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
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
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
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
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
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
again to their Successors And in the Case of Sir Henry Nevil in Plo. Com. an Office of a Parker was granted to two and an Annuity for the exercise of it and it is there resolved that the Annuity might not be severed from the Office and so it might be said in my Case That the Mannor which belongs to the Office was at the first laid thereto or given therewithal for the maintenance of the Officer in his place by the Founder and so may not be severed therefrom without his consent And touching the intailing of the Office of the Ranger of a Forest it is held in Mancels Case in the Comment of Mr. Plowden that the Office of a Bayliff or Receiver of the Rents of a Mannor may be intailed So an use and a Copy-hold because these concerned and depended upon Land But the Office of the Master of the Hawks or the Mastership of the Horse could not be given in Tail within the Statute of West 2. de donis conditionalibus nor an Annuity which chargeth the person Yet all these may be given or granted within these intailed limitations but yet they are no intails within that Statute I am of opinion That the Office of a Ranger of a Forest cannot of it self be given in Tail but having a Mannor belonging to it make the question of more moment For as the Office Dese is not intailable so the Land per se may be intailed But Land in our case is not the principal but the accessary accessorium sequitur suum principale and therefore seeing the Land follows the Office as the shadow doth the body and passeth out of his own kinde by the ceremony belonging to the Office and not by the ceremony by which Land is transferred and passed I should therefore take it that the Estate of the Land should be such as the Office of it self might bear which could not be intailed yet because in the said Case of the Forester with Land belonging to it is taken to be in Tail in 1 H. 7. aforesaid with a remainder 1 H. 7. thereof over in Fee I am therefore concluded to make any further question of it and so I leave it as I found it and do passe to the argument of the other points Second Point The second Common Law Point is Whether this gift in my Case be a Frank-mariage or another intail I have observed in Books that there be five things incident to a gift in Frank-mariage viz. First it must be to or with a Cosin within the four degrees Secondly the word Frank-mariage must be literally expressed Thirdly the Reversion must be left at the time of the gift in the donor and then there be two other things follow as consequents Fourthly acquital of payment of Rents and services And Fiftly warranty to secure the Estate And the want of these or any of these in the creation doth destroy that Estate in the conception Here seems to be two Impediments in my Case to hinder this gift to take root as a Frank mariage It is made abnepti which is the Cosin in the fourth degree and the last in those gifts whereby the gift that way cannot have his full operation for that the first Heir of their bodies is out of the former priviledges But in regard I take it that a Frank mariage doth more respect his original creation In incepto then the descent of the priviledges to the Heirs In suo progressu I take this to be no impediment to hinder this from being a gift in Frank mariage But here the words in the gift preceding the words Frank mariage do differ much from it for by the special limitation the Heirs Females shall inherit with the Heirs Males Simul Semel as Heirs in common But in the Case of the Frank mariage Heirs Males shall first inherit single and for want of them then the Females I do agree the Law that in cases where the special words of limitation may in construction be made to agree with the word and limitation of Art contained in Frank mariage the gift shall be taken a Frank mariage as in the Case of 2 H. 3. It. suff Fitz. Mordanc plac 52. where Lands were given 2 H. 3. in Frank mariage to R. S. cum Alicia sorore le donor it a quod post mortem dictae Aliciae puerorum suorum the Land should revert to the donor and this was adjudged a Gift in Frank mariage and the words It a quod were holden of no validity neither will the words of Reservandum Redendum Tenendum or Warrantizandum though they vary from the nature of a Frank mariage yet they shall not destroy the same as an Habendum may do which is the word whose proper place is to create the Estate and therefore if any thing come therein which is repugnant thereunto the same will alter the quality of the gift And with this agreeth the Case in 45 Edward the 3. Title Tail 14 and 31. where Lands were given to I. S. in Frank mariage with B. the daughter 45 E. 3. of the donor Habendum to them and their heirs and this was held a Fee simple and no Frank mariage And the like Law is where Lands are granted in Frank mariage the remainder in Fee to I. S. and his heirs the Frank mariage is defeated by the opinion in Br. Cases and so in my Case because there can be no reconciliation between the special words of limitation in my Case and the word Frank mariage I am therefore of opinion that this gift is an Estate in Tail according to the special limitation and no Frank mariage Third Point Whether the Bastard shall inherit to have an Estate in Tail is the third Common Law question for I am clear of opinion that a Bastard cannot inherit to a gift in Frank mariage because adultery and fornication which is the seed of every Bastard is opposite to mariage and in breach of that powerful link and knot of Matrimony which is an Ordinance derived from the Divine power of the Almighty And therefore seeing mariage is the material consideration of such a gift Bastardy the opposite can never being out of the consideration come within the priviledges to inherit this Estate So if I give Lands to I. and S. and to the heirs of their two bodies lawfully begotten their Bastard cannot inherit to this gift because he is not heir of their two bodies lawfully begotten But if the word Lawfully had been out of the limitation then I see no reason but that a Bastard may inherit to an Estate in Tail as to a Fee simple conditional which he might have done at the Common Law seeing an Estate Tail may be made before mariage as expecting to be confirmed thereby and so a Bastard born before mariage is by the consummation of a succeeding Mariage made capable to inherit to them if his possession continue without disturbance to his death Yet in Plow Com.
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
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
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
according to my said conclusion of my Case here the King hath a part the Prince a part and the Subject a part of the grounds left by the Sea My Tenets therefore be these First that the Subject may have the grounds of the Sea to the low-water mark and that no Custome can extend the ownership of a Subject further That a Subject cannot have the grounds to the low-water mark but by custom and prescription and I take it that it is very disputable whether grounds before they be relinquished by the Sea may be gained by Charter and grant from the Crown I suppose they may That the words incrementum decrementum maris are fully described by the said Record of 43 E. 3. of the Abbot of Ramsey that is That if the decrease of the Sea be by little and unperceiveable means and grown only in long tract of time whereby some addition is made to the Frontagers grounds these by these words may appertain to the subject and herein the said words have no other operation but Lands left to the shore by great quantities and by a sudden occasion and perceiveable means accrew wholly to the King That the increase to the said County Palatine for the causes aforesaid doth appertain to the Prince as Earl of Chester The Shore BUt now I am arrived at the continent and the first ground I set my foot on is the shore which in Latine is called Littus Maris it taketh the name wholly from the sea as partaking most with her nature and so Ex digniori parte appellatur yet it is not all one with the Sea nor with the Land but participates with them both And Mr. Bracton in his second Book Chap. 12. saith That Littora Maris Bracton accessoria what the shore is appears by Justinian the Emperor in his Institutes lib. 2. pag. 141. and is there thus defined Justinian Littus Maris est quousque maximus Hibernicus jus fluctus eluderet quousque fluctus Maris in estate longius exestuat and with this agreeth Cicero Topicorum The shore is not counted for lands or grounds gained from the Sea or left by it because at Cicero every full Sea it is covered with the waters thereof In the 13. Chapter of St. Matthews Gospel ver 2 3. it is said That Mat. 13. 2 3. our Savior Jesus went into a ship and sate there and the whole multitude stood on the shore and he spake unto them Hereby it appears that the shore was the dry land because they stood thereon and it was a great quantity of ground for thereon stood a multitude and it was near the brink of the water because they heard Jesus speak unto them out of the ship In point of property and ownership it is the Kings as Lord of the seas but as Sir Henry Constables Case is a subject may have the same as belonging to his Mannor by prescription In the Imperial Law which the Civilians use the sea shore is held to be common to all and that it is as lawful for Diogenes the poor Cinick as Cressus the rich King Casam 161. Ponere retia siccare but our Common Law of England doth in reason much surpasse either the Imperial Law or the Civil Law in distinguishing upon these for it is said Rex in ca habit proprietatem sed populus habet usum ibidem necessarium so that as to the lading and unlading of ships and for drying of Nets there and for other necessary businesses the subjects have these uses therein but the soil and grounds thereof belong properly dom ' Regi And a subject may have the same by prescription and therefore such as hold the shore to be the extreme point both of land and water be in a great error for as Iustinian saith in his Institutes Quod gemmae lapilli praeciosi inveniuntur which can be taken no otherwise sed super terram aqua relictam so that this shall suffice to have said concerning the sea shore Sea Coasts THe coasts of the sea come next in order to be treated of Costera maris be words well known but their confined definition is hard to be found out yet certainly they contain the shore and banks for by the Statute of 27. Eliz. Chap. 24. an Act was made for the mending of the banks and 27 Eliz. 24. sea works on the sea coasts but in the 7. Chap. of Maccabees coasts have a larger extent for there Demetrius Son of Seleucus departed from Rome and came to a city of the sea Maccabees 7. coasts here a whole city is set on the sea coasts and in Iustine treating of Alexander the great it is reported of him that he entred into Licia and Pamphilia and won and conquered all Justine the sea coasts this could be taken for no less then whole countreys for Alexanders great minde and huge Army could not march on a molehil or small tract of ground In St. Mark Chap. 7. it is thus written That Jesus departing from the Coasts of Tyre and Sydon came to Galile so that it may thereby be gathered That these coasts were neer the sea for our Savior was no sooner out of the coasts but he was on the sea which shews that sea and coasts be contiguè Iacentia yet no certain definition can I finde of the words Coasts of the Sea but by these and such like descriptions yet this I gather and collect thereby that in respect of the whole World a whole Kingdom lying next may be said to be a sea coast and a whole county in respect of a Kingdom and in my opinion the next town and territories thereof lying next to the seas be in our Law taken to be the sea coasts and no other and therefore some do much erre which take coast to be the edge of Land next the water and shore to be the brinks of the water next the Land quasi duo opposita And because Creeks Havens and Ports be all of them within the charge of this Law and this Statute was materially made in defence thereof and as they differ in appellation so they vary in definition yet they do in some things agree in the material I will therefore deliver my opinion of them Creeks CReeks of the sea is an Inlet of sea cornered into the main Land shooting with a narrow passage into some Angle of the Land and therein stretching it self more then ordinary into the Land and so holdeth not even quarter with the Levant sea and such Creeks or Inlets we commonly term in the Law to be arms of the sea for like as the arm of a man shooteth out from the body so by a metaphor the inlet or corner of the sea let into the Land is called an arm of the sea and although it go far into the land yet the points of land on both sides may well be discovered and this appears in that great arm of the sea on Humber where it
examine this part of the Statute which produceth these matters I have framed a Case which doth give occasion in this days exercise to dispute of all them The Case for the second Lecture A. Leaseth his Mannor in the county of Lincoln in which Second Case be Copyholds to B. a yonger Son for his life upon condition to have it for the life of C. upon condition to have it to him and the heirs of the body of his Father A Copyhold is forfeit the first Condition is performed the Commissioners of Sewers in that county upon view survey and by their discretion decree a new bank where none was before to resist the Sea and a new River to be cut to drain the superfluous waters in S. and an old Sewer in D. to be repaired and by inquisition assesses B. the Lessee for the Mannor the Copyholder for the Copyhold Land and the Town of S. and also the Parson there for his Tythes because they lie all in the Level the second condition is performed B. enters in the Copyhold My conclusion is That this new Bank new River and old Sewer be well decreed but the said sesse is void in toto in qualibet parte Points at the Common Law The Points of this Case are three at the Common Law and three upon this Statute but all of them are so woven within another that every one of them go hand in hand from the beginning to the end of the Case Imprimis Whether the Duplicate Condition be good or not Secondly What Estate B. the yonger Son hath by the first Condition and what Estate he hath got by the second Thirdly A Copyhold becomes forfeit to the Lord and before the Lord take advantage of it his Estate is changed Whether by the change of his Estate the benefit of the forfeiture be lost or not Points upon the Statute Imprimis Whether Commissioners have power to decree a new bank a new drain and other new defences or not And herein the qualities and properties of Rivers Streams and Banks and their dependants are to be treated of Secondly Whether they may decree the said new defences by view and survey And herein is to be handled What Commissioners of Sewers may do by survey and what they may do by their discretion and what they may do by Jury Thirdly in what cases Assesses and Taxes may be laid and imposed and on what things and in what maner they are to be imposed and whether the Rates set upon the persons in any case be well done or not and where the fault is if any be Argumentum Lectoris Seeing it hath been the ancient order for the Reader of this place to maintain the Conclusions of his Case I shall therefore endeavor my self to perform that order which Custom hath imposed upon me and accordingly as I have concluded so I take the Law to be And touching the first Point it hath been challenged and drawn in question upon some Opinion delivered in the Rector of Cheddingtons Case in Sir Edward Cooks first Report where it said That one contingent cannot depend upon another Sir Ed. Cooks 1 Report But more strictly it is called to an accompt in the Lord Staffords Case in Sir Edward Cooks eighth Report for there it is Cook Rep. 8. held That one possibility cannot depend upon another possibility and this Case is there put That if A. let Lands to B. for years upon condition to have it for life and upon condition to have Fee that the Fee simple can never increase by the second condition but as he saith in another Case Amicus Plato Amicus Socrates sed magis amica veritas his rule taken in the first Case is very general and the Lord Staffords Case admits distinctions which in my Argument I shall apply my self unto And some differences I shall take in this Point in question therefore I shall thus distinguish That if upon performance of the first Condition the Original Estate be determined upon which both the first and second Condition were built and grounded the second Condition and increase thereupon is utterly void but if the first Estate be not destroyed nor confounded upon the first Condition performed the second Condition and Estate thereof which shall be gotten thereby may then well grow upon the old stock To explain this by Example If A. give Land to B. in Fee simple upon condition to have the Land in Tail upon condition to have for Life here because the first Estate and Livery by the first Condition is not destroyed therefore the second Condition should well stand in force So I do make a Lease to A. for twenty years upon condition to have the Land for forty years upon condition to have Fee this first Condition and second Condition may have both their full operations for by the performance of the first Condition the lease of twenty years is not destroyed but stands on foot and therefore the original Estate remaining unconfounded the Fee simple may well increase by the performance of the second Condition But if a Lease be made to A. for his life upon condition to have in Tail upon condition to have Fee the second Condition here is utterly void because by the performance of the first Condition A. had an Estate in Tail which drowned and destroyed his Estate for life and so because every decreasing and increasing Estate is to depend upon the first Estate which receives the Livery which is the life of all therefore the second Estate can never accrew in this case and this is true reason as I take it of the said Case put in the Lord Staffords Case for there the Case for years was destroyed by the Lease for life which came by the first Lord Staffords Case Condition and so the Fee simple there could never accrew by the second Condition And in answer to the said general ground taken in the Rector of Cheddingtons Case That one Rector de Cheddingtons Case contingent or possibility cannot depend upon another under favor I take it not that I am bound thereby neither was it the meaning of Sir Edward Cook as I take it to extend the same so largely as they are there put because I finde many Authorities of great account which are against the said general position And first in the 38 H. 8. Br. Feoffments pl. 71. a Feoffment 38 H. S. was made to the use of A. and his heirs until I. S. paid him Ten pounds and then to I. S. and his heirs and so to the third person and what is this but one condition contingent and possibility to depend upon another for these contingents there were held good and were built upon a sure foundation And so in Digs Case in Sir Edward Cooks Reports where a Feoffment is made to the use of A. and his heirs with Digs Case power of Revocation and after of new Limitation of Estates these be also contingents and possibilities
depending upon others and many such double contingents may be put The Case of Sir Edward Cook put in the end of the Rector of Cheddingtons Case out of 12 Lib. Ass pl. 5. in my 12 lib. Assize opinion doth not disalow the second Condition for there the Case is That A. Leased to B. upon condition That if A. or his heirs pay to B. Ten pounds within a certain day that they might re-enter and if A. nor his heirs should not pay the Ten pounds within the time Then if B. paid to A. Ten pounds at another day that he should have Fee Both A. and B. failed in payment and A. entred and being put out brought an Assize and nihil Caepit per breve this doth not prove that one condition cannot depend upon another neither can I see well what Exposition to make of so uncertain a Case so that I take this Case to be no evidence against mine But in the 14 H. 8. fol. 15. there is a Case which in my 14 H. 8. fol. 15. opinion makes more against my double condition then any other which is put by Brudnel Chief Justice that is If A. be bound in an Obligation to B. upon condition to infeoff I. S. before Easter ensuing then the Obligation to be void and if he do not infeoff him then to pay Ten pounds at Pentecost then the Obligation to be void The Feoffment is not made before Easter therefore Brudnel held the Obligation was forfeit and that the second Condition was not good But there is a Quaere set upon that Case and so it may well be for I see it commonly done that if a defesans be made of a Statute which is broken and so the Statute becomes forfeit yet a new defesans may defeat it and so in my opinion may the second Condition in this Case avoid the Obligation if the first conclusion had not been in the Case I shall adde this Case also as a conceit that is A. infeoffs B. upon condition if A. go to Lincoln he shall have the A Conceit Lands to him and the heirs of his body and if he go to Boston he shall have it for Ten years and he goes first to Boston I do here hold these Conditions being put promiscuously without distinction of the times of the Conditions which shall be first performed and which the second that the Fee is decreased into an Estate for years and can never increase into an Estate in tail by performing of the second Condition because the Livery out of which it should grow was quite destroyed by the first decreaser So that my intent Sâ—â—ond Point appears that one Condition may depend upon another upon the said distinction but whether by the performance of the first Condition in my Case there will an Estate come to B. or not I meant it for a question for B. had before an Estate for his own life then is it not possible that his Estate can hereby be increased by having the Land also for the life of C. if it be admitted argumenti gratia that B. shall or may have both these Estates stand in him both at one time for if C. dyed first then is B. never like to have any benefit thereof And if B. himself should dye before C. then also were it impossible for B. to make any use of this Estate for the life of C. unless it were in him to grant away to another as in the Case of the Office in the 1 H. 7. where an Office 1 H. 7. 29. Crofts Case is granted to the King the King could not have the Office himself and so in that point for the King to take by the grant he could not yet by that book it was in him to grant over to another which might have it And like to this is the Case where I. S. is Parson of the Church of Dale and the Patron grants the next avoidance this grant can he himself take no benefit by unless he resign yet if he dye it shall come to his Executors But I take the Law to be in my Case that B. shall not by the first Condition have both the Estates in him at once that is for his own life and after for the life of C. but that the Estate of B. by the first Condition shall be decreased or changed from his own life into the life of C. and shall be melted and newly molded by this Condition for an Estate may as well decrease as increase by a Condition and yet the Lord Staffords principal Case was That Queen Elizabeth did grant the Mannor to Tindal and the heirs of his body upon condition upon payment of Twenty shillings to her by Tindal that he should have the Reversion to him and his heirs and there it is holden for Law that by the payment of Twenty shillings the Reversion in Fee simple shall increase to Tindal and shall not alter or drown the Estate Tail which is an excellent Case but alter the putting of that Case and then it may alter the Law also that is I give Land to I. S. and the heirs of his body upon condition A Conceit if he pay me Twenty shillings that he shall have the said Lands to him and his heirs In my conceit by the performance of this condition the Estate Tail is by increase changed into a Fee simple in which note the difference between Tindals Case and this where upon payment of 20. s. the reversion is granted to him and his heirs and where the words be That upon payment of Twenty shillings he shal have the Lands to him and his heirs In the first Case the Fee-simple accrewing shall not alter the Estate Tail but in the second Case by the Fee increasing the Estate Tail is determined and changed into a Fee simple quod quaere Admitting the first condition did increase the Estate of B. from his own life to the life of C. and the second condition is performed by the which another Estate will accrew to B. as I take it will because an Estate decreased is parcel of the first Estate then what Estate B. hath got by this new Limitation is the question And in my Opinion he hath at the most but gotten an Estate again for his own life and that the Limitation to the heirs of the body of his father is utterly void be his father dead or alive for if his father be dead his elder brother is the heir of his body within these words of Limitation who cannot take the Lands by descent Littleton estate Tail from B. his Brother or from his Father but as the Case is put in Littletons Title Tail and in the 4 and 5 Ma. in Dier Ereswoulds 4 5 Ma. Dier Case where Lands were given to the eldest son and the heirs of the body of his father this is a good Estate in Tail being made to the eldest son because he is capable to take the Lands in
and discretion The words of this Commission upon which I framed this part of the Case be these videlicet We have assigned you Theophilus Earl of Lincoln Robert Lord Willoughby of Earsby Sir George Manners Knight Sir Philip Tyrwhit and Sir John Wray Knights and Baronets Sir William Pelham Sir John Read Sir Edward Ascough Sir Hamond Knights Anthony Erby Esq Quor ' the said Earl Lord and Sir George Manners we will to be three to survey the Walls Banks Drains Sewers c. and the same to cause to be repaired amended or put down as cause shall require after your wisdom and discretions and to do after our Statutes as also to inquire by the oathes of lawful and honest men of those places where such default be By the Tenor of which words I conceive That Commissioners of Sewers have power by their Commission to proceed three maner of ways viz. first By Survey 2. By Jury 3. By discretion wherein it behoveth Commissioners of Sewers to know perfectly how to use and dispose of their powers with due understanding of these parts of this Commission and Law And the better to prepare them herein I shall take some pains to declare unto them what they may do by survey without a Jury and what by Jury and what by their discretion without both Survey and Jury View and Survey VIew is the primary part of Survey and Survey is much but not altogether directed by view It is true that view is of great use in the Common Law and it is to be done and performed in person and such views are taken in Tryals of Assizes yet by the 36 Hen. 8. in Dyer fol. 61. Peningtons Case a very personal view needeth not in an Assize if upon examination of the Jurors it may appear that a competent number of them know the grounds in question in such sort as they can put the party in possession if he recover but in an Action of Waste an express personal view is both required and requisite for the words of that Writ directs the Sheriff Accedere ad locum vastatum In a word there is a diversity between a view and a survey for by the view one is to take notice only by the eye but to survey is not only to take notice of a thing by the eye but also by using other ceremonies and circumstances as the hand to measure and the foot to pace the distances And the Commissioners Surveyors have power to take information by examination of others And although Judge Fitz. in 27 H. 8. fol. 27. holds a Surveyor of very small esteem in his power and authority that is That he may hear see and say nothing Oier voier rien dier Yet under the favor of that book I take a Surveyor to be of more esteem and authority for by an old Statute made in 4 Edw. 1. Rastal Surveyors first he is there described to be a man which is to view the work and to make inquity 4 Ed. 1. and to set down which be Copyholds which be Freeholds c. whereby it appeareth that a Surveyor is an actor and not a looker on as Mr. Fitzherbert would have him so by these descriptions the Commissioners may inform themselves what is meant by the word Survey put in the Statute And many of our Statutes take notice of such an Officer as a Surveyor For in the Statute of Bridges and highways there be such Officers appointed and in the Statute made for the erection of the Court of Wards and Liveries there is a grave Officer appointed who is called the Surveyor general of that Court and he is a Judge in matters there handled And there is also an Officer in this Statute of Sewers called a Surveyor who hath no judicial power but is meerly an Officer What things Officers of Sewers may do by Survey onely EVery thing which Commissioners of Sewers are to do must be by true understanding of their authorities and this must be so done that they make such distinctions differences and applications as may stand with knowledge skil and learning or otherwise their proceedings will prove irregular And therefore it is not only meet to describe the Officer Surveyor as formerly I have done but also his Office which I now mean to do First Commissioners of Sewers may view the Defences and thereby may inform themselves which stands in need of repairing and amending and which not and wherein the defaults and defects appear to be and what they be Secondly they may by survey take notice and knowledge by conference with Carpenters Masons Smiths and other Officers what things are fitting to be provided for effecting the works and what sums of money will be spent for the finishing thereof Thirdly the Commissioners may by view and survey take knowledge of the lets impediments and annoyances in the Banks Walls Rivers Streams Gutters Sewers and of the height and lowness of the said Banks and Walls and may thereby discover and finde out the wants imperfections weakness and strength of them and so may cause the lets and impediments to be removed and the wants to be supplied and the weak places strengthned as cause shall require Fourthly also by survey onely they may sufficiently inform themselves of the incroachment and of the straitness depth wideness and shallowness of the Rivers Streams Gutters and Sewers and may view the defects in these kindes These things I have produced as proper to be performed by view and survey of the Commissioners and now I shall proceed to the rest Things to be done by a Iury. FIrst what person or persons did erect and set up any let and impediments as a Floodgate Mill-dam or such like must be found by Jury for here the words of the Statute are to be observed which are these And also to inquire by the oathes of good and lawful men of the said shire or shires place or places where such defaults or annoyances be as well within liberties as without by whom the truth may rather be known through whose default the said hurts and damages have happend or who hath or holdeth any Lands or Tenements or Common of pasture or profit of fishing or hath or may have any hurt loss or disadvantage by any maner of means in the said places as well near to the said Dangers Lets or Impediments as inhabit or dwell thereabouts by the said Walls Ditches c. So that the first Article is full within the words of this Statute and therefore it must be done by Jury and no other accusation is of sufficient strength in the Law to put a man to his answer And herein the makers of these Laws did sagely for how should Commissioners of Sewers take notice by view or survey of such things as are done or committed in their absence Secondly if any Wall Bank River Sewer or other defence be defective by neglect or sufferance of such as should repair the same the Commissioners of Sewers are to inquire by
Jury in whose default the same happened Thirdly the Commissioners are to enquire What person or persons ought or be bound by Custom Prescription Tenure Covenant or otherwise or for or by reason of what lands or grounds he or they be tyed or bound to do the repairs and where those grounds do lye and who be the owners thereof Fourthly also it must be inquired by Jury What grounds lye within the hurt or danger of waters either within the surrounder by the sea or the inundation of the fresh waters and to whom they do belong Fifthly and if a new Sluce Goat or other defence is to be erected built and made or a new Sewer Gutter or Trench to be cast this may be determined of by the view and survey of the Commissioners and so may the aptness of the places where they are to be set or cast and the length height bredth and depth of them for these things are proper for a view and survey But what persons hold Lands and Tenements within the Level which are fit to be chargeable thereunto and the quantity of their Lands are to be inquired of by Jury And these few causes I have put for example sake and if any other fall out within the like reason then they are to receive the same construction Sixthly in every case where an Amerciament is to be imposed it must be by presentment of good and lawful men upon their Oaths Et hoc per statutum de Magna Charta cap. 14. nulla miserecord ' ponatur nisi per Sacramentum proborum legalium hominum de viceneto c. Surveyors presentment BUt it hath been used that Surveyors of the Sewers have made presentments of defaults of things governed by these Laws but whether such a presentment be binding or not is a good point It is clear in my opinion that they can make no presentment but such as happeneth within their view and survey and what those things be they formerly appeared They cannot present that I. S. is bound by prescription custom covenant or otherwise to repair such a Wall Bank or Sewer for this is not within their Office In Kelloways Reports fol. 141. there is a custom alleaged that Kelloways Rep. fol. 141. two men within the provost might present the Articles of the Leet But I doubt of such Presentment though it have a custom to strengthen it I take this difference that an Original Presentment Surveyors cannot make as to present I. S. that by the Tenure of his Lands he ought to repair such a Bridge Wall Bank or other Defence But the Surveyors may make a supplemental Presentment as for example if it hath been presented before by a Jury that I. S. ought to have repaired such a Ditch and hath not done the same and day is given him by the Commissioners of Sewers to do the same if the same be not repaired at the day the Surveyor may present in this case the not repairing because this is but an Oath of assistance ad informandum conscientiam Judicis for the Amerciament shall be imposed by the force of the said former Presentment and this latter Presentment by the Surveyors is onely to give the Justices notice of the parties farther neglect to the end they may impose the greater Amerciament And a Presentment by Surveyors is not traversable being of so smal esteem in Law as our Law will not vouchsafe to take an issue upon it for their act herein is not in the ordinary legal form What Commissioners of Sewers may do by Discretion DIscretion is the herb of grace that I could wish every Commissioner of Sewers well stored withal for the makers of this Statute had an intention to make it of great use being literally nominated nine or ten times in this Law for this cause I have inserted in my Case but note that the word Wisdom is coupled with it and the word Good is annexed to them both as best shewing of what pure mettal they should be made of After your good wisdom and discretion There be three several degrees of discretion Discretio generalis Discretio legalis Discretio specialis Discretio generalis is required of every one in every thing that he is to do or attempt Legalis discretio is that which Sir Edward Cook meaneth and setteth forth in Rooks and Keighlies Cases Hoc est scire pro legem quod sit justum and this is meerly to administer Iustice according to the prescribed rules of the Law and herein is this discretion limited that it go not beyond or besides those Laws which are to be executed And this discretion is to be governed by the Laws for Cicero saith Sapientis est judicis cogitare tantum sibi esse permissum quantum Cicero sit Commissum aut creditum The third discretion is where the Laws have given no certain rule to be directed by in a case within the power of this Commission there the Commissioners are to order these affairs with such wisdom and judgement that although their censure be not framed in a Rule of Law yet they are to do therein secundum aequum bonum and herein discretion is the absolute Iudge of the Cause and gives the rule But in the case of Legal discretion there discretion is but a servant and is tyed to attend upon the Law and there the Law directs the censure and discretion is but to do the same wisely temporally for ipsae etenim leges cupiunt ut jure regantur Sir Ed. Cook in Book Case 5 Report gives this rule to the Cato Commissioners That although the words of the Commission be That they should do according to their discretions yet their proceedings ought to be limited and bounded within the Rules of Law and Reason for that discretion is a Science to discern betwixt falsity and truth between right and wrong between shadows and substance betwixt equity and colourable glosses and the Commissioners ought not to follow their wills and private affections for That talis discretio discretionem confundit And therefore now I will declare in few words in what things these Commissioners are to be ruled by good discretion First the quantity of Fines be left to the discretion of the Commissioners Item Imprisonment of the bodies of the offenders when they deserve and the time how long lieth much in their discretion Item it lieth in their grave wisdoms and discretions when and where to erect new Walls Banks and other Defences and what sums of Money to Raise and Levy therefore The election of Officers lieth in their discretion It lieth many times in their discretion whom to fine and whom to imprison I take it this word Discretion used in the Statute giveth power to the Commissioners to order businesses there arising in course of equity for hoc nihil aliud est but to proceed secundum aequum bonum I have put these few Cases as examples to direct and instruct what may be done by
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
Case Fifthly if I. S. by reason of his Lands or otherwise be tied to repair the Sea bank but the hazard is so apparant dangerous to the country that I. S. in all likelihood cannot repair the same and so the country might be in danger to be overflown ere I. S. alone could do it here also the country on that Level are to be rated and taxed towards the same Keighleys Case Sixthly if the Sea at the Spring tides or at extraordinary casual swelling Tides or Floods have broke down the fences and overthrown the Banks and drowned the country without any default in the party who was tied to have repaired the same the Level shall in this case make up the breach for things which happen extraordinarily by the Sea or great waters which neither policy of man could prevent nor industry or force could resist are counted irevitable and undefenceable and so is the Law in the Case of Lessee for years or for life if they suffer by neglect their Banks or Walls to be broken down and their grounds surrounded they be punishable in an Action of Waste But if those grounds by the extraordinary rage and violence of the Sea or waters be born down and their grounds surrounded thereby they are in this case freed from all Wastes and in proof thereof the Case in 28 and 29 H. 8. Dier fol. 33. is much to this purpose where one 28 H. 8. Dier made a Lease for years of grounds to I. S. lying near the River of Eye and the Lessee covenanted to repair the Banks of the River to preserve the Meadow from surrounder yet after an extraordinary flood the Banks were broken down and the Meadows were surrounded and it was there holden to be no breach of Covenant Nota this was in ☞ the Case of a fresh River whereby in this Case the Law must lay the charge of the Level if any danger be likely to ensue by the protracting of time Seventhly if one do hold his Land by the yearly payment of Ten shillings towards the repair of a Wall if this money will not defray the charge the rest must be laid on the Level Eighthly if a new Wall or Bank be to be erected or a new Sewer Trench or River to be cast or Sluce or new Goat to be built in these cases the Commissioners must lay the charge on the Level which are to take benefit thereby as well for new building thereof as with the maintaining of them for in the Case of new defences there can be no Prescription Custom or Tenure bound to do the same And lastly In case there be a great Port in the country by the which the whole country hath benefit for the Ports and Havens as hath been said be Ostia januae Regni and are the defences to the whole country tempore pacis tempore belli and are these places by means whereof the upland countreys be made partakers of the sea Commodities therefore in my opinion the extraordinary repairs of these be not altogether tyed to the Level as in other cases nor to Prescription or Custom of repairing which extends but to ordinary defects but upon great and urgent necessities for the safety of the Port upon the welfare whereof the safety of the country doth depend the whole country are obliged and bound to contribute towards the repairs for these reasons following First for that in time of peace it is the Gate which openeth it self to let in from Foraign parts the Ships and Barques which bring hither to this Island such Merchandizes Wares and Commodities both for our profit and pleasure as we have need to use Secondly at these Ports we ship out to Foraign Nations our excess of Corn Cloth Skins Lead and other Wares wherewithal we do abound and receive in truck therefore other things more useful and necessary for us Thirdly in time of War we have shipping here for our Soldiers and means at the easiest charge to Transport them to such places as the King and Councel shall direct Fourthly in those Ports are commonly great Havens which are the chief receptacles of all our fresh waters into which the waters which drown the grounds of the countreys adjoyning are conveyed And lastly it appears by divers Authors that a country well furnished with Ports and Havens is not more strengthned then honored thereby and if it be as lawful as convenient to put a case of Chronicle Law upon it in the 28 year Eliz. in Holingshead Chronicles it appeareth what great care the Queen and the Lords of the Privy Counsel and the Hol. Cron. Knights and Gentlemen of Kent took for the repairing of Dover Haven what preparation was made for it what moneys Levied and how forward all the country was to effect that work may be a Spectacle to others for to lend their helping hands to the maintaining of such worthy works being of all other the most Honorable to our Nation and the most useful to the inriching thereof for which causes in my opinion because the Mountains as well as the Valleys have both Salvationem defentionem commodum thereby therefore in time of need the one as well as the other should be charged by the power of this Commission to contribute to the extraordinary repairing of the same I have now proceeded in this point of Sess so far that I take it I may justly here make my full period of this days exercise and I have taken up the more time herein because thereupon a main part and strength of this Law consists And therefore I will now apply my self to my conclusion in the which I have already proceeded so far that I have made it in some sort to appear that some of the Sesses in particular are not well imposed as the Lessee in case of the new defences was not alone chargeable for that he in the reversion was to contribute thereto and that no imposition ought to have been laid upon the Parson for his Tythes but the owner of the Soil was to be charged for all so that these two be already ruled for me But yet if any of the Sesses should be good then I should fail in my conclusion I shall therefore set forth in few words that all the Sesses are void And the cause is this That the draining of the superfluous waters in S. appeareth by my Case to be only commodious for S. and that D. the other town had no good thereby And it appears also that by the repairing of the ancient Sewer in D. that town only had benefit thereby therefore to assess S. to repair in D. and D. to contribute to S. where in those Cases there could be no benefit is directly against the letter and sence of these Laws but herein either of them ought to have been at charge with that by the which it took benefit and that not otherwise and therefore the mixture marred all the matter And so upon all this I conclude my
perpetual charge by any power or authority given by this Statute but in the said case of Romney Marsh the Custom there maintained this point yet Not a bene verba hujus Statuti which be these viz. And to make and ordain Statutes Ordinances and Provisions from time to time as the case shall require for the safegard conservation redresse correction or reformation of the Premises and every of them and the parties liable to the same necessary and behoofful after the Laws Customs of Romney Marsh in the county of Kent or otherwise by any ways or means after their own wisdoms and discretions These be the words and this is the clause which must make good this perpetual charge for that it doth formerly appear that such like Laws and Customs there were in Romney Marsh as this is and therefore I may conclude this point that the Commissioners in imitation of the said Ordinance of Romney Marsh may make Decrees to binde Lands to perpetual charges Yet Sir Edward Cook in Keighlies case sets it down as resolved That the several Commissioners of Sewers throughout all England are not bound to pursue the Laws and Customs of Romney Marsh but in case where some particular place within their Commission have such Laws Customs as Romney Marsh hath there they might pursue them But in my own opinion the Commissioners may if they please make Ordinances and Laws like to those of Romney Marsh where there hath not been any such use and the words of the Statute as I take it will bear that construction and the said opinion of Sir Edward Cook is not directly against this And upon Decrees for sales of Land it is usual in these Decrees to binde those Lands to the perpetual repairs Sales of Lands THe words of the Statute which be made for sales of Lands be these Provided always That if any person or persons being assessed or taxed to any lot or charge for any Lands Tenements or Hereditaments within the Limits of any Commission hereafter to be directed do not pay the said lot and charge according to the Order and Assignment of the Commissioners having power of the execution of the said Commission c. by reason whereof if it shall happen the said Commissioners for lack of payment of such lot charge to Decree and Ordain the said Lands and Tenements from the owner or owners thereof and their heirs and the heirs of every of them to any person or persons for term of years term of life Fee simple or Fee tail for payment of the same lot and charge Then every such Decree and Ordinance so by them ingrossed into Parchment and certified under their seals into the Kings Court of Chancery with the Kings royal assent had to the same shal binde al and every person and persons that at the making of the same Decree had any interest in such Lands Tenements and Hereditaments in use posession reversion or remainder their heirs and Feoffee and every of them and not to be in any wise reformed unless it were by authority in Parliament hereafter to be summoned and holden within the Realm And also that the same Laws Ordinances and Decrees to be made and ordained by the Commissioners or any six of them by authority of the said Commission shall binde as well the Lands Tenements and Hereditaments of our Soveraign the King as all and every other person and persons and their heirs and such their interest as they shall fortune to have in any Lands Tenements and Hereditaments or other casual profit advantage or commodity whatsoever they be whereunto the said Laws Ordinances and Decrees shall in any wise extend according to the true purport meaning and intent of the said Laws This Clause or Proviso was strangely placed in this Statute as if this Statute had not been the first Father of it and as if this Law had made some addition to a former Law But I take it that this Statute was and is the first and only Law which gave sale of Lands in cases of Sewers and this Clause stands upon these four pillars Imprimis for what cause Lands may be sold by the Commissioners of Sewers Secondly what Lands are to be sold within these Laws Thirdly what persons what Estates and Interests are to be bound thereby Fourthly to what persons these Lands may be sold or decreed The Statute is If any person sessed do not pay whereby it is manifest that the Lands are to be sold for sesses and charges imposed by the Commissioners which lyeth in payment only and they may not be decreed away for any other cause or matter And therefore if one hold his Land to repair a Wall Bank Sewers or other work of Sewers and he neglect to repair the same the Commissioners of Sewers cannot for this cause decree the Lands away from the owner because this charge lay not in payment And I cannot gather out of the words of this Statute that Lands can be decreed for any cause then for Non-payment of a Lot Sess or Charge by reason this word Payment is reiterated three or four times in this branch of the Statute and no other words be coupled with it to infer any other or larger exposition If I. S. do hold his Lands of the Lord of a Manor by the payment of Twenty shillings yearly or other sum towards the repairs of a work of Sewers and he do neglect to pay the same whereby the work is unrepaired although this is a charge which lyeth in payment yet because it grows due by Tenure by the Common Law and was not imposed by the force of this Statute therefore the Lands of I. S. cannot be decreed from him by the Non-payment thereof by the tenor and vertue of this Law of Sewers But if the Lands of one be generally charged to repair such a Wall or other work of Sewers by Prescription Covenant or otherwise and the Commissioners impose a sesse and rate upon him to repair it and he do not there in this case although the charge was by the rules of the Common Laws yet because the sesse and rate was set upon him by the power of this Statute I am of opinion that for neglect of payment the said Lands may be sold by the decree of the Commissioners of Sewers So if one do hold his Lands for the payment of Twenty shillings to repair a Bank and the Commissioners of Sewers do order the party to pay the Twenty shillings at a time by them prescribed not being contrary to the usual days of payment and he do neglect to pay The Commissioners may decree his Lands from him because this charge by reason of the said Order had got the force and power of this Statute If a charge be generally laid upon a Township Hundred or Rape which is not paid according to the Commissioners Order no Lands can be decreed in this case because no persons or Lands be in this case particularly charged and the
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
I take it these few distinctions do fully declare my opinion touching those matters The Statute of 23 H. 8. which I read on touching and concerning Lets Impediments and Annoyances hath these words in it in effect And the Commission giveth Authority to Edmond Lord Sheffield Sir Philip Tyrwhit Sir Nicholas Sanderson Knights and Baronets Sir Richard Aurcots Sir John Thorold Sir John Read Sir Charls Bouls Sir Ralph Maddison Sir William Hansord Sir Francis South Knights Thomas Tyrwhit John Bolles and Nicholas Hamerton Esquires whereof the said Baronet and Baronets were of the Quorum to survey the Walls Streams Ditches Banks Gutters Sewers Goats Calceys Bridges Trenches Mills Mildams Floodgates Ponds Locks Hebbingweres and other Impediments Lets and Annoyances and the same to cause to be made corrected repaired amended put down or reformed as cause shall require after their wisdoms and discretions and therein to ordain and do after the form tenor and effect of all and singular the Statutes or Ordinances made before the first day of March in the 23 year of H 8. touching the Premises or any of them as also to inquire by the Oaths of honest and lawful men of the said shire or shires place or places where such defaults or annoyances be as well within liberties as without by whom the truth may rather be known through whose default the said hurt and damages have happened and who hath or holdeth any Lands or Tenements or Common of Pasture or profit of fishing or hath or may have any hurt loss or disadvantage by any maner of means in the said places as well near to the said Dangers Lets and Impediments as inhabiting or dwelling near about the said Walls c. and Impediments aforesaid and all those persons to tax assess and distrain In a former clause of this Statute the Commission giveth power to survey the Walls Banks Ditches Gutters Sewers Goats Calceys Bridges Streams In which clause these as necessary Defences are ordered to be repaired Then comes another clause wherein these things are recited as Lets and Impediments videlicet Streams Mills Bridges Ponds Fishgarths Mildams Locks Hebbingweres Hecks and Floodgates So that by these two clauses the first sort were to be maintained and not destroyed and the second sort should have been destroyed and not repaired And if these two first clauses had been alone then the Commissioners had been bound to maintain the one and destroy the other without any toleration but then came in the said third clause which is the clause of moderation and therein as well the Defences as the Lets and Impediments come all in one clause promiscuously put together and so the words amend correct repair and put down is therein referred to them all so as in my opinion all defences as Walls Banks Sewers Calceys Goats c. be not to be maintained because in tract of time some may prove unnecessary and unuseful which for that cause may be pulled down so all Mills Mildams Floodgates Weres Stanks Stakes Kiddels and such like are not to be put down and overthrown but such as are ancient and are thereby grown to be the proper inheritances of men and such also which are useful and necessary are to be maintained kept and repaired for in some great Havens and Ports great abundance of Piles and Timberposts are set in the waters to stay the rage force and violence of the waters for the safegard of the Port and Haven It were a very ridiculous exposition of this Law to urge the Commissioners to overthrow those things which are helpful and not hurful for this Statute did foresee that these Mildams Stakes Stanks Floodgates Weres c. were not at all times and in all places hurtful and therefore was the said clause of the Statute inserted which gave the Commissioners power to put down such as were Lets and Annoyances in truth and where they were used for strengths and were of good use to maintain the same And this construction I take it is fully maintained by this Statute but more especially by the Statute of 7 Jacobi cap. 20. where Peres Piles Jetties and the like set for fortifications 7 Jac. Reg. cap 20. and strengths are expresly ordered to be maintained And upon this part of this Law I do collect these insuing matters First that if one do erect and build a Were Mill Mildam or other thing on a River Navigable to the hinderance of Navigation or if there was an ancient Were which was inhaunced of late years the Commissioners of Sewers are to order him that did erect the one and he which did inhaunce the other to pull down the first and to abate the excess of the other at the Costs and charges of the owner and if he or his Assigns or Heir shall contrary to the Decree Order or Judgement of the Commissioners after the same hath been reformed relevy the same again or do continue the same contrary to order the punishment of One hundred Marks is to be imposed upon the offendors as by the Statute of 1 H. 4. and 12 H. 4. formerly appeareth And if one which is a stranger of his meer malice or own 1 H. 4. 12 H. 4. wrong doth pitch down Piles or set down Stakes in the Rivers and Streams he is to be fined or amerced for this offence as the case shall require and he is to be ordered to remove the Nusans at his own costs and charges and if it cannot be found out who did the Nusans then the Commissioners of Sewers are to order those to remove that annoyance which in all likelyhood are to sustain most damage thereby Et ita factum fuit in 42 lib. Assiz plac 15. and 42 lib. Assiz this Statute extendeth to Rivers and Streams Navigable as well as to such as be not Navigable And touching the removing of Nusances I shall put the Commissioners some presidents ruled and adjudged in our Books of Law which come fully to the purpose of the matters and things I now treat of In 32 Ed. 3. fol. 8. an assize of Nusans was brought by A. against B. for that B. had made a Trench over a River 32 Ed. 3. and drew away thereby part of the waters and stream another way then that which it did formerly use to run and thereby surrounded the grounds of A. and the assize passed for the Plaintiff it was adjudged that the waters should be removed into the ancient current channel at the costs of the Defendant and the Plaintiff recovered his damages Et quod defendens capiatur out of which case I observe these things First though an assize was a private Action yet the Nusans was tam querenti quam populo to the Plaintiff for drowning and surrounding of his grounds to the people in changing or diverting the ancient course of the waters so that for the people the offendor was ordered to reform the Nusans to the King he was fined and the Plaintiff for his own private
altering former Laws It appears in Esther that the Laws of the Medes and Persians were so perdurable as they could never be changed And in my opinion there is required as great foresight judgement and as sound discretion and mature deliberation in repealing of old Laws as in making new ones For Quae preter consuetudinem morem major ' fiunt neque placent neque recta videmur I have noted how carefully and constant the Lords of the Parliament House were in the 20 year of H. 3. when they all cried out aloud Nolumus leges Angliae mutare Seeing therefore there ought to be great care in making Laws so must there be great heed taken in repealing of Laws And because Commissioners of Sewers have power herein I will therefore deliver my opinion how far that power will extend And if one note this Branch of the Statute well he shall well perceive the Judicious care taken by the Parliament in penning of it For the words be That the Commissioners of Sewers should have Power and Authority to make constitute and ordain Laws Ordinances and Decrees and the same Laws and Ordinances omitting the word Decrees to alter repeal and make void for a Decree is a Judgement and is Finis operis and a Judgement cannot be reversed without a Writ of Error Neither can a Sentence or a Decree in Chancery be reversed without a Bill of Review neither can the Commissioners of Sewers reverse a Judgement or Decree of Sewers Judiciously pronounced which is a Judgement upon a Tryal betwixt the King and the party or betwixt party and party without a Bill of Reversal for it is truly said Quod naturale est unum quodâ— dissolvi eo ligamine quo ligatum est A Writ of Error lay at the Common Law for to reverse a Judgement given by Commissioners of Sewers when the Commission was in Latine as is set forth in the Register being then one of the special Commissions of Oyer and Terminer but since the Commission was put into the English frame the Writs of Error ceased A Law for sale of Lands ingrossed into parchment and certified into the Kings Court of Chancery with the Kings Royal assent had thereto is not reversable without an Act of Parliament but then the said sale must be made according to the form frame and power of this Statute For put the Case that A. B. holdeth his Lands of I. S. by the payment of Twenty shillings yearly towards the repair of such a Bridge Bank or Wall it fortuneth that A. B. paid the Twenty shillings yearly to his Lord for that purpose who neglecteth to pay it though he be thereto Ordered and Assessed to pay the same to the said repairs by the Commissioners of Sewers the seigniory of Twenty shillings yearly is to be decreed and not the Land for that the fault was in I. S. and not in A. B. the owner of the Land If any persons be by Prescription Custom Tenure Covenant or otherwise bound to repair Walls Banks or other defences of Sewers the Commissioners have not any power by their Commission to repeal alter or make void any of these because these are establisht by the Common Law and Customs of the Realm and not by the power of the Commission of Sewers But their power is to repeal alter or make void Laws and Ordinances made by themselves or by the power of their Commission And so the words of their Commission plainly describe it For thereby they have power to make Laws and Ordinances and the same to repeal alter and make void so they must be the same and no other And herein I end all my Arguments and discourse upon this Statute for I accompt all the rest which remaineth unspoken of not to be worthy of a Readers dialect because I have fully handled all the materials of this worthy Law And therefore I may justly â—â—â—clude my Argument with this That Finitum est hoc opus â— consumatum FINIS
not parcel Wales thereof till the Statute of 12. E. 1. so made it and although that Statute so annexed Wales to England yet being but by the word or figure adjuncta the Laws of England were not totally in force there till the Statute 27. H. 8. so declared them as is holden in Rice Thomas Case in Plo. Com. but notwithstanding whether Wales be within my Statute or not is questionable for these Reasons following First it is clear that a general Law unstinted and unbounded shall extend to Wales as well as to England but our Law grants Commissions within the Realm of England and so precisely prescribes it to bounds and it may seem that the Parliament took it so in 1. Mar. Cap. 11. where Commissioners of Sewers were authorized in the county of Glamorgan which as may be objected need not if Wales had bin formerly comprised and some new Statutes as that of Alehouses in 1. Ja. Cap. 9. and that of Rogues 1. Ja. Cap. 7. extend the same to the Realm of England and Dominion of Wales as if Wales should not be contained in the words the Realm of England yet notwithstanding in my opinion this Statute of 23. H. 8. extends to Wales for although the Statute of the 1. Mar. gave power to Commissioners in Glamorganshire that was for a special purpose which as was conceived the Statute of 23. H. 8. did not in England extend thereunto that as for the carrying away of the sand which was thrown upon their grounds but in that Statute it may well be perceived that the Statute of 23. H. 8. was of force there and inserting the words Dominion of Wales in the said Statute of Poor and Rogues was rather of superabundance to satisfie some which might nodum in scirpo querere make a doubt where none was then that they were there put for any necessity requiring the same But I am of opinion that in this new sprung up Island the Laws of England are there in force because when it was Sea the same was under the Government of these Laws and although the nature and quality thereof be changed viz. Dry Land for full sea yet the same Laws and Government remain in force so that I hold this new Island within the Statute and that the property thereof is the Kings Now occasion and time gives me fit opportunity to treat of Grounds which be newly gained from the Seas If as I have formerly declared the Grounds be the Kings when they be covered with Waters it must needs be held an infallible ground that they be also the Kings when the Waters have left them dry and when the Waters had their being on the same the whole Profit there arising did appertain to the King yet I have known in some Countries where the Frontagers have claimed those grounds so left by a pretended Custome of Frontagers and some probable reason might be shown wherefore they should have the same for as their grounds was nearest the Sea and so next to the charge to repair the defence and next to the loss where any overflow happened it might therefore seem reasonable that as they were put to the greatest charge and in peril of the loss of their Lands that so if Lands were left by the Sea affront them that these Lands might accrew unto them as a reciprocal consideration for their charge and loss but I take it that of late the Law hath in these Cases been often-times ruled for the King against the Subject for at Crost in the county of Lincoln 1600. Acres were gained from the Sea affront the Mannor of sir Valentine Brown there yet he was put to obtain a grant from the King thereof and one Bushey of St. Kegneys claimed grounds left by the Sea by the said pretended Custome of Frontage but they were decreed against him in the Court of Wards in 12. Jac. R. in which Case I was of Counsel For it were inconvenient that the subject should have Frontage and yet no bounds prescribed thereto so that Ten thousand Acres might be left affront a mans Mannor which were not fit a subject should have this large Inheritance by pretence of such allowed Custome and I suppose I may herein say in this Case as Mr. Plowden doth of his silver Mines That it is inconvenient a subject should have the silver Mines in his grounds for so might he become richer then the King So it is not fitting that a subject should have the grounds left by the Sea when so much may happen to be left as the Kings own Lands in the Realm come to and so because nimium se exaltat in prerogativam Regis I am of opinion the new gained grounds from the Sea appertain to the King as a Royal Escheat and not to the subject but in my Case here is a prescription where the owner of the Mannor hath Incrementum decrementum Maris of what force this is of is now to be argued therefore I will now declare what interest a subject can or may challenge in the seas in grounds gained therefrom Personal profits arising on the sea subjects may have and challenge by custom and prescription as to have free Pischary on the sea and a Parson had Tythes of Fish gotten in the sea by the inhabitants of his parish yet the sea nor any part thereof is not in any Parish but it followed the person In Sir Henry Constables Case the Citizens of Bristol Sir Henry Constables Case claimed Flotsan which be goods floating in the sea by custom in Bracton Chap. 12. one aleaged to be discharged Bracton of Toll or Custom on the seas by prescription in the Case of the Swans in Sir Edward Cooks 7. Report one prescribed to have a game of wilde Swans at Abbotberry in a Creek of the sea which is a member or arm of Case of Swans the sea and in Sir Henry Constables aforesaid it is taken and received for Law that a Subjects Mannor may extend to the low water-mark by prescription and seeing all these a subject may have in and on the Sea wherefore then should he not have all the grounds left by the Sea by prescription To that I answer That he cannot have claim in any thing by prescription and custome but that which lyeth in use which is the life of them both but lands and grounds which have always been Sea could not be nor lye in use and therefore they cannot be claimed nor the same can be bounded out by prescription or custome yet lands between the high-water mark and low-water mark the bounds thereof may be prescribed to belong to or to be parcel of the Mannor because in every twelve hours or in every day they lie dry and so a Subject all that time may have use of them and so of all the rest of the said things but in that which never lay in use no custom or prescription could take hold on insomuch that in my Opinion no prescription
or custome can fetch lands further then the low water-mark Grounds left But now what grounds shall be said a leaving by the Sea is a point in my Case also for it is certain that at spring-tides the Sea useth to overflow the Marshes in Lincolnshire and Norfolk and returneth within a short space again these being usual and annual be not accounted grounds left or gained from the sea so because the Marshes in Lincolnshire and the Sands in Lincolnshire be overflown every twelve hours and then dry again are not accounted grounds left or gained from the sea because the sea hath daily her recourse thereon and therefore in 15 and 16 Eliz. in Dier fo 326. 15. Eliz. Dyer 326. in the Case there was a quantity of ground was left by the Sea and whether the King or he whose grounds were adjoyning should have them was there made a question but in that Case there is an excellent president set down very apt for the handling of this point put in 43 E. 3. Contra 43. E. 3. Abbot'de Ramsey de quodam processu in Scacario facto versus dict' Abbot ad ostendendum quare Sexagint ' acrae marisci in manus dom ' Regis non debent sesiri quas predict ' Abbas appropriavit sibi domui suae sine licentia Regis super quandam presentation virtute cujusdam generalis Commission ' de terris à Rege detentis concelatis Abbas respondit quod ipse tenet maner ' de Brauncest quod scituatum est juxta mare et quod est ibid quidam mariscus qui aliquando per fluxum maris minoratur aliquando per de fluxum maris augetur absque hoc quod appropriavit sibi prout per presentation ' predic ' supponebatur And the Attorney of the King maintained the contrary and therupon the King and the Abbot were at an issue so by the Case I gather these matters First That if by little the Sea sometimes decrease and leave some parcel to the Land and some other times run over the same again this ground belongs not to the King for these be grounds whereto the subject may have a property as in the grounds of the shore but otherwise it is where great quantity of ground which had always been drowned before is left that belongs to the King Also by this president the Law was taken to be that these grounds left by the Sea to the Land were in the County of Norffolk whereto they did adjoyn and in my opinion within that Parish whereto they lay for there was a Presentment which was by a Jury of Nofolk and the Jury taken to try an Issue must be de viceneto ejusdem commitatus but note there the Presentment was by a Jury de Corpore Commitatus in 22. lib. Assis pl. 93. The Case was That 22. lib. Ass pl. 93. a River of water did run between two Lordships and the soil of one side together with the River of water did wholly belong to one of the said Lordships and the River by little and little did gather upon the soil of the other Lord but so slowly that if one had fixed his eye a whole day thereon together it could not be perceived by this petty and unperceivable increase the increasement was got to the owner of the River but if the River by a sudden and unusuall flood had gained hastily a great parcel of the other Lords ground he should not thereby have lost the same and so of petty and unperceivable increasements from the sea the King gains no property for De minimis non Curat Rex but put the case the sea overflow a field where divers mens gounds lye promiscuously and there continueth so long that the same is accounted parcel of the sea and then after many years the sea goes back and leaves the same but the grounds are so defaced as the bounds thereof be clean extinct and grown out of knowledge it may be the King shall have those grounds yet in Histories I finde that Nilus every year so overflows the grounds adjoyning that their bounds are defaced thereby yet they are able to set them out by the Art of Geometry These grounds in my Case which are left by the sea and The Prince count Palatine of Chester lye from the haven next to the shore are as I have formerly delivered it within the county Palatine of Chester and therefore whether the Prince or the King shall have them is now my question The Prince hath not only Jura Regalia but also Escheta Regalia within his said Palatinate and so in my opinion is not only owner of the county but Lord of the Prerogatives there and all Jurisdiction is to the Prince only a Writ of Error lieth in the Kings Bench of a Judgement there like an Appeal to Caesar then he is Lord of those Laws by which the Freehold and Inheritance of those lands be ruled wherefore then should not these lands belong to his Grace And first it is usual to have a Commission directed to enquire of these Lands ut de terris concelatis and this inquiry shall be by Commission if that Commission be to issue out of the county Palatine of Chester then the Lands would questionless fall to the Prince and the inquiry to be made of the Freeholders of the said county Palatine The Case put in Barkleys Case in the Comment of Mr. Plowden fo 129. doth force much against the Princes Title for there it is put that the Bishop of Durham had Liberties and Priviledges in Terris suis inter Fluvios de Tyne de Tese and afterward purchased moe Lands between these two Rivers the said Liberties and Priviledges shall not extend thereto and so if one have a Warren in his Lands in Dayle and he purchaseth other Lands there his Warren cannot be extended upon these new purchased Lands for saith the Book Things or Priviledges confined to certain Precincts or Dominions cannot be extended further though the Dominion be inlarged and that they shall not be inlarged with the inlargement but the County Palatine vested in the Prince is prescribed within no other bounds then the word County doth confine it and therefore this falling to be within the county should be properly his and as I am imformed the Prince hath special words therefore in his Charters if it were granted that these grounds could be claimed by Charters but I am clear of Opinion That no increase of the new left grounds can possibly become within the county of the city of Chester for the bounds thereof cannot extend over that circle which their Charter hath confined them to and so for the causes and reasons formerly declared I take it That the said Island is the Kings the ground left between the haven and the ancient shore belongs to the Prince as Earl of Chester and the shore because of the said prescription appertains to C. the Subject as parcel of the said Mannor and so