our Homebred Commodities and for the Importing of Foraign Merchandizes is the chief inriching of this Nation therefore Ports Havens Rivers and other Navigable Streams and their dependencies be put within the defence of this Law being Ostia janua Regni for that by the maintenance of these the wealth of the Realm is increased and the Inland Cities Boroughs and Towns are made partakers with ease and small cost of the Seas Commodities Fourthly likewise this Law giveth redress and remedy for the removing of such lets and impediments as are either hinderances to Navigation or stops whereby the abundant Waters cannot have their free passage to the Sea And fifthly because in the surrounded grounds there be most commonly the greatest use of Bridges Calceys Passages and Ways therefore this Statute hath taken order for them also whereby his Majesties people may in those places for their persons and their goods have both Salvum securum conductum In these five parts be all the whole materials of this great and worthy Law contained and therefore according to the said division I have framed a Case for the first Lecture upon this Law The first Case A. Leaseth to B. a Mannor on the Sea Coasts for years which hath incrementum decrementum maris by prescription in the County of Chester and the City there where a Commission of Sewers is remainder to C. in Fee Livery is given and taken by Attorneys at full Sea within the view the Sea then leaves One hundred Acres of Land with the Shore divided in part from the continent by a Navigable Haven The Lease expired C. enters the Prince ejects him and the King seizeth this Relinquished ground My Opinion is That the King hath a part the Prince a part and the Subject a part of this ground and that it is all within this Statute but no part thereof within this Commission Points of the Common Law The Points of this Case be three at the Common Law and five by this Statute First Whether Livery of Lands may be made within the view in another County or not Secondly Whether Livery by the view may be given or taken by Attorneys or not Thirdly Whether in this case Livery and Seisin may be made by Attorneys or that of necessity it must be made to the Lessee for years and who must joyn in making of the Letter of Attorney to take the Livery All which Points I must maintain Affirmatively else C. the Subject cannot have any Lands at all Points on this Statute First Whether the English Seas be within this Realm of England and what Interest the King hath there and what Interest a Subject may have therein by custom and prescription and what is meant by the said words Incrementum Decrementum maris Secondly Whose these new Islands be which arise there and wherher they be said to be within the Realm and what Laws govern the same for that it appears in my Case that the ground left between the Sea and the Haven is an Island Thirdly Whether the King shall have all the grounds by His Prerogative or the Subject by the said Prescription or the Prince as participating of both or whether every one shall have a part thereof according to my Conclusion Fourthly Whether the grounds left by the Sea be within this Statute and Commission both or either of them or neither of them Fifthly What a Haven a Shore and the Coasts be in definition and the several properties thereof The Readers Argument And as it comes to my turn I intend to maintain the conclusion of my Case And first of the first Point Livery and Seisin is one of the most ancient approved Ceremonies of the Law which hath been used for conveying of Lands and the Law hath a more respect thereto then to any other And it cannot be denied but that it is the most perfect form of any by the which the Freehold and Inheritance of Lands is transferred from one to another and all Subjects may give and take Lands by this Ceremony but the King only is excepted whose Prerogative is such That as Lands cannot be taken from him as King but by Record so Lands cannot be given
the Exposition is not to be tyed hereto so notwithstanding this exception these grounds though gained since the Statute are within the relief thereof The second cause wherefore these new grounds should not be within this Law is Because these Lands be increased beyond the bounds since the making of these Laws and so it may be alleaged that they cannot extend to the new inlargement for Mr. Plow in his Com. fol. 129. saith That Laws Plow Com. and Priviledges tied to a certain Place or Precinct cannot be fol. 129. extended or inlarged beyond the ancient Bounds although the Predinct be inlarged As the Case in 7 H. 6. fol. 32. 7 H 6. fol. 32. where in a Nativo habendo a Villain had remained a yeer and a day in London which was ancient Demesn and there was a priviledge that every Villain and Bondslave which had remained a day and a year in London the Lord might not seize him and the Villain pleaded that he had remained a year and a day there and so took himself to be within that priviledge but because since the said liberty granted the bounds of London were much increased therefore it was there held that the said liberty and priviledge did not extend to the new inlargement And the Case is also put in the said Coment that the Bishop of Durham had divers liberties in his Lands lying between the two Rivers of Tyne and Tese and after he purchased other Lands there the said liberties did not extend to the said new purchased Lands and the like Law is if one have a Warren in his Mannor and Lands in Dale after he purchase more grounds there his Warren doth not extend unto them And so where one had by Charter the Lands of persons forfeited for Treason he could not have by the said ancient Charter Lands forfeited for Treason by Tenants in Tail because the forfeiture of them was given by a late Statute since the Charter but his non obstantibus I am of Opinion That this Statute I now treat on extendeth to these new gained grounds and I take a difference between a special Law of Priviledges and Liberties which is stinted or bounded either by Statute Charter or Custom the same can by no construction be made to exceed the bounds but the general Law of this Kingdom as this Law of ours is the extents thereof be as large as the whole Realm is and they be not tied to stinted limits as particular private Charters and Customs be and so I conclude That in point of extent this Statute of 23 H. 8. is tied to no other bounds then to the Kingdom of England Diversity between grounds gained and grounds left THe third matter is that which I have grounded the conclusion of my Case upon and that is Whether the grounds in my Case newly left by the sea to the shore and the shore be such grounds as be within this Commission And in my opinion they be not And therefore to maintain my opinion herein I take a difference between grounds left by the Sea and grounds gained from the sea for grounds left are of no value and bring forth no fruit or encrease at all but the uppermost part thereof are sand which these Laws take no hold of for the Commission extends only to grounds won and made profitable for the Commonwealth of this Realm which Terra relicta yield not for no profit at all thereof ariseth till the sand be inned and gained and these Laws made the Commissioners Savers and not Gainers and therefore did extend the Commission but to the utttermost banks and walls and left the shore as grounds possessed by the sea and so be put pro in defenso by this Law and therefore I do make my conclusion as followeth First That the Seas Creeks and Bays are all within this Statute in point of extent but that they and the shores and the relinquish'd grounds be all of them out of this Commission of Sewers to be dealt withal thereby Secondly That Ports and Havens are totally the waters as well as the walls and banks thereof within the Commission of Sewers Thirdly The shore and grounds left by the sea when they are put as in Gainage are then and not before within the power of the Commission of Sewers Fourthly although the grounds left by the sea are not in point of defence within the Commission of Sewers yet a wall or bank may be thereon raised for the aid and succor of the countrey but not for any cause where the defence extends but to themselves And although the grounds that have been gained from the sea in the county of Lincoln and elswhere in this Realm yet that was done at the labor of private men and not by the Commission of Sewers which aims at the general good and not at private Commodities So that Super totam materiam I am of opinion with the conclusion of my Case that is That the said new Island is the Kings the grounds left to the shore pertains to C. the subject and that because they are all of them within the Realm of England they are therefore within the extent of this Statute But in regard they are grounds left only and not gained nor made profitable for the Commonwealth of this Realm they are not therefore within this Commission And so I conclude my Argument as I did my Case in which I hope I have neither injured the Subject in his private Inheritance nor wronged Prerogative in any point Finis primae Lecturae Initium secundae Lecturae FOrasmuch as the first day I went perambulation about the Sea and of all which belong to her Empire and Dominion wherein I did survey her bounds her qualities and her government Now I do intend to go a progress through the Land and to take a view of the fair goodly Rivers which make their voyage to the Sea for these my Statute hath taken into her protection And this second day I purpose to call a Court of Oyer and Terminer And I do intend with your gentle patience to examine all the particulars there arising And because the said Statute of 23 H. 8. must be my chief guide to direct my fairest passage through these uncouth ways I will pray aid thereon and I will now proceed to declare what business on Land this Law hath undertaken to defend and what offences it purposeth to reform And accordingly the said Law doth distribute it self into these particular Branches I. First Into matters of defence this Statute maintaineth are these following viz. 1. Walls 2. Banks 3. Ditches 4. Gutters 5. Sewers 6. Goats 7. Calceys 8. Bridges Secondly Into matters of Offence which this Statute termeth Le ts Impediments and Annoyances which are to be put down or reformed as cause shall require 1. Streams 2. Mills 3. Ponds 4. Fishgarths 5. Mildams 6. Locks 7. Hebbingwers 8. Hecks 9. Floodgates 10. Other like Lets and Impediments And to the end I might fully
Arguments as I did my Case that the new Bank new River and old Sewer were well decreed but that the assess is void in toto in qualibet parte Finis secundae Lecturae Lectura tertia IN my two preceding Cases the main body of this great Law were contrived and therefore I took a greater larger compass in my Arguments therein then otherwise I would have done and I am now come to the execution of these Laws wherein the life and livelihood of all Laws consist And it may well be said of execution as Mr. Plowden in Zouch and Stowels Case Plow com in his Commentaries fol. 358. saith of a fine that it is finis fructus exitus effectus Legis so is execution the fruit issue and end of the Law and without it nothing is effectual and till it come nothing is material for to begin a Suit and stay at the declaration were a fruitless enterprise and to proceed on to Judgement and to go no further were like a Traveller which undertook a journey and returns or sits down without further moving before he came at the end of his intended progress Law as Cicero saith is but mutus Magistratus the Magistrate is Lex loquens but I shall adde something which Cicero upon the matter is the sum of all things that is That executio est Lex agens And because I esteem the time to be almost lost or mispent which is prologued out in preambles I will therefore now briefly divide this part of this Statute into these insuing heads Either in punishing the body and person of the delinquent with Imprisonment Fine or Amerciament Or in doing execution upon the offendors goods By distress or by the Absolute sale thereof Or otherwise in extending upon the Real Estate By charging the Land in perpetuity or temporarily or by the absolute sale thereof The true and due execution of all these in a just legal equal and qualified decree requireth of all other parts of Law this greatest and truest discretion consideration wisdom and judgement of the Commissioners And I take it it may stand as a ground infallible that there be as many degrees of punishments as there be offences It behooveth therefore the Commissioners to be circumspect that they apply to every offence his due punishment for it is injustice to punish the offence committed in a wrong degree to pronounce a Traytors judgement upon a Fellon or a Fellons judgement upon a Traytor is grand misprision to imprison the body or to fine the person where an Amerciament is onely due is not onely injustice in the Commissioners but thereby also their discretions are to be drawn in question and censured And seeing the Statute doth so much lie upon discretion of the Commissioners as in many parts of this Law it is mentioned It seemeth the Parliament did give them to understand That such as were to meddle in those affairs should be both discreet and wise and should strive to become learned in those affairs And therefore for the better furnishing of them with the true understanding of the said parts of this Statute I have framed a Case thereupon which doth give just occasion to treat fully of them all The third Case A. Gave the Office of a Ranger of a Forest to which a Mannor is belonging to I. S. Abnepti and to the heirs males and females of their bodies in Franck mariage and dieth B. and C. their legitimate son and daughter and D. their bastard daughter enter and dieth in seisin and E. her daughter enters The Commissioners of Sewers at a Court make a Law That a Goat shall be repaired and assesse severally A. B. C. and E. to do it upon surmise that they all had benefit B. and C. refuse to obey for which B. is imprisoned and C. is fined A. and E. tender pleas of discharge which are refused and they are severally amerced and a Law made that A. should be distrained and for non-payment the distress to be sold without alowance of Replevin and the interest of E. should be also sold because she hath nothing to be distrained by I conclude the Commissioners of Sewers have done due Justice upon the Offenders in every part of this Law Argumentum Lectoris The passages of this Case are both at the Common Law and by this Statute The Common Law is the means but the Statute is the matter I must insist upon But seeing the Statute Law can receive no due construction but by the rules of the Common Law I have therefore made a harmonial composition of them both in my Case and I do distinguish and branch out my Case into these ensuing points Points at the Common Law Imprimis Whether this Office may be intailed or not Secondly Whether it be an ordinary Intail or a Frank-mariage Thirdly Whether the Bastard be inheritable to this Estate or not Points upon the Statute First Whether the Commissioners have a Court or only the strength of the Commission without a Court Secondly Whether Commissioners of Sewers have power to imprison and to fine if so then whether they have well behaved themselves in this Case or not Thirdly Whether this Law doth admit of any pleas and especially of pleas of discharge Fourthly Whether the Law made touching the distress be well made because it seemeth prima facie to oppose a main point of the Common Law in denying of Replevins Fifthly and lastly if the Law made for sale of Lands of Tenements in Tail be warranted by this Statute or not These be the materials of this Case wherein you may perceive by the beginning what you are to expect in the sequel and conclusion of my argument These Points upon the Statute are of great consequence and importance and tend much into the powers of these Laws In the handling whereof according to my wonted fashion I intend to maintain the Affirmatives of my Case First Point I did not intend it a point of any importance in my Case Whether Land might belong to an Office for that in the 1 H. 7. fol. 28. in Sir Robert Crofts Case it is resolved it might For there Land did belong to the Office 1 H. 7. of a Forester and might belong to the Office of the Warden of the Fleet and also to a Corody which was no Office and these as well as to a spiritual Office Parson Vicar Prebend or such like but whether or no these Lands might be parted from the office by alienation I thought that an argumentable point in 6 H. 8. Dyer f. 2. Empsons case it is said 6 H. 8. if the King create a Duke grant to him an anuity to maintain his Dignity that Annuity was so incident to his Dignity as it could not be severed therefrom and so of Lands belonging to a Parson Vicar Bishop or such like because they were given to the maintenance of them in their places and therefore if these were severed they might be recontinued
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
perpetual charge by any power or authority given by this Statute but in the said case of Romney Marsh the Custom there maintained this point yet Not a bene verba hujus Statuti which be these viz. And to make and ordain Statutes Ordinances and Provisions from time to time as the case shall require for the safegard conservation redresse correction or reformation of the Premises and every of them and the parties liable to the same necessary and behoofful after the Laws Customs of Romney Marsh in the county of Kent or otherwise by any ways or means after their own wisdoms and discretions These be the words and this is the clause which must make good this perpetual charge for that it doth formerly appear that such like Laws and Customs there were in Romney Marsh as this is and therefore I may conclude this point that the Commissioners in imitation of the said Ordinance of Romney Marsh may make Decrees to binde Lands to perpetual charges Yet Sir Edward Cook in Keighlies case sets it down as resolved That the several Commissioners of Sewers throughout all England are not bound to pursue the Laws and Customs of Romney Marsh but in case where some particular place within their Commission have such Laws Customs as Romney Marsh hath there they might pursue them But in my own opinion the Commissioners may if they please make Ordinances and Laws like to those of Romney Marsh where there hath not been any such use and the words of the Statute as I take it will bear that construction and the said opinion of Sir Edward Cook is not directly against this And upon Decrees for sales of Land it is usual in these Decrees to binde those Lands to the perpetual repairs Sales of Lands THe words of the Statute which be made for sales of Lands be these Provided always That if any person or persons being assessed or taxed to any lot or charge for any Lands Tenements or Hereditaments within the Limits of any Commission hereafter to be directed do not pay the said lot and charge according to the Order and Assignment of the Commissioners having power of the execution of the said Commission c. by reason whereof if it shall happen the said Commissioners for lack of payment of such lot charge to Decree and Ordain the said Lands and Tenements from the owner or owners thereof and their heirs and the heirs of every of them to any person or persons for term of years term of life Fee simple or Fee tail for payment of the same lot and charge Then every such Decree and Ordinance so by them ingrossed into Parchment and certified under their seals into the Kings Court of Chancery with the Kings royal assent had to the same shal binde al and every person and persons that at the making of the same Decree had any interest in such Lands Tenements and Hereditaments in use posession reversion or remainder their heirs and Feoffee and every of them and not to be in any wise reformed unless it were by authority in Parliament hereafter to be summoned and holden within the Realm And also that the same Laws Ordinances and Decrees to be made and ordained by the Commissioners or any six of them by authority of the said Commission shall binde as well the Lands Tenements and Hereditaments of our Soveraign the King as all and every other person and persons and their heirs and such their interest as they shall fortune to have in any Lands Tenements and Hereditaments or other casual profit advantage or commodity whatsoever they be whereunto the said Laws Ordinances and Decrees shall in any wise extend according to the true purport meaning and intent of the said Laws This Clause or Proviso was strangely placed in this Statute as if this Statute had not been the first Father of it and as if this Law had made some addition to a former Law But I take it that this Statute was and is the first and only Law which gave sale of Lands in cases of Sewers and this Clause stands upon these four pillars Imprimis for what cause Lands may be sold by the Commissioners of Sewers Secondly what Lands are to be sold within these Laws Thirdly what persons what Estates and Interests are to be bound thereby Fourthly to what persons these Lands may be sold or decreed The Statute is If any person sessed do not pay whereby it is manifest that the Lands are to be sold for sesses and charges imposed by the Commissioners which lyeth in payment only and they may not be decreed away for any other cause or matter And therefore if one hold his Land to repair a Wall Bank Sewers or other work of Sewers and he neglect to repair the same the Commissioners of Sewers cannot for this cause decree the Lands away from the owner because this charge lay not in payment And I cannot gather out of the words of this Statute that Lands can be decreed for any cause then for Non-payment of a Lot Sess or Charge by reason this word Payment is reiterated three or four times in this branch of the Statute and no other words be coupled with it to infer any other or larger exposition If I. S. do hold his Lands of the Lord of a Manor by the payment of Twenty shillings yearly or other sum towards the repairs of a work of Sewers and he do neglect to pay the same whereby the work is unrepaired although this is a charge which lyeth in payment yet because it grows due by Tenure by the Common Law and was not imposed by the force of this Statute therefore the Lands of I. S. cannot be decreed from him by the Non-payment thereof by the tenor and vertue of this Law of Sewers But if the Lands of one be generally charged to repair such a Wall or other work of Sewers by Prescription Covenant or otherwise and the Commissioners impose a sesse and rate upon him to repair it and he do not there in this case although the charge was by the rules of the Common Laws yet because the sesse and rate was set upon him by the power of this Statute I am of opinion that for neglect of payment the said Lands may be sold by the decree of the Commissioners of Sewers So if one do hold his Lands for the payment of Twenty shillings to repair a Bank and the Commissioners of Sewers do order the party to pay the Twenty shillings at a time by them prescribed not being contrary to the usual days of payment and he do neglect to pay The Commissioners may decree his Lands from him because this charge by reason of the said Order had got the force and power of this Statute If a charge be generally laid upon a Township Hundred or Rape which is not paid according to the Commissioners Order no Lands can be decreed in this case because no persons or Lands be in this case particularly charged and the
matters doth contain in it these words viz. That if any person or persons of what Estate or Degree soever he or they be of that from henceforth do take upon him or them to sit by vertue of the said Commissions not being first sworn according to the Tenor of the Oath expressed in the Statute or if any person so named and sworn do sit not having Lands Tenements or other Hereditaments in Fee-simple Fee tail or for term of life to the clear yearly value of Forty Marks above all charges to his own use Except he be Resciant and Free of any City Borough or Town Corporate have moveable substance of the clear value of One hundred pounds or else be learned in the Laws of this Realm in and concerning the same That is to say admitted in one of the principal Inns of Court for an utter Barrister shall forfeit Forty pounds for every time that he shall attempt so to do the one moyety to the King the other moyety to the party that will sue therefore c. So that by this clause it is manifest that every one that is not qualified in one of these degrees is no competent Commissioner within this Statute First that he be an utter Barrister in one of the four Inns of Court Secondly or have Lands Tenements or Hereditaments of the clear yearly value of Forty Marks above all charges in Fee simple Fee tail or for life Thirdly or be Free or Resciant in some City Borough or Town Corporate and have moveable substance of the clear value of One hundred pounds And that person which is not within one of the said three parts and yet doth take upon him to sit in the execution of this Commission incurs two penalties The one the forfeiture of his discretion for his presumption The other of Forty pounds for his contempt And therefore for the more clear examination of these things I will observe that method in my Argument which my Case hath formerly prescribed to me And first of all I shall proceed to the personal abilities and first of the son of the free Citizen of Lincoln I am of opinion that every Commissioner of this kinde must be indowed with these three qualities First he must be free of a City c. If he want any of these then he is out of this Branch of this Statute Secondly he must be there Resciant and Thirdly he must have in clear moveable Substance One hundred pounds and Therefore what person is such a Freeman is now to be handled I am of opinion that every Subject born within the Kings Dominion is a Freeman of this Realm as appeareth by the Grand Charter cap. 14. yea though he be a Bondslave to a Subject but a stranger born is no Freeman of the Kingdom till the King have made him Denizen in whose power alone without the help of any other one may be made free And to be a Freeman of the Realm the place of his birth is held more material then the quality of his Parents for if Aliens have a childe in England it is free of the Kingdom yet by the Opinion of Hussey Chief Justice in 1 R. 3. fol. 4. and in Calvins case of the Post Nati it is holden for Law That if Ambassadors of this Realm have children born in France or elswhere where the Father and Mother be natural born Subjects the children are free of the Realm of England but if either the Father or the Mother of such children were an Alien then are not those children free One out of the Kings protection is as I take it for that time no Freeman of the Realm But in what case a man Exiled is in sorteth the nearest to our question Exile is one of the Eight Punishments which the Roman Laws did inflict upon Strangers which be videlicet 1. Damnum 2. Imprisonamentum 3. Plagae 4. Compensatio 5. Ignominia 6. Exilium 7. Servitudo 8. Mors. Mr. Bracton doth in this maner describe Exile that is Certi loci interdictio and doth distribute it into Four heads That is to say 1. Specialis hoc est interdictio talis provinciae Civitatis Burgi aut villae 2. Generalie Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae Exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertferdiae Norfolciae per Regem Richardum secundum Et aliquando per Judicium terra ut sit in casu Piers de Gaveston etiam in casu Hugonis de le Spencer junioris qui ambo fuorunt exilit ' per Judicium in Parliamento Abjuration also was a legal Exile by the Judgement of the Common Law as also by the Statute Law and in the Statute of Westminster the Second Cap. 35. He which ravisheth a Ward and cannot render the Ward unmarried or the value of his Mariage must abjure the Realm and this is a general Abjuration And by a Statute made in 31 Ed. 1. 31 Ed. 1. Butchers are to be abjured the Town if they offend the fourth time in selling measled flesh and this is a special Abjuration But I must put this Case to a further question which is What a man Exiled doth forfeit thereby And in my opinion he forfeits these things following First he loseth thereby the freedom and liberty of the Nation out of which he is Exiled Secondly he forfeits his Freedom in the Borough or City where he was free for he which forfeits the Freedom of the whole Realm by consequence forfeits his Freedom in every part thereof Thirdly he is of as little esteem in our Law as if he were dead for his Heir may enter and so may his Wife enter into her own Lands and may sue an Action as a woman sole by 31 Ed. 1. 1 H. 4. 31 Ed. 1. 1 H. 4. 1. And fourthly in my opinion he shall forfeit those Lands to the King which he shall purchase in the Realm during his Banishment qued vide 15 Ed. 3. Fitz. Petition ' plac 2. But there in that case Hugh Spencer was banished by a Judgement in Parliament which gave a forfeiture of his Lands howsoever I take him as strongly barred from purchasing in the Realm during his Banishment as an Alien is for fit alienigina by his Banishment and he is in a worse case then an Alien because he taketh with him Indignatio principis But a banished man forfeits neither Title of Honor as Knighthood which is de jure gentium nor the Lands he had before he was Exiled unless by special Judgement given in a legal course they be so decreed Then our case goes further That E. is not Exiled himself but D. his Father was Exiled whose Heir E. is now whether by the Exilement of the Father the liberty and freedom which E. might claim in the City of Lincoln by being the Son and Heir
and a Villain for years and a Captive taken in the Wars be for there shall be paid for him a Ransom as is mentioned in the Register fol. 102. Moneys due upon Statutes Judgements Recognizances Bonds Bills or Contracts be not valueable substances within this Statute for by this Statute it must be clear and not doubtful or accidental as Moneys out of hand be which is like to a Bird in the Bush yet these be all valueable and are valued in Inventories taken in the Ecclesiastical Courts But yet the Executors or Administrators shall not be charged for assets for them till they have received them And in 25 H. 8. in Dier fol. 5. Obligations are not held valueable but things in action and if one 25 H. 8. have got goods by tort and wrong to the value of One hundred pounds yet this is clear valueable substance within this Law for although the word clear be inserted into the Statute yet that relates to the value and not to the title of those goods And if one have goods as Executor or Administrator these are not his own and therefore do not inable him to be a Commissioner within this Law Neither do the goods of the Church inable the Parson Vicar or Curate nor the goods of a Corporation do not inable the Major and Aldermen or Citizens of a City or Town Corporate for these do not belong to their particular persons neither did this stock in my case which is demised to B. and C. make them competent Commissioners within this Statute because they had not the property therein but onely the use and occupation thereof And although in this Statute it is not declared in what place these goods which should inable a man to be a Commissioner of Sewers should be in it will suffice if the party have them in any place within the Realm for this very Law calls them Moveable substance And herein I end my Free Citizen and in my opinion E. had neither Freedom in his person nor real Estate in Land nor moveable substance in any sort to make him a competent Commissioner within this Law yet if a Freeman be destitute of goods or want perfection in his Freedom if notwithstanding he have Lands to the value of forty Marks per annum then he shall be allowed a Commissioner within this Statute Touching which point of Lands I now intend to proceed in In the handling of this matter it is to be considered which be Hereditaments within this Law for the other two words Lands and Tenements need no exposition wherein I am of opinion That Messuages Cortages Toâ—â—s Crofts Houses Land Meadow Pasture Feedings Moors Marishes Heaths Furs Mills Orchards Gardens Hopyards Rents of Annuities Prima vestura terrae Pischaries Tythes Pensions Portions Proxies Parks Warrens are all of them Hereditaments within this part of this Law for the word Hereditament is a word of the larger size and largest extent in our Law being Omne quod Haereditari potest and yet every Hereditament is not within this branch for it hath two other words joyned therewithal videlicet yearly value And therefore Franchises and Liberties as Waifs Strayes Felons goods Deodans Fines Amerciament Profits of Courts Fairs Markets Ferries Hundreds Leets and such like are all of them out of this Statute in this point because they be not of a certain yearly value but be accidental and depend in contingency by the opinion in Butler and Bakers Case Cooks 3 Report But as it is there said If these things have heretofore been usually letten and demised for certain yearly Rents then they may be Hereditaments of clear yearly value within this Law All Offices and Vocations as Physitians Chyrurgions or Trades as Merchants Mercers Grocers Drapers and such like be neither Hereditary nor of certain yearly value and therefore they be not within this Law though perhaps one gain thereby Five hundred pounds per annum Also dry reversions or remainders depending upon Estates for lives are out of this branch for the words of the Statute be having which is in praesenti and not futuro Neither is an Advowson of force in this point though it be assets in a Formdon yet it is no assets in an Action of debt brought against Executors Homages Fealties Escuages Heriots Reliefs Nomine paenes and such like be Hereditaments but because they are not of yearly value they are not therefore within this Law Also if a Commissioner of Sewers be seised of a Rent or Annuity payable every second year it doth not inable him to sit because it is not Annual which is intended yearly and every year as the Pryor of Plymptons Case in Dier fol. 133. is but if one do grant to I. S. an Annuity or Rent of Forty Marks in Fee payable at the feast of Easter yearly if the grantee will then come for it to such a place is of certain yearly value within this Law But put the case that A. is seised of Land in Fee and grant to B. Forty Marks per annum for his life only I am of opinion that B. is no sufficient qualified Commissioner within this Law But if A. be seised of a Rent of Forty Marks per annum in Fee and he grant the same to B. for his life he is a competent Commissioner within this Law differentia apparet Our Statute goeth on in these words That the Commissioner which would sit without exception must have in Lands Tenements or Hereditaments of the clear yearly value of Forty Marks to his own use Therefore a man seised of Lands to that value in the right of his wife although he take the Rents and Profits to his own use yet this will not inable him to be a Commissioner within this Law but he must have them in ejus usu ad ejus usum A Feoffee to a use before the Statute of 27 H. 8. of uses was no competent Commissioner within our Statute for he had the Land then to another mans use Neither was Cestui que use sufficiently qualified to be a Commissioner Two Tenants in common or coparceners of Forty pounds Lands per annum are neither of them of sufficient ability to be Commissioners within this Law And the like Law is of two Joyntenants of Land of that yearly value for though they be seised per my and per tout yet in truth and in a legal construction either of them be seised but of a moyety So that if two Joyntenants Tenants in common or coparceners be seised of Lands of the yearly value of Threescore pounds either of them may sit by this Commission A Dean and Chapter Major and Commonalty Master of a Colledge and Fellows which be seised of Lands and Tenements of the yearly value of a Hundred pounds per annum are not in respect thereof to sit If a Bishop Dean Chancellor Archdeacon Prebend Parson or Vicar be seised of Lands in Jure Ecclesiae of the clear yearly value of Forty Marks I suppose these may
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