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
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
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
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
and a Villain for years and a Captive taken in the Wars be for there shall be paid for him a Ransom as is mentioned in the Register fol. 102. Moneys due upon Statutes Judgements Recognizances Bonds Bills or Contracts be not valueable substances within this Statute for by this Statute it must be clear and not doubtful or accidental as Moneys out of hand be which is like to a Bird in the Bush yet these be all valueable and are valued in Inventories taken in the Ecclesiastical Courts But yet the Executors or Administrators shall not be charged for assets for them till they have received them And in 25 H. 8. in Dier fol. 5. Obligations are not held valueable but things in action and if one 25 H. 8. have got goods by tort and wrong to the value of One hundred pounds yet this is clear valueable substance within this Law for although the word clear be inserted into the Statute yet that relates to the value and not to the title of those goods And if one have goods as Executor or Administrator these are not his own and therefore do not inable him to be a Commissioner within this Law Neither do the goods of the Church inable the Parson Vicar or Curate nor the goods of a Corporation do not inable the Major and Aldermen or Citizens of a City or Town Corporate for these do not belong to their particular persons neither did this stock in my case which is demised to B. and C. make them competent Commissioners within this Statute because they had not the property therein but onely the use and occupation thereof And although in this Statute it is not declared in what place these goods which should inable a man to be a Commissioner of Sewers should be in it will suffice if the party have them in any place within the Realm for this very Law calls them Moveable substance And herein I end my Free Citizen and in my opinion E. had neither Freedom in his person nor real Estate in Land nor moveable substance in any sort to make him a competent Commissioner within this Law yet if a Freeman be destitute of goods or want perfection in his Freedom if notwithstanding he have Lands to the value of forty Marks per annum then he shall be allowed a Commissioner within this Statute Touching which point of Lands I now intend to proceed in In the handling of this matter it is to be considered which be Hereditaments within this Law for the other two words Lands and Tenements need no exposition wherein I am of opinion That Messuages Cortages Toâ—â—s Crofts Houses Land Meadow Pasture Feedings Moors Marishes Heaths Furs Mills Orchards Gardens Hopyards Rents of Annuities Prima vestura terrae Pischaries Tythes Pensions Portions Proxies Parks Warrens are all of them Hereditaments within this part of this Law for the word Hereditament is a word of the larger size and largest extent in our Law being Omne quod Haereditari potest and yet every Hereditament is not within this branch for it hath two other words joyned therewithal videlicet yearly value And therefore Franchises and Liberties as Waifs Strayes Felons goods Deodans Fines Amerciament Profits of Courts Fairs Markets Ferries Hundreds Leets and such like are all of them out of this Statute in this point because they be not of a certain yearly value but be accidental and depend in contingency by the opinion in Butler and Bakers Case Cooks 3 Report But as it is there said If these things have heretofore been usually letten and demised for certain yearly Rents then they may be Hereditaments of clear yearly value within this Law All Offices and Vocations as Physitians Chyrurgions or Trades as Merchants Mercers Grocers Drapers and such like be neither Hereditary nor of certain yearly value and therefore they be not within this Law though perhaps one gain thereby Five hundred pounds per annum Also dry reversions or remainders depending upon Estates for lives are out of this branch for the words of the Statute be having which is in praesenti and not futuro Neither is an Advowson of force in this point though it be assets in a Formdon yet it is no assets in an Action of debt brought against Executors Homages Fealties Escuages Heriots Reliefs Nomine paenes and such like be Hereditaments but because they are not of yearly value they are not therefore within this Law Also if a Commissioner of Sewers be seised of a Rent or Annuity payable every second year it doth not inable him to sit because it is not Annual which is intended yearly and every year as the Pryor of Plymptons Case in Dier fol. 133. is but if one do grant to I. S. an Annuity or Rent of Forty Marks in Fee payable at the feast of Easter yearly if the grantee will then come for it to such a place is of certain yearly value within this Law But put the case that A. is seised of Land in Fee and grant to B. Forty Marks per annum for his life only I am of opinion that B. is no sufficient qualified Commissioner within this Law But if A. be seised of a Rent of Forty Marks per annum in Fee and he grant the same to B. for his life he is a competent Commissioner within this Law differentia apparet Our Statute goeth on in these words That the Commissioner which would sit without exception must have in Lands Tenements or Hereditaments of the clear yearly value of Forty Marks to his own use Therefore a man seised of Lands to that value in the right of his wife although he take the Rents and Profits to his own use yet this will not inable him to be a Commissioner within this Law but he must have them in ejus usu ad ejus usum A Feoffee to a use before the Statute of 27 H. 8. of uses was no competent Commissioner within our Statute for he had the Land then to another mans use Neither was Cestui que use sufficiently qualified to be a Commissioner Two Tenants in common or coparceners of Forty pounds Lands per annum are neither of them of sufficient ability to be Commissioners within this Law And the like Law is of two Joyntenants of Land of that yearly value for though they be seised per my and per tout yet in truth and in a legal construction either of them be seised but of a moyety So that if two Joyntenants Tenants in common or coparceners be seised of Lands of the yearly value of Threescore pounds either of them may sit by this Commission A Dean and Chapter Major and Commonalty Master of a Colledge and Fellows which be seised of Lands and Tenements of the yearly value of a Hundred pounds per annum are not in respect thereof to sit If a Bishop Dean Chancellor Archdeacon Prebend Parson or Vicar be seised of Lands in Jure Ecclesiae of the clear yearly value of Forty Marks I suppose these may
sit Commissioners by this Statute for they have these Lands in eorum usu during the time they continue in their places which in intendment of Law is for their lives but yet by the intendment of Law they are not to sit in the execution of any humane affairs and therefore seeing their persons are out of the intendment of this Law so likewise should their Church livings be but this is but a conceit for although they be not persons having these Lands within the Statute of 32 H. 8. of Wills which is a having to dispose yet they may be within our Statute which is a having to retain If an Executor have a Villain for years which purchaseth Land of Forty Marks per annum he may sit in the execution of this Commission for till his Lord enter he hath them to his own use but if the Executor enter then neither the Villain nor Executor can sit a Commissioner by this Law If an Alien purchase Lands of sufficient value in Fee he in respect of his person is a disabled person to sit neither is he a person having Lands because he is not seised thereof to his own use but to the use of the King But if he be made a Denizen then in his person he is made capable The Warden of the Fleet who hath Lands belonging to his Office may in respect thereof sit a Commissioner by this Law But shall a Termor or Lessee for years of Land of good value be thrust out of Commission and be counted neither a sufficient Landed man nor his Term and Lease to be accepted moveable substance and not only so but that his Farm shall be a further disablement unto him as the Statute of 13 El. cap. 9. seemeth to purport the words of which Statute be That no Farmer or Farmers for Term of years of any Maners Lands or Tenements lying or being within the Precincts or Limits of any such Commission of Sewers which be or which hereafter may be ordered and chargeable by any Laws Ordinances and Constructions made or to be made by vertue of any such Commission wherein he or they shall be named or appointed Commissioner or Commissioners not having Estate in Freehold within the Realm of or in Manors Lands or Tenements of the yearly value of Forty pounds shall any time hereafter have power to sit or in any wise intermeddle with the execution of such Commission or Commissions during the time he or they shall continue or be such Farmer or Farmers of any such Maner Lands and Tenements and shall not have Estate of Freehold as aforesaid but that every such Commission having respect only to every such person or persons for such and so long time as he or they shall be or continue Farmer or Farmers of any such Manors Lands or Tenements shall be denied and judged in Law as void But yet in the closing up of that Statute of 13 El. there is a Proviso to this effect Provided always that it shall be lawful for any Commissioner being also a Farmer and not having Lands or Tenements to the clear yearly value of Forty pounds of Freehold to sit by vertue of the said Commission and have his voice and full authority with others to make and establish Ordinances for Sewers according to the Tenure of the Commission touching and concerning all Lands and Tenements within the Precinct of every such Commission other then such Lands and Tenements as he or they for the time hold and enjoy as Farmer as he or they might have done before the making of that Statute but he could not have sitten in execution of this Commission before the making of this Statute unless he had besides his lease Lands to the value of Forty Marks per annum And therefore a Lease for years is no inablement at all but a disablement as this Statute declares But the times when this having of Lands c. will suffice to qualifie a Commissioner to sit within this Law is now to be considered of wherein I am opinion that the When having must be referred to the Then sitting For the words of the Statute be That none take upon him to sit not having Lands to the yearly value of Forty Marks so that if he have not Lands of that value when he is first made a Commissioner yet if he have so much when he sitteth upon the Commission it will satisfie this Law and if once he have Land of that value and sitteth and after sell the Land away or if they be evicted from him he is then disabled to sit as a Commissioner by this Statute And so if he were but Tenant for the life of I. S. and I. S. dieth he ought not to sit In 12 H. 7. 7. a Juror which was to pass upon tryal of Land was to have Forty shillings per annum of Freehold and 12 H. 7. 7. after he was impanelled and before he was sworn he sold away his Land and when he came to be sworn he was challenged for want of Freehold but the chalenge was disalow'd for after he was impanelled his land though after sold away was chargeable with the issues which he after might lose in that matter and with this agreeth 14 H. 7. 2. by Frowick But our Statute is more precisely penned which is That none do presume to sit unless he have Lands of that value or be c. therefore when he sits he must have the Lands And if A. do bargain and sell his Lands to B. by Deed intended of that value and before the Inrolment of the Deed B. do sit as Commissioner and after the Deed is Inrolled yet this doth not qualifie his offence and the relation of the working of this Deed doth not assist him to take off the penalty of this Law Also a man disseised is during the Disseisin disabled to sit for he had not then power to devise the Lands by the Statute of 32 H. 8. of Wills for that Statute doth as ours doth use the word Having in presenti and not in futuro And thus much I thought convenient upon this occasion to deliver my opinion when the Commissioner must have his Lands of Forty Marks per annum to inable him to sit as a Commissioner within this Statute To Treat of the utter Barister I need not for when he hath taken the Oath mentioned in the Statute he is an absolute and compleat Commissioner within this Law to all purposes although he have neither Lands or Goods according as the Statute appointeth others to have The second question The second question in my case touching this Statute is Whether the Countess of Warwick be a compatible Commissioner within this Statute Although it is uncouth in our Law to have women Justices and Commissioners and to sit in places of Judicature yet by the Authorities ensuing you shall finde this a point worth insisting upon both in Humane and in Divine learning for in Genesis Chapter the first after the creation
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
petty matters the Lessee for years shall be at the sole charge for these may be spent in his own time So I suppose my meaning is herein well perceived which is That in petty annual and ordinary repairs the Lessee alone shall do the same but where the same wants in great timber or when a new defence is to be built they shall both be at the charge And with this the Statute of 7 Jac. cap. 20. doth directly in reason agree withal out of 7 Jac. cap. 20. which Statute it is plainly to be observed that in the great repairs as also in the new building as well the Lessor as the Lessee shall be both at the charge Yet in the Statute of 3 Ed. 6. cap. 8. there is a clause in effect That all Lots Scots and sums of money hereafter to be rated by the Commissioners of Sewers upon the Kings Lands shall be gathered or levied by distress on those grounds as in case of other persons and that all Bills of acquittance signed with the hand of such Receiver or Collector shall be a sufficient Warrant to the Auditors and Receivers and other the Kings Officers for allowance to the Farmer or Tenant to the Kings Majesty Whereby it appeareth that the Farmer of the King shall not be at the charge but His Majesty yet by the Statute 13 Eliz. cap. 9. it may be collected that the Lessor for years shall be charged but all 13 Eliz cap. 9. these are to be reconciled with my said diversity But now it may be objected to me Sir do you think it reasonable or possible for Commissioners of Sewers to take notice at the Nota. first of every private mans inheritance and the several Estates which the parties have therein when it will scarce be possible by private search to finde them out To this I answer That it is not reasonable to tie the Commissioners to such difficult and obscure businesses but it is sufficient for the Commissioners to impose or lay the rate tax or sesse on the grounds or on the visible possessors thereof and if the money so rated be demanded on the Lessee for years or for life or if the goods be distrained therefore or they be compelled to pay the same then they may come before the Commissioners and shew forth their lease and make it appear that I. S. hath the Reversion and as the case is to be charged as well as himself and upon due proof thereon made the Commissioners upon hearing the parties on both sides may apportion the tax on either of them as in Justice Discretion and true Judgement is requisite And so if a tax be set upon Land the owner may come in before the Commissioners and make it to appear before them that I. D. hath a common and Rent thereout and upon proof thereof made the Commissioners are to lay the charge accordingly And so it shall not tie the Commissioners at the first to lay the charge upon every particular person for that were opus in finitum impossibile but to relieve the parties upon their complaint and this may be easily done and it stands with the Justice of these Laws so to do And if the parties grieved will not complain for relief let it be justly accompted their own folly and no injustice of the Commissioners for the very Statute directs that such as are 1 H. 4. ch 12. grieved shall have relief upon their complaints which confirms my opinion in this point Taxes Rates and Sessments imposed meerly by the Laws of Sewers I Have formerly put nine several matters to tie men to the repairs and this by the Laws of Sewers is the last but not the least of them I propose these to be by the Laws of Sewers because they be not backed helped aided or assisted by Customs Prescriptions Common right or by any other Rule of the Common Law or by Tenure or Covenant or any act of the party as all the rest be but are only composed made ordered and directed by the sole power and authority of these Laws of Sewers and these are such as fall out of all the fomer rules and therefore in nova causa novum remedium est adhibendum But yet before I enter into my own works I will set down and declare the opinions delivered in Rooks and Keighleys Case which seemed one of them opposite to the other for in Rooks Case it is said That if one be bound in respect of his Lands to repair a Wall or Bank by Tenure Prescription or otherwise that yet the Commissioners of Sewers could not assess the said party alone to repair the same and said that the Commissioners were not tied to the Rules of Prescription Tenure Custom or otherwise but ought to assess all the Level to do the same which are to have good thereby But this being mistaken is very justly and discreetly altered in the said Case of Keighley by the Author himself for how could it be presumed that the learned makers of this worthy Law would have stricken down at one blow so many thousand Prescriptions Customs Tenures Covenants and uses as be within this Realm which be tied and bound to do and make the repairs in this kinde some in consideration of houses and land others for yearly Rents and for other causes which to have set at liberty and to have imposed the charge on the Levellers would have wrought and brought a wondrous innovation change and alteration in these works all which by this exposition are freed and saved But yet there be certain Cases which of meer necessity lay the charge upon the Level which are as follows The charge upon the Level FIrst if any grounds were heretofore by Custom Prescription Tenure or otherwise obliged and bound to repair any Wall Bank River Sewer Goat Sluce Jetty or other Defence which grounds so charged have been of late devoured and overflown by the Sea and so remain The Commissioners of Sewers are in that case tied to lay the charge now upon the Level which stand in danger of taking hurt by the not making the repairs or which are to receive good by the doing thereof Secondly also if A. B. be bound by the Tenure of his land to repair a Bridge Calcey or Bank and he dieth without heirs whereby the Land escheateth to the Lord of the Fee in this Case the Tenure is ended and the chief Lord is not bound to the repairs and therefore now the charge must lie on the the Level and so is the Law if this Tenure had been in other sort extinguished Thirdly where no persons or grounds can be known which ought to make the repairs by Tenure Prescription Custom Covenant or otherwise then the Commissioners of Sewers are to lay the charge on the Level Fourthly if John à Stile be chargeable to make the repairs and be not able to do the same here the Level are to be charged to assist him therein as appears in Keighleys
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
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
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
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
Disposition and of good Estate should be put into these Commissions of Sewers the Statute did make choice of four Honorable persons to have and take the nomination of such as should for their Integrity Learning Wealth Wisdom and Experience be worthy to be put into this Commission And therefore the Lord Chancellor Lord Treasurer and the two Lord chief Justices for the time being have by this Statute the nomination of our Commissioners But as these great persons of Honor by their high places are most commonly busied in matters of great importance they many times refer these matters to others by means whereof divers persons in some countreys have of late years crept into Commission which this Statute doth not allow of which do not only want knowledge and experience but which are also transported and carried away with selfwill and serve most commonly to make a faction of the greater number to carry away businesses when the graver and wiser sort are forced being overladen with popular voices to give way to run into contrary courses and are made to surcease from making good and wholsom Laws and Ordinances and sometimes are as it were forced to agree to those which are whose even as the Roman Dictator Fabius having joyned to him the froward Minutius was by the violent stream of his colleague so crossed and overswayed not out of judgement but selfwill that he was forced to give way to Minutius frowardness though it tended almost to the hazard and the overthrow of the whole Roman Army And because the Commissioners are the persons through whose hands the execution of all these Laws must passe I thought it therefore very convenient to take into examination this part of the Statute which touch and concern them And I intend to purge the Commission of such of them as these Laws have disalowed and to that purpose I have framed this insuing case which I take it will give us occasion to call them all into question and to sever the just from the unjust the sufficient from the unsufficient and the learned from the illiterate The Case A. demiseth to B. and C. Land of the yearly value of Sixty pounds cum stauro of the value of Two hundred pounds for their lives the Remainder to D. a free Citizen of Lincoln B. and D. disseise C. of the Land and take the stock C. releaseth to D. the goods absolutely and the Land upon Condition D. dieth in Exile E. his son and heir enters B. and C. who enter for the Condition broken E and Francis Countes Dowager of Warwick and three other Commissioners of the Quorum of Sewers make a Law to raise a Were erected upon a River navigable at the costs of the party because it hindred the current of waters My conclusion is That here be competent Commissioners in number and in Estate which made this Law and that this Law is well decreed within this Statute The case I do distribute in these points viz. Three at the Common Law and four upon this Statute the points I intend by the Common Law are these First whether the Sixty pounds stock can be demised and letten for life with the Remainder over as this case is Secondly whereas B. and C. be two Joyntenants in possession whether one of the Joyntenants and a stranger can so disseise the other Ioyntenant as to transfer thereby an interest and Estate to the stranger Thirdly because the Release dependeth upon the disseisin the question is in what maner it doth inure and whether it shall expel B. out of that moyety because it is made to the stranger and then what is reduced by the Condition whether a possession action or a right Points upon this Statute First whether the Son of the free Citizen exiled is a disabled Commissioner in respect of his person and whether he hath such an Estate either in Lands or goods as will satisfie this Law Secondly whether the Countess may be a competent Commissioner within this Statute Thirdly whether a joynt interest in Lands or goods will make the Ioyntenant a sufficient inabled Commissioner within this Statute Fourthly whether the Were as this case is be raced down or not And hereupon I intend to lay open the whole division touching the Lets Impediments and Annoyances which this Statute speaketh of Argumentum Lectoris I meant it not for a point in this case whether goods might be let with Land nor whether a stock might be leased with a Farm because I finde the Books of 1 H. 6. 1. and many others full in the point that they may And although by the taking of them back again by the Lessor they will thereby suspend no rent yet in the original demise they may be a cause to increase the rent but my point herein is double First whether they will passe in Remainder as my case doth limit them Secondly whether they will inable B. and C. to be Commissioners of Sewers alowed by this Statute I do not onely finde stock let with Farms but also joyned in Real actions with Land for in the Writ of Assize the words be Quod vicecomes faciat Tenement ' illud reseisiri de catallis quae in ipso capta fuerint ipsum Tenement ' cum catallis esse in pace usque c. These doubtless were such goods as stocked the grounds and which usually went with the same for in ancient times when any farmed grounds they usually farmed the stock thereon going and this appears by ancient presidents Sed nunc aliud tempus In the Writ of Ejectione firmae in the Register be contained these words Ostensum quare vi armis manerium de Dale quod C. prefat ' A. dimisit ad terminum qui nondum preteriit intravit bona catalla ejusdem A. ad valentiam c. in eodem manerio inventa caepit asportavit So that in those Writs of Assize and Exjectione firmae the one to recover the Freehold the other the Leasehold We finde goods which went with the Manor or Farm made parcel of the plaint and I take it damages shall be increased therefore for these were such goods as stockt the Farms And in Wrotsly and Adams Case in Plo. Com. Exception was Wrotsley and Adams Case taken in abatement of the Writ because the words bona Catalla were left out of the same Yet in my opinion no estate neither in presenti nor in remainder can be made of Goods or Cattel neither shall they go with the Land in point of Estate but shall passe to the Lessee and after to him in the remainder as a dependancy upon the Farm And the Heir shall have Heir-looms together with the Mansion House as things necessary concurrent therewithal yet the Heir-looms have no descending qualities but they do go with and wait upon the house as necessary Instruments fitting to be used therewith neither can it be gathered by the Book of 37 H. 6. fol. 30. that the Book called The Grail which
was devised by will to A. one of the executors 37 H. 6. to have the occupation during his life the remainder thereof in like maner to B. for his life and after to be disposed by the executors to the Churchwardens of Dale that it did passe to A. and B. in point of Estate but only the use and occupation thereof was disposed to be ruled according to the said Limitations but the property remained in the executors So in Paramore and Yardleys Case in the Com. and Paramore Yardleys case Mannnings case in Matthew Mannings Case in Cooks Reports a Term of years could not be devised to A. for life the Remainder thereof to B. for his life to passe in this maner in point of Estate neither could these Estates be made thereof but by construction the same was disposed of to go by way of executory devise and so the stock in my case was not transferred in point of Estate with the Land but in point of executory disposition of the Occupation and use thereof onely and therefore if one let a stock of cattel or sheep with grounds at the end of the Term the goods as accessary with the Land as principal shall return to the Lessor and during the Term the Lessor hath the property of them and the Lessee the possession thereof and the Lessee shall have the yearly profits thereof for his Rent and here I do end this first point and will proceed to the rest The second Point There be two Joyntenants and one of them and an estranger do disseise the other what interest the stranger gaineth thereby is the question I am clear of Opinion as many books be That one Joyntenant may disseise his companion by an expresse Ouster but when a stranger joyneth therein in what part that doth alter the case is the matter for if the stranger should get a joynt Estate in possession with the Joyntenant whom he joyned withal that were to make a double Joynt-tenancy in uno eodemque gradu for the Joyntenant which committed the disseisin which hath the possession and the Joyntenant which was disseised and which hath the right do hold Joyntenancy still for by 36 Ed. 3. right may hold 36 Ed. 3. Ioyntenancy with a possession and the one may take by survivor from the other in 9 H. 7. fol. 23. That he in Remainder and a stranger may disseise Tenant for life and shall be both disseisors but in that case they were both strangers to the particular Estate Also it is manifest that one Ioyntenancy may be built upon another As if two Joyntenants be disseised by other two Joyntenants of the right semel but not simul But in our principal case Whether one Ioyntenant might hold the possession of a Moyety with his first companion in Ioynture with his moyety in right and can also uno tempore hold Ioyntenancy in possession with a stranger of the moyety upon which the disseisin was committed I suppose he cannot because then he should hold partnership with both of one thing And therefore in my opinion the stranger getteth nothing in my case but is onely a Coadjutor and no Disseisor which gets the Tenancy The third Point But admit the stranger did get a moyety of a moyety by joyning in the disseisin then what alteration this release will work in my case is the next question It is true as Mr. Littelton saith That if there be two Littleton Disseisors and the Disseisee release to one of them he shall hold his companion out of all the like Law is in my case of two abaters and two intruders but if two disseisors be and they make a Lease for years rendring Rent and then the Disseisee releaseth to one of the Disseisors I suppose this release shall inure to both because the Lessee for years whose Estate shall be strengthned by this release is in by the Title under both of them and now they are Tenants of a Reversion onely and of a Rent thereto incident which was not got by the disseisin but was composed by the Legal contract of the parties So if two be admitted to a Copyhold by Tort or to an Office in a Court of Justice unlawfully though their entry be unlawful yet because they came in by admittance which is at the door of Justice I suppose therefore that if a release be made to one of them by the disseisee it shall inure to both because they had some colour and countenance to enter more then expresse disseisors or intrudors have But if a Son and a Stranger disseise the Father and after the Father dyeth and the right descend to the son by this release in Law and by the accession of the right by descent to the tortious possession it doth inure only to the son and although this release was upon condition which by the breach thereof seemeth to set the Relessor in the same state he was before yet it doth not admit the Joynt disseisor which was expelled thereby to become a copartner again with his fellow As if the son and a stranger disseise the father and the father dyeth the stranger hereby is expelled by the descent of this right to the son yet if after a more near Heir is born as the Elder brother dyed his wife Einsent with a son which after the decease of the Grandfather is born whereby the Inheritance of this Land is his yet the other Joynt disseisor which was expelled by the descent of the right of his fellow disseisor by the departure of the right with the possession cannot enter upon his fellow disseisor in my opinion But now the question is further what is reduced by this condition the right only which was released or the possession together with this right for if but a right be reduced then a descent hapning may perchance Toll the entry of the Relessor and so he may be put to his Writ of right in Fee And if it be a right of an inferior degree as in our case it was but for life then he should be with out remedy But in my opinion where the release doth inure by way of 17 Assiz pl. 2. 17. Ed. 3. entry and Feoffment being upon condition it may in that case by the breach of the condition reduce the possession and give the Relessor a Re-entry because in Intelligenti a legis the Land was passed thereby and not a right only But if it had inuted by way of Mitter le droit only I take it Bevils Case 4 Report then it would reduce but a right But in our case I suppose if it had had any working at all it was by Entry and Feoffment yet I think nothing did inure thereby to the stranger which in my case is called D. because he wanted the Freehold whereupon it should inure And so I end my Common Law points and I will now in hand with my Statute The parts of the Statute whereupon I do ground my subsequent
matters doth contain in it these words viz. That if any person or persons of what Estate or Degree soever he or they be of that from henceforth do take upon him or them to sit by vertue of the said Commissions not being first sworn according to the Tenor of the Oath expressed in the Statute or if any person so named and sworn do sit not having Lands Tenements or other Hereditaments in Fee-simple Fee tail or for term of life to the clear yearly value of Forty Marks above all charges to his own use Except he be Resciant and Free of any City Borough or Town Corporate have moveable substance of the clear value of One hundred pounds or else be learned in the Laws of this Realm in and concerning the same That is to say admitted in one of the principal Inns of Court for an utter Barrister shall forfeit Forty pounds for every time that he shall attempt so to do the one moyety to the King the other moyety to the party that will sue therefore c. So that by this clause it is manifest that every one that is not qualified in one of these degrees is no competent Commissioner within this Statute First that he be an utter Barrister in one of the four Inns of Court Secondly or have Lands Tenements or Hereditaments of the clear yearly value of Forty Marks above all charges in Fee simple Fee tail or for life Thirdly or be Free or Resciant in some City Borough or Town Corporate and have moveable substance of the clear value of One hundred pounds And that person which is not within one of the said three parts and yet doth take upon him to sit in the execution of this Commission incurs two penalties The one the forfeiture of his discretion for his presumption The other of Forty pounds for his contempt And therefore for the more clear examination of these things I will observe that method in my Argument which my Case hath formerly prescribed to me And first of all I shall proceed to the personal abilities and first of the son of the free Citizen of Lincoln I am of opinion that every Commissioner of this kinde must be indowed with these three qualities First he must be free of a City c. If he want any of these then he is out of this Branch of this Statute Secondly he must be there Resciant and Thirdly he must have in clear moveable Substance One hundred pounds and Therefore what person is such a Freeman is now to be handled I am of opinion that every Subject born within the Kings Dominion is a Freeman of this Realm as appeareth by the Grand Charter cap. 14. yea though he be a Bondslave to a Subject but a stranger born is no Freeman of the Kingdom till the King have made him Denizen in whose power alone without the help of any other one may be made free And to be a Freeman of the Realm the place of his birth is held more material then the quality of his Parents for if Aliens have a childe in England it is free of the Kingdom yet by the Opinion of Hussey Chief Justice in 1 R. 3. fol. 4. and in Calvins case of the Post Nati it is holden for Law That if Ambassadors of this Realm have children born in France or elswhere where the Father and Mother be natural born Subjects the children are free of the Realm of England but if either the Father or the Mother of such children were an Alien then are not those children free One out of the Kings protection is as I take it for that time no Freeman of the Realm But in what case a man Exiled is in sorteth the nearest to our question Exile is one of the Eight Punishments which the Roman Laws did inflict upon Strangers which be videlicet 1. Damnum 2. Imprisonamentum 3. Plagae 4. Compensatio 5. Ignominia 6. Exilium 7. Servitudo 8. Mors. Mr. Bracton doth in this maner describe Exile that is Certi loci interdictio and doth distribute it into Four heads That is to say 1. Specialis hoc est interdictio talis provinciae Civitatis Burgi aut villae 2. Generalie Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae Exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertferdiae Norfolciae per Regem Richardum secundum Et aliquando per Judicium terra ut sit in casu Piers de Gaveston etiam in casu Hugonis de le Spencer junioris qui ambo fuorunt exilit ' per Judicium in Parliamento Abjuration also was a legal Exile by the Judgement of the Common Law as also by the Statute Law and in the Statute of Westminster the Second Cap. 35. He which ravisheth a Ward and cannot render the Ward unmarried or the value of his Mariage must abjure the Realm and this is a general Abjuration And by a Statute made in 31 Ed. 1. 31 Ed. 1. Butchers are to be abjured the Town if they offend the fourth time in selling measled flesh and this is a special Abjuration But I must put this Case to a further question which is What a man Exiled doth forfeit thereby And in my opinion he forfeits these things following First he loseth thereby the freedom and liberty of the Nation out of which he is Exiled Secondly he forfeits his Freedom in the Borough or City where he was free for he which forfeits the Freedom of the whole Realm by consequence forfeits his Freedom in every part thereof Thirdly he is of as little esteem in our Law as if he were dead for his Heir may enter and so may his Wife enter into her own Lands and may sue an Action as a woman sole by 31 Ed. 1. 1 H. 4. 31 Ed. 1. 1 H. 4. 1. And fourthly in my opinion he shall forfeit those Lands to the King which he shall purchase in the Realm during his Banishment qued vide 15 Ed. 3. Fitz. Petition ' plac 2. But there in that case Hugh Spencer was banished by a Judgement in Parliament which gave a forfeiture of his Lands howsoever I take him as strongly barred from purchasing in the Realm during his Banishment as an Alien is for fit alienigina by his Banishment and he is in a worse case then an Alien because he taketh with him Indignatio principis But a banished man forfeits neither Title of Honor as Knighthood which is de jure gentium nor the Lands he had before he was Exiled unless by special Judgement given in a legal course they be so decreed Then our case goes further That E. is not Exiled himself but D. his Father was Exiled whose Heir E. is now whether by the Exilement of the Father the liberty and freedom which E. might claim in the City of Lincoln by being the Son and Heir
Office our Common Law thought it fit to inable him to dispose of his Temporalties and in 21 H. 7. fol. 12 13. 11 H. 7. the case is put by Bridges and confirmed by Justice Sylliard and was not denied by any that an Obligation made by a Major and Commonalty Dean and Chapter Abbot and Covent shall not be avoided for the Nonage of the Major Dean or Abbot yet all these serve in place of government howbeit in the said matters their Nonages shall not impeach them And in the third of Isaiah it is said I will give them 3 Isa children to their Princes and babes to rule over them noting thereby an unfitness in them to govern but debarred them not of the place and of this matter this shall suffice But now admit as oftentimes it falls out that Commissioners shall sit in the execution of this Commission of Sewers which have not taken the Oath which have not Lands of value or which is not a free Citizen and yet there be Ordinances Decrees and Laws made at those times Now whether those Laws and Ordinances so made by a disabled Commissioner be void or not is the question or whether the disabled Commissioner shall only undergo the penalty of Forty pounds There was a Statute made in 6 H. 8. cap. 10. whereby it 6. H. 8. was Enacted That the Chancellor of England for the time being should make no Commission to any person or persons except he had Lands and Tenements of Estate of Freehold to the yearly value of Twenty pounds or else be Justice of the Quorum within any of the shires where he should be made a Commissioner and if any such Commission were directed to any person or persons not having Lands or Tenements to the yearly value of Twenty pounds or not being one of the Justices learned of the Quorum as aforesaid That then every such Commission and all Presentments and Accusations had and presented before any such Commissioners be utterly void and of none effect But this Statute is in time expired long ago and therefore it is no interruption to our Commissioner for although the Statute of 23 H. 8. which I read on hath a Clause in it in effect That all every Statute and Ordinance heretofore made concerning the Premises made in the time of the said King or of any of his Progenitors not being contrary to that Statute should stand in force yet these words do not set on foot a Statute expired in time as that of 6 H. 8. is Also in the said Statute of 13 Eliz. if a Termor or Lessee for years be in Commission all Laws made which concern Lands whereof he is a Farmer are void as to him vide antea But to relie on our Statute of 23 H. 8. in my opinion it 23 H. 8. doth not avoid any of the Laws and Ordinances made by disabled Commissioners but doth onely inflict the punishment and penalty of Forty pounds a piece upon every of them for every time they and every of them shall sit in or about the execution of this Commission yet it seemed in the case de Jure Regis Ecclesiastico That whereas the Statute of first of Elizabeth which authorized the Queen to grant Commissions to natural born subjects that if she had granted the same to an Alien that acts done by him had been void But now my case proceeds to the next point or step and that is touching the Law and Ordinance made to race the said Were I inferred this clause in my case because I had not formerly occasion or fit opportunity to treat of the Lets Impediments and Annoyances which be contained within this Statute of 23 H. 8. and therefore I took this occasion to close up this days exercise with the discourse of them These by name are such Impediments Annoyances as this Statute speaketh of 1. Streams 2. Mills 3. Bridges 4. Ponds 5. Fishgarths 6. Mildams 7. Locks 8. Hebbingweres 9. Hecks and 10. Floodgates And the rest must be cōprised within these general words videlicet Other like Lets and Impediments And the discourse upon all these will rest most upon the Statutes heretofore made touching the same And the first Statute thereof made is in Magna Charta Mag. Chart. cap. 23. cap. 23. Omnes kidelli deponantur de cetero penitus per Thamesiam Medweyam per totam Angliam nisi per costeram maris This extends not to the Kings keddles per keble in 13 H. 7. 35. what this word kidellum signifieth appeareh by the title of that Statute which is Weres The next Statute to this is 25 Ed 3. cap. 4. which doth Enact That all Mills Weres Stanks Stakes Kiddels were levied 25. E. 3. and set in the time of King Edward that Kings Grandfather and after whereby Ships and Boats were disturbed that they might not pass the Rivers as they were wont should be cut and pulled down without being relieved The said first Statute is general that all Weres should be put down but by the Seacosts yet this word All are intended of such only as were erected without lawful Warrant and the said Statute of 25 Ed. 3. doth explain the generality of the said former Statute For thereby it appears That Weres erected in Navigable Rivers where Ships and Boats were wont to sail should be extirped because they were a hinderance to Navigation but this extends only to Navigable Streams which have been Navigable by use and Custom and it is manifest by this Statute that these Weres which were so to be put down must be only such as were erected in the time of Ed. the first and sithence because those seemed to be erected without lawful authority and being but erected in those times they had not the countenance of Custom and Prescription to strengthen them The next Statute in time is that of 45 Ed. 3. cap. 2. which confirms the said Statute of 25. Ed. 3. and then adding thereto that if any such annoyance be done it shall be pulled down and that he which shall relevy such annoyance and be thereof duly attainted he shall incur the penalty of One hundred Marks to the King to be levied by the Estreats of the Exchequer and the penalty is thereby given for the inhauncing of such Weres Mills Stanks Stakes and Kiddels This Statute is in part a confirmation of the said Statute of 25 Ed. 3. and in other part thereof it is a new 45 Ed. 3. Act in these points First in the forfeiture of a Hundred Marks Secondly this is the first Statute in my opinion made against inhauncing of such things which are counted annoyances And Thirdly it gives the like penalty against him which shall relevy the annoyance as against the inhauncer And because this Statute depends upon the said Statute of 25 Ed. 3. it extendeth therefore but to Navigable Streams The Statute of 1 H. 4. cap. 12. is a Statute in these points of great
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