or granted to him as King but by Record And in the same degree is a County Palatine in his County because he hath there Jura Regalis And this Livery and Seisin may be actually and really done and performed or else it may be done within the view of the Lands intended to be conveyed And as touching Livery and Seisin to be actually effected if the Feoffment contain Lands in two several Counties and Livery and Seisin be made in one County in name of both this will not pass the Lands in another county because the Land passeth by the Livery which is local and not by the Deed. But in an exchange of Land in two several Counties by Deed the same is good for there the Land passeth by the Deed. But if one make a Feoffment of a Mannor lying in Demesn in the County of L. and in services in the County of M. these services and so Rents will pass by attornment of the Tenants though they lye in a foraign County and so of an Advowson appendant and such like because those rents and services pass not by the local ceremony of Livery and Seisin but by the ceremony of Attornment which is personal and depends upon the person which is transitory wherein I take this difference That if a Feoffment be made of a Mannor by Parol the Advowson appendant Villains Regardant and Rents and Services by Attornment of Tenants will not pass to the Feoffee till the demesns and Lands be first conveyd But if the Feoffment be by Deed then the Rents and Services will pass by Attornment of the Tenants and delivery of the Deeds before Livery and Seisin be made to pass the demesns Then seeing that Land in one County will not pass by Feoffment by express Livery made in an other County if then the same may be passed and conveyed by Livery within the view is the question of our Case And in my opinion they may because it is a ceremony performed by the eye which is a member or instrument which hath his operation by aspect Tam procùl quam propè But express Livery and Seisin which is done by the hand cannot in reason be extended to another place then where the body is And although the eye be fixed in the head annexed to the body yet like the Sun his beams are carried afar of And this Livery by the view is not a Livery in the County where the body is but properly in the County where the Land lay which was the object of the eye and in this case it is said to be Livery onely and not Livery and Seisin because the Seisin is properly when the party enters and the entry of the party is that which perfects the work which is in proprio commitatu And for authority in the point 28. Ed. 3. fo 11. there is a Case according to my opinion where the Husband at the Church door when 18. E. 3. fo 11. he was to take one to wife he made a Deed of Feoffment of Lands lying in another County to the said woman and then delivered the Deed to her and shewed her the Land then they married and he entred in claiming to her use and these Lands were thereby well conveyed to the said woman by this Livery within the veiw in another County Now it is fit to be declared what view is sufficient for there be two maner of views The one general the other special In the special view every particular piece of ground is to be seen but in the general view it sufficeth to take notice of the grounds by the place they lie in and in my opinion The general view in my Case will suffice For if one make a Feoffment in Fee of a whole Island or of a whole Mannor or Town and make Livery thereof within the view this is good and yet it is not possible to view every particular piece of ground at once for Trees Houses and Hills might so be interposed that the view could not be taken of some part thereof yet notwithstanding veiw of the rest will pass Also if Lands be covered with Water Ice or Snow these will pass well in a Feoffment or Livery in the veiw In Brook Title View plac 101. the Case there may give Brook 101. the rule to our Case for there it is said in a Writ of view It is not necessary that all particulars in Specie should be put in view but to see the fields where the grounds lie promiscuously it will suffice and is a good and perfect veiw Sed est vn auter diversitie concernant veiwe Carsi vn fait Feoffment de B. acre que gist del auter parte dam Mountaine tout hors del veiwe la Liuerey de ceo nest bone sans expres veiwe tamen tout voile passer per veiwe de parte sic in mon case on part ' gist south le floud del mere ceo non obstant passe vt parcel del mannor Ascuns aver teneus ceo Knightley pur vn in 28. H. 8. in 28. H. 8. Dier que Liuercy deins le veiwe doit touts foits este fait in cases de necessity ceo vrging in respect del chose ou del person del chose quia leterre gist del furder side dun grand ewe ou in le ewe ou ne puit oste facile accesse del person quia que le Feoffor ou Feoffee soit lame ou infirme detraher ceo in question Jeo aye mist mon case quia le Feoffment Liuerey fuit ad plenitudinem maris tamen Jeo sue de opinion que Liuerey deins le veiwe puit este fait sans ascun matter de necessity ceo vrging ceo Jeo collect per le liuer de 42. Ed. 3. Fitz. Feoffments 54. when the Son did give back the Lands to his Father as freely as his Father had 42. Ed. 3. formerly given the same to him and this was within the view and it doth not appear that either this Livery or the other made to the said woman in 28. Ed. 3. were made of any necessity urging the same And there be some persons which can neither give nor take by Livery within the view and that is where the Feoffor or Feoffee is blinde So a Major and Commonalty Dean and Chapter or other corporate and politique capacities cannot give or take within the view Some have held a difference that a Parson of a Church might not take by Livery within the view to him and his Successors because that came to him in his politique capacity which had no Eyes but if he were seized in the right of his Church that he might infeoff I. S. thereof by Livery within the view because this was a wrong to the Church and therefore A Conceit was in the power of his natural capacity which had Eyes But the main Point in my Case is Whether Livery within the view may be given and taken by Attorneys and whether the view is so incident to the person that it
title to Land by Action Condition or Entry or he which hath a contingent use shall not be taxed for them Neither was Cestui que use at the Common Law before the Statute of 27 H. 8. of uses nor is the Bargainee of Land before the Deed be inrolled sessable by this Law Neither is one who hath the presentation or nomination to a Church as Patron or he which is Founder for his foundership Taxable within this Statute yet they be Tenements the largest words of charge within this Law but the Law intends the immediate possession of such Tenements which be proficuous and not these things which be Tenements in Law and which be but conveyances and their fruit is Ceremony without Substance This Law setteth down such things for the which one is chargeable viz. He which hath Lands Tenements Rents Commons of Pasture Profit of Fishing or other Commodities and such as have Safety Profit Defence or any other Commodity These be the words of charge recited by this Law This word Land is of large extent for it reacheth to house Arrable Pasture Meadow Mills Tofts and to all other Edifices Moors Marishs Woods Wood grounds for all these the earth is the substance Et omne solo cedet and the several increases thereof be but qualities The word Tenements is of larger extent then Lands for it containeth all which the word Lands doth and all things else which lyeth in Tenure so that I think it shall be but labor lost to enter further into the particulars thereof Lord and Tenant IF there be Lord and Tenant and the Tenant holdeth of the Lord by yearly Rent services the Lord may be rated as well for his Rent as the Tenant for his Land to Annual repairs as well as to accidental by reason of these words in the Statute that is That every one be rated and taxed according to the rate of every persons Rent Tenure or profit here be full words to charge the Lord for his Rent and so Rent charges and Rent seck shall be subject to sesses in this kinde for otherwise the Tenant of the grounds may be undone thereby in regard the Rents going and issuing out of the grounds may amount to as much almost as the yearly value of the grounds do But if the Rents be so smal as they are scarce worth the gathering then in discretion the Commissioners may spare them for De minimis non Curat Lex Also whether the remainder man and he in Reversion depending upon an Estate in Tail shall be rated and taxed or not by the power of these Laws is an apt question for this place and therein my opinion is That being dry and fruitlesse Remainders and Reversions they shall not be sessed to the repairs but the Tenant in Tail in possession shall be solely charged for it is more to be feared that Tenant in Tail will cut off the Remainder and Reversion by a Recovery then that the Sea shall drown his Estate by an overflow Lessee for years and he in Reversion IN the Case of the Lessee for years and for life and those in Reversion and Remainder there is a greater cause of dispute then between Tenant in Tail and he in the Reversion And because it is an often Case I have therefore taken the more pains to resolve the same First the Lessee is in the present possession and so is subject to all ordinary charges and with this agreeth Jeffrays Jeffrays Case Case in Sir Edwards Cook 5 Report for there the Case was resolved that where the Inhabitants of a Town were assessed towards the repair of a Church there the Lessee for years was charged and not the Lessor though he had a yearly Rent reserved For in point of the Rent this Case and that will differ by reason Rents be expresly within this Law but I now speak of a Lessee where no Rent is reserved In 17 Ed. 4. fol. 6 a Tenth was granted to the 17 Ed. 4. King by Parliament of the value of their Lands and the Lessee for years was charged therewithal and so was the Law there taken if the Parliament had given the Tenth part of the issues and profits of the Lands The Case of the Proxies in the Irish Reports doth in my Opinion in reason resemble this Case for the Case was Case of Proxies there That the Bishop of Meath in Ireland had a Proxy of fifteen shillings payable out of the Commandry of Kells then parcell of the possessions of St. Johns all which came to the Crown by the dissolution of Monasteries in that Kingdom and after the said Bishop granted the said Proxies to Queen Elizabeth and after Q. Elizabeth made a Lease of the Commandry to Dr. Forth reserving a yearly Rent without mentioning the Proxy And it was there resolved That Doctor Forth the Lessee for years should be at the charge to pay the said Proxy with all the arrerages thereof which did incur in his time And so in the case of a Rent charge the Lessee is chargeable and he is to pay the Tythes and the Composition money due therefore So that these Cases sway strongly against the Lessee for years to lay the whole charge upon him and to exempt the Lessor But yet we must here distinguish and make a difference between Annual repairs in ordinary things and extraordinary repairs for to furnish the defence with petty reparations they shall be laid only upon the Lessee for years or for life but if a new Wall Bank or Goat or Sewer be to be built new and erected or if the ancient defences be decayed in the main timber or in the principal parts thereof here as well the Lessor as the Lessee shall be put to the charge for these things be not ordinary and annual charges but do reach from the beginning of the Lease to the top of the Inheritance as for petty reparations they are by intendment to continue but for a short time which are likely to be spent during the term and lease but these new defences are apparantly done to save the Inheritance And this difference holds good correspondency with other Cases in our Law as in 49 Ed. 3. fol. 1. and 3 Eliz. in Dyer fol. 198. and in 49 Ed. 3. 3 Eliz. Dier that Book again fol. 134. and in divers other Books it is holden for Law That if a house in Lease decay in the Groundsels Post or Balk in the great timber in direct wearing by tract of time and not in default of the Lessee the Lessee may take and cut up timber growing on the grounds leased to repair the same and the Lessee shall be at charges of workmanship for the repairs are in matter of right and do the Lessee good during his Lease and the Lessor after the expiration thereof And because these great repairs extend to both their goods therefore they shall both be contributory thereto But if a house be decayed in splinting thack walling or in such
case and so the words of the Statute and of the Law may herein be satisfied Now I hope I have fully instructed the Commissioners wherein they may learn whom to Imprison when to Fine and how to Amerce in a legal and orderly sort and according to the ancient and approved Rules of Law and of the grand Charter for in those things they are to direct their discretions by the said Rules and they are to be guided thereby and are not to proceed therein according to their own wills And herein I shall conclude the second point of this part of the Law that is That Commissioners of Sewers have power to Imprison to Fine and to Amerce And that B. for refusing to obey their Order was justly imprisoned and C. was as justly fined And for the reasons and causes aforesaid the Commissioners in their discretions though the offences of both were alike yet they had power to imprison the one and to fine the other And now I do intend to proceed to the fourth point of my Case and the third point I intend to handle in a more convenient place Distress THe point of Distress in my Case is grounded upon these 4 Point words of this Law viz. And all those persons and every of them to tax assess distrain and punish as well within the metes limits and bounds of old time accustomed or otherwise or elswhere within the Realm of England Three sorts of Distresses First there be divers kindes of Distresses viz. Judicial which always issueth out of the Rolls of the Court. Secondly Ministerial and such Distresse is to be performed by the Officers of these Laws without any judgement directing the same Thirdly and there is a Distress of Common right not given nor awarded by Judgement in Court or by Warrant of the Commissioners but incident to the thing it self And first of the Iudicial Distress which is awarded by the Court upon a presentment found of a Nusans or in the recovery of an assize of Nusans or in an Action of the case as it appears by the 42 Assiz plac 15. 32 Ed. 3. 23. and 7 H. 4. 8. there a Distringas ad Amovendum shall be 32 Ed. 3. 7 H. 4. awarded to remove the Nusans and so in case of a decay presented As if I. S. suffer a Bank or Wall to decay and that be presented a Distringas ad reparandum shall be directed to the Sheriff to distrain I. S. to repair the same Secondly a Distress Ministerial is where one is assessed or rated to pay a certain sum of mony towards the repairing of a Wall Bank Sewer or Goat here upon Warrant from the Commissioners of Sewers the Officer expressed in that Warrant may distrain the cattel of the party which ought to pay the said Rate and Sess and which did neglect to pay the same And yet where there is a Rate and Sess imposed upon one by the Commissioners of Sewers I am of opinion that the Collector or Officer may distrain therefore without any express Warrant from the Commissioners so to do and my reason is grounded upon the Statute which is this because the Statute and Commission which be the general Laws do of themselves in this case give a distress And therefore in these cases the Warrant of the Commissioners is superfluous like to the Case in 20 Eliz. Dyer 20 Eliz. fol. 362. where a Fine was levied of Lands to the intent that I. S. should have and receive a yearly Rent thereout although in the conveyances there was no mention made that the party might distrain for the same Yet in that Book it is mentioned to be adjudged That the owner of that Rent might distrain for the same because the Statute of 27 H. 8. in 27 H. 8. that Case gave a distress Upon which Statute the said conveyance was grounded So if their be two coparceners to whom Land doth descend and they make partition and for more equality she that hath the better part doth grant to the other and her Heirs a yearly Rent out of her Land but limits no clause or power of distress she to whom this yearly Rent is granted may distrain therefore And so may a Bailiff distrain for an Amerciament in a Leet without a Warrant because the general Law gives a Distress in these cases Thirdly and as touching a Distress of common right It is in case where one doth hold his Land of his Lord as of his Mannor to repair a Bank Wall or other work of Sewers the Lord of whom these Lands be holden may distrain his Tenant of common right to compel him to make these repairs and the Distress given in the said Case of the coparceners and in the said Case of Amerciament in a Court of Leet seem both to be Distresses of Common right And that the Law is that a Distress lyeth for a Rate Lot or Tax imposed by the Commissioners of Sewers it is manifest by the Case of Rooks in Cooks 5 Report which is full and direct authority in the point In what place a Distress is to be taken NOw touching the place where these distresses are to be taken comes next into our consideration wherein the quality of the matter distrained for and the power from whence the distresses are derived are to be considered of And therefore if a Lord do distrain his Tenant Ratione tenurae for to repair a Wall Bank or other defence this Distress must be taken on the Ground holden by this Tenure and not elsewhere for these grounds are chargeable therewithal as the opinion of Iustice Sylliard is 21 Ed. 4. fol. 38. But not as that Case is but in point of Tenure 21 Ed. 4. for there the Case was That a presentment was found in hec verba videlicet Iuratores present ' quod est communis Regia via in Parochia Sancti Martini in Campis in Com' Middlesex inter Hospitia Epis ' Dunelmensis Epis ' Norwich totalitur superundat ' aquis quod tam domini spirituales quam temporales Justiciarii domini Regis Servientes ad legem omnes alii Legis ministri omnes alii per viam illam versus Westmonaster ' itinerantes pro legibus domini Regis ibidem ministrandis observandis sepius impediuntur per quod via illa totalliter superinundata existit excessu emanationis aquae pluvialis ibidem remanent ' quam quidem aquam Episcopus Norwicensis rationae tenurae suae ibidem evacuaere debuit quod ipse omnes predecessores sui ratione Tenurae suae ibidem evacuaere debent And in this case I take it the Land was charged not as in respect the Bishop of Norwich did hold the same of some Lord by the Tenure to repair the Sewer to avoid the water but his Land stood charged with the same as a charge imposed thereon by Custom or Prescription as by the president it self appeareth for if the Bishop of Norwich had been
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
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
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
runs betwixt Lincolnshire and Yorkshire the points of either county may be seen at once and seem to stand even over the one to the other Arm of the Sea ANd an arm of the Sea is said to extend into the Land so far as the flow and reflow goeth In the Patent of the Admiral of England I finde this word Creek used for there the King granteth to him omnia bona mercimonia Catalla in vel super Mare littora crecas Costeras Maris but it differs much both from the shore and coast for a shore is sometimes dry Land and sometimes water a coast is always dry land but the Creek is always sea and new land In the Statute 28 H. 8. Chap. 15. Rastals tryal A. It is that all felonies c. done upon the Sea Haven or Creek where the Admiral hath Jurisdiction shall be tryed in such county which the King shall appoint by the Statute it is manifest that the Creek is not all one with the sea nor the same that a Haven is by the Statute made in the 4 H. 8. Chap. 20. Rastal ships 5. appoints 4 H. 8. cap. 20. that all Merchandizers entring in or going out of the Realm of England should be charged and discharged in Diversity between the shore great Ports and not in Creeks or small arrivals by which A Coast Statute it is apparant that a Creek is not all one that a Port is A Creek But yet here it seemeth to be an Inlet of the sea where ships may have their arrivals as at Fosdyke Stow Wainflet and Creek such like and I take it that a Bay and a Creek be all one Bay and that a Mere and a Fleet be also of that nature and that all these rather vary in words then in matter Fleet Mere. A Port. A Port is a harbor and safe arrival for ships boats and ballengers of burthen to fraught and unfraught them at as by the said Statute of 4 H. 4. appeareth In the Irish Reports Fol. 56. Ports be said to be Ostia Ianuae Regni I take a Port to be some special place in some great Borough where arrival of ships be as the Cinque Ports which be Dover Sandwich Rye Rumney and Winchesley the most famous in this Realm and these be places of great priviledges and Boston Hull Lyn and Plymouth be also Ports and Port Towns where special offices officers belonging to them touching Merchants Merchandizers And the said Statute of 4 H. 4. directed that Merchants should be charged and discharged at great Ports was for that there were Officers for the King deputed to receive His Highness customs and profits thereupon arising hereupon came that Officer called Portgreve Hollingshead which signifieth the Governor of the Port as Mr. Cambden Cro p. 120. 6. noteth page 244. the difference between a Creek a Haven Cambden 244. and a Port be these Diversity between a Creek Haven and Port. A Creek is a corner of the sea let into the land farther then ordinary and more then the sea is but it is no usual or accustomed place of arrival for ships and commonly it hath neither safe harbor nor legal priviledge A Haven is properly a safe place of harbor for ships but may be without any priviledge at all of which kinde I know some And a Port is not onely a safe harbor for ships of the greatest burthen but it is also always graced with legal priviledges and this appears so by the Statute of Magna Charta Magna Charta cap. 9. cap. 9. Quod omnes Communitates Barones dequinque portibus omnes alii portus habeant omnes libertates liberas Consuetudines which proveth my former difinition of Ports to be true After all these difinitions and distinctions I have now prepared my Case ready to receive his censure upon the last conclusion that is That all the said grounds were within this Statute but no part thereof within this Commission of Sewers and therefore it is first to be noted That these grounds were left by the sea since the awarding of this Commission and the words of the Preamble of this Statute speaks of grounds heretofore won which word Heretofore won seemeth to tie the Statute and Commission both to grounds left or won before the said Statute and not such as be won after like to the Statute of West 2. de Donis conditionalibus quod ad dona prius facta non extenditur which excludeth out of that Statute all gifts made before And the words Heretofore and hereafter are words of consequence in point of time and wheresoever they are spoken they come with an Emphasis as if they required express observance and so is the Statute of 32 H. 8. cap. 28. of Leases that Statute is of all Leases hereafter to be made by Covenant in tail with such cautions and proviso's as be limited and set down in that Statute should be good Leases formerly made though all the proviso's in the said Statute were observed were notwithstanding by reason of the said word Hereafter out of the relief of that Statute And so in the Statute of Wills 32. H. 8. which had these words in it All persons having Lands or which hereafter should have might devise this did not make good any devises of Lands made before but if this should pass for currant then I should not perform my word in my conclusion which puts it all within the Statute and this exception if it were material would not put it onely out of the Commission but the Statute also yet notwithstanding though the construction made of all the said former Statutes stand with Law by reason of the said words Heretofore and hereafter yet in this Statute of Sewers the same be not material neither be the said words Heretofore won to be precisely observed because they be placed in the Preamble of the Statute and not in the enacting part of the Law as in the said former Statute they were And Expositions are not tyed to Titles and Preambles which many times comes short of the parts of the Law but to the body and enacting part of the Statute which is the matter and substance And hereupon the Statute of 21 H. 8. cap. 15. of Leases recites in the Preamble thereof That whereas divers Leases had aforetime been made for Incomes and great Fines and yet after the Lessors did suffer Recoveries if at this day a Lease be made and that without Fine or Income yet such a Lessee shall be received to falsifie the recovery had against his Lessor notwithstanding The Preamble of that Statute seems to remedy no Lessees but such as made Fines and were made before that Statute but the said words were not put in the body or enacted part of the Statute and so it is in our Statute the words Heretofore won be only put in the preamble and not in the material part of the Law and so
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
in their Convocation house a Councel meerly consisting of the Clergy and then are confirmed in Parliament of which house also they are a Member And therefore in my opinion seeing Tythes are so sacred a duty that a Lay-man could not have any help for at the Common Law and were exempt from temporal and prophane uses I am therefore of opinion That they are not to be rated or taxed by the general words of these Laws Yet I am of opinion that Tythes in the hand of a Temporal or Lay-man are to be rated by these Laws for when they are come into his hands Tunc res spirituales fiunt temporales transeunt decimae in Catalla But I must here leave these Ecclesiastical persons and their Church livings There is another point of this Law will reach unto some of their possessions as to their Gleab Lands which belong to their Churches and their Meadow and Pasture grounds for these be not sacred as Tythes be But came to them by the benevolent gifts of Laymen and not ex duo dei evangelii as Tythes did and so they took that burthen with them from the Lay-donor which after may be imposed upon them And therefore such Parsons Vicars or other Spiritual persons which hold a plough Land in Culture are chargable by the Statute of 2 Mar. towards the repair of the highways as other Lay men be But in that Statute there be Ecclesiastical Officers used as Churchwardens whereby it was conceived that that Statute had an eye to bring Ecclesiastical persons within the reach of it And so for their houses and grounds I take them to be within these Laws of the Sewers for the own Lands are also chargeable thereunto and yet on earth within His Dominions He is said to be caput Ecclesiae and as much reason were it to exempt His possessions as theris if the respect of the person should bear any such sway in the Case Also I do finde by divers ancient Records That Abbeys Priories and other Spiritual possessions have been chargeable to the repair of Bridges Calceys Banks and High-ways by Custom and Prescription as appeareth also by the Books of 11 H. 4. fol. 82 83. and 44 Ed. 3. Fitz. 11 H 4. 44. E. 3. Title Bar. pl. 301. and I take it that by a very express and special Custom or Prescription a portion of Tythes in a Clergy mans hand may be charged with the the repairs of Bridges Ways Walls or Sea Banks but not without a direct affirmative Custom for I suppose that they may as well indure a charge in this kinde as a charge in a Modus decimandi And so I conclude this part of the Case That the person was not to be sessed for his Tythes by the general words of of this Law A Copyholder HEre is also a Copyholder taxed within my Case for his Copyhold Land and whether he for his Copy-hold and the Lord for the Freehold of that soil shall be assessed therefore is another question A Copyhold by the Custom of the Manor yieldeth and affordeth to the Lord Seigniory Rent Fines due upon admittances and such like duties but the Copyholder hath the real and visible profits of the soil therefore both Lord Copyholder receive Et commodum salvationem by the said defences And therefore the words of this Law be exceeding copious and full in this point of sesse viz. To inquire who hath and holdeth any Lands or Tenements or Common of pasture or fishing or hath or may have any hurt or damage or losse by any means in or near the said places and in this case the Lord holdeth the said Land in Tenure though not in Culture and many ways may have hurt and damage As if the Copyhold were overflowed by the Sea the Lord should lose his Freehold of the soil his Seigniory yearly Rents and Fines for admittances and all other perquesites So that the said words of this Stature beat mainly upon him But as there be reasons to be urged against him so there be matters to exempt him from this charge and to lay the burthen on the Copyholder First though he be Lord of the Copyhold yet he is seized of the Freehold thereof but in Imagination and construction of the Law for the Copyholder is pernor and taker of the visible and substantial profits Secondly the charge of repairs respect the possessioner in presenti which is easie to be found out and not imaginary owners as the Lord is And Thirdly if the Lord owner should both be charged pro una eademque re which the Law doth never permit for this is not like the Case of Lord and Commoner they there shall be charged the one for his Soil and the other for his Common for in this case the Lord is the immediate proprietor of the Soil and he hath the present and real occupation thereof as well as the Commoner hath the use of his Common and therefore they shall both be taxed to these repairs diversis tamen respectis But for the Copyholder it may be objected that he is not within this Statute for in Heidons Case in Sir Edward Hcidons Case Cooks 3 Report it is truly said That a Copyholder is not within the Laws and Statutes which alter the Service Tenure Interest of the Land or other thing in prejudice of the Lord and this is the cause that a Copyholders Lands cannot be extended or put in execution upon the Statute of Westminster the Second nor in extent upon the Statute of Acton Burnel and De mercatoribus for if they should then might the Sheriff make the Lord new Tenants without surrender and admittances which is contrary to Custom the life and essence of all Copyholds yet there is another good rule put in the said Case of Heidon that is That where a Statute is made for the general good and wealth of the Realm and that no prejudice can come to the Lord by alteration of Tenure Service Estate or Custom there Copyholds may well be within those Statutes Therefore now it is to be considered whether this Statute of Sewers will in any sort hurt or prejudice the Lord or no for it is certain that these Laws tend as much to the wealth and welfare of this Realm as any can do and in rating and assessing these Copyholds to the repairs of Banks Walls and Sewers c. it alters neither the Copyholders interest nor the Lords Tenure nor doth it in any sort prejudice the custom of the Manor But then it may be objected That if sesse be imposed upon a Copyholder for his Land and be not paid these Laws gives sale of Lands which indeed is the onely clause of this Statute which is material to exempt a Copyholder out of these Laws for clearly I take it That Commissioners of Sewers have no power to decree the Copyhold Land away for non-payment of the sesse Yet I am of opinion that a Copyholder though he be not within
that part of the Statute which giveth sale of Lands yet he is within the other part thereof for divers Reasons One I finde by experience and in divers presidents that many Copyholds have been and be charged with repairs of Bridges and other defences in divers parts of this Realm by customs Also if a Lord grant a Copyhold to I.S. and his heir by Copy Tenendum by the repairs of such a Wall Bank or Bridge this bindes this Copyhold thereto in point of charge And lastly this Statute bindes such to the repairs which may have good by the doing or hurt by the neglect And it is apparant that by over flowing or inundation a Copy-holders Land sustains equal damage with other Lands and for these Reasons I resolve that a Copyhold is within these Laws And shortly touching Copyholds I do confine them to these four heads My four Tenents concerning Copyholds First a Copyhold is sessable towards these repairs for his Copyhold Secondly that the Lord of the Copyhold is not to be taxed for the Soil of the Copyhold for although he might come to it by forfeiture committed yet that is a forain possibility and although he be seized in Law of the Freehold yet because the Issues and Profits go with the Copy-holder this Law therefore will not charge him for the Soil Thirdly in respect the Copyhold rent is a rent of Assize and rents be within the express letter of this Statute and because his rents by the overflowing of the Sea be lost therefore the Lord shall be assessed for it if it be of value Fourthly I am of opinion that a Copyhold may not be sold by the Commissioners of Sewers and yet Copy-holders be within other parts of this Law Now because it is a high point in this Statute in what maner to rate tax and assesse by the judicious power of these Laws and in regard my Case toucheth all maner of Sesses and Rates which be or may be imposed by these Laws I will therefore spread it abroad and I do intend to treat of what Lands and other things are to be assessed towards the repairs in my Case and what persons to be assessed and in what degree Wherein first I am of opinion that one is not to be assessed for his high and descending grounds for so it appears Register was the opinion of Brudnel in the 12 H. 8. fol. 3. where he saith That if a mans ground be surrounded with waters he may make a trench in his own grounds to let the waters run downwards and to descend upon his neighbors grounds for water is an element descendable jure naturae And also high descending grounds can have no such use of Walls and Banks as other grounds scituate lower may have for the waters can have no force against them and therefore the owner is not chargeable therefore and the words of the Commission expressed in the Register be Qui defentionem Commodum salvationem per Predict as Wallias Guttur as pontes Calceta gurgites habere poterint nullatènus parcantur And the Charter of Rumney Marsh seems to bear the same sence viz. Quod pro securitate dicti Marisci districtiones fiant ita quod aequè fiant secundum portiones majores minores quas homines habent in eodem Marisco But high grounds by nature need not Engines of art to defend them And in Rooks case in Sir Rooks Case Edward Cooks 5. Report and Keighleys Case it is truly declared That the grounds lying on the Level which are in apparant danger subject to surrounder are only chargeable to repairs by this Law But yet grounds lying on high Mountainous places may be by Custom Prescription or Tenure liable and stand chargeable to repairs of Walls Banks Sewers Goats and other Defences And in such cases though they be never so high yet these Laws will reach unto them but no charge is to be imposed on them by this Statute and by force thereof onely without a special Custom or Prescription to warrant the same Annuity IF a Dean and Chapter or other Corporate persons or Body Politique be by Prescription to pay a yeerly Annuity to I. S. and his Heirs I. S. is not sessable for his Annuity yet the said Corporate or Politique persons pay the same in respect of their Lands which lie in danger of surrounding and so the grounds be subject to these Laws but it issueth not thereout And the said Corporate and Politique persons are not charged in their Lands but in respect of their Lands to pay the same Commons THose persons which have Common of Pischary Turbary or of Pasture in great Fens Marishes and Wastes may be charged but Commoners in agris seminatis after the corn severed as stock Commons which be of a smal value are not to be charged for their Commons but for their Lands Ferry HE which had a Ferry over a River was in 37 lib. Assiz pl. 10. charged to repair the River and so for a Ferry one may be charged by this Law Herbage HE which hath the Vesture or Herbage of grounds as Prima tonsura vel vestura terrae may be charged to the repairs Free passage IT appears likewise that those persons which had passage for their Boats on the River were to be rated towards the repairs in 37 Lib. Assiz pl. 10. but this is to be intended of those persons which had free and customary passage thereon as a liberty and inheritance and was not meant nor intended of poor Boatmen which come thereon with their Boats accidentally by the general Custom of the Realm Parks Warrens Chases A Man for his Park of Dear and Warren of Conies shall be charged if these liberties lie within the Level but for Chases I suppose one is not chargeable onely for Dear which be ferae naturae not bound to certain precincts but in that case the owner is onely to be taxed for the Soil Mart Fair or Market ALso if one have only the liberty of a Mart Fair or Market to be kept in a place which is subject to surrounder In my Opinion because they are but casual in their profits and not continuall in their being although they be conscribed to place and circuit yet being no part of the Soil nor of the issues and profits thereof they are not taxable within these Laws Offices THe Office of the Clerk of the Market Town Clerk or such like although these Officers be confined to a certain place and precincts within the Level which is subject to surrounder are notwithstanding exempt from these taxations Proxies Synods HE which hath Proxies or Synods of Annual sums of money such as was in the Case of Proxies in the Irish Reports is not sessable within this Law for although the person is charged therefore in respect of the grounds yet the same doth not issue thereout The Morgager for the Title he hath by the Condition to reduce the Lands back again to him or he which hath
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
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
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
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
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