the words of this Statute are sufficient to yield the party the benefit of a Traverse if there be cause and for president in the point Chart. of Romney Marsh pag. 23 and 24. one Godfrey Ro. Marsh being presented that he ought to repair a Bank or Wall and that he did neglect to do the same and he came in and pleaded a Plea thereto before the said Commissioners and in 19 lib. Assiz plac 6. there were divers Presentments before Commissioners of Oyer and Terminer for Nusances done in the River of Lee and the same were there traversed and tryed And the Statute of 1 H. 4. cap. 12. 1 H. 4. doth plainly admit of a Traverse wherein the words be That in case if any feel himself greived by execution or otherwise against right and reason let him pursue and he shall have right But I verily suppose that those things which the Justices of Sewers do by their view or by survey and discretion are so binding as in those cases no Traverses are to be admitted because these things are meerly the acts of the Court and of the Justices themselves and if they Fine a man for his contempt in Court by a Record of their own view and not upon a Presentment the party shall not be received to Traverse this and in Doctor Bonhams Case it is said That the act of a Judge is not Traversable if he be the absolute Judge of the Cause But in cases done or certified by such as be no absolute Judges of the Cause as Commissioners of Bankrupts which certifie one a Bankrupt he may Traverse this in an action brought as was done in the Case of Cut and Delaber in 7 Jac. in the Cut and Delaber 7 Jac. common place and Vernies Case 1 Mar. Dier fol. 89. no Averment could be taken to the certificate of a Judge and with this agreeth 7 H. 7. fol. 4. 7 H. 7. But although a Traverse may be taken to a Presentment in the Court of Sewers yet times and seasons must be observed for if a Presentment be there made it may be Traversed for the reasons cause presidents formerly mentioned Yet if the cause have been there so far proceeded in as the Commissioners make a decree thereupon I take it then no Traverse at all can be taken because a decree is the final Judgement of the Court and is an act Judicial which cannot be traversed and tryed by a Jury for that were to refer the Judgement of the Court to be examined by a Jury which may not be admitted and at the Common Law after Judgement no Traverse can be taken And if one be Indicted at the general Session of the Peace this is traversable but if the party suffer himself to be Outlawed upon the said Indictment there no Traverse lieth but a Writ of Error So if in our Sessions of the Sewers the cause proceed to a decree the party grieved is to take his way by preferring a Bill of Reversal in maner as is done in the High Court of Chancery and so he may have the cause here throughly examined Other legal proceedings THe words of the Statute which give the legal proceedings be these viz. That the Commissioners of Sewers may hear and determine all and singular the Premises as well at our suit as at the suit of any other complaining before them after the Laws and Customs aforesaid or otherwise by any other ways or means these words give the party remedy to sue before the Justices of Sewers for such things as are contained within these Laws and which have their dependency thereon In Colshils case in Dier fol. 175. the party preferred his Colshils case Bill of complaint to the Commissioners containing the effect of his Title to the Office in question and these were special Commissioners of Oyer and Terminer Justices of the general Oyer and Terminer may hear and determine Usury by the Statute of 13 Eliz. cap. 8. yet if I. S. be bound 13 Eliz. in a Bond of Ten pounds principal debt and for Forty shillings for Interest although this Bond be for payment for usury yet an Action of Debt doth not lie thereupon before the said Commissioners but an information may be preferred against the lender there to punish him So by our Statute of Sewers an Action of Trespass lieth not for a Trespass done within the reach of this Commission yet Distinguendum est for put the case a sesse is laid upon a man and the goods of I. S. not chargeable thereto be taken and distrained who is not chargeable to the payment thereof I. S. in my opnion though this case have but the countenance of this Commission may have his Action or prefer his complaint before the Commissioners in this Court of Sewers for the recovery of his damages And although this be but a private Action yet the Distress being taken by an authority drawn from the power of this Commission the party distrained may have his remedy in this Court by his private Action because it sprung by the colour of the general power of this Court If A. B. have a several Pischary in the River of Witham which is a River within the Commission of Sewers and the said Pischary by these Laws is chargeable to the repairs thereof if C. D. disseiz him thereof or commit a Trespasse by Fishing therein A. B. can neither have an Assize nor Action of Trespasse within this Court So if a Royal or common River hath his current through the town of Dale and one A. B. is tyed to repair the Banks there by Tenure Prescription or otherwise which notwithstanding in his default are broken down and the waters breaking out overflow the grounds of C. D. thereto adjoyning yet C. D. hath not any remedy to recover his damages against A. B. in this Court for the losse of his grounds but he is put to his private Action therefore at the Common Law and with this agreeth the Case of Keighley But if A. B. be presented therefore before our Commissioners of Sewers they may order A. B. to repair the breach but cannot award damages to C. D. for our Commissioners of Sewers are herein like to Justices of Peace and to Stewards of Leets and Law-days which have power originally to meddle only with the publike wrong Yet by the power of their Commission and of this Statute they many times accidentally meet with private injuries as by the insuing cases may appear If a Township be assessed by a Law of Sewers and the goods of one of the Inhabitants be taken for the sesse that party upon his complaint to these Justices of Sewers may have processe out of this Court to call before them the rest of the Inhabitants which were subject to the said sess to cause them to contribute towards the parties damage who was solely distrained for them all for otherwise this Court should fail of justice in his own proper materials the Statute of 1
do not repeal the Statute of Mortmain in my opinion And herein I shall end my Argument touching decrees and I take it though the interest of E. was intail yet the sale thereof might be made by this Statute for the causes and reasons aforesaid And now only remains under my censure to declare my opinion whether the Commissioners of Sewers did Justice in refusing to admit of Pleas of discharge which were tendred to them by A. and E. wherein may come justly into our considerations these things viz. Whether Traverses Pleas of Exemptions and other legal proceedings may be had in this Court of Sewers or not saving I adde this that these decrees of sale being binding must be certified into the Chancery with the Kings Royal assent had thereto Legal proceedings Traverse TO enter into these parts of my Law I think it fit to begin with Traverse and to deliver my opinion whether such Pleas and Proceedings are to be admitted into this Court for a Traverse is a Plea of the party containing matter to the contrary of that that the party stands accused of or which is laid to his charge And in some cases our books and authorities of Law admit the party to a Traverse and in other cases the same is to be denyed for in the 5 H. 7. fol. 9. 45 Ed. 3. fol. 28 H. 8. in Dier fol. 13. if one be presented in a Leet Court for a Blowipe or any other personal 5 H. 7. 45 Ed. 3. 28 H. 8. wrong this Presentment is not Traversable but the party is without remedy therein though the Presentment be false and the matter of it untrue and the Law is so also of such a Presentment made in a Sheriffs Turn and herewithall agreeth the books of 2 R. 3. 11. and 19 H. 8. 11. 2 R. 3 19 H. 8. 5 H. 7. 8 Ed. 4. Fitz Assiz plac 442. and 8 Ed. 4. 5. and the reason thereof is delivered in 5 H. 7. because no Processe is there awardable against the party to call him to answer Yet in the same Book of 5 H. 7. it is said That if a Presentment be made which toucheth a mans Freehold he may there Traverse the same But I take it the party must first remove the Presentment into the Kings Bench and there Traverse it for in the Court Leet in my opinion there can be no Traverse taken or tryed no more where the Presentment toucheth Freehold then where it only concerneth a personal wrong Therefore the reason alleaged in 5 H. 7. cannot be the true cause wherefore in personal wrongs the Presentments cannot be traversed but the very true reason therein is as I take it because these petty Presentments be of such petty trifling matters that in avoidance of trouble the Law esteemed them not worthy of Traverse and Tryal and Justice Fairfax in 5 H. 7. is of opinion That a Presentment made before Iustices of Peace in a Sessions is traversable and with this agreeth Stanford fol. 183. and in other Courts of Law there oftentimes fall out matters which one shall not be admitted to take a Traverse unto and in some other cases he shall as by these succeeding authorities may appear In the 37 Assiz plac 7. a Presentment was taken before Green and Ingham Justices of the Kings Bench That I. S. who had killed A. had goods to the value of Eighty pounds in the hands of one John Lombard and upon this Presentment a Scire-facias was awarded against John Lombard to shew cause wherefore these goods should not be seized to the Kings use John Lombard came in and tendred a Plea to the Presentment that these goods were not the felons but that they were delivered to him to keep to the use of a Cardinal of Rome and he was there admitted to this Plea and with this agreeth 45 Ed. 3. fol. 26. expresly Yet in that book and Mr. Stanford fol. 185. it is holden for Law That if it be presented before a Coroner that I. S. killed A. B. and fled for the same fact and after upon his tryal he is acquit yet he shall forfeit his goods upon the Fugam fecit before the Coroner and he shall not be received to take any traverse to the said Presentment in that point The difference in which two cases is this in my opinion that a stranger as Iohn Lombard was in the the first Case shall not be peremptorily concluded for it were no reason one mans goods should be forfeited in another mans default and he should have no answer thereunto But in the other Case in Terror of Felons though he be acquitted of the Felony yet he is not acquitted of the flying and he may be guilty notwithstanding his acquittal There be other cases in the Law which admit no Traverse as in James Bags case Cook 11. Rep. James Bagâ— Case where a Writ was directed to the Major and Burgesses of Plymouth to restore Bag to his Aldermans place there which they had put him from and they return a cause sufficient to bar him which notwithstanding is false yet he shall not be received to his Traverse therein neither could a Traverse be admitted in the Certificate of the Bishop wherein was contained that I. A. Parson of Dle had refused to pay his dismes to the King by means whereof the Parson lost his benefice which case is in Br. cases temp He. 8. pl. 332. Br. Case 7 H. 4. 21 H. 7. and Dier fol. 116. and 7 H. 4. fol. 4. and 21 H. 7. 8. and many other Books be that no Averments shall be taken to the returns of Sheriffs to take any Issue thereupon And in Dr Bonhams case upon a Habeas corpus the Physitians returned the cause of his imprisonment which was false yet he could not be admitted to traverse the same But yet by the opinion of these Books an Action upon the case lieth against the Major and Aldermen against the Bishop for their certificates and against the Sheriff for their false returns and if Justifications be made by them they may be traversed But these will not reduce the parties to their former liberties viz not the Alderman to his place nor the Parson to his Church but damages in those cases are only recoverable These cases I have put as Reasons and Arguments against our Case of Sewers But yet I am of opinion that a Traverse may be taken to a Presentment made in this Court of Sewers and herein this Court may be resembled to a Sessions of the peace And this Commission of Sewers gives the Commissioners of Sewers power to hear to determine at the Kings suit as well as at the suit of the party and a Traverse lyeth of a Presentment found before Commissioners of Oyer and Terminer and is triable before them by the Books of 29 Assiz pl. 33. and 12. lib. Assiz 21. and 29 Assiz 12 Assiz pl. Com. the Earl of Leicesters Case in Plow Com. fol. 397. and
Gen. cap. 1. of all other creatures being finished the Heavens adorned and the Earth replenished God said Let us make man in our own Image after our likeness and let him have Dominion over the fish of the Sea and over all the Earth and every creeping thing that creepeth upon the Earth So God Created man in his own Image in the Image of God Created he him Male and Female Created he them and said unto them Be fruitful and multiply and replenish the earth and subdue it and have Dominion over the fish of the Sea and over the foul of Heaven and over every living thing that moveth upon the earth This was the first Commission that ever was granted and it passed under the Divine immediate Seal of the Almighty extended over the whole world and by the vertue of the word Dominamini in the Plural number God coupled the woman in Commission with the man But in the 18 Chapter of Exodus Verse 21. Jethro adviseth and counselleth Exodus 18. Moses his Son in law to provide out of all the people men of truth hating covetousness and place such over them to be Rulers of Thousands Rulers of Hundreds and over Fifties Tens where by the word Men twice repeated by Jethro and this place of Scripture seemed to exclude wholly from Government and the former Commission extended over Fishes Birds and Beasts and neither over men nor women And in the first of the Corinthians Chapter 14. it is said by Saint Paul Let the women keep silence in the Churches for it is not permitted to them 1 Cor. 14. to speak And in Grendons Case in the Comment fol. 497. Dyer saith That women could not administer the Sacraments nor were they permitted to say Divine Service And in the second Chapter of Timothy Verse 12. he saith We suffer not the woman 2 Tim. to rule over the man but this last of Timothy may be most aptly applyed to husband and wife I remember out of the Abbey Book of Evesham this Note worthy of observation Quod Alicia Peeres Regis miniona supra modum mulierum nimis supergressa sui etiam sexus fragilitatis feminiae Immemor nunc Justiciarios Regis nunc in foro ecclesiastico juxta doctores sedendo pro defensione causarum suadere etiam contra jus postulare minime verebatur unde propter scandalum petierunt à rege in Parliament ' tent ' An. 50. Ed. 3. penitùs amoveri but hereby I collect that she was not in Commission with the Judges Temporal or Spiritual but was a favorite of the Kings and took upon her to intermeddle in businesses nothing concerning her But whether the Text meant it for a woman to sit Judge in a Court of Justice was contra modum mulierum or because she sate there to wrest righteous Judgement I refer to the readers of that History For Debora was Judge of Israel and Judged the people as the fourth of Judges hath it Dyer indeed saith in Grendons Case That divers Churches were appropriated to Prioresses and Nanneries whereof women were the Governesses whereby and by the said Chapter of the Corinthians it appears that women might be admitted to have Rule and Government over the possessions and persons Temporal and Ecclesiastical but were not admitted to have curam animarum nor to meddle with the administration of the Service or Sacraments And for Temporal Governments I have observed women to have from time to time been admitted to the highest places For in ancient Roman Histories I finde Endochia and Theodora admitted at several times into the sole Government of the Empire and here in England our late famous Queen Elizabeth whose Government was most renowned And Semiramis governed Syria and the Queen of the South which came to visit Solomon for any thing that appears to the contrary was a sole Queen And to fall a degree lower we have presidents that King Richard the first and King Henry the fifth appointed and deputed by Commissions their Mothers to be Regents of this Realm in their absence in France And the wise and renowned Lady Margaret Countess of Richmond was put in Commission and Humfrey de Bohune Earl of Hereford was by Tenure Constable of England which is a Judge in Martial affairs and he died without issue Male by reason whereof the Office amongst other things descended to his two Daughters and Co-heirs And in the 12 of Elizabeth in Dier it is holden for Law That although this was an Office of Justice yet they might execute the same by deputy for in truth women were unfit Martialists to judge of matters of that nature and yet it is clear a deputy doth nothing in his own name but in the name of his Master or Mistriss therefore the Martial Court was to be kept in their names But yet I will descend a step lower doth not our Law Temporal and Spiritual admit of women to be Executrixes and Administratrixes and hereby they have the rule or ordering of great Estates and many times they are Gardianesses in Chivalry and have thereby also the government of many great Heirs in the Kingdom and of their Estates And in 10 H. 7. a man devised his Lands to be sold by a 10 H. 7 woman and died and she sold the same to her husband So by these Cases it appeareth that the Common Law of this Kingdom submitted and committed many things to their government yet the Statute of Justices of the Peace is like to Jethroes counsel to Moses for there they speak of men to be Justices and seemeth thereby to exclude women But our Statute of Sewers is Commission of Sewers shall be granted by the King to such person and persons as the said Lords should appoint So the words persons stands indifferently for either Sex And therefore although by the weakness of their Sex they are unfit to travel and they be for the most part uncapable of learning to direct in matters of Judicature for which causes they have been discreetly spared yet I am of opinion for the authorities reasons and causes aforesaid that this honorable Countess being put into Commission of the Sewers the same is warrantable by the Law and the Ordinances and Decrees of Sewers made by her and the other Commissioners of Sewers are not to be impeached for that cause of her Sex And I conclude here that although in discretion women have been secluded as unfit yet they are not in Law to be excluded as uncapable If an Infant above the age of Fourteen and under the age of One and twenty be made a Commissioner his infancy shall be no cause to disable the Laws made by him yong Daniel was Judge over both the Elders And in Little Brook fol. The case is a Parson or Prebend being within age made a Lease for years of his benefice and would but could not after avoid it for his Nonage for seeing the Church had made him of full age to discharge the spiritual
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
dispose of them Fourthly the Commissioners have a Clerk proper to themselves to Register their Laws Fifthly the Commissioners have power to make Orders and Decrees which are Judgements in effect and some of them cannot be reversed but by Act of Parliament And lastly Writs of Error have been brought to reverse Judgement given in that Court For all which causes I do conclude That the Commissioners of Sewers have a Court of Record although it be not holden in aliquo loco certo So was the Kings Bench a Court of more Eminency then this But ubicunque fuerimus in Angliae and for express Authority in the point of Gregories Case in the 6 Report of Cook chief Justice that the Sewers is a Court of Record Imprisonment imposed by the Commissioners of Sewers IT is a point of high consequence whether Commissioners of Sewers have power by these Laws to Imprison the body of a man for any thing touching the same for that Imprisonment of the body seemeth to sway somewhat against the grand Charter of England and against the liberty of a free-born Subject and it is said in Bonhams case 28 H. 8. in Dyer that liberty is a thing which the Law much favoreth and I finde in our Books of Law That the Judges have been very careful and curious in not extending words contained in Charters to the Imprisonment of mens bodies unless they were express in the point And therefore in Clerks case in Sir Ed. Cooks 5 Report fol. 64. Clarks Case The case is That the Term was to be kept at St. Albans and the Major there and his brethren did assess every townsman towards erecting and building of the Courts of Justice and made an Order That he which should refuse to assist and pay should be imprisoned and one being Arrested and imprisoned brought his Action of false imprisonment against the Major who pleaded in effect That they were incorporate by King Edward 6. and had power granted to them in their Major of St. Albans Charters to make Ordinances by reason whereof they made the said Order and so justified the imprisonment But it was adjudged against the Major for that by the said Charter they had not any power to make an Ordinance to imprison a mans body for that were against the grand Charter in Magna Charta cap. 29. Quod nullus liber homo imprisonetur Magna Charta nisi per legem terrae But by that Book they might have inflicted a penalty and have distrained or brought an Action of Debt for it In Doctor Bonhams case in the 8. Report King Hen. 8. incorporated the Physitians of London and gave them power by Charter to examine the Imperites to finde out the defects Et pro delictis suis in non bene exequendo faciendo utendo illos per punitionem eorum delinquentium per fines amerciamentum imprisonomentum corporum suorum So hereby it appears that by the Kings Letters Patents they had power to imprison the Body but I finde their Charters confirmed by Act of Parliament Yet in 2 Eliz. Dier fol. 175. the Case is That the Queen did award a Commission directed to certain Commissioners to Hear and Determine the controversies betwixt Scrogs and Colshil touching the Office of the Exigenter and that if Scrogs should refuse to obey to make answer before them they should commit him to Prison but the validity of this last Commission I much doubt of I am of Opinion That the Commissioners of Bankrupts and charitable uses have no power to commit any man but if any abuse or misdemeanor be committed in contempt or derogation of their Authorities they may make Certificate thereof into the Chancery and refer the punishment thereof to the will and discretion of the Lord Chancelor or Lord Keeper for the time being In Godfreys Case in the 11 Report there is a discourse what Godfreys Case Courts have power to Imprison and which not and there it is said Some Courts may Fine but not Imprison as the Courts Leet and Sheriff turn some others could neither Fine nor Imprison as Courts Baron and County Courts and some could neither Fine Imprison nor Amerce as Ecclesiastical Courts And some may Imprison and not Fine as chief Constables at their Petty Sessions for an affray done in disturbance of them And other Courts there were which might Fine Imprison and Amerce as the eminent Courts of Westminster So that Imprisonment is not incident to every Court nor to every offence Yet I am of opinion that the Commissioners of Sewers may Imprison the body for it is not only a Court of Record but is authorized by Act of Parliament and I suppose that there be words in the Commission and Statute which will bear this construction which are as follow viz. And all such as ye shall finde negligent gainsaying or rebelling in the works reparation or reformation of the premises or negligent in the due execution of the Commissioners That ye Compel them by Distress Fines and Amerciaments and by other Punishments ways or means c. Which words are strong and large enough to authorize the Commissioners of Sewers upon just Cause to Imprison the body But here they are to be careful and not to think that they may Imprison Fine or Amerce in any case because the words be generally put together But this construction must be thereof made That they may Imprison where Imprisonment is due and Fine in cases Fineable and Amerce in cases Amerciable and Distrain where a Distress properly lyeth by the Rules of Law and they may not Imprison where by the Laws Imprisonment is not due but every one of the said punnishments is to be used in its proper kinde for these words promiscuously put together must be ordered by a just and legal construction according to the Rules of Law and Reason And I have known the words of a Statute generally and promiscuously put together have been marshalled according to their distributive operations as the Statute of 1 Rich. 3. which is That all Feoffments Gifts Grants Releases and Confirmations of Lands made by Cestui que use should be good Yet though these words were generally put together notwithstanding the wise and discreet Sages and Expositors of our Laws have so Marshalled the words of this Statute that they made construction thereof according to the Rules and reason of the Laws That is That Cestui que use in Possession might make a Feoffment and that Cestui que use in Reversion or Remainder might grant the Land and Cestui que use of a discontinued Estate might release or confirm and yet the words of this Statute were general howsoever Reason must be the Expositor that every thing be done in due form of Law and not in preposterous maner And these matters being thus passed over I shall endeavor my self to declare in what cases Commissioners of Sewers may Imprison Fine and Amerce and where not Imprisonment Fine and Amerciament Fines IF one
give evil Language to Commissioners in Court or disturb the peace there or hinder the business of the Court in a Turbulent fashion he may be by them Fined or committed to Prison or both at the discretion of the Commissioners for by 34 H. 6. fol. 24. in every case when a man is fined he may be imprisoned and by 19 H. 6. fol. 67 in every case where one is Imprisoned he may be Fined and 34 H. 6. our Law in express words gives the Commissioners power 19 H. 6. to set fines and then by the opinion of the said Books ex consequenti they may Imprison If one oppose against a Law of Sewers not legally in questioning the same but refractory contemning thereof or by disswading persons assessed not to pay such or not to obey the Law I am of opinion that a person is both Fineable and Imprisonable and if this be done in facie Curiae it aggravates the contempt and this is the Rebelling which this Statute speaketh of If one do refuse to obey the Decree Rule Order of the Court especially if it be done in affront of the Commissioners when they be in execution of their Commission This is a contempt and he is to be imprisoned for such his disobedience and this agreeth with 37 H. 6. fol. 14. In Termino Pasche 12 Jac. in the Kings Bench the Case 37. H. 6. there was in debate between Hitley and Carier where certain 12 Jac. Commissioners of Sewers in the counties of Huntington and Northampton made a Law That certain Townships in those counties were assessed to a work of Sewers and one town was rated to Five pounds and because the same was not paid the Commissioners caused a Warrant to be directed to the said Carier to distrain for it and he distrained the cattel of Hetley one of the Inhabitants and Hetley brought an Action of Trespass in the Kings Bench against Carier and arrested him thereupon and upon complaint made to Sir Anthony Mildmay and Sir John Boyer Knights and other the Commissioners of Sewers they caused Hetley to be attached by their Warrant and committed him till he should release his Actions brought against Carier and until he should be delivered out of the Prison by Warrant to be granted by them But afterwards Hetley procured a Habeas corpus cum causa out of the Kings Bench and was removed where all the said matter appeared and thereupon Attachments were awarded against the said Commissioners and Sir John Boyer appearing was by Cook chief Justice Crook Dodderidg and Houghton Justices committed to the Kings Bench Prison and was fined Two hundred pounds but was after delivered Ex favore Regis sed non ex Rigore Legis And in my opinion The said Commissioners in this case in making a Warrant to attache Hetley and in imprisoning of him for the said causes did exceedingly erre and the rather because they took upon them to overrule the Justices of the Kings Bench being of a higher and greater authority then they were of But this is no president to impeach the power of the Commissioners of Sewers for committing persons offending their authorities to Prison if their proceedings therein be consonant to the Laws of this Realm but they were punished in this Case not for executing their power but for exceeding their limits and the bounds of their Commission If a Collector or Expenditor or other Officer of Sewers have been negligent in the execution of his Office and place he his fineable therefore though his offence be but neglect because he was an Officer and was also sworn to execute the same duly But I take it a neglect in another ordinary person is not to be punished And if one be rated to pay towards repairs and he neglect to pay the same at the days and times appointed he is not fineable therefore but is to be Amerced in this Case If a Collector or Officer of Sewers do distrain a man or do any other act contrary to an Inhibition of Sewers to him directed by the Commissioners of Sewers he may be fined and imprisoned simile factum fuit in 7 H. 4. fol. 33. 7 H. 4. If a Purpresture be committed in the Kings streams as in fixing Piles or Stakes therein or in stopping straitning or diverting the course of the waters from their ancient chanels or courses these offences being presented the offenders are fineable therefore if in the Presentment they be found to be done vi armis or be presented by the name of Purprestures for by 19 H. 6. fol. 8. if the offence be done 19 H. 6. with force and so presented then the offender is fineable Beechers Case but otherwise it is if the offence be not found but omitted for then an Amerciament is onely due And it is said in Dier 7 Eliz. fol. 240. That for a Purpresture one is fineable and a Purpresture may be committed in aquis Regiis as well 1 Eliz. fol. 240. as in viis Regiis by the opinion of Glanvil And in Keleways Report fol. 141. And a Purpresture is taken to be an offence done to the King imediately or to His possessions But if the like offence Purpresture be done to a Subject or to his Lands it is termed a Nusans Nusans The Abbot of Mellefont was fined for erecting a Were in the royal River of Boyne in Ireland which is expressed in the Irish Reports in the Case of the Royal Pischary of the Ban in Ireland and this was a Purpresture If one do refuse to accept an Office of Sewers being thereto duly elected by the Commissioners he is fineable therefore for in Greslies Case 8. Report One being elected Greslies Case and chosen Constable did refuse to take the Office and he was fined And if an Officer do misdemean himself in his Office he is fineable for in 10 H. 6. fol. 6. A Tythingman did refuse 10. H. 6. to make Presentment being thereto required and he was fined therefore So in case of the Sewers if one of the Jury or which is a Surveyor refuse to make Presentment when he is required by the Commissioners he is to be fined So if a Juror depart after he is sworn on the Jury or before he be sworn after his appearance be recorded he is to be fined And if an Expenditor or Collector Officers of Sewers be required by the Court to accompt for the moneys received and laid out by them and they refuse they may be punished by fines And if the Sheriff upon Writ or Warrant directed to him to return a Jury before the Commissioners and he make no return thereof nor doth not attend when he is required he is to be fined by the Commissioners Also an Officer of this Court is fineable for falsities done by him in his Office for these are a violation of his Oath and is a breach of that trust which the Court reposed in him at his election and entrance