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„_ .^ ^Cornell University Library 
 
 KD 1162. W91 1864 
 
 * '^3™,.,^!,,.^* '3" 0' sewers :includl 
 
 3 1924 021 740 851 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
TREATISE 
 
 LAW OF SEWEKS, 
 
 INCLUDINO 
 
 C)^^ graina^^ %th. 
 
 BY . .^ ^^ 
 
 HUMPHRY W.^'^OOLRYCH, 
 
 SEKJEANT AT LAW. 
 
 THIRD EDITION, 
 
 WITH CONSIDERABLE ADDITIONS AND ALTERATIONS. 
 
 LONDON: 
 
 BUTTERWORTHS, 7, FLEET STREET, 
 
 HBto pu6lfei)CT8 to ti)C dtiem's moat racjllrot iWajcatj, 
 
 1864. 
 
 Digitized by Microsoft® 
 
LONDON: 
 
 PUINTED BY C. ROWORTH AND SONS, 
 BELL YARD, TEMPLE BAR. 
 
 Digitized by Microsoft® 
 
PREFACE 
 
 TO THE THIRD EDITION. 
 
 The considerable changes in the Statute Law of 
 Sewers, and the numerous decisions since the 
 Second Edition of this Work, have rendered ano- 
 ther amended and enlarged Copy of it an object of 
 fair speculation. The Acts upon the important 
 questions of Sewers and Drainage are far more 
 complicated than the Cases. The reader will, how- 
 ever, be assisted by copious Tables of Statutes and 
 Cases, and his attention is directed to the Addenda, 
 which he will, of course, incorporate with the 
 Work: some of these Addenda are new, some 
 belong to errors, " Quos humana parum cavii 
 natura:" they are few, but should not be lost 
 sight of. 
 
 The Author submits the present Edition with 
 some confidence to the Profession, since they have 
 already recognized the usefulness of those Editions 
 which have preceded it. 
 
 2, Hare Court, Temple, 
 July 20, 1864. 
 
 Digitized by Microsoft® 
 
Digitized by Microsoft® 
 
CONTENTS. 
 
 PAGE 
 
 X 
 
 2 
 
 4 
 
 8 
 
 10 
 
 11 
 
 CHAPTER I. 
 
 Of Commissions of Sewers, and their Origin, 
 
 Derivation of " Sewer " 
 
 Origin of commissions 
 
 Commissions by statute 
 
 The Statute of'Sewers, 23 Hen. 8 . 
 
 Duchy of Lancaster 
 
 Saving of fines .... 
 
 Charges of commissioners 
 
 Local Management Act . . . . , ih. 
 
 Vestry or District Board . . . . .12 
 
 The Act for Promoting the Public Health ... 13 
 
 Commissions under the Drainage Act . . .27 
 
 Qualification of commissioners of sewers ... 30 
 
 Oath ........ 39 
 
 Form of it . . . . . . . ih. 
 
 Forfeiture for not being qualified . . . .41 
 
 Allowance to commissioners .... 42 
 
 Continuance of commissions . . . . .43 
 
 Demise of the Crown ..... 46 
 
 No certificate nor return of commission . . .47 
 
 Saving clauses ...... 49 
 
 CHAPTER II. 
 
 Of the Duties and Powers of Commissioners of Servers. 
 
 The Commission . . . . . .55 
 
 Inquiry into annoyances ..... z&. 
 
 Assessment . . . . . . ih. 
 
 Repair ...... 56 
 
 Putting down annoyances . . . . . ib. 
 
 Appointment of officers ..... i&. 
 
 Distress for arrears . . . . . . ih. 
 
 Taking labourers, &c. ..... 26. 
 
 Making of laws . . . . . .57 
 
 Awarding of writs, &c. . , . . . ih. 
 
 Survey . . . . . . . ih. 
 
 Compelling obedience to orders .... ib. 
 
 Digitized by Microsoft® 
 
Cuntenis. 
 
 Declaration of powers of commissioners under 34 & 25 Vict. 
 0. 133 . . . . . . . 59 
 
 Restrictions as to obstructions . . . . .60 
 
 Romney Marsh ...... G2 
 
 Survey . . . . . . .64 
 
 Walls 65 
 
 Streams and watercourses . . . . .67 
 
 Rivers ....... ib. 
 
 Ditches ....... 70 
 
 Banks . . . . . . . 71 
 
 Gutters ..... • ?^ 
 
 Sewers ...... ih. 
 
 Gotes ....... 77 
 
 Calcies ...... ib. 
 
 Bridges ....... 78 
 
 Trenches ...... 79 
 
 Annoyances . . . . . . . ib. 
 
 Outrageous springs ...... ib. 
 
 Mills and mill-streams . . . . . .80 
 
 Wears, &c. ....... ib. 
 
 Gotes, &c. . . . . . . . ib, 
 
 Hebbing-wears, &c. . . . . . ib. 
 
 Ponds ....... ih. 
 
 Pools . . . . . . . 81 
 
 Inquiry into the ownership of lands, and into defaults . . ib. 
 
 Repair, who liable to ..... 82 
 
 Person repairing must be benefited . . . 83, 85 
 
 Frontage ....... 87 
 
 Use ....... ib. 
 
 Tenure ....... 88 
 
 Prescription and custom ..... 89 
 
 Covenant ....... 90 
 
 Grant ....... 92 
 
 Laws of sewers . . . . . .93 
 
 Corporations, when liable ..... 94 
 
 Townships . . . . . . . ib. 
 
 Repairs, when made by the level . . . .98, 105 
 
 New walls, &c. . . . . . . 104, 117 
 
 Ecclesiastical persons . . . . .107 
 
 Lords of manors . . . . . . ib. 
 
 Copyholders ....... ib. 
 
 Ferry . . . . . . . .108 
 
 Reversioners ... . . ib. 
 
 Mortgagors . . .... 109 
 
 Officers, &c. . . . . . .110 
 
 Annuitants ..... . ib. 
 
 Tithes .... .111 
 
 Goods . . . . . . . .112 
 
 Perpetual charge . . . . . .113 
 
 Exchange of repairs . . . . , .117 
 
 Destruction of annoyances ..... 126 
 
 Private nuisances ...... 131 
 
 Public Health Act . . . . . .132 
 
 Digitized by Microsoft® 
 
Contants. 
 
 CHAPTER III. 
 
 Of the Proceedings of Commissioners of Sewers in further- 
 ance of the powers intrusted to them . . 144 
 
 They are a Court of Record 
 
 Three form a Court 
 
 May partition districts into sub-districts 
 
 Meetings .... 
 
 Special meetings 
 
 Appointment of their officers 
 
 Officers punishable 
 
 Removal of officers . 
 
 Bond by them 
 
 Constables .... 
 
 Officers under the boards of health 
 
 Commissioners to make laws and decrees 
 
 To summon a jury 
 
 From whence summoned 
 
 Juries may be dispensed with 
 
 Surveyor's presentment 
 
 What presentments traversable 
 
 Assessment, how made 
 
 Amendment of rate 
 
 Rates under 21 & 23 Vict. c. 98 
 
 Returns 
 
 Appeal 
 
 Power to borrow money 
 
 Mortgage clauses under 21 & 22 Vict. c. 98 
 
 Purchase of lands 
 
 Punishments by commissioners 
 
 Fines 
 
 Must be reasonable . 
 
 Fines, whether traversable 
 
 Amerciaments 
 
 Imprisonment 
 
 Distress 
 
 "Warrant 
 
 Distress, where 
 
 Whose goods 
 
 Sale 
 
 Replevin 
 
 Decree of lands 
 
 What lands to be sold 
 
 Who bound by these decrees 
 
 To whom lands may be decreed 
 
 Mandamus 
 
 Indictment 
 
 Actions .... 
 
 Proceedings under 11 & 12 Vict. c. 63 
 
 PAGE 
 
 145 
 
 145, 147 
 
 146 
 
 147 
 
 148 
 
 ib. 
 
 149 
 
 150 
 
 152 
 
 155 
 
 ib. 
 
 160 
 
 161 
 
 163 
 
 168 
 
 ib. 
 
 169 
 
 170 
 
 175 
 
 ib. 
 
 181 
 
 182 
 
 185 
 
 187 
 
 189 
 
 202 
 
 ib. 
 
 203 
 
 ib. 
 
 204 
 
 205 
 
 209 
 
 211 
 
 212 
 
 213 
 
 ib. 
 
 214 
 
 217 
 
 220 
 
 221 
 
 222 
 
 ib. 
 
 223 
 
 ib. 
 
 226 
 
 Digitized by Microsoft® 
 
via 
 
 Contents. 
 
 CHAPTER IV. 
 
 Of the various Proceedings which may he had against 
 
 Commissioners of Servers. 
 
 
 
 PAGE 
 
 Certiorari ..... 
 
 . 229 
 
 Disobedience to the writ .... 
 
 237 
 
 Procedendo ..... 
 
 . 239 
 
 Mandamus ...... 
 
 241 
 
 Actions ...... 
 
 . 242 
 
 Notice of action ..... 
 
 248 
 
 Tender of amends .... 
 
 . 250 
 
 Injunction ...... 
 
 ib. 
 
 Arbitration ..... 
 
 251, 252 
 
 Trial 
 
 252 
 
 CHAPTER V. 
 
 
 Of the Drainage Acts. 
 
 
 The Drainage Acts, 3 & 4 Vict. c. 55 . 
 
 . 254 
 
 8 & 9 Vict. c. 56 
 
 255 
 
 9 & 10 Vict. c. 101 
 
 . 259 
 
 Advances of money under 9 & ]0 Vict. c. 101 
 
 260, 270 
 
 The provisional certificate . 
 
 . 263 
 
 Which may be assigned 
 
 264 
 
 Other matters under 9 & 10 Vict. c. 101 
 
 . 267 
 
 Apportionment and redemption of rent-charge 
 
 275, 276 
 
 Of the 10 & 11 Vict. o. 38 . 
 
 . 278 
 
 Electoral Drainage Boards, 24 & 25 Vict. c. 133 . 
 
 288 
 
 The Towns' Improvement Clauses Act, 10 & 11 Vict. c. 34 . 291 
 
 APPENDIX— Forms and Precedents . 
 
 . 295 
 
 INDEX ...... 
 
 307 
 
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TABLE OF STATUTES. 
 
 
 PAGE 
 
 
 
 
 
 PAGE 
 
 Hen. 3,9, c. 15 
 
 5 
 
 Geo. 
 
 3,35, 
 
 >;. 77 
 
 , . 
 
 .. 70 
 
 c. 16 
 
 5 
 
 
 41, 
 
 u. 109, s. 
 
 10 
 
 .. 288 
 
 c. 23 
 
 .. 5 
 
 
 52, 
 
 u. xlviii. 
 
 s. 7 
 
 .. 107 
 
 Edw. 1, 13, c. 36 
 
 .. 210 
 
 
 57, 
 
 u. xxix. 
 
 
 .. 248 
 
 3, 27, c. 1 
 
 48, 192- 
 
 Geo. 
 
 4, 5, 'c 
 
 . 100 
 
 
 11, 13 
 
 Hen. 6,3, c. 5 
 
 6 
 
 
 6,.. 
 
 .38 
 
 
 13, n. 
 
 9, u. 9 
 
 6 
 
 
 7, c 
 
 . 64, s. IS 
 
 
 .. 223 
 
 Hen. 8, 23, i;. 5, s. 1 . . 
 
 .. 8 
 
 Will 
 
 4, 3 & 4, c. 22 
 
 s. 1 
 
 .. 31 
 
 s. 2 .. 
 
 9 
 
 
 
 
 s. 2 
 
 .. 40 
 
 s. 3 .. 
 
 9, 55 
 
 
 
 
 s. 3 
 
 .. 40 
 
 s. 4 .. 
 
 11, 161 
 
 
 
 
 s. 4 
 
 .. 41 
 
 s. 5 .. 
 
 .. 39 
 
 
 
 
 s. 5 
 
 .. 41 
 
 s. 7 .. 
 
 .. 58 
 
 
 
 
 ». 7 
 
 .. 46 
 
 s. 8 .. 
 
 .. 217 
 
 
 
 
 s. 8 
 
 .. 147 
 
 s. 9 .. 
 
 59,218 
 
 
 
 
 s. 9 
 
 .. 148 
 
 s. 10.. 
 
 .. 31 
 
 
 
 
 s. 10 
 
 .. 75 
 
 s. 1 1 . . 
 
 .. 216 
 
 
 
 
 s. 11 
 
 .. 162 
 
 s. 13.. 
 
 .. 43 
 
 
 
 
 s. 12 
 
 .. 166 
 
 s. 14.. 
 
 .. 10 
 
 
 
 
 s. 13 
 
 .. 167 
 
 s. 15.. 
 
 .. 11 
 
 
 
 
 s. 14 
 
 .. 171 
 
 s. 16.. 
 
 .. 47 
 
 
 
 
 s. 15 
 
 .. 171 
 
 s. 17.. 
 
 .. 43 
 
 
 
 
 s. 16 
 
 .. 97, 
 
 s. 20.. 
 
 .. 10 
 
 
 
 
 
 151, 186 
 
 25, c. 10, s. 2 .. 
 
 .. 40 
 
 
 
 
 ». 17 
 
 .. 167 
 
 c. 25, s. 1 .. 
 
 .. 40 
 
 
 
 
 =. 18 
 
 .. 171 
 
 Mar. 1, sess. 3, c. 11, s 
 
 1 ..122 
 
 
 
 
 s. 19 
 
 .. 122 
 
 
 2 58, 122 
 
 
 
 
 s. 20 
 
 .. 123 
 
 Eliz. 13, u. 9, s. 1 
 
 47, 217 
 
 
 
 
 s. 21 
 
 .. 122, 
 
 s. 2 
 
 .. 43 
 
 
 
 
 
 123 
 
 s. 3 
 
 .. 44 
 
 
 
 
 s. 22 
 
 .. 83 
 
 s. 4 
 
 .. 32 
 
 
 
 
 s. 23 
 
 83,84 
 
 s. 6 
 
 11,149 
 
 
 
 
 s. 24 
 
 .. 190 
 
 s. 7 
 
 .. 38 
 
 
 
 
 s. 25 
 
 .. 190 
 
 43, c. 4 . . 
 
 .. 112 
 
 
 
 
 s. 26 
 
 .. 190 
 
 Jac. 1, 3, c. 14, s. 1 . 
 
 .. 69 
 
 
 
 
 s. 27 
 
 .. 192 
 
 s. 2 . 
 
 .. 69 
 
 
 
 
 s. 28 
 
 .. 192 
 
 Car. 2, 13 & 14, c. 2 . 
 
 .. 75 
 
 
 
 
 s. 29 
 
 .. 192 
 
 IS, c. 17, s. 15 
 
 .. 222 
 
 
 
 
 s. 30 
 
 .. 194 
 
 W. & M. sess. 2, c. 8, 
 
 s. 14, 
 
 75, 115 
 
 
 
 
 s. 31 
 ^. 32 
 
 .. 195 
 .. 1S6 
 
 Ann. 7, c !0, s. 1 
 
 .. 221 
 
 
 
 
 ». 33 
 
 .. 196 
 
 5.2 
 
 .. 221 
 
 
 
 
 5.34 
 
 .. 196 
 
 =,. 3 
 
 .. 209 
 
 
 
 
 s. 35 
 
 .. 196 
 
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Table of Siatule/s. 
 
 PAGE 
 
 Will, i, 3 & 4, c. 22, s. 36.. 195, 197 
 s. 37 .. 197 
 0.38 .. 19S, 
 
 198 
 
 , s. 40 .. 198 
 
 s. 41 .. 184 
 
 s. 42 .. 185, 
 
 187 
 s. 43 ..186, 
 
 187 
 5. 44 .. 146 
 s. 45 .. 146 
 s. 46 .. 167, 
 
 169 
 s. 47 ..146, 
 
 156 
 s. 48 .. 152 
 ;s. 49 .. 154 
 s. 50 . . 1 54 
 s. 51 .. 149 
 s. 52 .. 155 
 s. 53 .. 208 
 s. 54 .. 208 
 s. 55 .. 201 
 s. 56 .. 201 
 s. 57 . . 224, 
 
 247 
 s. 58 .. 224 
 s. 59 . . 224 
 s. 60 .. 145 
 s. 61 50, 63 
 s. 62 .. 50 
 
 5 & 6, c. 33 .. 239 
 
 c. 50 .. 288 
 
 s. 105 .. 183 
 
 c. 76 .. 23 
 
 6 & 7, >;. 71, s. 12 .. 258 
 
 s. 13 .. 267 
 
 s. 69 .. Ill 
 
 s. 81 .. 274 
 
 c. 115 .. 288 
 
 Vict. 2 & 3, u. 47, s. 60 .. 50 
 
 3 & 4, u. 55 (Drainage Act) 
 
 254 
 u. 87, ss. 18, 19, 74 50 
 c. 97 . . . . 248 
 
 4 & 5, c. 12, ss. 17, 18,74 50 
 
 c. 45, s. 1 96, 151 
 
 s. 2 97, 151 
 
 s. 3 98, 151 
 
 s. 4 .. 186 
 
 s. 5 .. 186 
 
 s. 6 .. 186 
 
 s. 7 ..168 
 
 s. 8 ..175 
 
 s. 9 . . 225 i 
 
 =.10 .. 147 '■ 
 
 PAGE 
 
 Vict, 4 & 5, c. 45, s. 11 .. 146 
 
 s. 12 .. 148 
 
 s. 13 .. 51 
 
 s. 14 .. 51 
 
 s. 15 .. 50 
 
 ». 16 .. 51 
 
 s. 17 .. 51 
 
 s. 18 .. 51 
 
 c. 89 .. .. 261 
 
 5, c. 9, sess. 2 .. ..188 
 
 5 & 6, c. 89 .. ..261 
 
 6 & 7, c. 71, ». 12 .. 258 
 
 s. 13 . . 258 
 
 c. 85 . . . . 247 
 
 7 & 8, c. 84, s. 13 (Metro- 
 
 polis Buildings) . . 135 
 
 s. 18 .. 135 
 
 s. 61 .. 135 
 
 8,0. 18, s. 6 .. .. 200 
 
 8 & 9, c. 56 (Drainage 
 
 Act) 255, 257 
 c. 69 .. .. 261 
 0.118 259,284,288 
 
 9 & 10, c. 62 (Deodands) 34 
 
 0.95, s. 58 .. 181 
 c. 101 (Drainage 
 
 Act) . . 258 
 
 10, c. 11, ss. 1, 2 .. 260 
 
 i;. 38, s. 4 .. 24,279 
 
 ss. 5, 7 .. 281 
 
 s. 8 . . . . 282 
 
 s. 9— 12 .. 283 
 
 s. 13 .. .. 284 
 
 s. 14 .. .. 285 
 
 s. 15—17 .. 286 
 
 ss 18,19 .. 287 
 
 cc. 79, 106 .. .. 261 
 
 c. 113 .. .. 261 
 
 10 & 11, 0. 11 (Drainage 
 
 Act) .. 258 
 
 c. 34 . . 291 
 c. 38 (Drainage 
 
 Act) .. 279 
 
 s. 18 .. 51 
 
 c. 47 . . . . 293 
 
 11 & 12, 0. 43, s. 21 .. 223 
 
 63, s. 1 .. 18 
 
 s. 2 18, 22, 
 249 
 
 s. 12 .. 23 
 
 s. 13 .. 23 
 
 s. 14 .. 18 
 
 s. 15 .. 25 
 
 s. 16 .. 24 
 
 s. 17 .. 24 
 
 ». 18 .. 24 
 
 s. 19 .. 24 
 
 Digitized by Microsoft® 
 
Table of Statutes. 
 
 XI 
 
 
 PAGE 
 
 
 
 PAGE 
 
 Vict. 
 
 11 & 12, u. 63, s. 20 ., 21 
 
 Vict. 11 & 12, c. 
 
 63, s. 104 
 
 .. 181 
 
 
 s. 21 .. 24 
 
 
 s. 106 
 
 .. 181 
 
 
 s. 22 . . 24 
 
 
 s. 108 
 
 .. 188 
 
 
 s. 31 .. 25 
 
 
 E. 109 
 
 .. 188 
 
 
 s, 32 . . 23 
 
 
 s. 110 
 
 .. 188 
 
 
 s. 33 . . 23 
 
 
 s. Ill 
 
 .. 188 
 
 
 s. 34 156,293 
 
 
 s. 112 
 
 .. 189 
 
 
 s. 35 .. 157 
 
 
 s. 113 
 
 .. 189 
 
 
 s. 36 .. 157 
 
 
 s. 114 
 
 .. 189, 
 
 
 s. 37 157,291 
 
 
 
 293 
 
 
 s. 38 .. 158 
 
 
 s. lis 
 
 .. 156 
 
 
 s. 39 .. 158 
 
 
 s. 116 
 
 .. 156, 
 
 
 s. 40 .. 292 
 
 
 
 293 
 
 
 s. 41 140,292 
 
 
 s. 118 
 
 .. 90 
 
 
 s. 42 64, 141, 
 
 
 s. 119 
 
 .. 189 
 
 
 292 
 
 
 s. 120 
 
 .. 26 
 
 
 s. 43 26, 52, 
 
 
 s. 121 
 
 .. 26 
 
 
 292 
 
 
 s. 1 23 passim 
 
 
 s. 44 26, 132 
 
 
 s. 123- 
 
 -128 
 
 
 Si. 46 .. 133 
 
 
 
 252 
 
 
 ». 47 .. 133 
 
 
 s. 124 
 
 .. 199 
 
 
 S.48 .. 134 
 
 
 s. 127 
 
 .. 157 
 
 
 s. 49 134, 292 
 
 
 s. 129 
 
 passim 
 
 
 s. 50 .. 135 
 
 
 s. 130 
 
 .. 226 
 
 
 s. 51 ..136 
 
 
 5.131 
 
 .. 214 
 
 
 s 52 .. 136 
 
 
 5.132 
 
 .. 227 
 
 
 s. 53 .. 137 
 
 
 s. 133 
 
 .. 227 
 
 
 s. 54 .. 137 
 
 
 5.134 
 
 .. 227 
 
 
 s. 56 .. 138 
 
 
 s. 135 
 
 81,227 
 
 
 5.58 .. 138 
 
 
 s. 136 
 
 .. 182 
 
 
 s. 59 136,139 
 
 
 s. 137 
 
 .. 182, 
 
 
 s. 60 140, 145 
 
 
 
 227 
 
 
 a. 65 . . 140 
 
 
 s. 138 
 
 . . 227, 
 
 
 =.74 .. 141 
 
 
 
 249 
 
 
 0. 75 135, 141 
 
 
 s. 139 
 
 .. 248 
 
 
 s. 76 .. 141 
 
 
 s. 140 
 
 .. 249 
 
 
 s. 77 .. 142 
 
 
 s. 141 
 
 .. 249 
 
 
 s. 78 .. 142 
 
 
 5. 143 
 
 26,293 
 
 
 s. 79 .. 142 
 
 
 s. 144 
 
 .. 26 
 
 
 s. 80 . . 142 
 
 
 s. 145 
 
 50, 52, 
 
 
 5.84 .. 143 
 
 
 
 59,76 
 
 
 s. 85 124,143 
 
 
 s. 146 
 
 .. 138 
 
 
 5.86 .. 176 
 
 
 s. 147 
 
 .. 228 
 
 
 5.87 .. 176 
 
 
 s. 148 
 
 .. 158 
 
 
 5. 89 .. 179 
 
 
 s. 150 
 
 .. 249 
 
 
 s. 90 .. 176 
 
 
 s. 151 
 
 .. 27 
 
 
 s. 91 .. 177 
 
 c 
 
 112, c. KMe- 
 
 
 s. 92 .. 177 
 
 tropo] 
 
 is Sewers Act) 11 
 
 
 s. 93 .. 177 
 
 u. 
 
 23 .. 
 
 .. 261 
 
 
 s. 94 .. 177 
 
 u. 
 
 Ill .. 
 
 .. 140 
 
 
 s. 96 .. ISO 
 
 u 
 
 119.. 
 
 .. 265 
 
 
 s. 97 .. 180 
 
 
 ss. 1, 
 
 2.. 140 
 
 
 s. 98 .. 180 
 
 
 ss. 3, 
 
 4.. 140 
 
 
 s. 99 .. 180 
 
 c 
 
 123 .. 
 
 .. 140 
 
 
 s. 100 .. 180 
 
 12 & 13, c 
 
 31 .. 
 
 261, 265 
 
 
 s. 101 .. 180 
 
 U 
 
 50,8.10.. 
 
 146,247 
 
 
 s. 102 .. 180 
 
 U 
 
 93, s. 2 
 
 ,. 12 
 
 
 5. 103 passim 
 
 
 s. 4 
 
 .. 250 
 
 Digitized by Microsoft® 
 
Table of Statutes. 
 
 PAGE 
 
 Vict. 12 & 13, u. 93, s. 17 .. 134 
 
 s. 43 .. 180 
 
 c. 100.. .. 28 
 
 14 & 15, c. 60, s. 4 .. 50 
 
 15 & 16, c. 85, s. 43 .. 12 
 
 s. 86 .. 12 
 
 I6& 17, c. 34, s. 37 .. 66 
 
 C.128, s. 7 .. 52 
 
 c. 130 .. .. 261 
 
 17 & 18,1;. 125 .. .. 182 
 
 18 & 19, >;. 110 .. .. 261 
 
 li. 120, s. 68—76 12 
 s. 76 .. 133 
 s. 77 .. 16 
 s. 80 .. 12 
 ss. 88, 89 
 
 13, 16 
 ss. 204, 205 
 
 17 
 s. 135—138 
 
 13 
 s. 135 .. 15 
 s.136 .. 15 
 s. 145 11,13 
 s. 146—148 
 
 13 
 
 s. 161 .. 178, 
 
 184 
 
 s. 163 .. 184 
 
 ss. 163, 164 
 
 14 
 5. 164 .. 178 
 ». 168 .. 13 
 o. 169 .. 14, 
 178 
 s. 171 .. 14 
 ss. 175, 176 
 
 178 
 s. 180—182 
 
 13 
 
 s. 187 .. 13 
 
 s. 210 .. 18 
 
 =. 213 .. 17 
 
 ss. 242, 243, 
 
 250 .. 17 
 
 c. 121, s. 14 .. 242 
 
 s. 22 .. 139, 
 
 182 
 
 s. 43 . . 50 
 
 u. 19 .. .. 288 
 
 19 & 20, c. 62 .. .. 261 
 
 c. 120, s. 14 .. 293 
 
 20 & 21, c. 43, s. 2 .. 182 
 
 21 & 22, c. 98, s. 8 .. 187 
 
 s. 54 176,180 
 
 =.55 176,178 
 
 s. 56 .. 178 
 
 s. 57 .. 182 
 
 PAGE 
 
 Vict. 21 & 22,0. 98, s. 58 .. 183 
 s. 59 .. 183 
 s. 62 .. 177 
 s. 63 .. 177 
 0.68 .. 50 
 SS.69, 70 252 
 s. 75 .. 176 
 s. 78 .. 182 
 ss. 79, 80, 
 
 81 .. 182 
 
 K,. 104, s. 1—8 13 
 
 s. 9—23 14 
 
 s. 24—33 15 
 
 23 & 24, c. 51 .. .. 181 
 24, c. 13, s. 5 .. ..53 
 
 24 & 25, c. 41, s. 7 .. 53 
 
 c. 133 .. .. 261 
 
 s. 2 ..27 
 ss. 4, 5 27 
 ss. 6, 7 28 
 s. 8—13 29 
 s. 14 . . 46 
 s. 15 .. 147 
 s. 16 .. 59 
 s. 17—20 60 
 s. 18 .. 289 
 s. 21 .. 193 
 s. 22 .. 193 
 s. 23—27 
 
 194 
 s. 29—32 
 
 124 
 s. 33 .. 168 
 =. 34—37 90 
 =.38 .. 174 
 s. 39 .. 175 
 ss. 40,41 187 
 s. 42 .. 224 
 s. 43-46.. 224 
 ss. 47, 48, 
 
 49 .. 182 
 b. 52 .. 229 
 s. 53 .. 250 
 S.54— 57 53 
 s. 58 . . 143 
 s. 59 .. 117 
 s. 60 27, 53 
 s. 63— 72..288 
 s. 73—76 
 
 289 
 s. 77—83 
 
 290 
 
 25 & 26, c. 93, s. 8, .. 52 
 
 s. 67 .. 52 
 
 c. 101 .. .. 29 
 
 c. 102, s. 1—18 15 
 
 ss. 27, 28 16 
 
 s. 30 .. 16 
 
 Digitized by Microsoft® 
 
Table of Statutes. 
 
 PAGE 
 
 Vict. 25 & 26, c. 102, s. 32 16, 29 
 s. 44— 47 16 
 s. 46 .. 29 
 S.50— 61 16 
 ss. 62, 65, 
 
 66 .. 17 
 ss. 68, 69 17 
 s. 80 .. 29 
 s. 83 17,86 
 s. 86 .. 17 
 ss. 112, 116, 
 117 .. 17 
 
 
 
 
 
 
 PAGE 
 
 Vict. 
 
 25 & 26, 
 
 c. 
 
 102 
 
 , ss. 204, 
 
 s. 213 . 
 ss. 242, 
 
 s. 250 
 
 205 
 17 
 17 
 
 243 
 
 17 
 . 17 
 
 
 26 & 27, 
 
 u 
 
 26 
 
 
 261 
 
 
 
 f 
 
 45, 
 
 5.28 . 
 
 SO 
 
 
 
 u 
 
 68, 
 
 s. 2 
 ». 6 
 
 13 
 15 
 
 
 
 ^ 
 
 88 
 
 .. 
 
 261 
 
 Digitized by Microsoft® 
 
TABLE OF CASES. 
 
 PAGE 
 
 Allen V. Carter . . . . 237 
 
 c. Hayward . . . . 246 
 
 Alston V. Grant . . . . 250 
 
 Anon. (Repair by Corporation) 72 
 
 (Certiorari) .. 235,237 
 
 Anselm u. Barnard .. ,. 85 
 
 Apsley, K. V 237 
 
 Archd. de Rochester's case . . 149 
 Armitstead V. Durham .. 251 
 
 Arthur u. Commissioners of 
 
 Sewers .. .. 150,234 
 Att.-Gen. «/. Birmingham Bo- 
 rough Council .. 133 
 i J). Donaldson .. 107 
 
 ». Walker .. ..291 
 
 Austin t). Lambeth Vestry .. 133 
 
 V. St. Mary, Lambeth . . 135 
 
 Austye D. Fawkener ,. ,. 89 
 
 B. 
 
 Baker, R. » 239 
 
 Ball V. Partridge . . . . 230 
 
 Banks, R. v 150 
 
 Barraud u. Archer .. .. 256 
 
 Bassett, Ex parte . . . . 242 
 Bell V. Partridge .. ..230 
 
 V. Twentyman . . . . 84 
 
 Bennett 11. Womack .. ..91 
 
 Birkett ti. Crozier .. .. 165 
 
 Birley v. Chorlton-upon Med- 
 
 lock 233 
 
 Birmingham Borough Council, 
 
 Att.-Gen. V 133 
 
 Bishop, R.v 240 
 
 Bodkin, R. v 139 
 
 Bow J). Smith 174 
 
 Bradley v. Southampton Local 
 
 Board 124 
 
 Breedon V. Murphy .. .. 2)8 
 
 Bristol Dock Company, R. ti.. . 72, 
 
 130, 131, 241 
 
 PAGE 
 
 Bromley (Inhabitants of) case 236 
 Brown «. Hamond .. .. 220 
 
 ». Sargent . , . . 246 
 
 Brownlowti. Metropolitan Board 15 
 
 Brungy ». Lee . . .. 147,173 
 
 Bruster, The Protector o.. .203, 208, 
 
 238 
 
 Bullock, R.V 252 
 
 Butler, R. u 231 
 
 Cann, R. » 239 
 
 Champ, Ex parte . . . . 242 
 
 Chester Mill case .. ..126 
 
 Christie, app.. Guardians of St. 
 
 Luke, resps. .. 178 
 
 , Ex parte . . . . 258 
 
 Clarke v. Paddington Vestry . . 133 
 " ~ ■ " .245 
 
 . 227 
 . 247 
 . 214 
 91,92 
 
 Clayard v. Dethick 
 Clements v. Pollard 
 Clothier v. Webster 
 Combs w. Cheny 
 Commins v. Massam . . 
 Commissioners of Sewers 
 
 Newburg 96, 174 
 
 I). Wilmore 169, 232 
 
 Yorkshire case.. 233 
 
 Conisby's case .. .. ..95 
 
 Cooper V. Wandsworth Board 12 
 Cornwall v. Metropolitan Sewers 
 
 Commissioners .. ,, 71 
 
 Cortis V. Kent Waterworks 
 Company .. .. ..175 
 
 Cotton, R.v 139 
 
 Coulton !). Ambler .. 52,71 
 Crossman v. Bristol, &c. Rail- 
 way Company .. .. 251 
 Custodes, &c. 1). Outwell 96, 161, 166 
 Oxford I). Everett .. 251 
 
 D. 
 
 Daw V. Metropolitan Board 
 
 53 
 
 Digitized by Microsoft® 
 
Table of Cases. 
 
 PAGE 
 
 Dawson v. Paver . . . . 24'6 
 
 Day and Rex t>. Commissioners 
 
 of Sewers 234 
 
 Devonshire (Earl of) ». Gibbons 94 
 Dimock's case . . .. ..120 
 
 Donaldson, Att. -Gen. u. .. 248 
 
 Dore w. Gray . . . . . . 74 
 
 Dorling ii. Epsom Local Board 86 
 Drew V. New River Company 245 
 Dunbar's case . . . . 234 
 
 Eau Brink Drainage, In re .. 194 
 Ely (Isle of) case 95,118,125 
 
 Emmerson ». Saltmarsh . . 96 
 
 Empson jj. Metropolitan Board 178 
 Essex Commissioners, R. V. .. 104 
 
 Farri;. Crisp .211 
 
 Felkin v. Lord Herbert .'. 251 
 
 Fens Commissioners, R. t). .. 232 
 Fenton J). Doyle .. .. 216 
 
 Fitzwilliam's case .. .. 108 
 Friend ». Bennett .. .. 184 
 
 G. 
 
 Gamble, R. « 222 
 
 Gardner, R. 1). . . .. .. 173 
 
 Glossop, R. y, . . .. .. 13 
 
 Godfrey's case . . .. .. 169 
 
 Goodcbild, R. .- 178 
 
 Gosse, R. « 139 
 
 Gray v. Pullen . . . . 247 
 
 Grew V. Hill 245 
 
 Griffith's case 101 
 
 Grocers' Company ». Donne . . 252 
 
 H. 
 
 Hall t). Mason . . 
 Hargreaves v. Taylor 
 Harling w. Cooper 
 Harrison v. Stickney 
 Hayward v. Lowndes 
 Head, R. «. 
 Heart and Rex v. 
 sioners of Sewers 
 
 Hetley i>. Boyer 
 
 
 128 
 
 
 138 
 
 
 245 
 
 76 
 
 175 
 
 
 132 
 
 86 
 
 184 
 
 Commis- 
 
 
 • • 
 
 236 
 
 of Lyme 
 
 93, 
 
 
 102 
 
 .. 207 
 
 238 
 
 PAGE 
 
 Hide, R. t>. .. 67,128,223 
 
 Hornsey Local Board, Ex parte 139 
 Hull (Level of ) case .. .. 173 
 
 Hungate's case .. .. 237 
 
 Hunger's case .. .. 237 
 
 Hurrell w. Winks .. ..173 
 
 I. 
 
 Inclosure Commissioners, Re.. 281, 
 
 290 
 
 Ingham, R, t). .. .. ..13 
 
 Isle of Ely, Case of ..95,118,125 
 
 Jones V. Bird 
 
 J. 
 
 K. 
 
 Keighley's case 
 
 Kelk, B..V 
 
 Kent, Justices of, R. v. 
 Kerrison v. Sparrow . . 
 
 244 
 
 Qd, 100 
 .. 51 
 .. 91 
 .. 251 
 
 Lands Improvement Company 
 
 V. Richmond . . . . 276 
 
 Lashbrooke's case .. .. 211 
 
 Lee t). Vessey .. .. ..211 
 
 Leigh, R.ti 104,253 
 
 Licensed Victuallers, R. t). .. 174 
 Lincolnshire Commissioners, 
 R.u. .. .. .. ..234 
 
 Liverpool(Mayor of ), Exparte 139 
 Lloyd V. Wigney . . . . 248 
 
 Lluellin, R. k 49 
 
 M. 
 
 Marris, R. u. . . 
 
 Masters v. Scroggs 
 
 Mathias, R. ii. 
 
 Mattison v. Hart 
 
 Medley v. Pritchard 
 
 Meek v. Whitechapel Board 
 
 Metropolis Board v. Vauxh 
 
 Bridge Company 
 Metropolitan Board, R. v. 
 
 —' Lewisham v. 
 
 Commissioners, R. 
 
 Middlesex Justices, R. v. 
 
 .. 201 
 .. 86 
 .. 162 
 .. 183 
 .. 251 
 .. 247 
 all 
 
 86, 183 
 .. 252 
 .. 252 
 V. 253 
 .. 139 
 
 Digitized by Microsoft® 
 
Table of Cases, 
 
 MidcUeton, R. v. 
 Miklmay, R. i'. 
 
 , Ex parte 
 
 PACE 
 
 182,184. 
 
 238, 240 
 .. 257 
 29,53 
 
 Mills V. Funnell 
 Moss, app., London Commis^ 
 sioners of Sewers, resps. . . 29 
 
 N. 
 
 Neave !). Wralher .. 110,172 
 Netherton v. Ward . . 107, 115 
 Newcastle (Duke of) v. Clark 225 
 Newman, R. o... .. .. 182 
 
 Newton and Tyd Vills, Case of 119 
 Nokes V. Gibbon . . . . 92 
 
 Norfolk Commissioners, 'R.v... 97 
 North London Railway Com- 
 pany V. Metropolitan Board 17 
 
 O. 
 
 Oldbery ( Inhabitants of ) v. S taf- 
 
 ford . . . . 83, 129, 208, 239 
 
 Onslow, Ex parte .. ..194 
 
 Ostler !). Cooke .. 39,192 
 
 Outwell, Custodes, &c, v. . . 96 
 Ouze Bank Commissioners, R. 
 
 V 241 
 
 Owst, Ex parte .. ..166 
 
 Pagbam Commissioners, R. v. 66 
 Palmer J). Earith .. 90,11] 
 
 Parkinson, R. v. . . . . 253 
 
 Parrett Navigation Company 
 V, Robins . . . . . . 84 
 
 Pocock t). O'Shaughnessy .. 146 
 Poplar Board i). Knight .. 17 
 
 Pratt, R. t) 154 
 
 Pritchard w. Stephens . . ■• 216 
 
 Proctor w. Harris .. .. 245 
 
 Protector, The, v. Bruster 203, 208, 
 
 238 
 
 R. 
 
 Ramsey ii. Nornabell . . • . 205 
 
 Rayl and Manning's case .. 237 
 
 R. D. Apsley 237 
 
 — K.Baker 239 
 
 — V. Bishop 248 
 
 — D. Bodkin 139 
 
 — r. Bristol Dock Company .. 72 
 
 — V. Bullock 252 
 
 PAGE 
 
 R. V. Butler 231 
 
 — V. Cann 239 
 
 — and Day v. Commissioners 
 
 of Sewers .. .. 104 
 
 — V. Cotton 139 
 
 — D. Essex Commissioners .. 104 
 
 — V. Fens Commissioners . . 232 
 
 — V. Gamble 222 
 
 — V. Gardner 193 
 
 — V. Glamorganshire • . . . 232 
 
 — V. Glossop . . . . ..13 
 
 — V. Goodehild .. ..178 
 
 — V. Gosse 139 
 
 — «. Head .. .. 86,184 
 
 — and Heart ». Commissioners 
 
 of Sewers .. ..236 
 
 — ». Hide .. 67,128,223 
 ■ — D.Ingham .. .. .. 13 
 
 — w. Kelk 51 
 
 — K. Kent Justices .. .. 91 
 
 — W.Leigh .. .. 104,253 
 
 — II. Licensed Victuallers .. 174 
 
 — V. Lincolnshire Commission- 
 
 ers 234 
 
 — V. Lluellin . . . ■ . . 49 
 
 — V. Marris 201 
 
 — V. Mathias 162 
 
 — V. Metropolitan Board . . 252 
 
 — V, Metropolitan Commis- 
 
 sioners .. .. .. 253 
 
 — !;. Middlesex Justices .. 139 
 
 — J). Middleton .. 182,184 
 
 — V. Mildmay . . 238, 240 
 
 — «. Newman .. .. .. 182 
 
 — V. Norfolk Commissioners 97 
 
 — V. Ouze Bank . . . . 241 
 
 — V. Pagham Commissioners 66 
 
 — V. Parkinson . . . . 253 
 
 — V. Pratt 154 
 
 — and Day v. Sewers Commis- 
 
 sioners , . . . . . 234 
 
 — a. Smith . . . . 49, 238 
 
 — V. St. Luke's, Chelsea . . 242 
 
 — V. Somerset Sewers Commis- 
 
 sioners .. 46,102,164,241 
 
 — V. South Holland Drainage 192 
 
 — V. Tatham 139 
 
 — V. Tower Hamlets Commis- 
 
 sioners 115, 161, 173, 231, 242 
 
 — V. Vachel 68 
 
 — V. Vange .. ., ..174 
 
 — U.Warner .. ., .. 139 
 — 1>. Warton .. .. 168,183 
 
 — 1). Warwickshire Sheriff .. 193 
 
 — J). Westham ,. ..126 
 
 — 1). Whittaker . . 96, 226 
 
 — C.Wright 85 
 
 — V. York, Justices of . . 193 
 
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Table of Cases. 
 
 xvn 
 
 Rooke's case . . 
 Ruck V. Williams 
 Russell V. Shenton 
 
 PAGE 
 
 7, 115,116 
 
 .. 247 
 .. 84 
 
 Saint Botolph'sOverseers, apps., 
 
 Whitechapel Board, resps. .. 86 
 Saint Katherine's Dock Com- 
 pany D. Higgs 76, 86, 115, 175 
 
 Luke's, Chelsea, R. ti. . . 2+2 
 
 Sapcots ». Grantham .. ,.117 
 
 Saunders t). Taylor .. ..153 
 
 Shandrigany Vill u. Sholedam 
 
 Vill 3 
 
 Smith's case . . . . 49, 238 
 
 Smith V. Bell 70 
 
 , R. « 49, 238 
 
 Soady t). Wilson .. 87,107 
 
 Somerset Sewers Commission- 
 ers, R. •». .. 46,102,164,241 
 Southampton Proprietors v. 
 
 Southampton Local Board 247 
 South Midland Drainage, R. v. 192 
 Stafford «. Hamston .. 86,115 
 Stainton v. Woolrych . . . . 252 
 
 Stanhope ». Stanhope . . . . 256 
 
 Stewart w. Jones .• .. 182 
 
 Stracey v. Nelson . • . . 200 
 
 Sutton V. Mayor, &c., of Nor- 
 wich .. .. .. ,.133 
 
 Swaine v. Rogers . . . . 80 
 
 Sweet ti. Seager . . . . 17 
 
 Syson V. Johnson . . . . 87 
 
 Tatham, R. i;. .. 
 Taylor v. Clements 
 
 V. Loft . . 
 
 , Ex parte 
 
 Tenant v. Goldwin 
 Thirsby v. Loam 
 
 .. 139 
 192 
 46, 165, 167 
 .. 240 
 .. 250 
 .. 46 
 
 PAGE 
 
 Tower Hamlets Commissioners, 
 
 K.V. 115,161,173,231,242 
 
 Tracey t). Taylor .. 110,172 
 
 Tucker v. Maitland . . . . 173 
 
 V. 
 
 Vachel, R. i, 68 
 
 Vange, R. i/ 174 
 
 W. 
 
 Walker, Att.-Gen. v. . . 
 
 .. 
 
 291 
 
 Waller v. Andrews 
 
 .. 
 
 91 
 
 Ward V. 'Lee 
 
 . , 
 
 249 
 
 Warner, R. d. . . 
 
 . , 
 
 139 
 
 Warren v. Dix 169, 173 
 
 214 
 
 247 
 
 Warton, R. ^ 
 
 168 
 
 188 
 
 Warwickshire, Sheriff, R. 
 
 y. . • 
 
 193 
 
 Westham, R. c. 
 
 , , 
 
 126 
 
 Whitley v. Fawsett . . 
 
 105, 
 
 210 
 
 Whittaker, R. ». 
 
 96, 
 
 226 
 
 Wingate v. Waite 
 
 , , 
 
 162 
 
 Woodward v. Cotton . . 
 
 245 
 
 287 
 
 Wright, R. K 
 
 .. 
 
 85 
 
 Year Books — 
 Edw. 3, 18, 23 
 Ass. 19, pi. 6 
 
 37, pi. 10 
 
 38, pi. 15 
 42, pi. 14 
 
 Hen. 4, 7, 31 
 
 11, 34 
 
 12, 7 
 6, 20, 1 
 7,5,3 
 
 8, 5 
 Yeaw V. Holland 
 York, Justices of, R. 
 
 4, 100 
 
 127, 169 
 
 88, 94 
 
 3, 88 
 
 . 127 
 
 . 89 
 
 . 242 
 
 .4,88 
 
 4 
 
 . 169 
 
 . 83 
 
 . 68 
 
 193 
 
 Yorkshire Commissioners' Case 233 
 
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ERRATA. 
 
 Page 12, line 9, for " the statute" read " the repealed statute." 
 ,, „ 10, /or *' ordains" rearf *' ordained." 
 
 „ 58, note {a), for "sess. 9" read " sess. 3." 
 „ 124,/or " Public Health Bill" read " Public Health Act." 
 „ 183, read " the rate under 3 & 4 Will. 4, .;. 22, s. 10, was held bad." 
 
 ADDENDA. 
 
 Page 26, <^ter "general board" add " now the privy council." 
 
 „ 77, as to branching private drains into public sewers, see 18 & 19 Vict. 
 
 i;. 120, s. 78. 
 ,, 141, the powers of water supply under 11 & 12 Vict. o. 63, s. 76, are 
 
 extended to 21 & 22 Vict. c. 98, by the Slst section. 
 „ 178, note (a), read " 18 & 19 Vict. c. 120, s. 64." 
 „ 178, note {b), read " 18 8t 19 Vict. c. 169. See ss. 175, 176." 
 ,, 180, after " sickness" add "sect. 96." 
 „ 180, after " distress" add " sect. 99." 
 
 By sect. 98, an estimate is to be prepared by the local board 
 before the rate is made. 
 „ 194, provisional orders confirmed, 26 & 27 Vict. c. 63 ; and by sect. 2, 
 nothing in 24 & 25 Vict.c. 133, shall render works legal which would 
 have been illegal had this act not passed, by reason of injury to 
 properly. And damages paid to the party injured shall be deemed 
 to be costs incurred by the board in defending legal proceedings 
 under the Land Drainage Act of 1861. 
 As to Ireland, 26 & 27 Vict. c. 88. 
 
 27 Vict. c. 14. By sect. 2, the Chancellor of the Duchy of 
 Lancaster may appoint an agent for the Crown, and may revoke 
 the appointment and appoint another. A change in the chancel- 
 lorship shall make no difference. The agent shall be a member of 
 the board, and have the same powers as if elected under the 
 Drainage Act (1861). 
 
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THE 
 
 LAW OF SEWERS. 
 
 CHAPTER I. 
 
 Of Commissions of Sewers, and of their Origin. 
 
 Whatever be the derivation of the word sewer, whether it be 
 compounded of seoir, to sit, and eau (a), water, or of sea, and 
 were (i), or whether, again, it mean merely to sue, or issue, 
 whence suera (c) (a dam placed across a river for the taking of 
 fish), or whether it be the diminutive of a river, according to 
 the opinion of Callis(<^), it seems agreed, that the term was 
 originally applied to the protection of land fiom inundations. 
 According to one of these surmises, a sewer might be defined ; — 
 a wall, or dam, opposed to the inroads of the ocean ; or, if we 
 adopt the last, a fresh water trench supported by banks on 
 either side, for the purpose of carrying water into the sea. All 
 writers agree too in this, that precautionary measui'es, against the 
 influx of the tide, were enforced in very early times. Sewers, 
 however, are now no longer understood in the limited senses to 
 which we have alluded. A commission of this nature embraces, 
 not merely the defence of the land from marine invasions, nor 
 the convenience of an outlet for water only, it extends to a great 
 variety of other advantages, both public and private. Thus, 
 the jurisdiction of commissioners is available to put down an- 
 noyances of various kinds, such as wears, mills, walls, &c., to 
 cause a free course of water from private gutters ; to interfere, 
 if there be occasion, with bridges and causeways in the low 
 
 (a) Termes de la Ley. (c) 4 Inst. 275. 
 
 \b) Callis, 80. {d) Callis, 80. 
 
 W. , B ^ 
 
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2 Commissions of Servers. [chap. i. 
 
 countries; and, in a word, to exercise a far greater authority 
 than in past times. 
 
 A more enlarged detail of these powers will be reserved for 
 another place (e), where the statute of Henry 8, to which the 
 commissioners are chiefly indebted for their capabilities, will be 
 fully set forth. 
 
 Strictly speaking, a sewer is for public, and a gutter for 
 private accommodation ; but it is desirable to observe, that, in 
 the course of our inquiry, we shall find the term sewer fre- 
 quently applied so as to include gutters. 
 
 Origin of It has been already intimated, that the rise of these commis- 
 
 of sewers. ^ sions of sewers must be attributed to a very early period ; and 
 it certainly cannot be a matter of surprise, that our ancient 
 monarchs were much interested in preserving their dominions 
 from the ravages of the sea, and that their subjects were as 
 careful to second these designs, by keeping up a system of 
 drainage. Accordingly, on the one hand, it is to be found in 
 our legal history, that it was not only the custom of the kings 
 of England, but their duty also, to save and defend the realm 
 against the sea, as well as against enemies, so that it should 
 neither be drowned, nor wasted (f) ; and on the other, that to 
 stop the water channels which were made from time to time. 
 for public or private convenience, was a grievous oifence, 
 punishable by action, or indictment, according to the nature of 
 the wrong (g). Thus, it is said, that the king's subjects ought, 
 by the common law, to have their passage through the realm by 
 bridges and highways in safety, so that if the sea walls were 
 broken, or the sewers or gutters not secured that the fresh 
 waters might have their direct course, the king was empowered 
 to grant a commission to inquire into, and to hear and determine 
 the defaults (A). Again, Fitzherbert says, that these commis- 
 sions were granted when the sea walls were broken, or when the 
 sewers and gutters were in need of repair, so that the fiesh 
 
 (e) Post, Chap. II. 
 
 (/) 10 Rep. 141. Callis, 25. ■ 5 Bins. 110. 
 
 (g) Callis, 80. 
 
 (A) 10 Rep. 111. See Callis, 23. 
 
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CHAP. I.J Commissions of Sewers. 
 
 waters could not have their courses ; and that the commissions 
 in question issued, because the king was bound of right so to 
 keep his kingdom against the sea, as that it were not drowned 
 or wasted, and also to provide, that his subjects should pass 
 through the kingdom with safety (i). Thus, at the complaint of 
 Henry de Lacy, Earl of Lincoln, a commission of sewers was 
 granted to Roger de Brabason, Mayor, and the sheriffs of 
 London (A). And in the reign of Edw. 3, a presentment 
 appears to have been made before certain commissioners, 
 of a bridge, which the abbot of N. ought to have repaired, and 
 the court was moved to direct that a jury should inquire into 
 the matter, which was granted (l). Nevertheless, it is observ- 
 able, that of these two sorts of commissions concerning sewage, 
 that which protected the kingdom against the sea must be con- 
 sidered the most ancient, because it was the only commission 
 known to the common law ; for, notwithstanding the actions 
 which were occasionally brought for obstructing private water- 
 courses, and the remedy by indictment, which certainly lay for 
 an injury to public drains, these latter easements do not appear 
 to have been within the commission of sewers at common law ; 
 and this position is illustrated by the words of Lord Ch. J. Holt, 
 who said, that commissions of sewers, to defend the kingdom 
 against the sea, were very ancient, and even in some cases by 
 special prescription ; but that sewers for melioration of land 
 were by act of Parliament (m). And Lord Hale, observing that 
 the king has an interest of jurisdiction in rivers, says, that the 
 rise of commissions of sewers was, because the sewers were not 
 kept (m). But the disturbance of a sewer, or watercourse, was 
 not dispunishable before the statutes, although no commission 
 was in force upon that particular subject. Thus, trespass was 
 brought against the master of Saint Mark, of B., for that he had 
 not repaired a ditch, to the immemorial cleansing of which he 
 and his ancestors were bound by reason of tenure ; in con- 
 sequence of which omission, the water had been disturbed in its 
 
 (i) F. N. B. 258. 
 
 \k) 4 Inst. 275, citing Rot. Pari. 35 Edw. 1, at Carlisle. 
 
 (l) 38 Ass. pi. 15 ; and see 4 Inst. 276, where other ancient commissions 
 are mentioned. 
 
 (m) The Vill of Sliandrigany v. The Vill of Sholedam, 12 Mod. 331. 
 Holt's Cases, 643. 
 
 (»i) De Jure Maris, p 8. 
 
 b2 
 
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4 Commissions of Sen-ers. [chap. i. 
 
 course, and twenty acres of the plaintiff's land, sown with corn, 
 had been surrounded. The brief was abated, but not on account 
 of any objection to the remedy which had been sought for by 
 the plaintiff (o). So again, the plaintiff counted against the 
 defendant for having made waste in certain land which the 
 defendant held as tenant by curtesy, and the waste alleged was 
 by suffering a sewer in the same land to be out of repair, in 
 consequence of which part of it was surrounded by water. 
 There were difficulties in this case as to the ultimate issue of the 
 action; but no objection was made to the principle of \t(p). 
 This last matter took place shortly after the passing of the first 
 commission, but before the famous act of Hen. 8, and it is 
 quoted for the purpose of showing, that these easements could 
 not be allowed to fall into decay with impunity. 
 
 Again, the omission to repair sea walls was actionable before 
 the commissions of sewers were established ; as where the 
 defendant was charged for not repairing a wall, and it was 
 endeavoured to be shown on his behalf, that he was not liable, 
 because he had only done repairs twice within the time of 
 memory ; but the judgment was, that he should be distrained 
 to do it (q). 
 
 And, in general, the jurisdiction over banks, ditches, sewers, 
 &c., which did not adjoin the sea, was in the leet of each town, 
 which had view thereof, and power to compel the doing of 
 repairs and the removal of annoyances, according as necessity 
 required. For which end also there was a power to assess, 
 distrain, amerce, &c. in conformity with the custom of the town, 
 and the law of the land(»'). 
 
 Commissions The eiEcacy of these commissions became at length so obvious, 
 J statute, ^j^^j. j^ ^^g determined to pass a law, by which they might be in 
 some degree continued, and made familiar to the nation. And 
 this consideration brings us to the mention of the statutory pro- 
 visions regarding sewers. 
 
 (o) 12 Hen. 4, 7. 
 
 (p) 20 Hen. 6, 1. 
 
 (5) 18 Edw. 3, 23, cited in 10 Rep. 139 (b), Sty. 192. 
 
 (r) See a Tract on the Laws and Commissions of Sewers, p. I, 
 
 Digitized by Microsoft® 
 
CHAP. I.] Commissions of Semers. 
 
 But it should be remarked here, that the statute of Hen. 6, 
 about to be cited as the first which, according to the received 
 opinion, created a commission of sewers, was not by any means 
 the origin of the legislative enactment concerning those matters 
 by virtue of which commissioners of sewers now adjudicate. 
 Lord Coke, when enumerating the statutes upon the subject, 
 refers us to the days of Magna Charta for the first parliamentary 
 declaration concerning defences against surrounding waters (s) ; 
 then, after the passing of some other acts in pari materia, com- 
 missions followed : first, by virtue of the king's prerogative at 
 common law ; and, secondly, by statute. 
 
 There are, says Lord Coke, three manner of statutes which 
 concern sewers ; the first consists in maintaining and repairing 
 walls, sewers, &c. The second, in destroying and removing 
 nuisances. The third, which concerns both the points, as well 
 in destroying as in maintaining (f). 
 
 This last sort includes the great statute 23 Hen. 8, and 
 as the jurisdiction of commissioners is principally derived from 
 that act, we shall take a very rapid glance at those pre- 
 ceding it. 
 
 By Magna Charta it is provided (m), that no town, nor free- 
 man, shall be distrained to make bridges or banks, but such as 
 of old time and of right have accustomed to make them in 
 the time of King Henry our grandfather. And by the next 
 chapter (a;), no banks shall be defended from henceforth, but 
 such as were in defence in the time of King Henry our grand- 
 father, by the same places, and the same bounds, as they were 
 wont to be in his time.* Again, by a subsequent chapter, it is 
 declared, that all wears from henceforth shall be utterly put 
 down by Thames and Medway, and through all England, but 
 only by the sea coasts (y). 
 
 (s) 10 Rep. 143. (u) 9 Hen. 3, u. IS. 
 
 (t) Ibid. (x) Cap. 16. 
 
 * It seems that the maintaining of these defences had been considered a 
 special grievance, by many in particular who had been distrained without 
 deriving any benefit from the improvement. This latter principle has been 
 attended to in the construction of the statutes of sewers, as we shall see by 
 and by. 
 
 (j/) Cap. 23. 
 
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Commissions of Servers. [chap. i. 
 
 The two former of these chapters relate to the passage of the 
 king's subjects, and to the defence of lands from the overflow of 
 waters; the latter speaks of annoyances to navigation. 
 
 In the third year of Hen. 6, we find a commission granted 
 to certain persons to reform the River Ley, running from Ware 
 to the Thames (z) ; which commission touching the same river 
 was afterwards extended to the counties of Essex, Hertford, 
 and Middlesex (a). 
 
 Just about this time the first commission of sewers was 
 made. By 6 Hen. 6, c. 5, it is declared, that our sovereign 
 lord the king, considering the great damage and losses which 
 now late be happened by the great inundation of waters in 
 divers parts of the realm, and that much greater damage is very 
 like to ensue, if remedy be not speedily provided, hath ordained 
 and granted, that during ten years next ensuing several com- 
 missions of sewers shall be made to divers persons by the 
 Chancellor of England for the time being, to be sent into all 
 parts of the realm where shall be needful. The form of the 
 commission next follows ; but as the great statute of Hen. 8, 
 which we shall set out presently, incorporates all the powers 
 and authorities given by this act, it is sufficient to observe 
 generally, that the commissioners were enabled by the statute 
 of Hen. 6 to inquire of annoyances, of the defaulters, of such 
 as had sustained losses from neglect to repair, and of such also 
 as would derive benefit from such repair; and power was 
 further given to distrain for these reparations. Several other 
 matters were prescribed by the act, but it would be tautologous 
 to mention them, because the statute to which we have just now 
 adverted contains similar provisions.* 
 
 Nevertheless, this act is considered to be so far worthy of 
 attention, notwithstanding the subsequent commission in the 
 reign of Hen. 8, as that its provisions have been made the 
 subjects of imitation ever since ; and commissioners of sewers, 
 
 (0 3 Hen. 6, >;. 5. 
 
 (a) 9 Hen. 6, c. 9. 
 
 « Although Lincolnshire only was mentioned in this act, it was held to 
 extend to all England. The county of Lincoln, where so many vast feus 
 and marshes lay, stood most in need of such sewers. Callis, 27. 
 
 Digitized by Microsoft® 
 
CHAP. I.] Commissions of Sewers. 
 
 when acting upon the 23 Hen. 8, have frequent regard, in the 
 exercise of their discretion, to the prior statute upon which, in 
 fact, their authority is founded. And thus, it has been said, 
 that the power of commissioners, as grounded upon this statute, 
 is very extensive ; for that the commissioners are thereby 
 enabled to act according to their discretion, and the express 
 words of the statute are mentioned to illustrate the case then 
 before the Court (J). 
 
 And so, again, the 6 Hen. 6 was referred to in a case of 
 assessment, and it was observed, that the last-mentioned act, on 
 which the commission of sewers was formed and specified, had 
 precise words in the same commission, namely, that no person 
 of any estate or condition should be spared (c). And it is, 
 moreover, said by Callis, that the statute of Hen. 6 was used 
 by Sir Edward Coke in the pleading of Rooke's case, when he 
 could make there no other use of it than by way of imitation, 
 seeing that it had expired in point of time (d). 
 
 The benefit of these commissions of sewers began now to be 
 substantially felt, and it was determined by the legislature, that 
 they should be continued from time to time. 
 
 Accordingly we find a succession of statutes, now repealed (e), 
 which enacted that certain commissions of sewers, all founded 
 upon the original act of Hen. 6, should extend and continue 
 for limited periods therein mentioned ; and, afterwards, it being 
 established to the satisfaction of the country, that the system 
 was highly beneficial, the authorities of the commissioners were 
 made perpetual. 
 
 It has been said concerning the act of 6 Hen. 8, that the 
 great enactment passed in the twenty-third year of the same 
 reign revived its predecessor ; but Mr. Sergeant Calhs con- 
 ceives that the reviving words, in 23 Hen. 8, namely, "that all 
 and every statute thereupon made concerning the premises, 
 
 (i) 4 Mod. 350. (c) In Rooke's case, 5 Rep. 100. (d) Of Sewers, p. 95. 
 (e) 18 Hen. 6, o. 10; 23 Hen. 6, c. 8 ; 12 Edw. 4, c. 6; 4 Hen. 7, c. 1 ; 
 and as to the marshes of Calais, 25 Hen. 8, c. 10 s. 1 ; 6 Hen. 8, c. 10, 
 repealed. 
 
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8 Commissions of Seivers. [chap. i. 
 
 made in the time of the said king, or of any of his progenitors, 
 not being contrary to that statute, should stand in force," could 
 not set apart a statute expired in time, as was that of 6 Hen. 
 8 (_/). And, therefore, observes the Sergeant, this statute is 
 no interruption to our commissioner (</f). For the purpose of 
 explaining this circumstance, it may be added, that the qualifi- 
 cation imposed by the stat. 6 Hen. 8 was the possession of lands 
 and tenements of freehold, of the annual value of 20Z.; whereas, 
 that prescribed by 23 Hen. 8, and 13 Eliz. c. 9, required higher 
 and difierent qualifications ; and again, the stat. 3 & 4 Will. 4, 
 c. 22, requires other qualifications, as we shall see hereafter in 
 this chapter. 
 
 The attention of the reader must now be directed to the 
 principal legislative ordinances upon this subject. Some altera- 
 tions have occurred in subsequent enactments, and additions 
 have been occasionally made to the existing law ; but the 
 statute 23 Hen. 8, c. 6, still continues to be considered the 
 chief structure upon which the authorities and duties of com- 
 missioners of sewers have been reared, although the statutes 
 3 & 4 Will. 4, c. 22, 4 & 5 Vict. c. 45, and 24 & 25 Vict. c. 
 333, are likewise very important acts concerning sewers (A). 
 We shall confine ourselves, in this chapter, to the nature of the 
 commissions, to the appointment of the commissioners, their 
 qualifications, discharge, &c., together with other matters 
 relating to them, and to the continuance of the commissions 
 under which the system of sewerage is carried on. 
 
 The statute First, as to the commission of sewers. It is enacted by 23 
 Commission. Hen. 8, c. 5, s. 1, that in consequence of the overflowing of 
 the sea upon marsh grounds and other low places, and of land 
 waters and springs upon meadows, pastures, and other places ; 
 in consequence, also, of obstructions created by mills, mill- 
 dams, wears, fish-garths,* kedels,! gores,! gotes,§ flood-gates, 
 
 (/) On Sewers, p. 254. 
 
 (g) Ibid. 
 
 (70 And see 11 & 12 Vict. c. 63 (The Act for promoting the Public 
 Health); 18 & 19 Vict. o. 120; 25 & 26 Vict. c. 102. 
 
 * A dam or wear in a river, made for taking fisli. 
 
 t An open wear, with a narrow cut in it, for the laying of wheels or 
 other engin«s, to catch fish. ' 
 
 I A wear. 
 
 § A ditch, sluice or gutter. 
 
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CHAP. I.] Commissions of Sewers. 
 
 locks, and other impediments upon rivers and watercourses, 
 commissions of sewers shall be directed in all parts within this 
 realm, from time to time, where and when need shall require, 
 according to the manner, &c., following, to such substantial 
 and indifferent persons as shall be named by the Lord Chan- 
 cellor and Lord Treasurer of England, and the Chief Justice for 
 the time being, or by three others, whereof the Lord Chancellor 
 to be one. 
 
 Then follows the form of the commission (i), which we give 
 verbatim. 
 
 Henry the Eighth, &c. — Know ye, that forasmuch as the 
 walls, ditches, banks, gutters, sewers, gotes, calcies, bridges, 
 streams, and other defences, by the coasts of the sea, and marish 
 ground, lying and being within the limits of A., B., or C, in 
 the county or counties of . . .or in the borders or confines 
 of the same, by rage of the sea, flowing and reflowing, and by 
 mean of the trenches of fresh waters descending, and having 
 course, by divers ways, to the sea, be so dirupt, lacerate, and 
 broken ; and also the common passages for ships, balangers,* 
 and boats, in the rivers, streams, and other floods within the 
 limits of A., B., and C, in the county or counties of . . . 
 or in the borders or confines of the same, by mean of setting 
 up, erecting, and making of streams, mills, bridges, ponds, 
 fish-garths, mill-dams, locks, hebbing- wears, f- hecks,| and 
 flood-gates, and other like lets, impediments, or annoyances, be 
 letted and interrupted, so that great and inestimable damage, 
 for default of reparation of the said walls, ditches, banks, fences, 
 sewers, gotes, gutters, calcies, bridges, and streams ; and also, 
 by mean of setting up, erecting, making, and enlarging of the 
 said fish-garths, mill-dams, locks, hebbing-wears, hecks, flood- 
 gates, and other like annoyances, in times past hath happened, 
 and yet is to be feared, that greater hurt, loss, and damage, 
 is like to ensue, unless that speedy remedy be provided in that 
 behalf. [Section 3.] We, therefore, for that by reason of our 
 dignity, and prerogative royal, we be bound to provide for the 
 
 (i) 23 Hen. 8, c. 5, a. 2. 
 
 * Barges. 
 
 f Wears made or laid at ebbing water. 
 
 } Engines to take fish in the Ouse. 
 
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10 Commissions oj" Servers. [chap. i. 
 
 safety and preservation of our realm of England, willing that 
 speedy remedy be had in the premises, have assigned you, 
 and six of you, of the which we will that A., B., and C, shall 
 be three to be our justices, during, &c.* 
 
 Duchy of There is some difference with respect to the appointment of 
 
 the commissioners in the duchy of Lancaster, and in some other 
 places. For example, it is provided, where a commission of 
 this sort is issued within the fees, liberties or possessions of the 
 duchy of Lancaster, that the commissioners shall be named by 
 the lord chancellor and lord treasurer, the two chief justices, 
 and the chancellor of the duchy ; and further, that two com- 
 missions shall be awarded in every such case, and made accord- 
 ing to the tenor of the commissions above expressed, one under 
 the great seal of England, and the other under the seal of the 
 duchy, as beforetime hath been accustomed {k). And again, by 
 the eighteenth section of the same act, it is provided, that the 
 commissions which are ordained in the case of the duchy of 
 Lancaster should be adopted upon the issuing of commissions 
 in any of the following places ; namely, the fees, liberties, and 
 possessions of the principality of Wales, the county palatine of 
 Chester, and the fees, liberties and possessions of any other 
 place where there is liberty and jurisdiction of county palatine. 
 
 By sect. 20. Provided always, that the chancellor, and such 
 other as shall have the custody of the seals of the said prin- 
 cipality of Wales, or the county palatine of Chester, or the fees, 
 liberties and possessions of any other place where there is 
 liberty and jurisdiction of county palatine, upon reasonable 
 request, and upon the sight of the commission under the king's 
 great seal of his chancery, shall without delay make out another 
 commission, under the seal of the said county palatine, accord- 
 ing to the tenor of the king's commission to them therein, under 
 his great seal ; and to those commissioners as shall be named by 
 the lord chancellor, lord treasurer, and the two chief justices, or 
 by three of them, whereof the lord chancellor to be one, except 
 it be within the fees and liberties of the duchy of Lancaster, 
 
 » The duties of the commissioners are then mentioned ; which will form 
 the subject of our second chapter. 
 (7t) 23 Hen. 8, u, 5, s. 14. 
 
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CHAP. I.] Commissions of Sewers. 11 
 
 within which fees and liberties the commissioners shall be 
 named, and commissioners made, as is afore obtained by this 
 act. 
 
 Having set forth the duties of these commissioners, which we saving of 
 shall mention by and by, the act proceeds to save the king's 
 fines in manner follovping : — Saved always to us such fines and 
 amerciaments as to us thereof shall belong (Z). The sheriff's of 
 the several counties are then commanded to return sufficient 
 jurors for the purpose of inquiring into matters brought under 
 the jurisdiction of the commissioners, and the commission then 
 concludes thus ; commanding also all other ministers and officers, 
 as well within liberties as without, that they and every one of 
 them shall be attendant to see in and about the due execution 
 of this our commission. In witness whereof we have caused 
 these our letters patent to be made. Witness ourself at West- 
 minster the day of in the year of our reign (m). 
 
 And further, on the subject of fines, it was declared by 13 
 Eliz. o. 9, s. 6, that all the issues, fines, penalties, forfeitures, 
 and amerciaments should be estreated annually into the Ex- 
 chequer, upon pain of forfeiting five pounds for every default. 
 
 The expenses of these commissions are provided for by a sub- charges of 
 sequent section. And it is accordingly declared, that the said sioners." 
 commissions shall be had and obtained without any money 
 or other charge to be paid for the seal or writing of the same, 
 unless it be to the king two shillings and sixpence for the seal 
 of every commission, as hath been accustomed, and for the 
 writing and enrolling of any one commission five shillings, and 
 not above (w). 
 
 By 11 & 12 Vict. c. 112, s. 1 (o), one commission of sewers 
 mitrht issue for the metropolitan districts of the city and liber- 
 ties of Westminster, and the borough of Southwark, and all 
 parts within the limits of certain commissions, dated 30th No- 
 
 {Vj 23 Hen. 8, c. 5, s. 4. 
 \m) Ibid. 
 (n) Sect. 15. 
 
 (o) This jurisdiction was to cease after the commencement of the Local 
 Government Act, l!i & 19 Vict, i;. 120, a. 145. 
 
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12 Commissions of Sewers. [chap. i. 
 
 veniber, 1847, and 4th December, 1847, and the parts subject 
 to the jurisdiction of the commissioners acting in the execution 
 of 5 Geo. 4, c. 100. And such other parts or places in Mid- 
 dlesex, Surrey, Essex, and Kent, as were not more than twelve 
 miles distant in a straight line from St. Paul's, but not being 
 ■within the city of London, or the liberties thereof, were included 
 in this commission. 
 
 Some portion of a limit of sewers may happen to be 
 within a metropolitan commission. The statute 12 & 13 
 Vict. c. 93, s. 2, ordains, that, with the exception of the city 
 of London, and the liberties thereof, the metropolitan com- 
 missioners should provide for the debts and liabilities of the 
 portion above mentioned, and that the authority of the ori- 
 ginal commissioners within that portion should cease and de- 
 termine. 
 
 The commissioners of sewers for the city of London were, by 
 15 & 16 Vict. c. 85, s. 43, to be a burial board for the parishes 
 in the city and its liberties (p). 
 
 However, by 18 & 19 Vict. c. 120, s. 68, sewers (except 
 main sewers), are vested in the vestry or district board. The 
 board may repair sewers and construct new (q), and do works 
 of improvement, the expense being divisible between the party 
 and the district (r). Gully-holes («) and sewers are to be 
 cleansed (t). Owners must construct drains to fall into the 
 common sewer (m). Groups of houses are to be severed (») ; 
 and no house is to be built without drains, &c. (,x) ; nor with- 
 out notice of building being given to the vestry or district 
 board upon pain of demolition or alteration. But the board 
 must not demolish a house without giving notice to the owner. 
 For want of this care the board was held liable (y). The board 
 may cause all offensive ditches, &c., to be cleansed or co- 
 vered (e) ; and substitute pipes by the sides of roads instead of 
 
 (p) And this right seems to be saved to them by 18 & 19 Vict. c. 120, 
 B. 242. 
 
 (j) Sect. 69. (r) Sect. 70. (s) Sect. 71. ^ (<) Sect. 72. 
 
 (a) Sect. 73. (v) Sect. 74. (x) Sects. 75, 76 — 80. 
 
 (y) Cooper d. Wandsworth Board of Works, 14 C. B. 180; 32 L. J C P. 
 185; 9 Jur.,N. S. 1155. 
 
 {x) 18 & 19 Vict. u. 120, s. 86. 
 
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CHAP. I.] Commissions of Servers. 13 
 
 ditches (a). Every vestry or district board may transfer their 
 powers of sewerage to the Board of Works (6). The main 
 sewers are vested in the Metropolitan Board of Works, who are 
 to submit plans. The Metropolitan Board may declare sewers 
 to be main sewers, and control vestries and boards (c). The 
 jurisdiction of the metropolitan commissioners was to cease (d). 
 Actions were not to abate (e). And rates to be recoverable (/ ). 
 The property to be transferred to the Board of Works (g). 
 Their liabilities (h) are provided for. Powers to borrow for 
 this purpose being given to the Metropolitan Board (i). Under 
 section 181 the Board of Works, in default of the overseers, 
 has been held competent to appoint a person to make a rate 
 over parishes beyond the metropolis, but being within the 
 limits of the Metropolis Sewers Act (j), but not for " defray- 
 ing the expenses of the board in the execution of the act(^). 
 
 The Local Management Act was further improved by 21 
 & 22 Vict. c. 104. By sect. 1, the main drainage of the 
 metropolis was ordered to be carried out as soon as possible 
 by the board. By sect. 2, the board might construct works 
 on the bed, soil, banks and shores of the Thames, making 
 compensation under the 18 & 19 Vict. c. 120. The 3rd 
 section extends the powers of taking land under that act to 
 works for deodorizing sewage. The 4th section directs the 
 mode of borrowing a sum not exceeding three millions (l) ; 
 and the 5th points out the mode of raising money to repay 
 the principal. By sect. 6, the guarantee of the treasury is 
 given for the payment of monies borrowed for the purpose. 
 By sect. 7, all bonds, debentures and securities under the act 
 shall be transferable by delivery. By sect. 8, the money so 
 borrowed shall be confined to the works done under the act, 
 
 (a) Sect. 87. (d) Sect. 145. 
 
 (i) Sect. 89. (e) Sect. 146. 
 
 (c) Sects. 135— 138. (/) Sect. 147. 
 
 (g) 18 & 19 Vict. c. 120, s. 148. See the List of the Liabilities, 25 & 26 
 Vict. u. 102, Schedule A. 
 
 (h) J. e., of the Metropolitan commissioners. 
 (;) Sects. 180, 181, 187. Their improvement rates, sect. 182. 
 {j) R. V. Glossop, 32 L. J., M. C. 92. See sect. 168. 
 (k) R. V. Ingham, 32 L. J., M. C. 214 ; 9 Jur., N. S. 1288. The parish 
 was liable to pay a mortgage. 
 
 (Z) And one million two hundred thousand pounds more, with consent 
 and in manner provided by 21 & 22 Vict. c. 104 ; 26 & 27 Vict. u. 68, s. 2. 
 See sects. 3 — 5, which give the Main Drainage Act as the guide as to the 
 construction of the Act, and the application of monies. 
 
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14 Commissions of Servers. [chap. r. 
 
 and separate abstracts and statements shall be prepared by the 
 auditors. By sect. 9, the treasury may appoint an engineer to 
 inspect the works, and to report. Such engineer may then 
 survey them and inspect the accounts of the board respecting 
 them. By sect. 10, a rate of three-pence in the pound may be 
 levied for forty years, taking the county rate as the basis of the 
 estimate. It is, by sect. 11, to be called " The Metropolis 
 Main Drainage Rate." In the city of London it is to be raised 
 and reimbursed to the chamberlain by a separate rate, to be 
 levied under the direction of the commissioners of sewers under 
 the powers of the City Sewerage Acts. Out of the city it is to 
 be levied, as under the 18 & 19 Vict, c. 120, also by a separate 
 rate (Z). By sect. 12, all parts of the metropolis shall be deemed 
 to be equally benefited. The 13th section refers to the sche- 
 dule for the forms of the assessment (m) and precepts (w). By 
 sect. 14, the provisions applicable to other assessments of the 
 board shall be applicable, if consistent, to this act. By sect. 15, 
 if the vestries, &c. make default, the board may make the rate, 
 and levy it as the poor's rate is leviable, subject to the levying 
 of money by overseers under 18 & 19 Vict. c. 120. Collectors 
 may also be appointed, with security, by the board. The poor's 
 rate is mentioned as the general guide ; and, lastly, the sections 
 of the 18 & 19 Vict. c. 126, ss. 163, 164 and 169 shall be appli- 
 cable to rates under this act. By sect. 16, the provisions of 18 
 & 19 Vict. c. 120, s. 171, are extended to all other rates within 
 the metropolis. The 17th section enables the board to require 
 copies of poor's rates from vestry clerks, overseers, &c., under 
 a penalty of ten pounds for refusal, or for refusing to verify 
 such copies by a solemn declaration. By sect. 18, a separate 
 account is to be opened at the Bank of England in respect of 
 the rate. By sect. 19, all monies paid to the credit of such 
 account shall be paid into the Bank. By sect. 20, monies arising 
 from rates may be applied in lieu of money raised by loan. 
 Then the 21st section enables the treasury to make payments 
 in pursuance of their guarantee. However, under sect. 22, if 
 the amount advanced should be paid within the term of forty 
 years, the rate shall be discontinued, and any surplus applied 
 to the expenses of the board. The 23rd section empowers the 
 board to deodorize sewage and defray expenses, as under 18 & 
 
 (0 See Schedule C. of 18 & 19 Vict. c. 120. 
 {m) Schedule A. (ra) Schedule B. 
 
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CHAP. I.] Commissions of Sewers. 15 
 
 19 Vict. c. 120. Tlie 24th section forbids the board from 
 creating a nuisance by such a process. Then follows (sect. 25) 
 the repeal of 18 & 19 Vict. c. 120, s. 136, and so much of sect. 
 144 as requires the sanction of the Board of Public Works and of 
 Parliament before certain -works are commenced. The time for 
 completing works under 18 & 19 Vict. c. 120, s. 135, is extended 
 to December 31, 1863 (o). But, by sect. 27, no works upon the 
 bed or shore of the Thames below high water-mark shall be 
 constructed, unless approved by the admiralty ; nor, by sect. 28, 
 upon the banks, bed or shore of the river, unless approved by 
 the conservators as not interfering with the free navigation 
 thereon. The 29th section saves the rights of the conserva- 
 tors. The 30th section restrains works on the River Lea, unless 
 certain conditions are complied with in constructing them. By 
 sect. 31, if there be a complaint of nuisance, any secretary of 
 state may order a prosecution. The 32nd section defines " deo- 
 dorize" and " sewage.'' The 33rd declares that this and the 18 
 & 19 Vict. c. 120, shall be read as one act (p). 
 
 An action was brought against the board for injuries received 
 by a ship in consequence of piles driven into the bed of the 
 river. The first count alleged the wrongful carrying on of the 
 works; the second, negligence in constructing them. The de- 
 fendants pleaded, first, not guilty; and, secondly, a justification 
 under the statutes. A verdict passed for the plaintiff's, and the 
 Court sustained it as to the first count, the plaintiffs agreeing 
 that a verdict should be entered on the second count for the 
 defendants, on the issue of not guilty. This was a public nui- 
 sance created in a public navigable river without the consent of 
 the admiralty (q). 
 
 Another act, 25 & 26 Vict. c. 102, may be usefully consulted, 
 especially with reference to the main drainage rate (r). By 
 
 (o) Sect. 26, and to Dec. 31, 1866, by 26 & 27 Vict. c. 68, s. 6. The 
 Board has no power, under sect. 135, to turn the sewage of a district into a 
 navi^abie river where there has been no such drainage before, so as to create 
 a nuisance. Att.-Gen. v. Metropolitan Board, 11 W. R. 820. 
 
 (p) "Deodorize." Any process whereby the solid "suspended matters 
 in sewage may he precipitated or separated from the liquid before the dis- 
 charge thereof, or whereby the noxious or offensive properties of sewage may 
 be neutralized." *' Sewage." The contents of the sewers before such process. 
 
 (q) Brownlow v. Metropolitan Board, 13 C. B. 768 ; 31 L. J., C. P. 140 ; 
 8 Jur., N. S. 891. 
 
 (r) See sects. 1 — 18. 
 
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16 Commissions of Servers. [chap. i. 
 
 sect. 27, gullies connected with main sewers are not to be 
 trapped without consent of the board. By sect. 28, notwith- 
 standing 18 & 19 Vict. c. 120, s. 89, the consent of the Metro- 
 politan Board must be had before the powers of sewerage are 
 transferred. The 30th section ratifies improvement rates made 
 by the Metropolitan Commissioners of Sewers. By sect. 32, 
 intercommunications of sewers in different parishes, and com- 
 pensations apportioned to the benefit, are provided for. By 
 sect. 44, owners and occupiers may construct drainage works 
 at their own expense, and they may have contribution from 
 vestries or districts, if it be thought fit (r). By sect. 45, plans 
 of new sewers must be submitted by the vestries, &c. to the 
 Metropolitan Board. By sect. 46, before any communication 
 between a sewer and the main drainage, three clear days' notice 
 must be given to the board ; and, under sect. 47, a private 
 person must have the sanction of the vestry or district board 
 before he meddles with the main sewer; and, on their part, the 
 vestries, upon such an occasion, must obtain the approval of the 
 board (s). Of this last work seven clear days' notice must be 
 given to the vestry, and it may not be commenced until the 
 consent of the vestry in writing shall have been obtained (<). 
 The 50th section provides for abandonment, extension, con- 
 traction or alteration of sewers. By sect. 51, if an approved 
 sewer bejiot constructed within twelve months, a fresh appli- 
 cation must be made. The 52nd section directs how the 
 expense of making sewers in new streets shall be borne. The 
 53rd speaks of such expenses in streets where there has been 
 no sewer, or only an open sewer (u). 
 
 The 58th section enables vestries and district boards to exe- 
 cute sewerage works beyond the metropolis limits, but not 
 without the sanction of the Metropolitan Board. The 59th 
 section treats of contribution towards the main drainage and any 
 sewer built since January 1st, 1853, or any future sewer here- 
 after built (as). The 61st section, repealing 18 & 19 Vict. 
 c. 120, s. 77, regulates more particularly the openings into 
 
 ()•) An express power to defray expenses is given by sect. 56. 
 
 (s) Sect. 48. (O Sect. 49. 
 
 (m) The 57th section gives an appeal to the Board of Works. See also 
 sects. 54, 55, as to expenses, 
 (i) See also sect. 60. 
 
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CHAP. I.] Commissions of Servers. 17 
 
 sewers. By sect. 64, if parties do not perform, amongst others, 
 sewerage works, they become liable to penalties, which will be 
 found in that clause (t/). The 66th section is a drainage clause 
 where there is no proper sewer within 200 feet. The 68th 
 section imposes penalties upon persons erecting any building, 
 &c., on sewers within the jurisdiction of the Metropolitan 
 Board. And by sect. 69, penalties are awarded against per- 
 sons in any way meddling with sewers without the sanction of 
 the Metropolitan Board or vestry. 
 
 By sect. 83 the Metropolitan Board may make bye-laws for 
 the control of vestries in the construction of sewers. By sect. 
 84, whilst, among other works, those of sewerage are being 
 made, the vestry may close the streets with the assent of the 
 board. The 112th section is the interpretation clause. The 
 116th section saves the rights of the Grown and of the Duchy 
 of Lancaster, and the 117th those of the Duchy of Cornwall. 
 
 Further, by 18 & 19 Vict. c. 120, s. 204, no buildings are 
 to be made over any sewer without consent. And scavengers 
 may not, under a penalty of 5^., sweep dirt therein («). Re- 
 tiring allowances are given to persons acting under old com- 
 missions (a). The powers of the city commissioners of sewers 
 are saved (Zi), and of the Metropolitan Sewage Manure Com- 
 pany (c). Interpretationof "sewer," "drain" ((^). An under- 
 lessee is liable to drainage works done under 18 & 19 Vict. c. 
 120 (e). A marsh wall and an embankment is a sewer within 
 sect. 204(/). Under sect. 135, the commissioners are not 
 bound to purchase lands for the purposes of sewerage, notwith- 
 standing sects. 150—152. They are only compelled to make 
 compensation (gr). 
 
 The old Metropolitan acts are referred to in the note (h). 
 
 (y) See sect. 65. (b) Sect. 242. 
 
 (x) Sect. 205. (c) Sect. 243. 
 
 (a) Sect. 213. (d) Sect. 250. 
 
 (e) Sweet v. Seager, 2 C. B. 119. 
 
 (/) Poplar Board v. Knight, 28 L. J., M. C. 87 ; Home v. Farmer, cor. 
 Lord Tenterden, 1816, Woolrych's Local Management Acts, p. 128. 
 
 (g) North London Railway Company v. Metropolitan Board of Works, 
 28 L. J., Ch. 909. 
 
 (ft) 11 & 12 Vict. c. 112i 12 & 13 Vict. c. 93; 14 & 15 Vict, u 75j 
 15 & 16 Vict. c. 64; 17 & 18 Vict. c. 111. 
 
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18 Commissions of Servers. [chap. i. 
 
 We now propose to call the attention of the reader to the 
 
 11 & 12 Vict. c. 63,* which, by sect. 1, may be applied to any 
 part of England and Wales,| — The Act for Promoting the 
 Public Health. We have only to do with it as it regards 
 sewerage and drainage, and yet we must enter somewhat at 
 large into its provisions in order to make those clauses which 
 relate to sewers intelligible to the reader. For it will ma- 
 terially interfere with the powers of the commissioners of sewers 
 in those places where its powers are called in aid. The 
 bill for promoting the health of cities, towns, and populous 
 places, creates a jurisdiction analogous to that of commissioners 
 of sewers. The preamble treats, amongst other things, of the 
 expediency of consolidating the local management and control 
 of the supply of water, sewerage and drainage, within towns 
 and populous places, subject to the general supervision provided 
 by the act. First, there was the General Board of Health, now 
 represented by the Privy Council ; and, secondly, there is the 
 Local Board of Health, which is the more important and 
 working body. The General Board of Health was for the 
 most part amalgamated with the Privy Council by 21 & 22 
 Vict. c. 97. That board was discontinued, and the powers 
 given by the " Diseases Prevention Act, 1855," were vested by 
 sect. 1, in the Privy Council {i). Then by 21 & 22 Vict. e. 
 08, s. 5, the provisions of the act and of 11 & 12 Vict. c. 63, are 
 to be construed together. By sect. 6, local boards are to have 
 all powers belonging to the 11 & 12 Vict. c. 63. Sect. 8 pro- 
 vides for the change of sanction from the General Board to the 
 provision of this act. Sect. 9 saves all contracts under 11 & 
 
 12 Vict. c. 63. By sect. 10, if there be a failure in electing a 
 local board, the power of appointment of a receiver under 11 
 & 12 Vict. c. 63, s. 14, may be exercised. By sect. 11, if there 
 be a failure of such election, or any lapse, the owners and rate- 
 
 * See the interpretation clause, sect. 2, "sewer" and "drain." 
 •)■ Except, 1. The City of London. 2. The parts within the limits men- 
 tioned in certain commissions of sewers, dated 30th November, and 4lh 
 December, 1847, at Westminster, and the parts within the Regent's Park 
 Acts (5 Geo. 4, c. 100; 6 Geo. 4, c. 38 j 9 Geo. 4, c. 64; 2 Will. 4, c. 56). 
 However, the Regent's Park Acts were repealed by 11 & 12 Vict. c. 112, 
 Bs. 142, 143 (the Metropolis Sewers Act). 
 
 (0 This statute was made perpetual by 22 & 23 Vict. c. 97. By sect. 3, 
 Scotland and Ireland are excepted, and the Local Management Act, 18 & 
 19 Vict. c. 120. See as to interpretation and construction, ss. 2, 7. 
 
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CHAP. I.] Commissions of Sewers. 19 
 
 payers may elect with the same qualification as to property 
 and rating as the lapsed board, and from the date of the election 
 all powers of a receiver under sect. 10 shall determine. 
 
 The 16th section speaks of boundaries. The 17th section 
 gives power to appeal against the adoption of the act (k). 
 Notice of the adoption is to be given to the Secretary of 
 State (Z). The next clauses relate to the time when the act 
 is to take effect, to objections, proof of adoption and costs (m). 
 
 We then come to the constitution of local boards. By 
 sect. 24, the duty under the act shall be executed by a local 
 board, and the section proceeds to explain the mode of its con- 
 stitution. The 25th section narrows the disqualifications men- 
 tioned in the 11 & 12 Vict. c. 63 («). By sect. 27, districts may 
 unite with the sanction of a Secretary of State. By sect. 28, 
 works may be executed, with consent, in adjoining districts. 
 By sect. 29, if it appear to a local board that premises were 
 sufficiently drained before the construction of a new sewer, 
 such a sum as the board may think fit may be deducted from the 
 rates. The 30th section places the sewage at their disposal (o). 
 Sect. 31 provides for offensive watercourses and ditches near 
 the boundaries of districts. By sect. 32, the local board may 
 contract for cleansing, and may make bye-laws as to nuisances. 
 By sect. 33, if any drain, &c. be out of order, the surveyor need 
 not to have the ground closed before the necessary works are 
 set about, provided they be forthwith commenced. The 38th 
 ection provides for the sewering of streets which are not parts 
 of highways. 
 
 The Metropolitan Board of Works was constituted by 18 & 
 19 Vict. c. 120, s. 43. 
 
 And, amongst other things, all rights saved to commissioners 
 of sewers by parliament were by 18 & 19 Vict. c. 120, s. 210, 
 saved to the Metropolitan Board. 
 
 By sect. 12, the act may be adopted in corporate boroughs 
 to which the act has not been applied, or where there is 
 
 (A-) And see sect. 18, as to the appeal to the Secretary of State. 
 (0 Sect. 19. (n) Sect. 26. 
 
 (m) Sect. 20—23. \o) Post, p. 132. 
 
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22 Commissions of Sewers. [chap. i. 
 
 a board of improvement commissioners being such by elec- 
 tion. 
 
 In all other places where there is a known or defined 
 boundary there must be a week's notice for adoption (26 & 
 27 Vict. c. 70, ss. 7, 8). The 13th section relates to the meet- 
 ings. The 15th section admits of a partial adoption of the 
 act. 
 
 And it is to be particularly noted, that the Act of 1858, (21 & 
 22 Vict. c. 98,) does not apply to places where there is already a 
 local board (p), and, therefore, we must retain several clauses of 
 the 11 & 12 Vict. c. 63, however difficult the complication of 
 the Sewers' statute law may have rendered the subject. Yet 
 although the powers of local boards are preserved {q), the 
 provisions of the statute of 21 & 22 Vict, took effect from the 
 1st September, 1858 (r). 
 
 The origin of the general board being thus ascertained, the 
 statute proceeds to mention the second or working jurisdiction, 
 namely, the Local Board of Health. Certain persons, ex officio, 
 were to be members of this board in boroughs, as the mayor, 
 aldermen, &c. : in other cases, the owners of property* and 
 ratepayers are to elect the board. The board may, however, 
 consist of two corporations, or part thereof, or of corporate and 
 non-corporate parts. In these cases there are to be ex officio 
 and selected members in the one, and in the other, the members 
 of the board are to be composed of some ex officio, some selected 
 from the councils, and the rest elected from the non-corporate 
 parts. This board is a very important body. The powers 
 which they exercise are various, and clothed with authority, 
 so much so that many decisions in our Courts have been elicited 
 by arguments on either side of the question as to the extent of 
 their powers. These, as far as they relate to the law of sewers, 
 will be found in the course of the vpork. 
 
 (p) Sect. 12. 
 
 Iq) 21 & 22 Vict. u. 98, ss. 5, 6. 
 (r) Sect. 5. 
 * The owner means the person who receives the rack-rent, or who would 
 be entitled to receive it if the premises were let at a rack-rent. (Sect. 2.) 
 
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CHAP. I.J Commissions of Sewers. 23 
 
 The 12th and 13th sections of the statute enter fully into the 
 nature of the appointments and of the elections. First, by the 
 12th section : — in all boroughs or parts thereof (Oxford and 
 Cambridge are excepted) (m), the mayor, aldermen, and bur- 
 gesses shall, by the council, be the local board, and such council 
 shall exercise the powers of the act in conformity with the laws 
 in force with respect to municipal corporations in England and 
 Wales (o). Again, if the district consists exclusively of two or 
 more boroughs, or of one borough and part of another, or exclu- 
 sively of part of two or more, the local board is to be selected 
 thus : — the mayors for the time being, and such persons as the 
 councils may select from their own body, or from persons quali- 
 fied to be councillors — the number of them being fixed by the 
 provisional order. 
 
 But there is still another case. There may be a district 
 which comprises the whole or any part of a borough or of 
 boroughs, and yet likewise parts not within the borough 
 boundaries. In this last case, the mayor or mayors for the time 
 being, and a limited number selected from the councils respec- 
 tively, or from persons qualified to be councillors, shall form the 
 board, together with a certain number elected in respect of the 
 non-corporate parts. By sect. 32, if trustees or commissioners 
 under any local act are constituted the local board by any provi- 
 sional order, the provisions as to election, &c., shall not apply to 
 them. And by sect. 33, if any district should become a cor- 
 porate borough, the mayor, &c., shall be the local board. 
 
 To proceed with the 12th section. The day for the selection 
 of the council members shall be fixed by Parliament (being 
 under a provisional order), and the continuance of office shall 
 be as long as the party remains, without re-election, a member 
 of the council, but not longer, or where the elected member is 
 not one of the council, for one year, and no longer. Should 
 there be a vacancy, it shall be filled up within one month : and 
 each meeting under the act shall be deemed to be a meeting 
 under the Municipal Act, 5 & 6 Will. 4, c. 76. 
 
 The 13th section enters more particularly into the election of 
 
 (n) See sect. 31, post, 
 
 (o) See 5 & 6 Will. 4, u. 76. 
 
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24 Commissions of Sewers. [chap. i. 
 
 the members for the non-corporate parts ; and also governs the 
 case of such districts as are quite independent of any corpora- 
 tion. In the first case, i. e., where the districts are composed of 
 corporate and non-corporate portions, a certain number of per- 
 sons qualified* under the act{p), the number to be fixed by a 
 provisional order, shall be elected by the owners of property and 
 ratepayers (q), and shall serve in conjunction with the persons 
 selected by the councils as members of the local board. In the 
 second case, i. e., where there are no corporate parts, and where 
 the act is applied by an order in council, such a number of per- 
 sons shall be elected as the order shall express ; and in cases 
 where the act proceeds under a provisional order, such a number 
 as that order shall direct shall be elected. 
 
 The day of election (as well as that of selection) is to be 
 fixed by an order in council, or by a provisional order, as the 
 case may be ; and so again, in like manner, in each year, when 
 one-third of the elected shall go out of ofiioe, and be succeeded 
 by an equal number of other persons elected in a similar way, 
 together with any others who may be wanting to fill up the 
 number. 
 
 The order for going out of ofiice is to be settled by the local 
 board. However, the number of members elected may not 
 happen to be divisible by three. In that case the proportion 
 shall be regulated by the order in council, or the provisional 
 order, so as that as nearly one-third as may be shall be annually 
 changed. Again, the number elected may be less than three. 
 In such a case the persons elected shall likewise go out accord- 
 ing to the orders aforesaid respectively, but no one is to go out 
 before his year of ofiioe is expired. And in all cases, no person 
 
 * The qualification is thus (sect. 16): 1. Residence within the district, 
 or within seven miles thereof. 2. Being seised or possessed of real or per- 
 sonal estate, or both, to the limit or amount fixed by the order in council or 
 provisional order; or 3. Residence and rateability to the poor of some 
 parish within a district, or part of a district, upon such annual value as 
 such orders respectively may fix. But the limit of the estate shall not 
 exceed 1,000^., nor of the rating 30L per annum. Then follows a provision 
 in favour of tenants in common, whose united interests would make up 
 2,000i., or 60Z. per annum; but the same property shall not qualify both 
 the owner and occupier. As to the Qualification of Electors, see sect. 20. 
 
 (p) Under sect. 16, and see sects. 17, 18, 19. 
 
 Iq) Sect. 20; see sects. 21, 22. 
 
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CHAP. I.] Commissions of Servers. 25 
 
 elected shall remain in office for a longer period than three 
 years. 
 
 The 15th section has the following provisions. The number 
 of the local board generally for a district shall be regulated 
 according to the exigency of the district by the order in council 
 or provisional order, as the case may be. A member resigning 
 or otherwise going out of office may, if qualified, be re-elected. 
 And, in the event of a vacancy, the remaining members of the 
 board are to have the same powers as though their numbers 
 were full. 
 
 A person may be both elected as well as selected. If so, he 
 must choose under which title he will serve. If he should not, 
 the board shall determine his title, and his office, as it respects 
 the other title, shall become vacant. By sect. 15, there is this 
 modification. Supposing a corporate borough to be included, 
 for the purposes of public sewerage only in a district containing 
 parts without the borough, and that such independent parts are 
 a district for other purposes of the act, the persons elected for 
 such sewerage district shall, within the separate district for 
 which they have been elected, be the local Board of Health 
 without further election. 
 
 The 31st section saves the jurisdiction of the Oxford and 
 Cambridge Commissioners. The 52 Geo. 3, c. Ixxii, invested 
 certain commissioners with powers to make improvements and 
 do other acts within the university and city of Oxford ; and the 
 Stat. 34 Geo. 3, c. civ, conferred similar powers upon certain 
 persons within the borough of Cambridge. Then, should 
 Oxford or Cambridge respectively become districts within the 
 act, the Oxford and Cambridge Commissioners shall respec- 
 tively by the Local Board of Health (r). 
 
 Having now set forth the jurisdiction of these boards, that is 
 to say, of the General and Local Boards of Health, we proceed 
 to mention the matters connected with the law of sewers which 
 the statute draws within their jurisdiction. 
 
 All public drains and sewers are in the first instance and at 
 
 (r) See 21 & 22 Vict. c. 98, s. 82. 
 
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26 CommUsions of Sewers. [chap. i. 
 
 once placed absolutely under their control. The 43rd section 
 is very general upon this head. It vests in the Local Board of 
 Health of the district and places under their management, all 
 public sewers and drains (whether existing at the time when 
 the act passed, or made subsequently), together with all build- 
 ings, works, materials, and things belonging or appertaining 
 thereto. There are exceptions of private sewers and drains, 
 and drains made by private persons for profit, and drains 
 belonging to commissioners of sewers. 
 
 By sect. 44, the local board may buy vested rights for 
 making sewers, or may contract for the use of sewers within 
 their districts, or they may buy the same with or without 
 buildings, &c. Still, any person having a perpetual right to 
 use any such sewer may use any such sewer or substituted 
 sewer as though no such purchase had been made. 
 
 By sect. 120, an appeal is allowed in certain cases from the 
 decisions of the Local to the General Board. 
 
 The 121st section is in aid of the superintending inspector, 
 who may summon and examine witnesses, and call for surveys, 
 plans, rate-books, &c., and exercise other powers of supervision 
 in execution of the statute. 
 
 Moreover, by sect. 143, entry upon lands after twenty-four 
 hours' notice is permitted for the execution of matters under 
 the act to the following officers : the superintending inspector; 
 the local board, or any member thereof; the surveyor and 
 inspector of nuisances, and any person authorized by them. 
 For the duties and powers with which these boards are invested 
 the reader is referred to the next chapter, where they will be 
 found fully set forth. 
 
 By sect. 144, full compensation shall be made out of the 
 district rates to persons sustaining damage by reason of the 
 execution of the powers of the act. It may either be settled by 
 arbitration (r), or if the compensation claimed do not exceed 
 
 (r) See sect. 123, &c. 
 
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CHAP. I.] Commissions of Servers. 27 
 
 201., it may be ascertained before a justice in a summary- 
 manner («). 
 
 And, lastly, by sect. 151, all advertisements, papers, publica- 
 tions, deeds, &c., and all instruments are exempted from stamp 
 duty. 
 
 [The statute 24 & 25 Vict. c. 133.] 
 
 Commissions of sewers may likewise be issued under the 
 Drainage Act of 1861 (t). By sect. 2, this act shall include 
 any commission of sewers, whether granted or not under this 
 act, or whether previously granted or not. With regard to 
 new commissions under the statute, the Inclosure Commis- 
 sioners are set in motion. By sect. 4, upon their recommenda- 
 tion, commissions may be issued for new areas, inland as well 
 as maritime, and the limits assigned, regard being had to the 
 levels and other facilities of drainage, and there may be an area 
 where no commission has previously existed, or one wholly or 
 partially within the limits of an existing commission. But in 
 this latter case, no alteration can be made affecting the jurisdic- 
 tion of commissioners without their consent at a special 
 meeting. Now, in order to obtain the recommendation of 
 the Inclosure Commissioners, by sect. 5, there must be a 
 petition signed by one-tenth part of the proprietors of the 
 land within certain boundaries, to be set out in the petition 
 referring to a map. The Inclosure Commissioners shall decide 
 upon the necessary evidence, and upon security for costs. The 
 Inclosure inspector then inquires concerning the genuineness 
 of the petition, the propriety of the boundaries, and as to the 
 assentients and dissentients. Notice must be given by the 
 inspector as the commissioners may direct, and of time and place 
 for a hearing, and of a further time, not less than fourteen days, 
 for expressions of dissent. The dissent of one-third will be 
 fatal to the petition. It must be in writing and sent within 
 the time to the commissioners. In the absence of dissent, and 
 with the approval of the commissioners, on hearing the report 
 of the inspector, as to the boundaries, a commission as pro- 
 
 (s) See sect. 129, &c. 
 
 («) 24 & 25 Vict. c. 133, confined to England. Nevertheless, the Queen 
 may issue commissions of sewers as before this Act : sect. 60. 
 
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28 Commissions of Sewers. [chap. i. 
 
 posed or as modified by the commissioners may issue. The 6th 
 section defines the proprietors : — 
 
 The following persons shall be deemed to be proprietors for 
 the purposes of this act ; that is to say, 
 
 (1.) Any person entitled for his own benefit, at law or in 
 equity, for an estate in fee, to the possession or receipt 
 of the rents and profits of any freehold or copyhold 
 land, whether such land is or not subject to incum- 
 brances : 
 
 (2.) Any person absolutely entitled in possession, at law or 
 in equity, for his own benefit, to a beneficial lease of 
 land of which not less than twenty-five years of unex- 
 pired, whether such land is or not subject to incum- 
 brances ; but no lease shall be deemed to be a bene- 
 ficial lease, within the meaning of this act, if the rent 
 reserved thereon exceeds one-third part of the full 
 annual value of the land demised by such lease: 
 
 (3.) Any person entitled under any existing or future settle- 
 ment, at law or in equity, for his own benefit, and for 
 the term of his own life, or the life of any other 
 person, to the possession or receipt of the rents and 
 profits of land of any tenure, whether subject or not 
 to incumbrances, in which the estate for the time 
 being subject to the trusts of the settlement is an estate 
 for lives or years renewable for ever, or is an estate 
 renewable for a term of not less than sixty years, or 
 is an estate for a term of years of which not less than 
 sixty are unexpired, or is a greater estate than any of 
 the foregoing estates : 
 
 (5.) Any body corporate, any corporation sole, any trustees 
 for charities, and any commissioners or trustees for 
 ecclesiastical, collegiate, or other public purposes, 
 entitled at law or in equity, in the case of freehold 
 estates or copyhold estates in fee, and in the case of 
 leasehold estates to a lease for an unexpired term of 
 not less than sixty years. 
 
 By sect. 7 (m), Guardians, committees, or husbands, may be 
 
 (b) "Settlement" shall include any Act of Parliament, will, deed or 
 other assurance whereby particular estates or interests in land are created 
 with expectant remainders or interests. Sect. 6. 
 
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CHAP. 1.] Commissions of Servers. 29 
 
 proprietors, and a married woman, entitled for her separate use, 
 and not restrained from anticipation. In the case of corporations, 
 joint stock companies, or other body of proprietors, they shall 
 have but one vote of assent or dissent, which they may express 
 under their common seal, or under the hands of three directors 
 or others {v). The 9th section provides for joint tenants, co- 
 parceners, and tenants in common, in undivided moieties ; they 
 shall count as one proprietor, provided that there be a concur- 
 rence of two-thirds. If there be no proprietor, or if none can 
 be found in respect of any land, it shall be included in the com- 
 putation (a;). By sect. 11, power is given to the inspector to 
 compel appearance upon summons and examine upon oath, and 
 he may require the production of surveys, plans, sections, rate 
 books and documents from parish officers, or officers of cor- 
 porations, directors, or directors of the poor, or commissioners, 
 justices, officers, or persons acting under any Local Act. . . . 
 The inspector may examine and take copies of these instru- 
 ments. Then a penalty of 51. is awarded for disobedience or 
 obstruction, or refusal to answer questions, to be recovered 
 summarily. Before attendance, however, reasonable charges 
 must be paid or tendered. The 12th section imposes the costs 
 with regard to the commission on the rates, if it be successful, 
 but otherwise, on the petitioners. . . . The 13th section makes 
 the issuing of the commission conclusive as to all the require- 
 ments of the act. 
 
 There are also local statutes, for instance, in populous towns, 
 where powers are delegated to commissions. The City of 
 London Sewers Act («/), The Brighton Improvement Act (z). 
 And powei's are given by the act 25 & 26 Vict. c. 102, ss. .32, 
 46, 80, to amend the Metropolis Local Management Act. 
 The Scotch Act, 25 & 26 Vict. c. 101, is also referred to (a). 
 
 We have thus explained the object of these commissions, 
 
 (v) Sect. 8. (x) Sect. 10. 
 
 (y) 11 & 12 Vict. c. clxiii. See on the construction of this statute, Moss, 
 app., Commissioners of Sewers for London, resps., 4 El. & Bl. 570 ; 24 L. J., 
 M. C. 84. 
 
 (x) 50 Geo. 3. See Mills v. Funnell, 2 B. & C. 899 ; 4 Dowl. & Ry. 561. 
 
 (a) The Local Acts, which are numerous, are collected with great in- 
 dustry and accuracy, by Mr. Woolrych, the police magistrate, who was 
 secretary and counsel to the Board of Sewers, and secretary to the Metro- 
 politan Board of Works. Metropolitan Management Act, p. xxxii. 
 
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"0 Commissions of Seieers. [chap. i. 
 
 namely, to restrain the rage of the sea and the inroads of fresh 
 waters, and to destroy impediments to navigation. The form of 
 the commissions, varied as they are in particular jurisdictions, 
 has been mentioned, together with the personal expenses attend- 
 Quaiification ing the procuring of them. We now proceed to speak of an 
 sionersof important topic, and that is the qualification of the individuals 
 
 sewers. ' . , , . . „ a i -i. 
 
 who are appomted to be commissioners ot sewers. And it 
 appears, that in order to sit for the execution of their duties 
 they must either be possessed of a certain estate, which we shall 
 immediately notice, or claim by virtue of their ofBce, and, ex- 
 cepting ex officio commissioners, must also take an oath to fulfil 
 their office honestly, diligently, and impartially. There are 
 also some other provisions upon this subject, respecting par- 
 ticular persons, which may rather be considered as prohibitions 
 than qualifications. 
 
 By estate. With respect to the qualification by estate, considerable 
 
 alteration has been made by the statute 3 & 4 Will. 4, c. 22. 
 That statute enters fully into the qualification of future com- 
 missioners, leaving untouched, however, the qualifications of 
 such as had acted as commissioners under commissions then 
 existing. This act of WilHam recognises the 23 Hen. 8, c. 5, 
 the 3 & 4 Edw. 6, c. 8, and the 13 Eliz. c. 9, and then goes on 
 to provide. That no person who has not already acted as a com- 
 missioner under any commission of sewers already issued shall 
 be qualified or capable of becoming or acting as a commissioner 
 in the execution of any commission of sewers, unless such person 
 shall be, in his own right or in right of his wife, in the actual 
 possession or receipt for life or for a larger estate of the rents 
 and profits of lands, tenements or hereditaments situated in 
 the county in which he shall act as a commissioner, or in any 
 adjoining county, of freehold or copyhold tenure, or held for a 
 term of not less than sixty years absolute, or determinable with 
 a life or lives of the clear yearly value of one hundred pounds 
 above reprizes, or held for a term of years originally granted for 
 not less than twenty-one years, and of which ten years at the 
 least shall then be unexpired, of the clear jearly value of two 
 hundred pounds above reprizes, or shall be heir apparent ot 
 a person possessed of freehold or copyhold lands, tenements or 
 hereditaments, situated in such county as aforesaid, or in any 
 
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CHAP. I.] Commissions of Sewers. 31 
 
 adjoining county, of the clear yearly value of two hundred 
 pounds above reprizes, or unless such person shall be the agent 
 duly appointed by -writing under the seal of any body politic or 
 corporate, or under the hand of any person not being himself 
 present, and acting as a commissioner in the execution of the 
 commission of sewers under or by virtue of which such agent 
 shall act; and which body politic or corporate shall for the 
 time being be in the receipt of the rents and profits of freehold 
 or copyhold lands, tenements or hereditaments situated in such 
 county as aforesaid, or in any adjoining county ; and which 
 person making such appointment shall for the time being be, in 
 his own right or in right of his wife, in the actual possession or 
 receipt of the rents and profits of freehold or copyhold lands, 
 tenements or hereditaments, situated in such county as afore- 
 said, or any adjoining county, and which lands, tenements or 
 hereditaments, whether so belonging to such body politic or 
 corporate, or to such other person, shall be actually taxed under 
 or by virtue of the commission of sewers in respect whereof 
 such agent shall act, and shall be of the clear yearly value of 
 three hundred pounds above reprizes, or unless such agent shall, 
 before he acts, deliver his written appointment to the clerk to 
 such commission of sewers, or his deputy, to be filed by such 
 clerk among the records or proceedings of the commissioners 
 acting in the execution of such commission : Provided always, 
 that in cases where commissions of sewers run into more than 
 one county, the qualification hereinbefore provided may be 
 situated either partly in each of the counties into which such 
 commission shall run, or wholly in any one of such counties : 
 Provided that nothing in this act contained shall extend to give 
 a qualification to any person as agent after he shall have ceased 
 to be such agent (p). 
 
 The statute of Heni-y the Eighth acquaints us with the natui-e 
 of the qualification upon which the commissioners acting at the 
 time of the passing of the statute of Will. 4, would rely. By the 
 10th section of 23 Hen. 8, it was enacted, That if any person do 
 sit, not having lands and tenements, or other hereditaments in 
 fee simple, fee tail, or for term of life, to the clear yearly value 
 
 (i) 3 & 4 Will. 4, *;. 22, s. 1. 
 
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32 Commissions of Sewers. [chap. i. 
 
 of forty marks* above all charges, to his own use, he shall 
 forfeit forty pounds for every time that he shall attempt to do 
 so; half to the king, half to him who will sue for the same by 
 action of debt, bill, plaint or information in any of the king's 
 courts ; in which action or suit no wager of law shall be ad- 
 mitted, nor any essoin or protection shall be allowed. There 
 vrere, however, the following exceptions to this rule : — 1. Resiants 
 and freemen of any city, borough or town corporate, having 
 immoveable substance of the clear value of lOOZ. (c) ; and, 2. An 
 utter barrister at law. Consequently, the following persons 
 ■were qualified according to the above statute : — Persons having 
 certain estates of forty marks per annum, freemen of cities, &c., 
 and barristers. 
 
 It may be noticed, that a further restriction as to the qualifi- 
 cation of lessees for years was imposed by the 13 Eliz. c. 9, s. 4. 
 By that section, no farmer for term of years, of any manors, 
 lands or tenements, lying or being within the precincts or limits 
 of any such commission of sewers, which be, or hereafter may 
 be ordered, &c., not having estate of freehold within the realm 
 of England, of or in manors, lands or tenements of the yearly 
 value of 20Z., shall at any time hereafter have power to sit, or 
 in anywise intermeddle with the execution of such commissions, 
 during the time he shall continue to be such farmer, and shall 
 not have estate of freehold as is aforesaid. Every such commis- 
 sion, as having respect only to every such person during the 
 time of his continuing to be a farmer as before mentioned, shall 
 be deemed and adjudged to be void, anything in the said com- 
 mission, &c., to the contrary notwithstanding. Nevertheless, a 
 subsequent section contains the following proviso. Provided 
 always, that it shall be lawful for any commissioner, being also 
 a farmer, and [not]t having lands and tenements to the clear 
 yearly value of forty pounds of freehold, to sit by virtue of the 
 said commission, and have his voice and full authority with 
 others to make and establish ordinances for sewers, according 
 to the terms of the commission touching and concerning all 
 
 * £26 : 13». id. 
 (c) SeeCallis, 234— 241. 
 
 f The word not should be omitted in this place ; see post, immediately 
 in this chapter. 
 
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CHAP. I.] Commissions of Sewers. 33 
 
 lands and tenements within the precinct of every such commis- 
 sion, other than such lands and tenements as he or they, for the 
 time being, hold and enjoy as farmer, as he or they might have 
 done before the making of this statute, anything contained to 
 the contrary notwithstanding.* 
 
 The new law, however, is, as we have seen, full of change 
 upon the subject of qualification, although it affects those only 
 who were not commissioners when it came into operation. 
 Thus, in some cases the amount of qualification is increased; in 
 others, a new class of persons is entitled to the appointment ; 
 and, again, in a third, there is a disqualification altogethei' : 
 only, it may be added, that existing qualifications are preserved. 
 To illustrate the position above laid down, let us mention, first, 
 that the amount of a freeholder's annual receipts is advanced 
 from 40 marks (26/. 13s. Ad.) to lOOL ; and that a lessee for 
 years, who, if a freeholder, was qualified under the old statutes, 
 provided he did not act within the limits of his own lands, must 
 now havelOOZ. per annum if a freeholder; and 200Z. per annum, 
 if a mere lessee for years. And the lessee cannot act in the 
 commission where his lands are situate, for the act of Elizabeth 
 is not repealed. Secondly, new persons are enabled to be com- 
 missioners, as, copyholders of lOOZ. per annum. Leaseholders 
 for sixty years of lOOL per annum, or possessing estates deter- 
 minable upon a life or lives. Leaseholders for twenty-one years 
 of 200Z. per annum; ten years being unexpired. Heirs appa- 
 rent of freeholders or copyholders upon estates amounting to 
 200Z. per annum. Agents of corporate bodies or commissioners, 
 as we have above explained, their estates amounting to 300Z. 
 per annum. 
 
 In construing these statutes respecting the qualification of 
 commissioners, it is observable, that a person must have the 
 lands or hereditaments specified, at the time of his sitting, that 
 the property must bear a clear annual value, and must accrue to 
 the particular use of the proprietor. Thus, Callis says, if one 
 have not lands at the time of his appointment to be a comrais- 
 
 * See as to these sections, post, immediately in tliis chapter, 
 W. D 
 
 * 
 
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34 Commissions of Sewers. [chap. i. 
 
 sioner, yet if he come into possession of such at the time of his 
 sitting, the law would be satisfied. And then, again, if the 
 commissioner dispose of his land so acquired, or, indeed, of any 
 land of which he is the proprietor, and leave himself without an 
 annual income of forty marks arising from the hereditaments 
 mentioned in the statute, or if he be evicted of his lands, his 
 qualification will cease {_d ). As if one were tenant for the life 
 of J. S., and then J. S. die, the qualification expires also (e). 
 So, also, if a commissioner should bargain and sell his lands to 
 another by deed, and before the enrolment of the deed the 
 bargainee sit as commissioner, the relation of the working of 
 the deed will not screen him from the penalty of sitting unqua- 
 lified (y). So a disseisee, during the time of his disseisin, is 
 disqualified (f/). 
 
 Again, the lands in question must be of an annual value, clear 
 of all charges. Mr. Sergeant Callis mentions several heredita- 
 ments which are capable of qualifying, as being of yearly value, 
 and some which are not competent for that purpose. In the 
 first class he enumerates messuages, cottages, tofts, crofts, 
 houses, land, meadows, pasture, feedings, moors, marshes, 
 heaths, furze, mills, orchards, gardens, hop-yards, rents, an- 
 nuities, 'prima vestura terrce, piscaries, tithes, pensions, portions, 
 proxies, parks, and warrens (Ji). In the second class are men- 
 tioned franchises and liberties, as waifs, strays, felons' goods, 
 deodands,* fines, amerciaments, profits, grants, fairs, markets, 
 ferries, hundreds, leets, and such like, because they do not bear 
 a certain annual value (i). So again, oiBces and vocations, as 
 physicians, &c., trades, as merchants, &c., give no qualifica- 
 tion (Jt). Nor, moreover, do advowsons (being of no value to 
 the possessor, and not being assets in the hands of executors), 
 homages, fealties, escages, heriots, reliefs, nomine poenes, &c.(Z). 
 Nevertheless, if the franchises above alluded to be demised for 
 a year, the lessor may be qualified, because they then acquire 
 the annual value which the statute prescribes (m). 
 
 (d) Callis, 245. * Abolished by 9 & 10 Vict. c. 
 
 (e) Ibid. 62. 
 
 (/) Ibid. (i) Callis, 241. 
 
 (g) Id. 246. {k) Ibid. 
 
 (^h) Id. 241. (0 Id. 242. 
 
 (m) Id. 241. 
 
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CHAP, i.j Commissions of Servers. 35 
 
 There are, however, other circumstances still necessary to 
 ensure the qualification by estate, namely, that the possessor 
 should have the lands i7i presenti, and to his own use. Dry 
 reversions or remainders, therefore, as Mr. Sergeant Callis 
 expresses it, depending upon estates for lives, are insufficient 
 for the purpose [n). A man seised of lands in right of his wife 
 was not competent, because he had them not to his own use (o). 
 And as before the statute of uses a feoffee to an use was no 
 competent commissioner, neither the cestui que use(p) ; — so now 
 neither the trustee (5'), nor the cestui que trust are qualified. 
 For in both these cases the land would be considered in the one 
 instance as holden to another man's use, and in the other, a 
 mere equitable estate would exist. Neither, again, are tenants 
 in common, joint-tenants, as coparceners qualified, although the 
 joint-tenants be seised per my et per tout (?•). But if the 
 annual value of the lands possessed by persons sustaining these 
 last characters be of double the annual value of forty marks, 
 either of them may sit («). And since the statute of Will. 4, 
 a man seised of lands in right of his wife is competent, although 
 he has them not to his own use {t). 
 
 The learned sergeant above I'eferred to speaks also of various 
 persons and corporations who are or are not qualified according 
 to their respective characters and stations in life. Amongst 
 the first classes, or such as are qualified, the following persons 
 are enumerated :— bishops, deans, chancellors, archdeacons, 
 prebends, parsons and vicars seised of lands injure ecclesice of 
 the value of forty marks as before mentioned (u), a villain 
 having property to the above annual amount, because until 
 his lord enter, he has it in his own use (a;), the warden of 
 the Fleet, by virtue of the lands belonging to his office (y), 
 
 (n) Callis, 241. 
 
 {o) Id. 242. 
 
 Ip) Ibid. 
 
 Iq) 7 Com. Dig. 339, tit. "Sewers." 
 
 (r) Callis, 242, 243. 
 
 (s) Id. 243. 
 
 (t) See supra. 
 
 (a) Callis, 243. 
 
 {x) Ibid. 
 
 (y) Id. 244. But this office is now abolisheJ. 
 
 d2 
 
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"" Commissions of Sewers. [chap. i. 
 
 a woman {z), an infant above the age of fourteen, but under 
 twenty-one (a). 
 
 The following persons were also declared by the writer to be 
 incompetent : a dean and chapter, a mayor and commonalty, a 
 master of a college, and the fellows, although seised of lands 
 and tenements of the annual value of lOOZ. (6), an alien, be- 
 cause his seisin is that of the king; although he becomes 
 capable of taking lands, and so of being qualified, if made a 
 denizen (c). But the statute of 3 & 4 Will. 4, enables the 
 agents of corporations duly appointed under it to act as com- 
 missioners, so that the above disqualification becomes much 
 narrowed. Quakers also were disqualified, not as Quakers, but 
 because they would not take the necessary oaths. We shall see 
 presently that this difficulty is at an end. 
 
 Yet there are now virtual disqualifications under the enact- 
 ment of Will. 4, above mentioned, of persons who were ex- 
 pressly qualified by the statute of Hen. 8. As the residents 
 and freemen of any city, borough, or town corporate, having 
 immoveable substance of the clear yearly value of lOOZ., and 
 utter barristers considered merely in that capacity. 
 
 Yet, although the new classes of commissioners may in process 
 of time gain ground,* the freemen having moveable substance, 
 and the barristers are not excluded if they were in the com- 
 mission of sewers before the statute of William. Therefore we 
 must give the comments of the learned sergeant (Callis) upon 
 these exceptions in the statute 25 Hen. 8. And, first, he 
 declares his opinion, that the party must have been actually 
 admitted to his freedom, and that the residing contemplated by 
 the statute, was not merely general, as being commorant within 
 the walls, though not within the precinct and liberty of the 
 borough ; for that inasmuch as the words are resiant, and free 
 of the city, the enactment required the habitation of the com- 
 missioner to be in the place of his freedom [d). 
 
 (k) Callis, 250. (J) Id. 243. 
 
 (a) Id. 253. (c) Ibid. 
 
 * The government has already narrowed the number of commissioners 
 in several of the metropolitan districts. 
 
 {d) Callis, 239, 
 
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CHAP. I.] Commissions of Servers. 37 
 
 With respect to the meaning of the expression " moveable 
 substance," it is said to signify personal estate, as horses, oxen, 
 &c., plate, jewels, ready money, &c., a hive of bees, a villain 
 for gears, a captive taken in the wars (in old times) (e). The 
 following chattels are said not to be included within that term, 
 so as to confer a qualification : birds and beasts of parks and 
 ■warrens, doves in dove-houses, money due upon statutes, judg- 
 ments, recognizances, bonds, bills or contracts. For although 
 these latter be inventoried in the ecclesiastical courts, yet they 
 are not assets in the hands of the executor, until he have 
 received their value (/). Neither will the goods of the church 
 qualify the parson, vicar, or curate, nor the goods of a corpora- 
 tion the mayor and aldermen, &c., because the stock in these 
 cases is not attached to their particular persons (^"'. Nor can a 
 lessee be qualified, because there must, in fact, be a property in 
 the goods, and not a mere use or occupation (k). And, more- 
 over, with regard to the place in which this personal estate is 
 enjoyed, it is sufficient if it be in any place within the realm, for 
 it is designated by the statute, moveable substance («). 
 
 The word clear, it is observable, relates to the value, and not 
 to the title of the goods; and, consequently, Mr. Sergeant Callis 
 says, that although got by tort and wrong, goods to the amount 
 of 100/. would be a clear valuable substance within the law (k). 
 And an executor or administrator is not qualified by reason of 
 the possession of such goods, because they are not his own (/). 
 With respect to the second exception, the utter barrister, it 
 seems, that he has only to take the oath prescribed by the 
 statute, in order to become competent, for he is not required to 
 possess either lands or goods, or any other qualification than 
 his profession (m). 
 
 And, lastly, it appears, according to the words of Callis, that 
 a lease for years is no enablement at all, but a disablement («), 
 except in the cases particularly provided for by the statute of 
 Will. 4(o), because a lessee could not have sat as a commissioner 
 
 (e) Callis, 239, 240. (k) Ibid. 
 
 (/) Ibid. (I) Ibid. 
 
 ig) Ibid. (m) Id. 246. 
 
 (A) Ibid. (n) Id. 245. 
 
 («) Ibid. (o) Ante, pp. 20, 21. 
 
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38 Commissions of Sewers. [chap. i. 
 
 before the statute of Elizabeth, unless he possessed forty marks 
 annually, besides his lease ; and that act imposed upon him the 
 necessity of a further annual income arising out of lands {p). 
 The act has been already laid before the reader, and it cannot 
 but be suggested, that its provisions in this respect are not very 
 clear. It seems to have been the object of the legislature, to 
 raise the qualification of lessees for years (which Mr. Sergeant 
 Callis seems to think remarkable, but upon v^^hich he ofiers no 
 comment) {q), and further, to prohibit their sitting upon com- 
 missions within any precinct where they had lands chargeable. 
 And thus it is said in the digest of Lord Ch. B. Comyns, that 
 " By the stat. 13 Eliz. c. 9, no farmer for years, of lands within 
 the limits of the commission, shall intermeddle in the execution 
 of the commission, unless he have 40Z. per annum freehold, and 
 then only as to such lands which he holds not as farmer" (r). 
 The proviso, however, of the 7th section is not noticed in the 
 digest. And notwithstanding the admission of certain lessees 
 for years to the qualification under 3 & 4 Will. 4, c. 22, the act 
 of Eliz. is not repealed as to their inability to act where their 
 lands are situate. 
 
 Taking both the f?ections of the 13 Eliz. c. 9, together, 
 it seems, in the first place, sufficiently clear, that the lessee 
 for years should not sit as long as he continues a farmer 
 of lands within the same precinct where the commission is 
 carried on ; but it is then said, " not having estates of freehold, 
 &c., of the yearly value of 40Z. ;" and then, again, the pro- 
 hibition is declared to be in force during the time of his conti- 
 nuing a farmer, " and shall not have estate of freehold as is afore- 
 said ;" so that a person having that estate, might, nevertheless, 
 sit in respect of his own lands. This circumstance shows the 
 utility of the proviso, already mentioned, which must, it is 
 suggested, be read with the omission of the word "not" in the 
 beginning, and then the sense of the legislature becomes appa- 
 rent (although the whole might have been contained in one 
 section), namely, that if possessed of forty pounds per annum 
 in freehold, the lessee should be competent to sit within the 
 
 (p) See Callis, 245. 
 
 (q) Id. 244, 246. 
 
 (r) See 1 Com. Dig. 339, tit. " Sewers." 
 
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CHAP. I.] Commissions of Sewers. 39 
 
 precinct of the commission, provided that he should not interfere 
 in respect of his own lands and tenements. 
 
 There is one other circumstance relating to the qualification Oath. 
 of these commissioners, and that is, that each one (unless he be 
 a Quaker) who is qualified by estate, or was qualified in any 
 other way before the statute of Will. 4, must take an oath con- 
 cerning the faithful discharge of his duty. Under a drainage 
 act certain lords of manors, or their agents, were to be commis- 
 sioners. A declaration was to be subscribed, which was done 
 by the agents, but not by the lords. The agents acted as com- 
 missioners, and were not superseded, except by the actual pre- 
 sence of the lords. The agents were appointed by the lords 
 privately, i. e., not at a public meeting. It was held — 1. That 
 there was no need for the lords to have subscribed. 2. That a 
 public meeting for the appointment of their agents was not 
 necessary (s). And those who are qualified by estate must 
 verify their qualification under the statute of William. This 
 must be done by the commissioner before he takes upon himself 
 the execution of the commission, and it must be made before 
 the Lord Chancellor, or such as may take the same by virtue 
 of the yrnt o{ dedimus poteslatem, or before the justices of the 
 peace at the quarter sessions (t). The form of the oath is given 
 in the note. 
 
 There appears to have been some difiiculty in obtaining the 
 sanction of this oath on the part of many commissioners, and, 
 consequently, for the remedy of this, an act was passed two 
 years afterwards, to compel the taking of such oaths. By 
 
 (s) Ostler V. Cooke, 18 L. J., Q. B. 185; affirmed in error. Id. 831 ; 22 
 L. J., Q. B. 71. 
 
 (t) 23 Hen. 8, c. 5, b. 5. Ye shall swear, that you to your cunning, wit, Form of the 
 and power, shall freely and indifferently execute the authority to you given oath, 
 by this commission of sewers, without any favour, affection, corruption, 
 dread or malice, to be borne to any manner of person or persons ; and as 
 the case shall require, ye shall consent and endeavour yourself for your 
 part to the best of your knowledge and power, to the making of such 
 wholesome, just, equal and indifferent laws and ordinances as shall be 
 made and devised by the most discreet and indifferent number of your 
 fellows being in commission with you, for the due redress, reformation, and 
 amendment, of all and every such things as are contained and specified in 
 the said commission; and the same laws and ordinances to your cunning, 
 wit and power, cause to be put in due execution, without favour, need, 
 dread, malice or affection, as God help you, and all saints. 
 
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40 Commissions of Sewers. [chap. i. 
 
 25 Hen. 8, c. 10, s. 2, it is enacted, that, because divers persons, 
 heretofore assigned to be commissioners, have refused to be 
 sworn according to the said former act, whereby divers commis- 
 sions heretofore made, remain hitherto without effectual execu- 
 tion ; if any person assigned to be a commissioner, and being 
 required by the authority of the king's writ or otherwise, to 
 receive or accept the oath comprised in the former act, shall, 
 ■whether the refusal and contempt happen in the chancery, or be 
 returned into chancery with the said writ, lose and forfeit for the 
 same contempt, five marks, and so on from time to time for 
 every such contempt as shall be done and returned into the 
 chancery, unless that he, in the same chancery, do show and 
 allege in the said term wherein such return shall be made 
 against him, sufficient and reasonable matter and cause to be 
 allowed by the Lord Chancellor for his excuse and discharge in 
 that behalf. 
 
 The same statute which compelled the taking of oaths under 
 the above penalty, created a provision to relieve parties from 
 acting as commissioners out of the county wherein they preside. 
 The first section, after extending the act to the town and 
 marches of Calais, goes on to say, that no person shall be com- 
 pelled to be sworn or otherwise bound to sit or travel in execu- 
 tion of any commission of sewers within the realm, unless that 
 he be dwelling within the county whereof he is or shall be 
 assigned to be commissioner (m). 
 
 Further, the commissioner must take an oath of qualification 
 as to his estate, unless he be a Quaker, in which case an affirma- 
 tion will suffice (oo). The form of this oath or affirmation is set 
 out below.* 
 
 (m) 25 Hen. 8, c. 25, s. 1. 
 
 (j;) 3 & 4 Will. 4, c. 22, ss. 2, 3. 
 
 * " I do swear, \or, being one of the people called Qiialcers, do 
 
 solemnly affirm,] That I truly and bond fide am in my own right [or in the 
 right of my wife] in the actual possession and enjoyment of [or in the re- 
 ceipt for life, or for a larger estate, of the rents and profits issuing out of] 
 lands, tenements or hereditaments, situate in the county of of free- 
 
 liold or copyhold tenure, or held for a term of not less than sixty years 
 absolute, or determinable with a life or lives, of the clear yearly value of 
 one hundred pounds aoove reprizes ; or held for the unexpired term of 
 years, originally granted for years, of the clear yearly value of two 
 
 hundred pounds above reprizes ; [or am heir apparent of who to 
 
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CHAP. I.] Commissions of Servers. 41 
 
 A few words must be added concerning the forfeiture for Forfeiture. 
 acting without qualification, which will end this part of the 
 subject. And it is worthy of remark here, that if a party sit as 
 commissioner without being duly qualified, his act and ordi- 
 nances are not vacated by the offence, but the only result is the 
 infliction of the penalty. And the statute of Elizabeth expressly 
 declares, that the commission should be void, as having respect 
 only to every such person or persons, that is, persons acting 
 under certain circumstances whilst farmers of lands chargeable, 
 as we have before mentioned (?/). 
 
 The act of William is likewise to the same efl^ect (z). For 
 after ordaining as a penalty for not qualifying that the defaulter 
 shall forfeit 1001. to any one who will sue for the same,* the 
 clause expressly saves the proceedings done under the com- 
 mission by the unqualified person. 
 
 Nevertheless, by 3 & 4 Will. 4, c. 22, s. 5, any mayor, 
 bailifi^, or other officer appointed or authorized to act as a com- 
 missioner under any commission of sewers by virtue of his office, 
 shall and may, so long as he shall hold such office, act as a com- 
 missioner without qualification, or taking any oath or affirmation, 
 or being liable to any forfeiture as above is mentioned. Provided 
 that such mayor, &c., shall, before he acts, deliver a certificate, 
 under the hand of the town clerk or other legal officer of the 
 corporation in respect of which such mayor, &c., shall or may 
 act, to the clerk of the commission, certifying that he is such 
 mayor, &c. 
 
 It has been observed, that no prior conviction is requisite in 
 order to proceed for a double penalty in case of two sittings 
 
 the best of my knowledge, is seised of freehold or copyhold lands, tene- 
 ments or hereditaments, situate in the county of , of the clear 
 yearly value of two hundred pounds above reprizes ;] [or am agent of , 
 who [or which] to the best of my knowledge, is seised or possessed in his 
 or their own right] [or in the right of his wife] of freehold or copyhold 
 lunds, tenements or hereditaments situate in the county of , of the 
 clear yearly value of three hundred pounds above reprizes. 
 
 "So help me GOD." 
 [Or being a Quaker, omit the words, " So help me God."] 
 
 (y) See Callis, 251, &c. 
 
 («) 3 & 4 Will. 4, c. 22, s. 4. 
 
 * The mere fact of having acted as commissioner shall be sufficient evi- 
 dence for the prosecutor of the action for the penalty. (Sect. 4, supra). 
 
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42 Commissions of Sewers. [chap. i. 
 
 without qualification. And the reason assigned is, because 
 there are not here any steps or gradations to double or increase 
 the penalty (a). 
 
 It has been further said, that although the statute of Henry 8 
 gives the possessor a power to sue by bill, yet that the com- 
 petency to do so was taken away by 18 Eliz. c. 5, and that he 
 could sue by information or original action only since that statute 
 of Eliz., but the statute of Will. 4 plainly restores the proceed- 
 ing by bill (6). 
 
 The King's Courts are the four ordinary Courts at West- 
 minster; and, therefore, it seems, that an unqualified commis- 
 sioner cannot be sued in any inferior Court (c). And, lastly, it 
 seems to be the better and more received opinion, that the 
 commissioners thus situated, and already menaced with a 
 penalty given by statute, cannot be punished by indictment, 
 although there is a case upon a penal act, in which Twisden, J., 
 contrary to the opinion of Kelyng, C. J., thought diffe- 
 rently, but Twisden, J,, afterwards came over to the opinion of 
 Kelyng, C. J. (d). 
 
 A penalty of 50Z., to be recovered, with costs, by an action of 
 debt, attaches upon persons acting as commissioners contrary to 
 these provisions. Still, the acts of the disabled commissioners 
 are to be valid if done prior to the recovery of the penalty. 
 
 Allowance Certain allowances to commissioners of sewers are prescribed 
 
 to commis- , ■• 
 
 sioners. by the Statute of Hen. 8. It is enacted, that each shall have 
 four shillings per day during every day that they shall take 
 pains in the execution of the commission of sewers, and one 
 clerk by them to be assigned two shillings per day, of the rates, 
 taxes, lots, and wains, that shall be assessed or lost by authority 
 of the said commission, and to be levied and paid by their dis- 
 cretions. The commissioners, or six of them, are, moreover, 
 empowered to limit and assign of the same rates, &c., by their 
 
 (a) Callis, 246, in the note. 
 
 (i) Id. 21'7, in the note. 
 
 (c) Ibid. 
 
 {d) Id. 249, in the note. 1 Mod. 34. Crofton's Case. 
 
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CHAP. 1.] Commissions of Sewers. 43 
 
 discretions, such reasonable sums of money to the said clerk, 
 for writing of books and process concerning the premises, and 
 to the collectors, expenditors, and such other as shall take pains 
 in the due execution of the said commission, as by the dis- 
 cretions of the said commissioners, or six of them, shall be 
 thought reasonable (e). 
 
 Formerly, the statutes of sewers had temporary continuance concerning 
 from time to time, and they were subsequently made perpetual, ance of these 
 
 commissions. 
 
 It has been observed, that the expiration of the laws, and of 
 the commission which gives birth to them, is not co-extensive. 
 We have above quoted part of the 17th section of 23 Hen. 8, 
 c. 5, to the effect that the laws and the commission should 
 expire at one and the same time, which law is now altered. 
 The rest of the section contains an exception to this expiration 
 of the laws, namely, "except the said laws and ordinances be 
 made and engrossed in parchment, and certified under the seals 
 of the said commissioners into the King's Court of Chancery, 
 and then the king's royal assent be had to the same." This 
 provision, however, is itself repealed by 13 Eliz. c, 9, as we 
 have seen ; and it would not have been introduced here, but 
 that it is much referred to in the case which we are about to 
 cite. To proceed concerning the laws : it being found impolitic 
 that the laws made by persons in office should determine with 
 their commissions, the statute of Elizabeth directed, that the 
 orders of commissioners of sewers should continue in force for 
 one year next ensuing the expiration of their commissions at the 
 end of ten years, such orders being written in parchment, 
 indented, and sealed ; without a certificate, or the assent 
 royal (/). And notwithstanding the determination hj super- 
 sedeas, the old laws were to stand in force until altered by the 
 new commissioners, as we have above mentioned. The second 
 section proceeded to enact, that the justices of peace in the 
 counties where the same laws, &c., are to be executed, within 
 their several commissions and limits, or six of them, whereof 
 two to be of the quorum, shall have power and authority for 
 one year next after the expiration of every such commission, to 
 
 (e) 23 Hen. 8, c. 5, s. 13. 
 (/) Chap. 9, s. 2. 
 
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44 Commissions of Servers. [chap. i. 
 
 execute the same laws, &c., as fully as the former commis- 
 sioners would have been able to execute them, had their com- 
 mission remained in force. Nevertheless, by section 3, if any 
 new commission of sewers be made within the said year, then 
 immediately and from and after such commission newly made 
 and published, the power of the said justices of the peace, and 
 every of them,, in any wise concerning the execution of any such 
 laws, &c., shall utterly cease. 
 
 The obvious construction of the above statute of Elizabeth, 
 regarding the validity of the laws after the determination of the 
 commission, would be, that they should remain in force one 
 year subsequently, but no longer ; and it was so decided in 
 a case where a mandamus had been issued to certain com- 
 missioners in Somersetshire, commanding them to make a cer- 
 tain rate therein mentioned. 
 
 The writ recited an order made by the former commissioners 
 of sewers for the county, by which they had decreed, that a sea 
 wall should be refounded, and the expense attending the con- 
 struction should be paid by those who were previously under an 
 obligation to repair it ratione tenurce. It was further recited, 
 that the wall had been partly rebuilt, and that a part of the 
 money had been raised and expended upon the repair ; and 
 further, that a mandamus had issued to the former commis- 
 sioners, commanding them to make a rate ; and that certain 
 proceedings had before them concerning the making of the 
 rate, were subsequently quashed for illegality by the Court of 
 King's Bench. The present writ then went on to state, that 
 the new commissioners had been required to make a rate on 
 the level, for the reimbursement of the complainants, who had 
 expended their money ; but that they had refused so to do, and 
 the new commissioners were now commanded to make such a 
 rate for repaying the money as aforesaid. The commissioners 
 newly appointed made a special return to this writ. They 
 stated, they had been appointed on the 15th April, 1806 ; and 
 that the former commission had expired on the 13th of April, 
 1805 (so that more than a year had elapsed between the death 
 of the old, and the creation of the new commission). The com- 
 missioners further alleged, that there had been no proper pre- 
 
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CHAP. I.] Commissions of Sewers. 45 
 
 sentment by a jury from the body of the county of Somerset {g). 
 But when the case came on for argument, the Court intimated 
 great doubt whether the new commissioners could, under any 
 circumstances, carry into operation the old decree, because the 
 provisions of the 13 Eliz. limited the operation of the ordi- 
 nances of commissioners to ten years, and to one year after 
 the expiration of the commission. It was contended for the 
 prosecution, that the ascertainment of the right or obligation 
 on the level, together with the amount of the sum to be ex- 
 pended on the repair, were the essential parts of the decree ; 
 and that these had been executed, and consequently that the 
 reimbursement by a rate on the level was merely a legal result. 
 It was further urged, that the particulai' decrees of commis- 
 sioners, of which this was one, might be available by the 
 common law, and need not necessarily derive their force from 
 the statutory provisions, and therefore that the expiration of the 
 commission did not affect the decree in question. But the 
 Court said, that no authority could be found to warrant the 
 distinction contended for between decrees and other laws. The 
 acts of Parliament meant to express the same things by the 
 different words used ; the laws, acts, decrees, and ordinances, 
 mentioned in the act of Hen. 8 must mean the same thing 
 as laws, ordinances and constitutions, mentioned in the act of 
 Queen Elizabeth ; and nothing is to be found in the acts of 
 Parliament to restrain the generality of the expression. With 
 regard to the apprehension of danger by those persons who had 
 acted under the decree of the commissioners, during the exist- 
 ence of the commission, or whilst the decrees continued in 
 force, it was clear that they were in the situation of persons who 
 had acted under the authority of the law whilst it was in force, 
 and which had since expired ; but which was of force to protect 
 them during the time they had acted, and required its protec- 
 tion. So much, therefore, of the decree as had been acted 
 upon, and carried into execution, during the time of the late 
 commissioners, was effectual, and done under a competent 
 authority ; but that part of it which was left unfinished, could 
 not be enforced on the foot of that order or decree, because they 
 had ceased to have any authority. An application to the new 
 commissioners become necessary, in order to re-enact it. The 
 {g) 1 East, 72. 
 
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46 Commissions of Sewers, [chap. i. 
 
 return to the mandamus was accordingly held good, and 
 allowed (h). 
 
 Formerly this matter concerning the demise of the crown was 
 otherwise. As where the defendant justified in trespass the 
 taking, under the authority of a commission of sewers granted 
 by the late King James, for a tax assessed according to that 
 authority ; here, a demurrer, alleging for cause that it did not 
 appear whether the tax in question was made before or after the 
 demise of the crown, was allowed (i). 
 
 However, by 24 & 25 Vict. c. 133, s. 14, a commission of 
 sewers once issued shall be deemed to continue until such time 
 as it may be superseded by her Majesty, who may from time to 
 time fill up any vacancies under her sign manual. 
 
 Again, orders of commissioners of sewers are now no longer 
 limited to one year after the expiration of the commission, but 
 they are made indefeasible until set aside by subsequent courts 
 of sewers. 
 
 The 7th section of stat. 3 & 4 Will. 4, c. 22, provides for this. 
 It is by that clause enacted, that all laws, acts, decrees, constitu- 
 tions and ordinances made or to be made by any court of sewers, 
 and duly registered in the rolls or books of such court by the 
 clerk to the commission, shall continue in full force and effect, 
 notwithstanding the expiration, repeal or other determination 
 of the commission under which such laws, acts, decrees, consti- 
 tutions and ordinances shall have been respectively made. 
 A presentment confirmed by the new commission is binding, 
 although made for many years before under the old jurisdic- 
 tion (k). And, again, notwithstanding the same respectively 
 shall not have been ingrossed or written in parchment, and under 
 the seals of the commissioners or any six of them, and notwith- 
 standing the one part thereof shall not remain with the clerk to 
 the commission, and the other part in such place as the said 
 
 (A) The King v. The Commissioners of Sewers for the County of 
 Somerset, 9 East, 109. 
 
 (j) Thirsby v. Loam and Sands, Lat. 170; Bendl. 199. 
 (*) Taylor v. Loft, 22 L. J., Ex. 231 ; 8 L. J., Ex. 269. 
 
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CHAP. I.] Commissions of Sewers. 47 
 
 commissioners or six of them shall order or appoint, and not- 
 withstanding the same shall not be certified into the King's 
 Court of Chancery, and the king's royal assent had thereto re- 
 spectively, until the same laws, acts, decrees, constitutions and 
 ordinances shall be altered, repealed or made void by any sub- 
 sequent court or courts of sewers in those parts or limits where 
 the same laws, decrees and ordinances were or shall be made 
 and ordained, or by any six of them^i 
 
 The discharge of commissioners, independently of the expira- 
 tion of the commission, is given by the stat. of Hen. 8 thus ; 
 Nevertheless, after any commission made and delivered out of 
 the Court of Chancery, the king may always, at his pleasure, 
 by his writ of supersedeas, out of the Court of Chancery, dis- 
 charge both the commission and the commissioners, and this 
 shall determine the power of the commissioners at once (I). 
 However, we have seen, that the laws and decrees made at the 
 time of such supersedeas shall not be thereby abrogated ; but 
 shall continue in force until altered, repealed, or made void by 
 future commissioners {in). The old commission may, conse- 
 quently, be terminated either by a supersedeas, or the issuing of 
 a new commission. 
 
 The statute of Elizabeth, moreover, expressly enacts, with No certificate 
 respect to the certificate and return of the commission so much commission, 
 alluded to in a former page, that the said commissioners shall 
 not be compelled to make any certificate or return of the said 
 commissions, or of any of their ordinances, laws or doings, by 
 the authority of any of the said commissions, nor shall have any 
 fine, pain or amerciament, set upon them, nor shall be any 
 ways molested in body, lands, or goods, for that cause («). 
 
 Nevertheless, the commissioners must be careful to act within 
 the scope of their authority ; for, to use the words of Lord Coke, 
 they have not such an absolute authority, but that their proceed- 
 ings are bound by law (o). And upon one occasion, in old 
 
 (I) 23 Hen. 8, c. 5, s. 16. This power has been exercised by the dis- 
 charge of nearlv 800 commissioners in the metropolitan districts, 
 (m) 13 Eliz.'c. 9, s. 1. 
 In) Id. o. 5. 
 (o) 4 Inst. 276. 
 
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^o Commissions of Sewers. [chap. r. 
 
 times, where commissioners had been exceeding their powers, 
 the Court not only fined some of them, but an indictment of 
 prwmunire was drawn upon the statute of 27 Edw. 3, c. 1, 
 against one, who did not appear, for his illegal conduct as a 
 commissioner {p). 
 
 Some time after this, where the executors of a person assessed 
 brought a certiorari, and removed the proceedings before the 
 commissioners in the King's Bench, it was doubted by Mallet, J., 
 whether they were lawfully removed, because their proceedings 
 were in English, whereas all proceedings before the Court of 
 King's Bench were in Latin ; and he thought also that no writ 
 of error lay to correct them. But Sir Robert Heath, J., was of 
 a contrary opinion, observing, that in trespass or replevin, their 
 proceedings were, doubtless, removable there ; and he thought 
 that a certiorari might well be had. But Brampston, C. J., at 
 first doubted, and said, that he had asked of the clerks iu Court, 
 whether, supposing the Court to confirm the decree, they ought 
 to remand it, or to execute it by estreat into the Exchequer ; 
 and as they could not resolve him, he hesitated upon the cer- 
 tiorari then before the Court, although he thought the pro- 
 ceedings lawfully removed, and that a certiorari lay ; yet he 
 added, that he should be very tender of granting such a writ. 
 However, being then informed that the case was before the 
 Court by consent, and that all parties had bound themselves by 
 a recognizance to abide the judgment, he said, that consensus 
 tollit errorem, and that they would not stick upon the cer- 
 tiorari {q). 
 
 But, upon another occasion, certain commissioners of sewers 
 declined to obey writs of certiorari, relying as they did upon the 
 above section in the statute of Elizabeth, concerning the non- 
 return of the certificate and commission. A certiorari had been 
 delivered to them in the first instance, which, after some reluct- 
 ance, they allowed ; but proceeded again, notwithstanding, upon 
 the old matter, and fined persons who disobeyed their orders. 
 Upon this a second certiorari was delivered to them ; but they 
 persisted, and inflicted both fine and imprisonment upon the 
 
 (p) Hetley v. Sir John Boyer, Cro. Jac. 336. 
 (}) Commins k, Massam, Mar. 196, pi. 141. 
 
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CHAP. I.J Commissions of Sewers. , 49 
 
 parties who still declined to conform to these decrees. An 
 attachment was then awarded against them for a contempt of 
 Court, and they were questioned concerning these misdemeanors. 
 They said, they had acted under the advice of counsel, and that 
 it was doubtful whether they were not justified in their course 
 of conduct, by virtue of the above exemption in the statute of 
 Elizabeth. But the Court were decidedly against their plea of 
 exemption, and the judges delivered their opinions seriaiim, and 
 at length, in favour of a fine, for conduct which they deemed a 
 great offence and contempt ; and a fine was set of forty marks 
 each for disobedience to the first writ of certiorari, and twenty 
 marks apiece for neglect of the second ; and Mr. Justice 
 Twisden observed, that had it not been for the advice of 
 counsel, he should not have stuck to fine them lOOZ, apiece (r). 
 Lord C. J. Kelyng also added, that the clause did not refer to 
 the Court of King's Bench, for it spoke of returning the com- 
 missions ; now the commissions were never returnable into the 
 King's Bench, and the Court of King's Bench could never be 
 ousted of its jurisdiction without special words («). 
 
 This case has been introduced here by reason of its near con- 
 nexion with the section above set out, but the reader will find 
 the law on the subject of these writs of certiorari, as they affect 
 commissioners of sewers, discussed at length in the fourtli 
 chapter of this Treatise. 
 
 Commissioners of sewers may be created by act of Parlia- 
 ment, independently of any general commission. As in the case 
 of the Bristol Dock Company, who were not only authorized 
 to make sewers, but were likewise intrusted with very large 
 powers towards the execution of the duties imposed upon 
 them {t). 
 
 And it has been thought proper, in modern acts of Par- 
 liament, to insert saving clauses preserving entire the rights 
 
 (r) Smith's case, 1 Ventr. 66 ; Rex v. Smith and Others, Commissioners 
 of Sewers, 1 Lev. 288 ; 2 Keb. 635, nom. Rex v. Lluellin, Smyth, &c.. 
 Commissioners of Sewers ; Tho. Raym. 186 ; 1 Mod. 44 ; S. C. recognized 
 by Holt, C. J., 1 Lord Raym. 469. See also 1 Salk. 145. 
 
 (5) 1 Ventr. 68. 
 
 (0 6 B. &C, 181. 
 
 W. E 
 
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50 Commissions of Sewers. [chap. i. 
 
 of several commissions of sewers. Thus, by 3 & 4 Will. 4, c 22, 
 s. 61, no local or private act of sewers, concerning any county, 
 city, town, district, lands, or limits, or any commission of 
 sewers in the county of Middlesex, within ten miles of the Royal 
 Exchange, is to be affected by the act, except such parts of the 
 said county as may lie within any commission of sewers in the 
 county of Essex ; nor shall it interfere with any navigable 
 river, canal, port or harbour, under the management or power 
 of any commissioners, trustees, or proprietors, by virtue of any- 
 local or private act of Parliament, nor with Romney Marsh, in 
 Kent, nor with the Bedford Level. 
 
 The 62nd section saves the rights of the city of London and 
 the liberties thereof in respect of sewers, drains, vaults, and 
 bridges, and all acts of Parliament relating thereto. Also the 
 Metropolitan Police Act (m), and the Metropolis Improve- 
 ment Acts (ac), except as to arching over drains in the street (y). 
 The Public Health Act (z) ; the Smithfield Improvement 
 Act (a) ; the Nuisances Removal Act (6) ; aud the Thames Em- 
 bankment Acts (c), afford other instances. 
 
 By 21 & 22 Vict. e. 98, s. 72, any corporation, &c., autho- 
 rized under an act of Parliament to navigate, may alter sewers, 
 providing others at their own expense. 
 
 The 4 & 5 Vict. c. 45, s. 15, after enumerating the above 
 acts of Parliament and commissions of sewers, mentioned in 3 & 
 4 Will. 4, c. 22, s. 61, adds to the saving clause all lands, banks, 
 waters, watercourses, sluices, bridges, drains, or works belonging 
 to the commissioners of the North Level and Portsand, in the 
 counties of Cambridge, Northampton and Lincoln, or of the 
 
 (a) 2 & 3 Vict. i;. 47, s. 60. 
 
 (i) 3 & 4 Vict. u. 87, s. 74 ; 4 & 5 Vict. c. 12, s. 74. 
 (</) 3 & 4 Vict. c. 87, ss. 18, 19; 4 & 5 Vict. c. 12, ss. 17, 18. 
 (2) 11 & 12 Vict. c. 63, s. 145, repealed by 21 & 22 Vict. v;. 98, s. 68, 
 which substitutes other provisions. 
 
 (a) 14 & 15 Vict. c. 60, s. 4. 
 
 (b) 18 & 19 Vict. c. 121, s. 43. 
 
 (c) 25 & 26 Vict. c. 93, s. 68 ; and by 25 & 26 Vict. c. 93, s. 67, if the 
 sewerage be interfered with, the board must provide a substitute till the 
 low level sewer becomes available. 26 & 27 Vict. t. 45, s. 28. See s. 15. 
 
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CHAP. 1.] Commissions of Sewers. 51 
 
 commissioners of the Nene Outfall, in the counties of Cam- 
 bridge, Lincoln, and Norfolk, or of their committees respectively. 
 
 Then the 16th section saves the rights of the city of London. 
 The 17th section saves the commissioners of sewers for West- 
 minster. 
 
 The 18th section more especially and fully saves the rights of 
 the Bedford Level corporation than the previous clause (the 
 15th). 
 
 And, lastly, the 13th section enacts, that nothing in the act 
 shall prevent any court of sewers from executing the powers 
 and provisions of the recited acts((i), or the laws of sewers of 
 old time accustomed. 
 
 In effect, the 14th section embraces all the savings reserved 
 by the statute of William. It enacts, that all indemnities, 
 immunities, and liabilities given to or imposed upon commis- 
 sioners of sewers and other persons, by the stat. 3 & 4 Will. 4, 
 c. 22, shall be deemed and construed to extend to all persons 
 acting in the execution of the act. 
 
 Commissioners are sometimes elected under Drainage Acts. 
 Where they were to be elected by the proprietors of lands 
 vpithin the parish, it was made a question, and left undecided 
 whether the word "proprietors" meant the owners in fee, or 
 those who had the control over the lands (e). 
 
 In this case it appears, that the act allowed votes to be given 
 by a note in writing. The instrument produced, being the 
 proxy, contained no directions to vote for any one in particular. 
 It was held, that a stamp was requisite under 55 Geo. 3, 
 c.l84(/). 
 
 Moreover, by the Drainage Act, 10 & 11 Vict. c. 38, s. 18, 
 the powers of commissioners of sewers, and commissioners under 
 local acts, as well as the laws of Romney Marsh and of the Bed- 
 ford Level, are expressly saved. 
 
 (d) 23 Hen. 8, c. 5 j 13 Eliz. c. 9 ; 3 & 4 Will, i, >-. 22. 
 
 (e) R. V. Kelk, 4 Per. & D. 185. 
 
 (/) 12 Ad. & El. 559; 4 Per. & D. 185. Had those directions ap- 
 peared in the instrument, qu. as to the stamp. See also S. C, another 
 point, 1 Q. B. 660; 1 Gale & D. 127. 
 
 E 2 
 
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52 Commissions of Servers, [chap. i. 
 
 The powers of the Eau Brink Drainage Commission were 
 saved in the following manner : — Nothing shall extend, or be 
 construed to extend to invalidate, lessen, or diminish, alter or 
 take away, any of the rights, powers, authorities, and liabilities 
 vested in the commissioners for drainage under the several Eau 
 Brink Acts. A question was made, whether the saving clause 
 would include the tolls, to part of the net amount of which 
 the commissioners of drainage had a right when they were 
 collected, or whether it was limited to the mere proximate 
 rights, powers, &c., of the commissioners. And the Court held, 
 that the clause operated in the larger sense, and that the tolls 
 were saved (g). 
 
 By 11 & 12 Vict. c. 63, s. 43 (the Public Health Act), all 
 sewers under the authority of any commission of sewers ap- 
 pointed by the Crown are excepted out of the jurisdiction of the 
 Local Board of Health. 
 
 By 21 & 22 Vict. c. 98, s. 68, the local hoard shall not use, 
 injure, nor interfere with any sluices, flood-gates, groynes, sea 
 defences, or other works of sewers, nor with any such works 
 made under any local or private act, or irrigation act, nor with 
 Crown lands, without consent from the commissioners, or a 
 Secretary of State, or person entitled to the rights 
 
 Nor shall interfere with any river, canal, &c., so as to affect 
 the navigation, nor with any towing path to interrupt the traffic, 
 where the parties are entitled to navigate such river, &c., or to 
 take tolls. 
 
 Nor interfere with watercourses, so as to affect the supply of 
 water to such river, &c. 
 
 Nor interfere with any bridges crossing any such river, &c. 
 
 Nor execute any works in, through, or under any wharves, 
 quays, docks, &c., where any corporation, &c., is entitled to 
 the exclusive use under an act, or to tolls under an act of Par- 
 liament, without the consent of the corporation, &c., under their 
 common seal, or, in other cases, in writing. 
 
 The Metropolitan Sewers Act itself was saved out of the 
 Smoke Nuisance Act (A). On the other hand, sewers are 
 sometimes extinguished by Parliament (i). 
 
 (g) Coulton 1). Ambler, 13 Mees. & W. 403. 
 
 (A) 16 & 17 Vict. c. 128, s. 7. 
 
 (j) 24 Vict. u. 13, ». 5; 24 & 25 Vict, c. 41, s. 7. Tlie Admiralty. 
 
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CHAP. I.] Commissions of Sewers. 53 
 
 There are also local acts for improving towns, as the 
 Brighton Act, &c. Commissioners are appointed to defend the 
 town against the encroachments of the sea {k). And by 24 & 
 25 Vict. c. 133, s. 54, the general rights of persons acting under 
 local or private acts, or canal acts, or canals, or waterworks, or 
 wharfingers' acts, are saved, except by consent. By sect. 55, 
 there is also a saving as to rivers, except with the consent of 
 conservators. There is also power for canal, dock or harbour 
 commissioners to alter sewers, upon condition of substituting 
 others;(Z). All exemptions under local acts are preserved 
 by sect. 57; and the powers given by sect. 60 are to be in 
 addition to, and not in derogation of, the general powers of 
 commissioners of sewers. 
 
 The alteration of boundaries is provided for by the 62nd sec- Boundary 
 tion. If the powers of a local act conflict with the general act ''°°" 
 18 & 19 Vict. c. 120, the Metropolitan Board has the precedent 
 right, and the powers of the commissioners under the other act 
 are, at least, suspended (m). 
 
 (i) See Mills v. Funnell, 2 B. & C. 899 j 4 D. & R, 561, ante, p. 29. 
 
 (I) Sect. 56. 
 
 (m) Daw V. Metropolitan Board, 31 L. J., C. P. 223. 
 
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( 54 ) 
 
 CHAPTER II. 
 
 Of the Duties and Powers of Commissioners of Servers. 
 
 Having spoken of the origin of these commissions of sewers, of 
 the statutes from which they derive their authority, of the qua- 
 lifications of the commissioners, the duration of the commissions, 
 and of other similar matters, we proceed to lay before the 
 reader more particularly the duties and powers of these officers. 
 These trusts, which are reposed in commissioners, may be 
 classed generally under two heads, namely, the maintenance of 
 proper defences, and the reformation of annoyances. 
 
 They are chiefly comprehended under the commission which 
 we are about to insert as to the basis upon which the officers of 
 sewers are authorized to act; and various incidental powers 
 have been created, in order to ensure the due and effectual 
 execution of the commission. 
 
 The course proposed for the purpose of exhibiting this im- 
 portant subject in its proper light will be, first, to set out with 
 the commission itself, and then to sum up its different divisions ; 
 after which, the extent of the commissioners' authority in pro- 
 moting the defences above mentioned, and in abolishing annoy- 
 ances, will be discussed at length. Having done this, we shall 
 endeavour, in a subsequent chapter, to point out the mode of 
 enforcing obedience to the commission; and in the progress of 
 that attempt, some account of the jurisdiction of the sewers will 
 necessarily be included. 
 
 The statute 6 Hen. 6, c. 5, the first which prescribed the 
 duties of commissioners of sewers in a regular form, although 
 not repealed, is yet so far superseded by the subsequent acts of 
 Hen. 8, which incorporate all the chief provisions of the former 
 
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CHAP. II.] Duties and Powers of Commissioners, 55 
 
 statute as to render it unnecessary that we should do more 
 than mention it. 
 
 The third section of 23 Hen. 8, c. 5, having assigned certain 
 commissioners to be justices, for tlie purpose of executing the 
 commission, goes on to ordain, that they shall survey the said 
 walls, streams, ditches, banks, gutters, sewers, gotes, calcies, 
 bridges, trenches, mills, mill-dams, flood-gates, ponds, locks, 
 hebbing-wears and other impediments, lets and annoyances 
 aforesaid, and the same cause to be made, corrected, repaired, 
 amended, put down or reformed, as the case shall require, after 
 your wisdoms and discretions. And therein as well to ordain 
 and do, after the form, tenor and effect, and singular the 
 statutes and ordinances made before the 1st day of March, in 
 the three-and-twentieth year of our reign, touching the pre- inquiry by 
 mises, or any of them ; as also, to inquire, by the oaths of the fault the 
 honest and lawful men of the said shire or shires, place or places, camer°°^ 
 where such default or annoyances be, as well within the liberties 
 as without (by whom the truth may the rather be known), 
 through whose default the said hurts and damages have hap- 
 pened, and who hath or holdeth any lands or tenements, or 
 common of pasture, or profit of fishing, or hath or may have 
 any hurt, loss or disadvantage, by any manner of means in the 
 said places, as well near to the said dangers, lets and impedi- 
 ments as inhabiting or dwelling thereabouts, by the said walls, 
 ditches, banks, gutters, gotes, sewers, trenches and other the 
 said impediments and annoyances ; 
 
 And all those persons, and every of them, to tax, assess. Assessing 
 charge, distrain, and punish, as well within the metes, limits, to^brco™' 
 and bounds of old times accustomed, or otherwise, or elsewhere Jhe^charge" 
 within our realm of England, after the quantity of their lands, 
 tenements, and rents, by the number of acres and perches, after 
 the rate of every person's portion, tenure, or profit, or after the 
 quantity of their common of pasture, or profit of fishing, or 
 other commodities there, by such ways and means, and in such 
 manner and form as to you, or six of you, whereof the said A., 
 B., and C. to be three, shall seem most convenient to be 
 .ordained and done for redress and reformation to be had in the 
 premises ; 
 
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56 
 
 Kepair. 
 
 Putting 
 down an- 
 noyances. 
 
 Duties and Forcers of Commissioners, [chap. it. 
 
 And also, to reform, repair, and amend the said ■walls, 
 ditches, banks, gutters, sewers, gotes, calcies, bridges, streams, 
 and other the premises, in all places needful ; and the same, as 
 often, and where need shall be, to make new, and to cleanse 
 and purge the trenches, sewers, and ditches, in all places 
 necessary ; 
 
 And further, to reform, amend, prostrate and overthrow 
 all such mills, streams, ponds, locks, fish-garths, hebbing-wears, 
 and other impediments and annoyances aforesaid, as shall be 
 found by inquisition, or by your surveying and discretions, 
 to be excessive or hurtful ; 
 
 Appointing 
 
 of Ijailiffs, 
 
 collectors, 
 
 surveyors, 
 
 and other 
 
 inferior 
 
 officers. 
 
 And also, to depute and assign diligent, faithful, and true 
 keepers, bailiffs, surveyors, collectors, expenditors, and other 
 ministers and officers, for the safety, conservation, reparation, 
 reformation, and making of the premises, and every of them, 
 and to hear the account of the collectoi's, and other ministers of 
 and for the receipt and laying out of the monej' that shall 
 be levied and paid in, and about the making, reforming, repair- 
 ing, and amending of the said walls, ditches, banks, gutters, 
 gotes, sewers, calcies, bridges, streams, trenches, mills, ponds, 
 locks, fish-garths, flood-gates, and other impediments and an- 
 noyances aforesaid ; 
 
 Distraining And to distrain for the arrearages of every such collection, 
 arrearages tax, and assess, as often as shall be expedient; or otherwise to 
 e money p^jjjgj^ f^g debtors and detainers of the same, by fines, amer- 
 ciaments, painsj or other like means, after your good dis- 
 cretions ; 
 
 Taking of 
 labourers, 
 workmen 
 and car- 
 riages, tim- 
 ber and 
 other ne- 
 cessaries. 
 
 And also, to arrest -and take as many carts, horses, oxen, 
 beasts, and other instruments necessary, and as many workmen 
 and labourers as for the said works and reparations shall suffice, 
 paying for the same competent wages, salary and stipend, in 
 that behalf; and also take such and as many trees, woods, 
 underwoods, and timber, and other necessaries, as for the same 
 works and reparations shall be sufficient, at a reasonable price, 
 by you, and six of you, of the which we will that A., B., and C. 
 shall be three, to be assessed or limited as well within the limits 
 
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CHAP. II.] Duties and Powers of Commissioners. 57 
 
 and bounds aforesaid, as in any other place within the said 
 county or counties near unto the said places ; 
 
 And to make and ordain statutes, ordinances and provisions, To make 
 from time to time, as the case shall require, for the safeguard, ordinances. 
 conservation, redress, correction and reformation of the pre- 
 mises, and of any of them, and the parts lying to the same, 
 necessary and behooveful, after the law and customs of Romney 
 Marsh in the county of Kent, or otherwise by any ways or 
 means after your own wisdoms and discretions ; 
 
 And to hear and determine all and singular the premises, as To hear and 
 well at our suit as at the suit of any other whatsoever complain- 
 ing before you, or six of you, whereof A., B., and C. shall be 
 three, after the laws and customs aforesaid, or otherwise, by any 
 other ways or means, after your discretions : and also to make Awarding 
 
 •I ^ ^ ^ ' of writs and 
 
 and direct all writs, precepts, warrants or other commandments, precepts to 
 by order of these presents, to all sheriffs, bailiffs, and all other bailiffs and 
 ministers, officers, and other persons, as well within liberties as 
 vpithout, before you, or six of you, whereof the said A., B., and 
 C. to be three, at certain days, times and places to be prefixed, 
 to be returned and received ; and further, to continue the 
 process of the same ; and finally, to do all and every thing and 
 things as shall be requisite for the due execution of the pre- 
 mises, by all ways and means, after your discretions ; 
 
 And therefore, we command you, that at certain days and Surrey. 
 places, when and where ye, or six of you, whereof the said A., 
 B., and C. to be three, shall think expedient, you do survey the 
 said walls, fences, ditches, banks, gutters, gotes, sewers, calcies, 
 ponds, bridges, rivers, streams, watercourses, mills, locks, 
 trenches, fish-garths, flood-gates, and other the lets, impe- 
 diments, and annoyances aforesaid; and accomplish, fulfil, hear To hear and 
 and determine all and singular the premises, in due form, and ° ^"°™''- 
 to the effect aforesaid, after your good discretions ; 
 
 And all such as ye shall find negligent, gainsaying or re- To compel 
 belling in the said works, reparations or reformations of the obey'their 
 premises, or negligent in the due execution of this our com- 
 
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"8 Duties and Powers of Commissioners, [chap. ii. 
 
 mission, that ye do compel them by distress, fines and amer- 
 ciaments, or by other punishments, ways or means, which to 
 you, or six of you, whereof the said A., B., and C. shall be 
 three, shall seem most expedient for the speedy remedy, redress 
 and reformation of the premises, and due execution of the same; 
 and all things as by you shall be made and ordained in this 
 behalf, as well within liberties as without, ye do cause the same 
 truly to be observed, doing therein as to our justice apper- 
 taineth, after the laws and statutes of this our realm, and ac- 
 cording to your wisdoms and discretions. 
 
 Notwithstanding the great length, and (if one might so 
 speak) the verbiage of this section, it is capable of being sim- 
 plified without difficulty ; and it is impossible not to perceive 
 the extensive authorities with which commissioners of sewers 
 are invested by virtue of its enactments. We shall find, how- 
 ever, that notwithstanding these considerable powers, the officers 
 of sewers are restrained by the general laws of the land, as far 
 as they have respect to the liberty of the subject, and to the 
 jurisdiction of superior courts; so that although the pages of 
 history occasionally disclose attempts on the part of commis- 
 sioners to exceed their delegated jurisdiction, speedy interposi- 
 tion and redress have succeeded upon application to another and 
 a higher tribunal. 
 
 It becomes our duty to notice other powers which succeeding 
 sections have given to commissioners of sewers. They are em- 
 powered, according to the purport and effect of their commis- 
 sions, to make, constitute and ordain laws, ordinances and de- 
 crees, and further, to reform, repeal and amend, and make new 
 the same laws from time to time, as need may require ; and 
 they are enjoined to act according to the true meaning of their 
 commission (a). Moreover, these laws so ordained by the com- 
 missioners, or by six of them, by authority of the commission, 
 shall bind the king's lands, &c., and those of every other person, 
 and their heirs, for such their interest, as they shall fortune to 
 
 (a) 23 Hen. 8, u. 5, s. 7. And in the act of Queen Mary, touching the 
 sea sands in Glamorganshire, a similar power is given to commissioners 
 therein named. 1 Mar. Sess. 9, c. 11, s. 2. 
 
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sioners. 
 
 CHAP. II.] Duties and Powers of Commissioners. 69 
 
 •have in any lands, &c., or other casual profit, advantage or 
 commodity whatsoever, whereunto the said law may extend, 
 according to the true purport of these laws (6). 
 
 The statute 24 & 25 Vict. c. 133, s. 16, likewise states the 
 general powers of commissioners. 
 
 The powers of commissioners of sewers acting within their Declaration 
 
 • T • 1 1 p Ti • of powers of 
 
 jurisdiction shall extend to the following acts : commis- 
 
 (1.) To cleansing, repairing or otherwise maintaining in a 
 due state of efficiency any existing watercourse or out- 
 fall for water, or any existing wall or other defence 
 against water, hereinafter referred to under the expres- 
 sion " maintenance of existing works." 
 
 (2.) To deepening, widening, straightening or otherwise im- 
 proving any existing watercourse or outfall for water, 
 or removing mill-dams, weirs or other obstructions to 
 watercourses or outfalls for water, or raising, widening 
 or otherwise altering any existing wall or other de- 
 fence against water, hereinafter referred to under the 
 expression of " improvement of existing works." 
 
 (3.) To making any new watercourse or new outfall for water, 
 or erecting any new defence against water, to erecting 
 any machinery or doing any other act not herein- 
 before referred to, required for the drainage, necessary 
 supply of water for cattle, warping or irrigation of 
 the area comprised within the limits of their juris- 
 diction hereinafter referred to under the expression 
 " the construction of new works." 
 Provided, 
 
 (1.^ That no person shall by virtue of this act be compelled 
 to execute at his own expense any works which he 
 would not have been compelled to execute if this act 
 had not passed. 
 
 (2.) That no work shall be deemed to be a new work that is 
 in substitution for an old one, in cases where such old 
 work is so much out of repair or so insufficient as to 
 make it expedient to construct a new work in place 
 thereof 
 
 (i) 23 Hen. 8, c 5, s. 9. 
 
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60 
 
 Eestrictions 
 as to ob- 
 structions. 
 
 Questions as 
 to right to 
 remove any 
 obstructions. 
 
 J)uties and Powers of Commissioners, [chap. it. 
 
 (3.) That full compensation shall be made for all injury sus- 
 tained by any person by reason of the exercise by the 
 commissioners of the above powers. 
 
 (4.) That the exercise of the foregoing powers shall be sub- 
 ject to the restrictions hereinafter mentioned. 
 
 By sect. 17, the commissioners shall not be entitled to remove 
 or otherwise interfere with any mill-dam, weir or other like 
 obstruction, wliereby the level of the water is raised for any 
 milling or other purpose of profit, so as to injuriously affect the 
 supply of water, otherwise than with the consent of the owner 
 of such mill-dam, weir or other like obstruction, until the fol- 
 lowing things have been done ; that is to say, 
 
 (1.) Their right to do so has been determined in manner 
 
 hereinafter mentioned. 
 (2.) Compensation has been made to all parties entitled for 
 the injury which may be caused by such removal or 
 interference. 
 
 And by sect. 18, for the purpose of determining the right of 
 the commissioners to remove or otherwise interfere with any 
 such dam, weir or other like obstruction, there shall be decided, 
 if the owner consent, by two or moi-e justices assembled in 
 petty sessions, but if he do not consent, by arbitration, the 
 questions following ; that is to say, 
 
 (1.) Whether the proposed removal or interference is neces- 
 sary for the effectual drainage of land within the juris- 
 diction of the commissioners. 
 (2.) Whether the proposed removal or interference will cause 
 
 any injury to the owner. 
 (3.) Whether any injury that may be caused by the removal 
 or interference is or is not of a nature to admit of being 
 fully compensated for by money. 
 
 By sect. 19, if the decision be that such removal is not neces- 
 sary, the commissioners may not act ; but if necessary, and yet 
 not capable of being compensated by money, they still may not 
 act; but if it may be so compensated, the commissioners may 
 proceed. Then to ascertain this compensation, the Lands 
 Clauses Consolidation Act is to be employed (c). 
 
 (c) 8 & 9 Vict. c. 18. 
 
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CHAP. II,] Duties and Powers of Commissioners, 61 
 
 We will now take a brief review of these duties and powers, Review of 
 
 T n i<i-i -'ii •• the cora- 
 
 betore we proceed in detail, premising that the commissioners, mission. 
 throughout the whole of the legislative enactments upon this sub- 
 ject, are commanded to confine themselves within the spirit and 
 tenor of their respective commissions, and the ordinances in force 
 concerning sewers. It seems that the first duty which presents 
 itself to them is the survey of the various defences and annoy- 
 ances enumerated in the statute of Hen. 8. Commissioners are 
 not only directed in express terms to make this survey, and to 
 hear and determine concerning the same according to their 
 discretion, but they are, moreover, informed, in the opening 
 of the third section of 23 Hen. 8, that they are assigned to be 
 commissioners for that especial purpose. Having made the 
 survey, the next step is to inquire through whose default the 
 annoyances they have observed in their survey have arisen; 
 whether these mischiefs be for want of repairing defences or by 
 reason of improper erections, and also to ascertain the ownership 
 of the various lands in the district where the offences have 
 occurred, together with the names of such as have suffered 
 inconvenience. That being accomplished, an assessment is to 
 take place upon the lands of all those individuals, as well those 
 who have suffered damage, as the others, their neighbours, 
 according to the respective quantities of lands, or other pro- 
 perty, possessed by them. This assessment is made in con- 
 sideration of the repair which the commissioners are directed to 
 perform, and of the expense incurred by suppressing the annoy- 
 ances complained of. This statute, therefore, combines the two 
 features alluded to by Lord Coke, as we have already men- 
 tioned : it not only commands the restoration of useful public 
 works, but prescribes also the destruction of such as may be 
 found injurious. But the power of the commissioners does not 
 end here : they are further enabled to take labourers, workmen 
 and carriages, &c., for the ensuring of these general benefits, 
 and timber also, with other necessaries, if required, upon paying 
 to the proprietor a reasonable consideration. 
 
 The next power which we notice is a legislative authority ; 
 for the commissioners are enabled to make such laws, ordinances, 
 and decrees, as may appear to them to be expedient concerning 
 sewers; and what is more, they have a judicial authority as well. 
 
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62 Jyuties and Powers of Commissioners, [chap, ii, 
 
 and are fully empowered to sit in judgment upon their own 
 orders, subject, nevertheless, to the correction of a higher court. 
 Thus they are directed to hear and determine concerning the 
 premises ; and they are authorized in furtherance of this, to 
 issue their writs and precepts to sheriffs, bailiffs, and others. 
 And, moreover, all persons who show any negligence in the 
 due execution of the commission, by disobeying the orders of 
 the commissioners, or otherwise, are threatened with distress, 
 fine, and, in some cases, with imprisonment. And so again, the 
 commissioners are entrusted with a power of distress against all 
 who do not contribute according to the assessments imposed. 
 Lastly, they may appoint officers to aid in the execution of the 
 commission. Amongst these, bailiffs, surveyors, collectors, 
 and expenditors, are expressly mentioned, and auditors of the 
 accounts are afterwards included in the number of officers who 
 may be appointed. 
 
 Having thus given a summary of the provisions which relate 
 to the authority of commissioners of sewers, it is easy to per- 
 ceive that the subject seems divisible into two parts ; first, the 
 general duties of the commissioners ; and, secondly, the modes 
 by which they may enforce performance of their orders, in 
 furtherance of the execution of those duties. The first of these 
 heads shall be discussed in the present chapter. 
 
 Romney But wc will pause for a moment before we proceed to the 
 
 main points of this subject, for the purpose of explaining one or 
 two collateral matters which occur in the first instance. In a 
 part of the third section above set forth, it is said, that the laws 
 and customs of the commissioners are to be made after the laws 
 and customs of Romney Marsh, and it might be thence consi- 
 dered, that these officers were bound to follow the ordinances of 
 the Marsh. The laws of Romney Marsh, a tract of land in the 
 county of Kent, containing upwards of twenty thousand acres, 
 were certainly of great authority and use; they were attributed 
 to Sir Henry de Bathe, a Judge in the reign of Henry 3, and 
 Lord Coke observes, that not only those parts of Kent, but all 
 England, receive light and direction from those laws(d). It is 
 said, that King Henry 3 granted a charter to Romney Marsh, 
 
 (d) 4 Inst. 276. 
 
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 Marsh, 
 
GHAP. II.] Duties and Powers of Commissioners. 63 
 
 empowering twenty-four men, chosen for that purpose, to make 
 distresses upon all having lands and tenements in the Marsh, in 
 equal proportions, in order to repair the walls and water-gates, 
 and so defend them against the sea (e). Nevertheless, in spite 
 of this seeming direction above mentioned, commissioners of 
 sewers in other places are not under an obligation to follow the 
 laws of the Marsh ; for Lord Coke, in his report of Keighley's 
 case, takes occasion to observe, that the Court had consideration 
 of this particular clause before us ; and it was resolved clearly, 
 says the learned Judge, that the several commissioners of sewers 
 throughout England, are not bound to follow the laws and 
 customs of Romney Marsh ; but that where some particular 
 place within their commission had them, they might follow 
 them, for consuetudo loci est ohservanda (_/). Here the word 
 "may" means must, and it appears from the words of Lord 
 Coke, that the laws of the Marsh must be respected at such 
 places.* Yet, at the same time, according to the opinion of 
 Mr. Sergeant Callis, commissioners are not restrained from, 
 making laws and ordinances like those of Romney Marsh, in 
 places where there may not have been any such before, the 
 matter being left entirely, like most other things relating to 
 these aflFairs, to their discretion (^). And this brings us just 
 to say a word in explanation of the term " according to your 
 
 (e) See Toml. Law Diet. tit. "Romney Marsh;" and see also 4 Inst. 
 277. A special committee of twenty-four jurats were selected out of the 
 commonalty of that jurisdiction for this "conservation of the Marsh, and 
 the sea-banks of Romenale." By this special delegation the jurats had all 
 the powers of the Leet. Laws of Sewers, pp. 1 and 2. See also the same 
 tract, p. 2, as to the various commissions issued, and post in this chapter. 
 
 (/) 10 Rep. 140. The charters, laws, usages and customs of Romney 
 Marsh are expressly saved by 3 & 4 Will. 4, c. 22, s. 6L 
 
 * It appears, also, that in these local districts, the consent of the com- 
 monalty was necessary previously to the making of ordinances. Thus in 
 the old proceedings under the Romney Marsh commissions, the laws are 
 represented as taking effect at the request of the commonalty of the 
 Marsh (a). So the statutes of Pevensey, in Sussex, were, in 3 Hen. 4, 
 made by the consent of the lords of the towns, the bailiff and twelve jurats 
 (otherwise called skawers), and the commons of the said Marsh (6). So, 
 again, certain ordinances were made in 2 & 3 Ph. & M. in Marshland of 
 Norfolk, touching Powdyke, by the chief inhabitants of the whole county of 
 Marshland and town of Wiganhale(c), and the like again in the 8th of Eliz. 
 and the 5th of James 1, 1607 {d). 
 
 (g) Callis, 202. 
 
 (a) Laws of Sewers, 12. (c) Ibid. 
 
 (b) Id. 13. {d) Ibid. 
 
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64 Duties and PoKers of Commhsioners. [chap. ii. 
 
 discretion," so often found in the statute of Hen. 8. These 
 expressions are by no means to be understood to confer an un- 
 limited authority ; but, to use the language of Lord Coke, they 
 are to be intended and interpreted according to law and justice ; 
 for every Judge, or commissioner, ought to have wisdom, so as 
 not to be inefficient, and a conscience, to prevent his being 
 unmerciful. Discretion, too, is to know by law what is right, 
 and therefore the commissioners of sewers ought to pursue their 
 commission, and the oath they take to prosecute it, in the same 
 manner as it is there prescribed {h). 
 
 Survey. The first general duty to which we have above alluded, as 
 
 belonging to commissioners of sewers is, a survey of the places 
 mentioned in the statute, and above enumerated. By reason of 
 this word " survey," it was said by Heme, in his Reading, 
 that a man who is blind cannot be a commissioner of sewers, 
 because he cannot view or survey («). The survey of these 
 of&cers is directed principally to the defences required, and to 
 the annoyances which ought to be abolished. And it is justly 
 said, that, except by survey, commissioners would be unable to 
 satisfy themselves concerning the impediments to navigation, or 
 the repairs required. For this purpose they are empowered to 
 call in the aid of handicraftsmen, as carpentei's, masons, &c., as 
 to the nature of the work requisite to be done, and the estimate 
 of expense occasioned by the alterations proposed (k). And it 
 is said, that those things which justices of sessions do by their 
 view, or by survey and discretion, are so binding as that tra- 
 verses cannot be admitted, because these things are merely the 
 acts of the Court, and of the justices themselves (/). 
 
 And the Local Board of Health, under the statute which 
 gives them their authority {rn), may likewise cause maps and 
 surveys to be executed for their use. 
 
 The things to be surveyed come naturally in the next place 
 under our consideration ; and these deserve a very particular 
 
 (A) 10 Rep. 140. 
 
 (i) Callis, 108, cites Heme, 3. 
 
 (k) See Callis, 107; Laws of Sewers, 8 and 9. 
 
 {l) Callis, 216 ; 7 Com. Dig. 350. 
 
 (m) U & 12 Vict. ^. 63, s. 42. 
 
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CHAP. II.] Duties and Powers of Cummissioners. 65 
 
 attention, as many important questions have been raised at dif- 
 ferent times with regard to the jurisdictions of tliese commis- 
 sioners over certain places. 
 
 The first of these things to be surveyed, which the statute i.Waiis. 
 notices, is a wall. But we must remind the reader, as we 
 pass on, that the power of these commissioners extends, not 
 merely to the marshy lands of Lincolnshire, as the act 
 runs, but generally throughout England ; and it is further 
 worthy of remark, that the whole realm of England comes 
 witliiii their survey. So that the English seas, being within 
 the realm, are within the reach and extent of this statute, 
 although not within the management of the commission («). 
 And so it is of creeks and bays, and arms of the sea(o) ; and 
 likewise of islands, whether they have existed from time imme- 
 morial, or be but lately sprung up in the sea, provided they he 
 within the realm as before mentioned (;?). So also of grounds 
 newly gained from the seas {q), but not grounds left or derelict, 
 until these latter be made profitable (?•). So, again, the sea- 
 shore and the coast, being within the realm, are included within 
 the same jurisdiction, as also are ports and havens (.«). And in 
 reading the account of the jurisdiction of commissioners over 
 various works, the statute of 3 & 4 Will. 4, c. 22, which much 
 confii'ms, if it does not enlarge, that jurisdiction, must not be 
 forgotten. The provisions of that statute concerning this matter 
 will be given at length in a future page. 
 
 First, of sea-walls, and defences of a similar nature, for the 
 purpose of protecting lands from the rushing in of the sea, or of 
 fresh waters (t). There is, herein, in the first place, a dis- 
 tinction between public and private walls, the former only being 
 within the guardianship of the officers of sewers. Because the 
 
 (n) See Callis on Sewers, 39, 42 ; 1 Com. Dig. 340, 341. 
 
 (o) Callis, 56, 61. 
 
 (;;) See Callis, 42, 47 ; 7 Com. Dig. 340. 
 
 {q) See Callis, 47, 50, 61, 62; 7 Com. Dig. 341. 
 
 ()■) See Callis, 50, 54, 61, 62 ; 7 Com. Dig. 341. Nevertheless, a wall or 
 bank may be constructed for the aid or succour of the country on such 
 derelict lands, but not for any cause where the defence extends but to them- 
 selves, until they be made profitable. Callis, 62 ; 7 Com. Dig. 341. 
 
 (s) See Callis, 54-63 ; 7 Com. Dig. 340. 
 
 (i) Callis, 75, as to fresh waters. 
 
 W. F 
 
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63 Duties and Powers of Commissioners. [chap. ii. 
 
 laws on this behalf have no concern with any defences which 
 are not maintained for the benefit of the commonwealth, and it 
 cannot be said, that a private wall is one of this description {u). 
 Nevertheless, as we shall see by and by, the owners of lands 
 on, or adjoining which these walls exist, are either compellable 
 to repair them by reason of their tenure, or may require that 
 benefit from others, in consequence of some existing conside- 
 i-ations respectively between them. Walls, therefore, which 
 have been constructed to resist the tide, such as happen in 
 navigable rivers which have their course to the sea, such again 
 as are to be found upon the great and extensive lands in the 
 low countries, having existed there beyond time of memory as 
 bulwarks against the ravages of the ocean, are within the pro- 
 tection and jurisdiction of the commissioners (a?). And inasmuch 
 as we shall find that they may, at their discretion, establish new 
 defences, these walls, thus made de novo, will also form a part 
 of their survey. 
 
 If there be an access of water from the sea, by reason of the 
 new works of commissioners, they need not therefore compen- 
 sate the owners of the land where the water runs. Nor need 
 they make defences to keep out the increase of the sea or other 
 water ; for even a private person, much more commissioners of 
 sewers, may contract works, in order to keep out the sea as a 
 common enemy {y). 
 
 And, lastly, with regard to private walls, it has been afiirmed, 
 that although they be set as fences against ditches, gutters and 
 streams, for the draining and watering of private lands, yet, 
 notwithstanding, they are not within the laws in question, which 
 respect public uses only (2:). 
 
 (m) See Callis, 76. 
 
 \x) See Callis, 75 ; 7 Com. Dig. 341. See also the statute 3 Jac. 1, c. 14, 
 which extends the power of commissioners with respect to walls of this kind 
 within two miles of London. 
 
 {y) R. V. Commissioners of Sewers for Pagham, 8 B. & C. 355 j and see 
 1 B. & Ad. 874. 
 
 (2;) Callis, 76; 7 Com. Dig, 342. By 16 & 17 Vict. c. 34, s. 37, in 
 charging the duty under schedule (A), in respect of lands, &c., an allowance 
 and deduction should be made for the amount expended by the landlord or 
 owner on an average of twenty-one years preceding, as to the making and 
 repairing of sea walls or other embankments necessary for the preservation 
 or protection of such lands from the encroachment or overflowing of the 
 sea or any tidal river, although the sums expended may not have been 
 charged on such lands by any public rate or assessment. 
 
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CHAP. II. J Duties and Powers of Commissioners. 67 
 
 The next subject mentioned by the statute is streams. This 2- streams 
 word " streams" is said not to apply to rivers, pools, ponds, &c., courses. 
 because those waters have their own peculiar banks, bounds, 
 and channels ; but streams are currents of water flowing inde- 
 pendently over the land, and they are placed under the control 
 of the commissioners. 
 
 But rivers, although not expressly mentioned, are yet within of rivers. 
 the survey. A river is defined to be " a running stream pent 
 in on either side with walls and banks" (a) ; and Mr. Sergeant 
 Callis lays it down broadly, that rivers and their channels, 
 waters, and banks, are all fully within the laws of sewers (b). 
 This must, however, be understood of navigable rivers, or such 
 as are immediately beneficial to navigation, or to the public ; 
 for late decisions have recognized these latter streams only as 
 being within the statutes. In one case, indeed, a contrary 
 doctrine appears to have prevailed. It was moved to quash an 
 indictment, taken before commissioners of sewers, for a nuisance 
 occasioned by penning water in a river, so that it overflowed 
 the banks, and did damage, because there was no allegation 
 that the river in question was navigable. But Roll, C. J., 
 overruled the exception, observing that such an allegation was 
 not required, for that if it were a common passage for water, it 
 would be sufficient for the cognizance of the commissioners. 
 But inasmuch as the indictment stated this overflowing of the 
 water to be a nuisance to the highway, the learned Chief Justice 
 directed the indictment to be quashed, because the commis- 
 sioners could not meddle with nuisances in this way, but with 
 passages by water only (c). 
 
 And, a few years afterwards, on the return of a commis- 
 sion of sewers, it was excepted, that the decree was for the 
 straightening of the public stream, whereby the meadow of A. 
 could not be overflowed as usual, and this being a private 
 damage only for which case would lie, that the decree was 
 faulty. And the Court were of the same opinion, holding, that 
 
 (a) Callis, 77. 
 
 (6) Id. 79. 
 
 (c) R. V. Hide, Sty. 60. 
 
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68 Duties and Powers of Commissioners. [chap. ii. 
 
 there must not only be a public stream, but a public prejudice 
 also, in order to warrant the interfeience of the commissioners; 
 but the case was adjourned {d). 
 
 Upon another occasion, the defendant in trespass justified 
 under commissioners, for the non-payment of a tax assessed 
 upon the plaintiff. It appeared, that the plaintiff was an occu- 
 pier of lands at Hammersmith, that he was benefited by the 
 repairs which called forth the tax ; that there were ancient 
 common sewers in Hammersmith, Chiswick, and Acton, but 
 that there was no passage of boats there, that the water did not 
 ebb nor flow, but that the sewers were dry during some seasons. 
 Nevertheless, in wet seasons, the sewers were necessary for the 
 conducting of land waters into the Thames. It further appeared, 
 however, that no part of those sewers were within two miles of 
 the city of London ; and because the statute of James 1 did no 
 more than subject all streams within two miles of London to the 
 jurisdiction of the commissioners of sewers, the Court ordered 
 the postea to be given to the plaintiff; for the statute of Hen. 8 
 related to navigable streams only, and in this case there had 
 not been any navigation (e). 
 
 The following observations were made by Mr. Justice Buller 
 upon this case, on another occasion : " The statute mentions 
 several things which are not of a public nature, as drains, 
 gutters, ponds, &c., which are private, and on which there can 
 be no navigation, and yet they are expressly subject to the 
 jurisdiction of the commissioners of sewers. The line to be 
 drawn is this : if they be necessary or useful in navigation, the 
 statute does extend to them, otherwise they are not within 
 it. Now in this case they are useful, and that distinguishes it 
 from the case in Blackstone; for in that case there was no 
 navigable stream, no passage for boats, the tide did not flow 
 there, and it was dry at some seasons of the year, but in wet 
 seasons it was necessary to conduct the land waters into the 
 Thames, without which, inundations would happen in the 
 parishes. That in truth was a mere drain for the lands, it was 
 of a private nature, and was not stated to be useful to the navi- 
 
 {d) Rex V. Vachel, 3 Keb. 446. 
 
 (c) Yeaw v. Holland, 2 Sir Wm. Bl. 717- 
 
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CHAP. II. J Duties and Porvers of Commissioners. 69 
 
 gation of the Thames, and therefore the Court thought that it 
 was not within the statute 23 Hen. 8 " (/). 
 
 By Stat; 3 Jac. 1, c. 14, s. 1 {g), forasmuch as the walls, 
 ditches, hanks, gutters, &c., streams, and watercourses, in and 
 about the city of London, where no passage of boats is used, 
 having their course and fall into the Thames, where it usually 
 ebbs and flows, and is used for free passage of boats to the sea, 
 are already by the commission of sewers appointed to be sur- 
 veyed, repaired, and amended, when need shall require, and 
 are as needful and meet to be surveyed, &c., as those rivers, 
 streams, and watercourses, where the water usually ebbs and 
 where more usual passage of boats has been, and yet are not 
 under the survey, correction, and amendment of the commission 
 of sewers, nor of the statute 23 Hen. 8, nor of any other statute 
 of sewers, as the same would have been if the hurts, &c., now 
 by daily experience felt and found in those places, had been 
 seen and considered of; * by sect. 2, for reformation whereof, 
 it is enacted, that the walls, &c., streams, and watercourses 
 within the limits of two miles of the city of London, which 
 waters have their course and fall into the Thames, shall be 
 to all intents, &c., as fully subject to the commission 9f sewers, 
 and to all the statutes made for sewers, and to all penalties, &c., 
 as if they had been included in the above statutes, &c. 
 
 However, as we shall see presently, if a sewer communicate 
 with a navigable stream, so as that the maintaining of it may be 
 beneficial to navigation, or to individuals, it is within the com- 
 mission, although it be not within two miles of London. 
 
 Rivers, therefore, which are not navigable, do not, except in 
 the above instances by statute, and when immediately connected 
 with the public welfare, fall within the scope of the commis- 
 sioners' duties, nor, indeed, do private streamlets, as such ; but 
 streams running over a level, or other such public grounds, are 
 expressly within the act of Hen. 8, it being necessary for the 
 
 (/) 2 T. R. 365. 
 
 {g) See 4 Inst. 276, where Lord Coke says, that this statute of James 
 was an excellent exposition of 23 Hen. 8 ; but see 2 T. R. 365. 
 
 * That this is a misrecital, see 2 T. R. 365. By Ashhurst, J., miipost, in 
 this chapter. 
 
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70 Duties and Powers of Commissioners. [chap. ii. 
 
 well-being of the commonwealth that they should be attended 
 to (/). 
 
 3. Ditches. Thirdly, the survey is to be over ditches, or dikes ; that is to 
 say, such ditches as are for the public convenience — those, for 
 example, in the northern parts of England (g). 
 
 In widening and repairing drains and ditches, commissioners 
 under different acts of Parhament must be careful not to meddle 
 with each other's drainage. Certain works and drainage were 
 vested by statutes in trustees. But the powers and properties, 
 works, sewers, &c., of certain other commissioners, called 
 "The Black Sluice Commissioners," were expressly saved to 
 them. The trustees before mentioned were furtiier authorized 
 to erect a steam engine, &o., upon any land not belonging to 
 the Black Sluice Commissioners, and to repair their sluices, 
 &c., making compensation for damage. It was held, that the 
 trustees had no power under the act to widen a drain which the 
 Black Sluice Commissioners had the management of in order 
 to make a reservoir, although such widening would improve 
 the drainage, and although theie the reservoir was necessary 
 for the vi;orking of the steam engine, and although there was no 
 other way of proceeding with the work without cutting into the 
 banks or drains under the control of the Black Sluice Com- 
 missioners (A). 
 
 The 35 Geo. 3, c. 77, empowered certain commissioners to 
 make a new cut or river from the Ouse. A subsequent act 
 provided that the trustees of certain roads therein mentioned 
 might make use of awy public or parish drains or ditch con- 
 tiguous to their works for the conveyance of materials in boats, 
 &c. 
 
 This new cut was called the Eau Brink Cut, and was used as 
 a public navigable river in lieu of the ancient channel of the 
 Ouse. It appeared also, that unless the Eau Brink could be 
 considered to be a drain or ditch within the meaning of the act, 
 
 (/) See likewise the stat. 3 & 4 Will, i, c. 22, post. 
 
 (g) See Callis, 81, 82. Ditches are mentioned by name in 3 Jac. 1, c. 11. 
 
 (7i) Smith V. Bell, 10 Mees. & W. 378 ; 2 Railw. Ca. 877. 
 
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CHAP. II.] Duties and Powers of Commissioners. 71 
 
 there was not, in fact, any drain or ditch available for the 
 carriage of the road materials of the trustees. And the trustees 
 had for many years used the cut for such purpose without 
 paying toll. Yet the Court held that the Eau Brink Cut was 
 not a " public or parish drain" within the 35th section, before 
 mentioned, and judgment was given for the plaintiff in tres- 
 pass (i). However, commissioners of sewers, who were accus- 
 tomed to use a tidal ditch by the side of a highway, were held 
 not liable to fence the sewer against the highway (A). 
 
 The same may be said of banks, which are mentioned in the 4. Banks, 
 statutes, and which are nearly related to walls, and have the 
 same doctrines applied to them. Private walls and banks, 
 therefore, are not within the statute (l). It is said that inha- 
 bitants may make bye-laws for the repair of banks to keep out 
 the sea (m). 
 
 With respect to the ownership of these banks and walls, Mr. 
 Sergeant Callis takes a distinction, and holds, that a bank of the 
 sea, or of a navigable river, belongs to him whose grounds are 
 next adjoining, according to the principle adopted concerning 
 highways. But the wall belongs to the parly who is bound to 
 repair it, though his land be not contiguous, because the erec- 
 tion is artificial, and the materials are brought thither, and do 
 not, as in the case of a bank, arise in the place where the wall 
 is (w). 
 
 If a company be permitted to have the use of a channel for 
 the purposes of their navigation, they must repair the banks of 
 the channel. As where a dock company were allowed to make 
 a new cut : here they were held bound to the repair of it. And 
 the remedy is either by indictment or mandamus. The com- 
 pany returned to a writ of mandamus that they were not liable 
 
 (j) Coulton D. Ambler, 13 Mees. & Wels. 403. The words "all other 
 goods, wares, merchandize" (upon which toll was to be paid), were held 
 also in this case to include gravel and other materials for the repair of 
 roads. 
 
 (k) Cornwall v. Metropolitan Commissioners of Sewers, 10 Ex. 771. 
 
 (1) Callis, 76. 
 
 (m) 8 Mod. 354, arguendo. 
 
 In) 23 Hen. 8, c. 5 ; and see Callis, 73—77 ; 7 Com. Dig. 341. Banks 
 and walls are particularly mentioned in 3 Jac. 1, c. 14. 
 
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''2 Duties and Powers of Commissioners. [chap. ii. 
 
 by the act to repair the south bank, and that they had as nearly 
 as possible maintained the new channel of equal depth and 
 breadth at the bottom, and of equal inclination of the sides 
 with the old course or channel as the act ordained. The Court 
 held this an insufficient return, and awarded a peremptory 
 mandamus. It was a traverse of a matter of law, and an 
 imperfect answer in other respects (o). And, by prescription, 
 a corporation may be compelled to repair the banks of a 
 river (/)). 
 
 6. Gutters. Then, fifthly, we come to speak of a gutter, which is also 
 mentioned in the statutes of Hen. 8, and of Jac. 1, therefore, 
 such as interfere with, or promote public convenience, are within 
 the first statute, and those within two miles of London are made 
 expressly subject to the jurisdiction in question, by the statute 
 of James. 
 
 Callis writes thus concerning the difference between a gutter 
 and a sewer: " A sewer is a common public stream, and a 
 gutter is a straight, private, running water; and the use of a 
 sewer is common, and of a gutter peculiar" {q). 
 
 6. Sewers. This brings us to the subject of sewers, the origin and mean- 
 
 ing of which have been formerly discussed, and these, as may 
 well be supposed, are within the statutes. They, like the rest, 
 when of a public nature, are within the act of Hen. 8, and are 
 universally controlled by the commissioners when within two 
 miles of London. And when they communicate with a navi- 
 gable river, so that the maintenance of them becomes beneficial 
 to commerce, or to individuals, as members of the public, 
 according to an authority which we are now about to cite, these 
 latter are also under the protection and guidance of the laws of 
 sewers. It was an action of trespass, for taking the plaintiff's 
 goods. The defendant pleaded the general issue, and a justifi- 
 cation under the commissioners of sewers for the Tower Hamlets 
 (excluding St. Katherine and Blackwall Marsh), for the non- 
 Co) K. V. Bristol Dock Company, 2 Q. B. Rep. 64 ; 2 Railw. Ca. 599 j 
 1 Gale & D. 287. 
 
 (p) Anon., Lofft, 556. 
 \q) Caliis, 80. 
 
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CHAP. II.] Duties and Powers of Commissioners. 73 
 
 payment of a sum assessed by them under 23 Hen. 8. Repli- 
 cation de injurid. A verdict was found for the plaintiff, subject 
 to a case. It appeared, that the plaintiff's house, and the place 
 ■where the work in question was done, were more than two miles 
 from the city of London,* that the tide flowed and reflowed 
 over part of the land where the work was done, but not over 
 the whole, that all was marsh land, and twenty miles distant 
 from the sea ; that boats were accustomed to go on the shore 
 from the Thames to a place about a mile and a quarter from 
 the place where the work on the sewer had been done, that the 
 plaintiff would have sustained injury if the work had not been 
 done, and that the plaintiff had been rated to the sewers' tax in 
 Hackney for several years tlien past. Much stress was laid by 
 the counsel for the plaintiff upon the statute of James 1, which 
 recited, that no sewers, &c., were within the 23 Hen. 8, unless 
 the water ebbed and flowed therein, and unless free passage 
 with boats, &c., to the sea had been theretofore used. And the 
 counsel, moreover, observed upon the omission of this statute of 
 James 1, by the learned Sergeant (Callis) taking occasion to 
 impeach the correctness of the reading, by reason of that 
 omission, after the praise which Lord Coke had bestowed upon 
 the exposition of that statute. It was also objected, that the 
 sewers and gutters contemplated by the Legislature must be 
 understood to mean those only in the vicinity of the sea, such 
 as immediately conducted the fresh waters to the sea ; and not 
 those at a distance from the ocean, for the jurisdiction would 
 thus be made infinite. 
 
 The defendant's counsel said, in answer to the difficulty 
 raised concerning the statute of James, that it was an expla- 
 natory act; and that the positive provisions of 23 Hen. 8, 
 could not be restrained by the recital of 3 Jac. 1, for there was 
 no enacting clause that sustained the recital alluded to. He 
 was then stopped by the Court, who were quite clear that the 
 defendant ought to have the verdict entered for him. As to 
 the objection that this was not a common sewer, the stating 
 it to be a sewer was prima facie stating it to be a common 
 sewer; and it was a common sewer, because it appeared that 
 the tide flowed and reflowed there. It was intended by the 
 * And therefore not within tlie stat. 3 Jac. 1. 
 
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74 Duties and Powers of Commissioners. [chap. ii. 
 
 statute of Henry 8, that commissioners should have power in a 
 case like the present, for here was a watercourse leading to the 
 sea, and the tide flowed over part of the land where the work 
 was done. Here it was essential for the public benefit, that the 
 sewer should be cleansed, for there was a navigation, and the 
 work effected would be doubtless serviceable to the interests of 
 commerce; and, which was more, the plaintiff himself, as a 
 member of the community, appeared to have derived benefit 
 from the undertaking. And this circumstance could furnish an 
 answer to the objection, that the power of the commissioners 
 might become unlimited : here the party, over whose land the 
 work was done, derived a benefit therefrom, and that alone was 
 sufficient to give the commissioners jurisdiction (?•). 
 
 Mr. Justice Buller also observed, that Callis's Readings was 
 one of the best performances on the subject of sewers, and that 
 it had always been admitted as good authority (s). 
 
 This case has been mentioned at some length, by reason of its 
 importance, and of its being a leading authority upon the 
 subject, all practicable objections having been made to the 
 authority of the commissioners by the plaintifi''s counsel in an 
 argument of very considerable duration. It will not, it is 
 hoped, be thought irrelevant, if we sum up very briefly the con- 
 sequences of this weighty decision. Whatever might have been 
 the ancient opinions on the point, it now seems clear, that all 
 sewers, which communicate either directly or indirectly with 
 navigable rivers, both common and private, are within these 
 laws, if their maintenance be for the advancement of commerce, 
 or for the benefit of society at large; and that all sewers, of 
 every sort, within two miles of London, are committed to the 
 jurisdiction of the commissioners, by virtue of the statute of 
 James 1, so often above referred to (j). 
 
 One consideration, however, upon this particular head, still 
 remains, and it is with respect to new sewers. And the point 
 becomes of the greatest importance, because, although noticed 
 
 (r) Dore w. Gray, 2 T. R. 358 ; and see 3 M. & S. H7. 
 Is) 2 T. R. 365. So Cockburn, C. J,, 31 L. J., Q. B. 273. 
 (() See Callis, 87, 88, in the notes. 
 
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CHAP. II.] Duties and Powers of Commissioners. 75 
 
 here under the word " sewers," the principle extends to all kinds 
 of new defences, walls, banks, causeways, &c. 
 
 Thus, by 2 Will. & M. sess. 2, c. 8, s. 14, after a preamble, 
 that many new sewers, sinks and vaults, had been made within 
 the city and liberty of Westminster, the city of London, the 
 suburbs and liberties thereof, the out parishes in the county of 
 Middlesex, and in the borough of Southwark, and other places 
 within the weekly bills of mortality in the county of Surrey, 
 which, since the expiration of an act passed in the reign of King 
 Charles 2 (u), had been much neglected, and had become nui- 
 sances to the inhabitants, because of some doubt whether such 
 new sewers were within the jurisdiction of the law of sewers : it 
 ■was therefore enacted, that all new sewers at any time since the 
 12th year of the reign of King Charles 2, made in any of those 
 parishes, should be thenceforth subject to the commission of 
 f ewers, and to the laws of sewers, as if originally made so 
 subject, and liable to the survey of commissioners ; and that 
 commissioners for the time being should have power, within the 
 limits of their respective commissions, to alter, amend, cleanse, 
 and survey, any such new sewers, &c., and to order and direct 
 the making of any other new vaults and sewers, and to cut into 
 any drain or sewer already made, and to alter or take away any 
 nuisances in the same, and alter or take away any cross gutter 
 or channel, in all or any of the streets and lanes in the said 
 parishes. 
 
 And now by the stat. 3 & 4 Will. 4, c. 22, s. 10, a con- 
 siderable latitude has been given to the jurisdiction of sewers. 
 All existing sewers and defences are recognized as being within 
 the reach of the commissioners, provided they communicate 
 with navigable rivers, and all new sewers are included within 
 the same clause. And the only restriction imposed upon com- 
 missioners is, that they must not interfere with such private 
 watercourses as were in existence at the time of the passing of 
 that act. The section shall be set forth in full by reason of its 
 importance. It begins by saying, that doubts had arisen as 
 to the extent of the jurisdiction of commissioners of sewers. 
 
 (m) 13 & 14 Car. 2, u. 2. 
 
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76 Duties and Powers of Commissiuners. [chap. ii. 
 
 And it then goes on to enact and declare, that all walls, banks, 
 culverts, and other defences whatsoever, whether natural or 
 artificial, situate or being by the coasts of the sea, and all 
 rivers, streams, sewei's and watercourses, which now are or 
 hereafter shall or may be navigable, or in which the tide now 
 does or hereafter shall or may ebb and flow, or which now do or 
 hereafter shall or may directly or indirectly communicate with 
 any such navigable or tide river, stream or sewer, and all walls, 
 banks, culverts, bridges, dams, floodgates, and other works 
 erected or to be erected in, upon, over or adjoining to any such 
 rivers, streams, sewers or watercourses, shall be from hence- 
 forth, to all intents, constructions and purposes, within and 
 subject to the jurisdiction of commissioners of sewers: Provided 
 always, that nothing herein contained shall authorize or em- 
 power any commissioners of sewers to exercise authority or 
 jurisdiction up&n or over any dams, floodgates, or other works 
 erected for the purpose of ornament, previous to the passing of 
 this act, in, upon or over any rivers, streams, ditches, gutters, 
 sewers or watercourses, near or contiguous to any house or 
 building, or in any garden, yard, paddock, park, planted walk, 
 or avenue to a house, without the consent in writing of the owner 
 or proprietor thereof respectively first had and obtained. 
 
 And not onlj' are these old and new sewers and other works 
 placed under the control of commissioners, but they are also 
 empowered by the same statute to make and maintain new 
 works, as we shall see in the sequel of this chapter, where the 
 cases concerning works are likewise collected. 
 
 It has been held, that under the statute of 23 Hen. 8, and 
 this statute of Will. & Mary, not only may commissioners of 
 sewers make these new sewers, but they may likewise unite 
 levels which were before separate, and separately assessed. 
 Still, in such a case there must, after the union, be one uniform 
 sewers' rate(x). By 11 & 12 Vict. c. 63, s. 145, no commis- 
 sions of sewers are to be interfered with bv Local Boards under 
 
 (x) St. Katherine's Dock Company v. Higgs, 14 L. J., Q. B. 348; 
 affirmed in error, 6 Q. B. 641 ; l(j L. J., Q. B.'s?? ; post. See Harrison 
 u. Stickney, 2 H. L. Cas. 108 ; post. 
 
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CHAP. II. J Duties and Powers of Commisdoners. 77 
 
 the Public Health Act, nor can any private watercourses be so 
 dealt with, unless a consent in writing be first had. 
 
 Gotes, or goats — a word derived from the Saxon— are de- 1. Gotes. 
 fined to be " engines erected and built with percuUeses and 
 doors of timber, stone or brick" {y) ; and they are within the 
 management of commissioners, being very useful for drainage. 
 Their use is said by Mr. Sergeant Callis to be twofold ; the 
 first, to cause fresh water which has descended upon the low 
 grounds to be let out through them into some creek of the sea ; 
 and the second, to return back salt waters direct, which during 
 some great floods of the sea may have flowed in upon the 
 land (s). 
 
 With regard to the making of new gotes, it will be seen 
 hereafter what power the commissioners have in these respects, 
 when we come to detail the different works which they may 
 direct. 
 
 Gotes are also mentioned in the statute of James (a). 
 
 Eighthly, we come to calcies, said to be derived from the s. Caicies. 
 Latin calx, and to signify a common hard way, maintained and 
 repaired with stones and rubbish ; or, as Mr. Sergeant Callis 
 has it, " a passage made by art, of earth, gravel, stones, and 
 such like, on or over some high or common way leading through 
 surrounding grounds, for the safe passage of the king's liege 
 people" (6). They are more commonly called causeways. 
 There was a tax formerly paid by neighbouring inhabitants, 
 towards the making and repairing the common roads above 
 alluded to, and it was called calcagium. The authority of those 
 who had the management of sewers over these causeways is said 
 to be very ancient ; they are mentioned in the Register, and by 
 Fitzherbert (c), and are expressly noticed in the old statute of 
 6 Hen. Q(d), the first act which prescribed a regular commis- 
 
 (y) Callis, 91. 
 
 (2) Ibid. Many of these gotes in the highways serve also for bridges. 
 Callis, uK supra. 
 (a) 3 Jac. 1, c. 14. 
 (6) Callis, 90. 
 (c) F. N. B. 296. 
 \d) 6 Hen. 6, c, 5. And see Callis, 90. 
 
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78 Duties and Powers of Commissioners. [chap. ii. 
 
 sion of sewers, as we have seen. It is worthy of observation, 
 that the same principle— that of acting for the public benefit — 
 applies to all these transactions. And, therefore, the commis- 
 sioners of sewers have no concern with causeways on high roads, 
 but with such only as have been constructed upon low grounds, 
 because the maintenance of the latter conduces to the public 
 convenience in that respect. Nevertheless, such causeways as 
 lead over the bridges which are within the statute, aud to which 
 we shall presently advert, are subject to the jurisdiction of the 
 court of sewers (e). Causeways are expressly included within 
 the statute of James (/). 
 
 9. Bridges. Bridges within the scope of the laws of sewers are said to be 
 
 such as lie on or near surrounded grounds, and those also which 
 are built on highways; and for this reason, because they have 
 been built over rivers which are within the laws (g). And thus 
 it is that causeways leading over such bridges are themselves 
 subject to the commissioners. Further, bridges which lie out 
 of highways, if they be constructed upon a common sewer 
 having its current to the sea, or to some river, are equally 
 within the statutes ; and so also are private bridges, so far as 
 that, if they become annoyances to the public, they may be 
 removed by order of the above-mentioned authority (A). How- 
 . ever, bridges in highways where there is no stream, except a 
 land stream in time of floods, are dry bridges, and not within 
 the commission (i). 
 
 It may be added, that notwithstanding the words of the Great 
 Charter, that no vill nor freeman be distrained to make bridges, 
 unless he have been bound to the same from time immemorial, 
 whereby it might seem, that no bridges erected since the reign 
 of Hen. 2 were repairable, and so not within the jurisdiction of 
 the commissioners ; yet the better opinion seems to be, that as 
 well those which have been mentioned by the statutes of Hen. 8, 
 namely, bridges on highways, as others, are within the laws of 
 sewers, although erected since time of memory (k). And the 
 principle of law now applicable to new biidges is this, that if 
 
 (e) See Callis, 90. (7i) Callis, 87, &c. 
 
 (/) 3 Jac. l,c. 14. (!) Id. 89. 
 
 (g) Callis, 86; 7 Com. Dig. 311. (i) See Callis, 86. 
 
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CHAP. II.] Duties and Powers of Commissioners. 79 
 
 they appear to be public benefits, the county wherein they are 
 is bound to keep them in repair. 
 
 Bridges are expressly mentioned in the statute of James (J). 
 
 The word " trenches" is also to be found in the statute of lo- Tren- 
 ches. 
 Hen. 8, although it does not occur in that of James 1. And 
 
 here the same distinction between public convenience and pri- 
 vate enjoyment must be taken ; so that if a trench communicate 
 with a common sewer, or a great river, so as to be of consequence 
 towards the general interest, it lies, although on private grounds, 
 within the jurisdiction of the officers of sewers. 
 
 And now, leaving this part of the subject for the present, we Annoy- 
 will briefly recapitulate the annoyances, lets and impediments, 
 of which the act of Hen. 8 treats ; it being remembered, that 
 the duties of the commissioners above rehearsed are twofold; 
 first, as they relate to the repairing of defences ; and next, as to 
 the extinguishment of nuisances. Let us see what these hin- 
 drances are, against which the statute is directed. 
 
 Altbouffh streams, rivers and other waters, when confined '■ Outra- 
 
 n J ' _ geous 
 
 within their due and accustomed channels, are highly beneficial springs. 
 to commerce and to the community, yet if the stream swell into 
 a torrent, if the river overleap its banks, and the spring bubble 
 forth its fountains with a violent and unrestrained force, those 
 which were before useful streams become, to use the language 
 of the statute, lets, impediments and annoyances. Thus, the 
 act of Hen. 8 speaks of outrageous springs. Nevertheless, Mr. 
 Sergeant Callis rather complains of the word " outrageous," 
 observing, that many springs are entitled to defence under these 
 laws ; and he notes the difference between public and private 
 convenience, to which we have so frequently adverted. For he 
 says, that commissioners of sewers cannot aid a township in 
 want of water for the use of their cattle, &c., by supplying them 
 with water from another township, because the commission 
 extends no further than to preserve navigation and drainage. 
 
 (0 3 Jac. 1, c. 14. 
 
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80 Duties and Powers of Commissioners. [chap. ii. 
 
 Still, if there be a river navigable in a township, the waters of 
 which be dried up or decay, and in the neighbouring township 
 there be another river, with abundance of water, here the com- 
 missioners of sewers may interfere, because the navigation of 
 the county is thereby benefited (m). 
 
 2. Mill- 
 streams or 
 dams. 
 
 Mill-Streams or dams may likewise be annoyances. It is 
 sufficient to say in this place, that whether a mill be erected 
 on a navigable river, or on one not navigable, it is within the 
 provisions of the stat. of Hen. 8, if the removal of it be for 
 the public convenience. And the same may be said of the 
 mill-streams or dams (n). 
 
 Wears, fish-garths, &c, — which latter come under the nomen 
 
 3. Wears, 
 
 kedeis, ' generale of wears— are made subject to the jurisdiction of the 
 ^°"^^' commissioners, who may treat them as annoyances or not, as 
 
 they shall see fit for the public good. 
 
 4. Gotes, 
 flood gates, 
 locks. 
 
 Gotes, of which we have spoken already, as being extremely 
 useful upon some occasions, are reckoned here amongst the 
 annoyances ; for their situation may sometimes be as prejudicial 
 to the free discharge of flood, or other waters, as serviceable at 
 others. Flood-gates and locks are of the same nature, and may 
 be considered as partaking of the same incidents. 
 
 Hebbing-wears and hecks come under the same provisions, 
 and are liable to similar interference. The former are laid for 
 the purpose of catching fish at the ebbing tide. 
 
 6. Ponds. Ponds are also classed amongst the impediments to be dealt 
 
 with at discretion ; and thus, if commissioners find, that accord- 
 ing to their plan of drainage such waters interfere, they may 
 dii'ect them to be filled in, drawn off, or otherwise abated. 
 According to the definition of Mr. Sergeant Callis a pond is 
 " a standing ditch, cast by labour of man's hands in his private 
 grounds, for his private use, to serve his house and household 
 
 (m) CaDis, 84. And see Id. 85. 
 (re) See Swaine v. Rogers, Cary, 26. 
 
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CHAP. II.] Duties and Powers of Commisnoners. 81 
 
 with necessary waters" (o). And the learned expositor observes, 
 that but for its being mentioned in the statute by name, he 
 should not have classed a pond amongst the impediments, nor 
 by any construction have brought it within the act(;?). And 
 certainly, if a pond were in private grounds, there would rarely 
 be any occasion for meddling with it ; but as we frequently 
 find these stagnant waters upon commons, greens, by tlie sides 
 of lanes, &c., they may occasionally hinder a drainage which is 
 of public importance, and thus they seem to fall fairly within the 
 cognizance of those whose business it is to remedy and remove 
 annoyances. 
 
 The difference between a pool and a pond is, that the one is Pools, 
 by nature, the other the work of art {q). The pool is a mere 
 standing water, without any current at all (r). Pools are not 
 mentioned in the statute, and it is said that they are not within 
 it, for two causes ; first, because they are, " both in property 
 and use, private and peculiar;" and, secondly, because these 
 laws of sewers seem to apply to lands which are " casually and 
 not continually drowned " (s). But the main principle seems to 
 be, whether these pools be hindrances to navigation, or annoy- 
 ances to the public ; for in either of these cases they may 
 certainly be removed ; and the learned sergeant adds an opinion 
 to that effect (t). We began this account of the things which 
 were placed under the survey of commissioners, by laying down 
 the principle of public convenience above referred to ; and it has 
 been found unvarying and consistent, throughout the progress 
 of the inquiry on this branch of the subject. 
 
 The survey being made, it next becomes expedient for the inquiry into 
 commissioners of sewers to acquaint themselves with the names ship of lands, 
 of the proprietors of land in the neighbourhood, and within the defaults. 
 limits of their commission, in order that they may be in a 
 condition to assess each party in a proper and impartial manner. 
 
 (o) Callis, 82. 
 
 Ip) Ibid. And see Id. 83. 
 
 (j) Id. 82. 
 
 (r) Ibid. 
 
 (s) Ibid. 
 
 («) Ibid. A conduit is not within the laws of sewers. (Callis, 83.) 
 Something more will be said concerning tlie survey, when we come to 
 speak of the surveyor as one of the officers of sewers. 
 
 W. Q 
 
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82 Duties and Powers of Commissioners, [chap. ii. 
 
 That being done, and it appearing, at the same time, that 
 several defences are in need of repair, and that several nuisances 
 are in operation to the general detriment, it is incumbent on the 
 commissioners to satisfy themselves, whether any particular 
 individual has made default, and neglected his obligations ; 
 vrhether any one has committed an encroachment, or lent his 
 aid to the establishment of any annoyance prohibited by their 
 laws, or whether there be not a general want of repair in some 
 places, the expense of defraying which should be imposed upon 
 the whole level, or other district within their commission. It 
 seems, therefore, an important matter to consider, first, who are 
 liable in respect of some benefit which they receive from the 
 enforcement of the laws of sewers as private individuals, for 
 there must be some general or particular benefit; and secondly, 
 who are liable within the level to repair those defences, to the 
 maintenance of which no one stands pledged independently of 
 the rest (u). The defences to be thus repaired,* and annoy- 
 ances which commissioners may destroy, will be subsequently 
 mentioned, as we have only as yet noticed such as come under 
 their survey, and have not discussed their power of directing 
 repairs, or of extinguishing nuisances, upon which subject some 
 new questions have occasionally arisen. 
 
 With respect to the repairs, we shall consider, — 
 
 I. Who are bound to repair as individuals. 
 
 II. Who are so bound in a corporate capacity. 
 
 III. Who bound when the charge is thrown upon the 
 public at large. 
 
 Repair. O wncrs of defences of the nature above alluded to, are bound 
 
 a^MW^'^ to the repair of them, upon the principle that every one should 
 
 duals. maintain that which is his own. And this .hey will naturally 
 
 Owners, j^^ anxious to do, inasmuch as their land, in such cases, lies 
 
 (m) See 1 B. & C. 484, per Abbott, C. J., that one or the others are 
 liable. 
 
 * And herein we shall speak fully concerning the vnaking of new de- 
 fences, upon which so much discussion has taken place. 
 
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CHAP. II.] Duties and Powers of Commissioners— Hepairs. 83 
 
 nearest to the waters ; but they cannot ask contribution at the 
 hands of others, for their expenses upon those occasions (x). 
 And this is similar to the case of a ditch adjoining a highway, 
 for there the individual whose lands lie close to the road is 
 under an obligation to keep the ditch in a proper condition, and 
 this without the force of a prescription (?/). The owner of the 
 land in question is interested in the defence, because he has an 
 immediate benefit by the repairs, and would be subject to 
 serious injury through the neglect of it. As in the case of the 
 flood-gates of a mill, where the Court considered, that the repair 
 fell necessarily, in the first instance, upon the owner of the 
 mill (z). 
 
 The occupier, however, is involved in the obligation of 
 cleansing a watercourse as far as the weeds and soil upon his 
 banks are concerned. He may take these matters for his own 
 use, or he may require the commissioners of sewers to remove 
 them, and the commissioners, in their turn, may remove them of 
 their own motion, in case the occupier should neglect to do so. 
 The Stat. 3 & 4 Will. 4, c. 22, ss. 22 and 23, provides for this. 
 Thus by the 22nd section, it shall and may be lawful for the 
 occupier for the time being of land lying next and adjoining to 
 any river, sewer, or watercourse within and subject to the 
 jurisdiction of commissioners of sewers, at any time within six 
 calendar months from and after any gravel, soil, mud, or earth 
 shall have been cast or deposited upon the banks of such river, 
 sewer, or watercourse, by the order of any surveyor, bailiff^, 
 expenditor, or other ofiicer of sewers, and at any time within six 
 weeks from and after any rushes, flags, or other weeds shall 
 have been cast or deposited upon such banks as aforesaid, to 
 take and remove for his own use such gravel, soil, mud and 
 earth, and such rushes, flags and weeds respectively : Provided 
 always, that such gravel, soil, mud and earth, and such rushes, 
 flags and weeds respectively, shall be removed at least ten feet 
 from the land side of the banks of such river, sewer or water- 
 
 {x) Callis, 223. That tbe level may sometimes be liable in case of the 
 owner's default. See post. 
 (!/) 8 Hen. 7, 5. 
 («) Inhabitants of Oldbery v. Stafford, 1 Sid. 145. 
 
 G 2 
 
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84 Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 And by sect. 23, if any such occupier shall neglect to remove 
 such gravel, soil, mud or earth as aforesaid within such six 
 calendar months as aforesaid, or such rushes, flags or other weeds 
 as aforesaid within such six weeks as aforesaid, for his own use, 
 then and from thenceforth respectively it shall be lawful for 
 any such surveyor, bailiff', expenditor or other officer of sewers, 
 with workmen, horses, carts, carriages, barrows and other ne- 
 cessary tools and implements, at any time or times in the day- 
 time to enter upon the land of such occupier, and to take away 
 and remove therefrom such gravel, soil, mud and earth, and 
 such rushes, flags and weeds respectively, and also for such 
 purposes to pass and repass, at any time or times in the daytime, 
 through and over any other lands lying between the nearest 
 highway and the banks of such river, sewer or watercourse : 
 Provided always, that if the owner or occupier of the land upon 
 which any such gravel, soil, mud, earth, rushes, flags or weeds 
 shall have been deposited shall require the commissioners of 
 sewers to remove the same, such commissioners shall, within 
 six weeks after such requisition as aforesaid, cause the same to 
 be removed from and off the said land. 
 
 Indeed, the general liability of draining sewers rests upon the 
 occupier, though not the repair of defences. So that where 
 the words "owner and proprietor" only were used in a decla- 
 ration complaining of the bad repair of certain sewers, without 
 " occupier," the count was held bad on general demurrer, for 
 the duty of cleansing does not belong to the owner, merely as 
 such (a). Neither, again, are trustees under an act of Parlia- 
 ment for improving navigation liable, without express words. 
 As in the case of the trustees for the improvement of the river 
 Parrett. These trustees were empowered to take tolls, but the 
 Court held, that they were not liable to clear any weeds, nor 
 to undertake the sewerage of the river, for there was no express 
 enactment to that effect, and the weeds, though injurious to 
 neighbouring lands, were no detriment to the navigation (b). 
 
 (o) Russell V. Shenton, 3 Q. B. 449. 
 
 (b) Parrett Navigation Co. v. Robins, 10 Mees. & W. 593 ; 3 Railw. Cas. 
 383; 1 Gale & D. 223. See also upon the subject of cleansing, Bell v. 
 Twentyman, 1 Q. B. 766. 
 
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CHAP. II.] Duties and Powers of Commissioners — Repairs. 85 
 
 There must, as we have already noticed, he some benefit 
 accruing from improvements done hy commissioners of sewers. 
 
 Thus where, in trespass, the defendant justified under com- 
 missioners of sewers, it was shown, that all grounds within the 
 level were chargeable ; but as it also appeared that the plain- 
 tiff, in this case, had neither benefit nor prejudice, the distress 
 in question was held ill taken, and the verdict was for the 
 plaintiff (c). 
 
 So also a decree to charge an adjacent town, which failed to 
 state that the town had received any damage, (and from whence 
 it would follow, that the repair could not benefit the inhabitants,) 
 was quashed for that reason {d). 
 
 So in the case of the Isle of Ely, it was held by the Court, 
 that none could be taxed towards the reparation, except those 
 who had prejudice, damage or disadvantage, by the nuisances 
 or defaults, and who might have been benefited by the reforma- 
 tion or removing of them (e). 
 
 And the same doctrine was sustained in another case. The 
 plaintiff brought trespass for taking his goods. The defendant 
 justified under the commissioners of sewers of the Holborn 
 division. The plaintiff had a verdict, subject to a case. It 
 appeared that he lived at Hampstead, within the Holborn 
 division, that his basement story stood three hundred and seven 
 feet above the level of the crown of the arch of the great 
 northern sewer at Battle Bridge, so that the stopping of that 
 sewer could not possibly throw back the water to the injury of 
 his premises. The drains from his house ran into other drains 
 in the parish of Hampstead, communicating with and falling into 
 the river Fleet, and all falling together into the great northern 
 sewer at Battle Bridge, and being thence ultimately conveyed 
 into the Thames at Blackfriars Bridge. The ancient water- 
 course of the Fleet had been covered by the commissioners of 
 sewers as far upwards as Battle Bridge, but the plaintiff had 
 
 (c) Anselm v. Barnard, 2 Keb. 675. 
 {d) Rex V. Wright, 2 Keb. 42. 
 (e) 10 Rep. 142. 
 
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86 Duties and Powers of Commissioners — Repairs, [chap, ii. 
 
 never received any additional benefit from the covering of this 
 ■watercourse. Further, the premises of the plaintiff had never 
 been rated in that or in any other division, and his vi^aste water 
 was carried off quite independently of the works of sewers. 
 The counsel for the defendant endeavoured to argue, that it 
 must be taken that the plaintiff received an advantage from the 
 communication with, and also from the cleansing and keeping 
 open of the sewer, which the commissioners had done at their 
 own expense. But the Court recognized the principle of benefit 
 or no benefit, and gave judgment for the plaintiff (/). 
 
 So in a subsequent case, where it appeared that the plaintiff 
 derived no benefit from the sewer, in respect of the sewer rate 
 for which she was assessed, it was objected, that as the plain- 
 tiff's house was situated within the district to which the juris- 
 diction of the commissioners of sewers extended, a presentment 
 and decree made were conclusive against her. But the Court 
 held differently, observing, that in Masters v. Scroggs, the party 
 lived within the levying of the assessment, and yet was allowed 
 to recover, because no benefit had accrued to him from the 
 sewer rate then in question. Evidence, therefore, in this case, 
 being deemed admissible, to the effect that the plaintiff bad 
 received no benefit from the sewer, a rule for a new trial was 
 made absolute {g). 
 
 Yet, as soon as it appears that a benefit has been derived 
 from the sewerage, the Court will not enter into the question of 
 the quantum of benefit. They will leave that to the discretion 
 of the Court of Sewers (h). 
 
 Mr. Sergeant Callis had previously advocated the same doc- 
 trine ; for he says, in more than one place, where he mentions 
 
 (/) Masters v. Scroggs, 3 M. & S. 447. 
 
 (g) Stafford v. Hamston, 2 Bred. & Bing. 691 ; 5 Moore, 608. The 
 defendant had a verdict at the second trial, it clearly appearing that the 
 plaintiff had a benefit. 
 
 (h) St. Katharine's Dock Company v. Higgs, 14 L. J., Q. B. 348; 
 affirmed in error, 10 Q. B. 641 ; 16 L. J., Q. B. 377; ante, 76, and post. 
 See also St. Botolph's Overseers, apps., Whitechapel Board of Works, 
 resps,, 29 L. J., M. C. 228. See. likewise, Dorling ». Epsom Local Board, 
 24 L. J., M. C. 752; 5 El. & Bl. 471; Metropolis Board of Works v. 
 Vauxhall Bridge Company, 26 L. J., Q. B. 253, post; R. v. Head, 3 Best 
 & Sm. 419 ; 9 Jur., N. S. 871 ; 32 L. J., M. C. 115, and post. 
 
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CHAP. II.] Duties and Powers of Commissioners — Mepairs. 87 
 
 the authority of commissioners to tax the level, that a benefit 
 must be the result of the assessment (i). 
 
 And again, " All such which reap profit, or sustain damage, 
 shall be assessed" {k). The learned sergeant also points out 
 some lands which he considers to be exempt from the burden of 
 repair, upon the principle of a want of benefif. Such as grounds 
 lying between the sea banks and the seas, and grounds upon an 
 ascent, and not upon the level (l). 
 
 Although the benefit be not immediate, yet if there be a 
 general benefit, ii. is sufficient. As if property should be bene- 
 fited by reason of neighbouring ways being properly cleansed 
 and drained, especially where the sewers which drain it have 
 always been repaired by persons, although independently of the 
 commissioners (m). 
 
 Again, all who have ease and passage by rivers ought to 
 cleanse and scour them ; and such as have lands adjoining to 
 rivers, are not liable to cleanse, unless they have some benefit, 
 as a toll, fishing, &c. (»). 
 
 Next, it may be observed, that if the grounds of any one Frontage. 
 adjoin the sea, a ct/mmon law liability, which the statutes have 
 confirmed, arises to compel that person to defend his land at 
 his own charge. And this is cplled the custom of frontagers, 
 which, like the badge of ownership above mentioned, can only 
 be put off by showing in particular that some other persons are 
 bound by prescription, or otherwise (o). 
 
 Very analogous to these is the use of a sea-wall or bank, or Use. 
 of rivers. This use, or " usus rei," compels the party having 
 the enjoyment to the repair or cleansing, independently of any 
 other consideration ; but he may show that another is liable. 
 A commission was issued, in very old times, to inquire concern- 
 
 (0 Callis, 145, 147. 
 
 Ik) Id. 222. 
 
 (0 Ibid. 
 
 (m) Soady v. Wilson, 3 Ad. & El. 248 ; 4 Nev. & M. 777. 
 
 (m) See Callis, 223, in the note ; and Syson v. Johnson, 8 B. & C. 796. 
 
 (o) See Callis, 115, 121. 
 
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88 Duties and Powers of Commissioners — Repairs, [chap. it. 
 
 ing the stoppage of a river. It was found, that the river had 
 been stopped, in consequence of non-user, since the last plague, 
 and that it had not been cleansed within time of memory; but 
 it was also found, that the abbot of D. was lord of the manor 
 on one side of the river, and the Earl of H. on the other; that 
 they had a fishery there, and that four vills had an easement to 
 pass along the river. This presentment being returned into the 
 King's Bench, the abbot and earl were distrained to show cause 
 ■why they should not repair this sti'eam ; and they said, that 
 those who had the use of the river, namely, the vills in question, 
 ought to do the cleansing required. And by Green, C J.: As 
 you do not deny that you have a fishery there, if it should be 
 found that these vills have not their passage along the stream, 
 you two will be charged with the entire cleansing (p). 
 
 And so it is where one has been accustomed to use a river by 
 sailing up and down, by having a ferry, or a staith to go up and 
 down, or a crane, or other engine, to draw up the waters {c[). 
 
 However, these three liabilities may be answered, by showing 
 some other charge arising by tenure, prescription, &c. 
 
 Tenure. And, therefore, if a man be found to hold the land in question 
 
 by tenure, he must do all that is incident to that tenure, and, 
 consequently (as is most usually the case), he may be bound to 
 do the repairs to such defences as may be upon his land. And 
 thus in a case where James Fitz-James brought trespass against 
 the master of St. Mark in Bristol, alleging that the master 
 ought to have repaired a ditch by reason of his tenure: it ap- 
 pearing that the master and his predecessor had held the land 
 there from time immemorial, he was held liable to the obli- 
 gation (r). 
 
 And it is said, that if a man be bound by tenure to the 
 repair of a wall, sewer, &c., he shall be charged alone («). 
 
 (p) 37 Ass. pi. 10. And if it were found the other way, both parties 
 would be jointly liable. Callis, 121, citing 38 Ass. pi. 15. 
 
 (y) Callis, 120. 
 
 (r) 12 Hen. 4, 7; and see Callis, 117; 17 Vin. Ab. 286, pi. 8; 21 
 E. 4, 73. 
 
 (i) 7 Com. Dig. 345, citing 10 Rep. 139, 140. 
 
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CHAP. II.] Duties and Powers of Commissioners — Repairs. 89 
 
 So, again, prescription or custom will clothe a person with Prescrip- 
 this liability. But the principle must be received with a proviso, custom, 
 that the land is bound, and not merely the individual. Thus, 
 where trespass was brought against a man, for that he and all 
 those whose estate he had in certain land, were bound to 
 sustain and repair certain banks of the sea ; and that through 
 the default of the defendant, by not repairing, the sea had sur- 
 rounded the plaintiff's land, it was prayed that the plaintiff 
 should take nothing by his writ, because the defendant had 
 nothing in the land alleged to be bound to this repair ; and 
 subsequently the Court agreed to that, and the writ was dis- 
 missed (i). 
 
 In another case, it was laid down, that one might be bound 
 to repair a bank or wall, by reason of residence (m) ; but this, 
 says Mr. Sergeant Callis, must apply to the house in which the 
 party dwelt (x) ; and then the land would be bound to the 
 obligation. 
 
 And so, again, descending charges will not bind the heir, 
 unless the latter have assets as a consideration for the charges ; 
 nor will descending assets, on the other hand, bind the heir, if 
 the land itself be not bound («/). 
 
 The obligation by tenure differs so far from that by prescrip- 
 tion, as that one may be under a liability in respect of the 
 former, without evidence of an immemorial charge, although 
 repair from time out of mind is evidence of an obligation by 
 tenure, whereas a prescriptive burthen must be evidenced by 
 an immemorial usage to repair. 
 
 A body of persons, as a corporation, a township, &c., may 
 also be charged by virtue of a custom ; and that, of course, 
 implies a liability from time immemorial. All these peculiar 
 obligations by tenure, custom, prescription or otherwise, may be 
 commuted for money by commissioners with the consent of the 
 
 («) 7 Hen. 4, 31. 
 
 (u) Keilw. 52. 
 
 (x) Callis, 116. 
 
 ly) Id. 117. See also Austye v. Fawkener, Cro. El. 41<6. 
 
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80 Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 inclosure commissioners (2). By sect. 35, the commutation 
 may be in gross, or by way of annual charge, and the re- 
 covery of the sum may be as a tithe rent-charge is now re- 
 coverable, and it shall have priority over all present or future 
 incumbrances on the land charged. The record of the charge 
 is to remain with the clerk of the peace for the county in which 
 the district, or the greater part, is situate, and it is declared to 
 be evidence, or any certified copy of it (a). The 37th section 
 saves all existing liabilities, subject to the provisions of the last- 
 mentioned section. 
 
 The Stat. 11 & 12 Vict. c. 63 (the Public Health Act), pre- 
 serves all previous obligations, whether by tenure or otherwise. 
 The 118th section enacts, that the liability of persons to defray 
 or contribute towards the expense of making, &c. any sewer, or 
 any work or works, for protecting the land against the force or 
 encroachment of the sea, or of paving or flagging, &c. any 
 street, or part thereof, within the district, shall, if incurred pre- 
 viously to the application of the act, continue. And the rates 
 made under the act shall only be applied to those purposes to 
 which such liability does not extend. 
 
 Covenant. A man may clearly agree by deed to bind himself to do 
 
 certain repairs of this sort ; but it is observable, with reference 
 to that which has already been said, that the covenant so 
 entered into will not affect heirs, although they be expressly 
 bound,* unless assets, conveying a consideration, descend to the 
 heirs. And a sewers rate is not a parliamentary tax, not being 
 imposed directly by Parliament ; so that a lessee is not bound 
 to pay it under the general covenant to pay taxes (6). But 
 where marsh lands were demised to the defendant, subject to a 
 condition that he should pay all outgoings whatsoever, rates, &c., 
 land tax only excepted, he was held liable to the sewers rate. 
 There had been an extraordinary assessment by the commis- 
 sioners of sewers for work which conferred a permanent benefit 
 
 {%) 21. & 25 Vict. u. 133, s. 34. 
 
 (a) Sect. 36. 
 
 » By the word "heirs." Callis, 119. 
 
 (b) Palmer u. Earith, 14 Mees. & W. 428. 
 
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CHAF. II.] Duties and Powers of Commissioners — Repairs. 91 
 
 on the land (c). Mr. Sergeant Callis makes the following dis- 
 tinctions with respect to tenure, prescription and covenant. If 
 land be charged by tenure, it is immaterial in whose hands it 
 may fall; for whether the possessor be heir or stranger, he must 
 repair. But the descent of land which has been repaired (it 
 may have been voluntarily) by prescription, does not neces- 
 sarily bind the heir, for there must be a consideration. A third, 
 and as it were a middle point, however, remains ; and it is, 
 where assets descend to an heir whose ancestor has bound him 
 by covenant ; here the descent of assets concludes the heir, and 
 makes him subject to the charge {d). 
 
 And there is, moreover, a difference between a covenant 
 entered into by a stranger for this purpose, and the occupier of 
 the lands, as far as the jurisdiction of the commissioners is 
 concerned, since they may enforce the latter's covenant, though 
 not that of the former : as where a lessee had covenanted to pay 
 all assessments made towards the repairs of his premises, which 
 were liable to invasions of the sea. A straight wall, built there 
 as a defence, was thrown down by a tempest, and a new one, 
 in the form of a horse-shoe, was constructed ; for the making 
 of which the level was taxed, and amongst others this lessee, 
 the lessor not being charged at all. He was also charged with 
 interest. The lessee then died, and his executor entered, whom 
 the commissioners charged with the sum in question. No less 
 than five points were made in this case ; first, whether the 
 collateral covenant were within the jurisdiction of these com- 
 missioners, the case having been carried into the King's Bench 
 by the executor. And the Court held, that the covenant on 
 the part of the lessee was within the jurisdiction of the commis- 
 sioners ; for he not only had a benefit by it, but he also had 
 agreed to pay all taxes concerning the premises. But Bramp- 
 ston, C. J., allowed, that had the covenant proceeded from a 
 stranger instead of the occupier, it could not have been enforced 
 by the officer of sewers (e). 
 
 (c) Walleri). Andrews, 3 Mees. & W. 312 ; Bennett «. Womack, 7 B. & C. 
 627. See R. v. Justices of Kent, 29 L. J., M. C. 191. 
 {d) Callis, 117, 118. 
 (e) Commins v. Massam, Mar. 108. 
 
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"-- Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 Next, it was said, that here was a new wall, and that the 
 lessee had never agreed to repair any of the old defences. But 
 Brampston, C. J., said, that every man's covenant should be 
 construed most strongly against himself; and that if the cove- 
 nant might not extend to the new wall, it were vain and idle ; 
 and, besides, the tax was for the reparation of the premises, of 
 which the new wall subsequently formed a part(y). 
 
 Whether the covenant extended to the executor, was the 
 next question, who, moreover, now alleged a want of assets ; 
 but the Court said, that he should have made that objection 
 before the commissioners; and that they by not denying the 
 possession of assets then, his advantage had been lost, and he 
 must be intended to have them {g). 
 
 In this case also, the lessee had been entrusted to collect 
 the money from the level; and having held it some time, the 
 commissioners charged him with interest ; and the Court con- 
 sidered that they had done right, for it was . reasonable that 
 he should be thus charged ; and the commissioners having 
 cognizance of the principal, had also cognizance of the 
 accessary (h). The plaintiff was the mortgagee of a lessee 
 under a building lease. He took possession upon a breach of 
 covenant by the lessee. There were covenants to make a road- 
 way, and to make good and sufficient drains to carry off the 
 foul water. These covenants were disregarded, and the plain- 
 tiff suffered judgment by default in ejectment, but filed a bill to 
 be reinstated. However, it being shown that the drains were 
 inefficient, the Court refused the relief prayed {i). 
 
 By the terms Again, there may be an obligation of this kind arising from 
 of a grant. ^^^ terms of a grant. As in the case of a grant from the Crown, 
 where the previous responsibility to repair is said to shift from 
 the Crown to the grantees or patentees. An action on the case 
 was brought for a neglect to repair sea-walls. King Charles I., 
 it appeared, had conveyed the borough of Lyme to the mayor 
 and corporation of that place ; and in the letters patent a 
 
 (/) Comrains v. Massam, Mar. 108. 
 
 (g) Ibid. 
 
 (A) Ibid. 
 
 (j) Nokes V. Gibbon, 26 L. J., Ch. 433. 
 
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CHAP. II,] Duties and Powers of Commissioners — Repairs. 93 
 
 condition was inserted, that the corporation should repair all the 
 sea-walls there. It was moved to arrest the judgment on a 
 verdict which had been taken for the plaintiff, on two grounds ; 
 first, that no other than the Crown could take advantage of a 
 breach of the above condition. Secondly, that although an 
 individual might sue a public officer for neglect of duty where 
 no grant existed, yet that where a person could never have 
 obtained a given benefit, except as resulting incidentally from 
 a contract between the Crown and its grantee, the loss of that 
 benefit was not a wrong for which he could claim any redress by 
 action. But the Court repelled these objections. The charter 
 was given expressly for the protection of the land, and the 
 walls, which were to be kept up for that purpose, had been 
 suff'ered to go injuriously to decay, so that the houses on the 
 land became damaged. And the mayor and the corporation, 
 moreover, took this property liable to the repairs which wei'e 
 incident to it. The king was liable to the repair of these walls 
 before his grant, and thus the repairing of them shifted from 
 the Crown to the corporation, upon their acceptance of the 
 charter. The corporation too were responsible whether they 
 had particular funds or not for that purpose, and the learned 
 Judge who tried the case was considered to be justified in 
 having rejected evidence to show a want of funds. Here the 
 defendants had obviously neglected a duty which they owed 
 to the public, and amongst others to the plaintiff; and their 
 omission being wilful, and not the result of any unforeseen or 
 extraordinary accident, was properly followed by an action at 
 the suit of the injured party. The rule, therefore, for arresting 
 the judgment was discharged. A verdict had been entered for 
 the defendants, on the counts charging them with the repair 
 return tenurce (Jt). 
 
 Lastly, persons may be made liable by the laws and ordi- laws ot 
 nances of sewers, provided the commissioners do not interfere 
 with the general law of the land, nor extinguish individual 
 liabilities; but we shall have an opportunity of enlarging upon 
 this when we come to speak of assessments generally upon the 
 level. 
 
 (Jc) Henley ». The Mayor and Burgesses of Lyme, 5 Bing. 91. Judg- 
 ment in this case affirmed, 3 B. & Adol. 77. And again in the House of 
 Lords, 1 Bing. N. C. 222. 
 
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y4 Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 And thus the obligations of particular individuals have been 
 laid before the reader, as far as their liabilities in respect of their 
 lands are concerned. 
 
 Repair. 
 Corpora- 
 tions. 
 
 Some observations regarding corporate and aggregate bodies 
 remain for our consideration. And, first, corporations may be 
 bound to do these repairs by custom (l). So also a body of 
 persons may be holden to an agreement for the same purpose. 
 Thus, articles of agreement had been made between the king 
 and Sir C V., &c., for the draining of Hatfield Level, in Lin- 
 colnshire, Yorkshire, &c. The king v^as to have one part of 
 the lands drained, the drainers another, and the tenant and 
 commoners the third ; and in consideration thereof, the drainers 
 agreed that their third part should make and maintain enclo- 
 sures. The plaintiff, vi^ho was no party to the articles, was 
 subsequently assessed by the commissioners of sewers for lands 
 in Yorkshire, upon which he filed a bill in the Exchequer, 
 praying relief, and that all those who had lands chargeable 
 might be called upon to contribute. And although it was 
 objected, that the plaintiff was no party to the oi'iginal agree- 
 ment, yet the Court decreed as prayed, for the plaintiff had 
 been aggrieved through the default of the drainers, who had 
 entered into the obligation to keep up the banks, and so came 
 within the equity of the statute 23 Hen. 8 (m). 
 
 Townships. 
 Parish, &c. 
 
 So again, although not usual, it seemed to be the better 
 opinion, that a township might be made the subject of a sepa- 
 rate assessment by special custom, but not otherwise, though 
 Mr. Sergeant Callis entertains a different opinion («). The 
 earliest case upon this subject seems to be that above quoted 
 from the book of Assises, where the four townships were 
 deemed to be chargeable towards the repairs and cleansing of a 
 river, by reason of their having had the enjoyment of it (o). 
 
 Again, in the 12th year of King James I., the town of M. 
 was assessed 51., and that of T. as much, and upon distress, and 
 
 (Z) Callis, 116. 
 
 {m) Earl of Devonshire i). Gibbons and others, Hardr. 169. 
 [n) Callis, 122, 129, where the arguments of the learned writer are 
 given. 
 
 (o) 37 Ass. pi. 10. 
 
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CHAP. II.] Duties and Powers of Commissioners — Bepairs. 95 
 
 a justification in replevin, there was a verdict for the defendant ; 
 and it is said, that no great scruple was then made of the 
 assessment being laid generally upon the whole town(^;). 
 " Which case," says the learned writer on Sewers, " I specially 
 noted, because it was tried and passed for current before the 
 said Sir Edward Coke, who had the year before reported the 
 law in his Tenth Report to the contrary" (^). This report of 
 Lord Coke was of the case of the Isle of Ely, where one ques- 
 tion was, whether the commissioners of sewers were warranted 
 in assessing certain townships. And it was resolved, that the 
 tax generally of a several sum in gross upon a town could not 
 be supported, and that it ought to have been upon every owner 
 or possessor of lands, tenements, rent, &c. (r). 
 
 So, some years afterwards, it was mentioned before the council 
 at Whitehall, as the opinion of Popham, C. J., amongst other 
 things, that commissioners of sewers could not lay a tax or rate 
 upon any hundreds, towns, or the inhabitants thereof in general, 
 but that they must charge every man according to the quantity 
 of his land or common [s). And although the Court did not 
 approve of that regulation, it has, -nevertheless, been since 
 recognised as good law {t). The same position was laid down 
 afterwards by Roll, C. J., who observed, that the tax ought to 
 be particular, and that it should not be laid upon the townships, 
 unless there was a custom for it (u). 
 
 Such a custom, however, said the Lord Chief Justice, may be 
 reasonable ; and in fact such a custom was alleged in the case 
 then before him. It was said, that the commissioners were not 
 bound to lay the tax upon lands equally throughout the vill, 
 because the custom might be to the contrary, and might yet 
 have a reasonable construction ; that is to say, the custom 
 of marsh land, for the speedy repair of breaches, to prevent 
 public danger. The Court adjourned the case, and the same 
 
 (p) Sir Philip Conisby's case, cor. Coke, C. J., Callis, 128. 
 iq) Ibid. 
 
 (r) Tiie Case of the Isle of Ely, 10 Rep. 141 ; S. P., Cro. Jac. 336 ; 
 2 Bulst. 198. 
 
 (s) Mo. 825, Nov. 8, 1616. 
 (0 7 Ad. & El. 277. 
 (u) Sty. 179. 
 
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96 Duties and Powers of Commissioners— Repairs, [chap. ii. 
 
 observations were renewed on a subsequent day. On the other 
 side, it was argued that the tax ought to have been laid distri- 
 butively ; but Roll, C. J., said, that the prescription was waived, 
 because it appeared that there had not been an inevitable breach, 
 and then the matter must be decided at common law, indepen- 
 dently of the custom ; in which case the tax must be equal. 
 By Roll, C. J. : The tax ought to be laid upon the number of 
 acres, and here it is laid upon the persons of the inhabitants. 
 Therefore, let there be a new tax (as). In this case, therefore, 
 a special custom was laid, and, as a custom, was approved of by 
 the Court, but it failed in the proof. " By that " [the number 
 of acres], says the editor of Callis on Sewers, ed. 1685, " I con- 
 ceive he means, that, in the taxation of every man, " the acres 
 ought to be set down in respect of which he is taxed" (y). 
 Nevertheless, the value of every acre need not be inquired 
 into {z). From whence it may be gathered, that such a tax 
 cannot be levied on a township, unless by special custom ; and, 
 possibly, in the case cited from 37 Ass., there might have been 
 such a custom, although Mr. Sergeant Callis says, that " it doth 
 not appear that the townships there rated were so taxed by any 
 custom, but merely by the law of the land" (a). 
 
 Again, in a case, where a sewers rate was assessed in gross 
 upon a township at large, it was held bad, though laid only for 
 defraying the expenses of the commission, and although there 
 had been previous assessments in like manner, which had been 
 submitted to (&). 
 
 But now, by stat. 4 & 5 Vict. c. 45, a tax for contingent 
 expenses may be made upon a place in gross, and may be called 
 '' The General Sewers Tax." The first section recites the 
 statutes of sewers,* and enacts, That any court of sewers may, 
 for the purpose of making recompenses to clerks and others 
 employed by the Court, and to witnesses, and for the expenses 
 
 (x) Custodes, &c. v. The Inhabitants of Outwell, Tyd. Newton, &c., Sty. 
 178, 185. 
 (y) Callis, 128, n. (o). And see 9 Mod. 95, by Parker, Lord Chancellor. 
 
 (a) Commissioners of Sewers v. Newburg, 3 Keb. 827. 
 
 (u) Callis, 128. See Rex i>. Whittaker and others, 9 B. 8s C. 618. 
 
 (b) Emmerson w. Saltmarsh and others, 7 Ad. & El. 266, 275 ; 2 Nev. 
 & P. 446 ; 1 Jur. 476. Secus, as to an amerciament, post. 
 
 * 23 Hen. 8, u. 5 ; 13 Eiiz. „.9; 3 & 4 Will. 4, c. 22. 
 
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CHAP. II.] Duties and Powers of Commissioners — Repairs. 97 
 
 of surveying, measuring, planning, and valuing any lands, or the 
 making, collecting, and expending certain taxes, rates, and 
 scots to be raised under the recited acts, or hearing of objec- 
 tions to such taxes, &c., or carrying out any litigation or con- 
 troversy connected with the duties of sewers, and for the pay- 
 ment of all other necessary charges of sewers, and the contingent 
 expenses of working the commissions (c), but for no other 
 purposes ; tax in the gross in each parish, township, or place, 
 such lands, &c., as have been or shall be within the jurisdiction 
 of the Court, yet so that such lands, &c., shall contribute 
 thereto in proportion to the benefit and advantage received or 
 capable to be received from the said Court, as compared with 
 the lands, &c., of the other parishes, &c., within such jurisdic- 
 tion, which said tax shall be denominated " The General 
 Sewers Tax," and shall be recoverable by distress and sale in 
 like manner as any fine or amerciament imposed on a parish or 
 township by a Court of Sewers is now by law recoverable ; but 
 no distress for such general sewers tax shall be replevied by any 
 sheriff", &c., or Court of Law or Equity whatsoever. Under 
 this act the bona fide expenses of resisting an act of Parliament, 
 which had the appearance of threatening an injury to a par- 
 ticular level, were held to be the subjects of a rate by the commis- 
 sioners. So that where they had instructed their clerk to make 
 an opposition, his representatives were held to be entitled to a 
 mandamus for a rate under the statute to defray the costs and 
 expenses due to the deceased (d). 
 
 Then, by sect. 2, any Court of Sewers may authorize 
 and direct any surveyor or other person to apportion such 
 general tax among the occupiers of such lands, &c., in each 
 such parish, &c., in just proportions. And, when so appor- 
 tioned, such tax shall be collected by some person appointed 
 by the Court for that purpose, and shall be by such person paid 
 over to the treasurer of or other person appointed by the com- 
 missioners of sewers at such time as the Court of Sewers shall 
 direct. Provided that every occupier upon whom such general 
 sewers rate shall be apportioned shall have notice in writing of 
 
 (c) See 3 &4 Will. 4, i;. 22, s, 16. 
 
 Id) R. V. Commissioners of Sewers for Norfolk, 20 L. J., Q. B. 121 ; 15 
 L. J., Q. B. 549. 
 
 W. H 
 
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"" -Duties and Powers of Commissioners— Repairs, [chap. ii. 
 
 such apportionment ten days at the least before the next Court 
 of Sewers for the limit in which the lands, &c., lie. 
 
 By sect. 3, if no complaint be made against the tax at the 
 Court of Sewers, held next after the expiration often days after 
 such notice of apportionment made as aforesaid, such rate shall 
 be final. Still, in case of any complaint of inequality or non- 
 liability to pay the rate or apportionment, the commissioners 
 shall, at such Court, or some adjournment thereof, or at some 
 subsequent Court, proceed to investigate the same, by the exa- 
 mination of such witnesses as the parties interested therein shall 
 produce, or by the examination of such other witnesses as to 
 the said Court shall seem right ; and the decision of such Court 
 shall be final. And such apportioned rate shall be recoverable 
 by distress and sale of the effects of the persons rated by war- 
 rant under the hands and seals of six commissioners, and the 
 distress shall be irrepleviable. Nevertheless, the Court of 
 Sewers may direct any feigned issue, appeal or action at law to 
 try any dispute as to the inequality or non-liability of any per- 
 son to pay the tax or the apportionment, the person objecting 
 having first given security to the said Court for the payment 
 of all costs and charges attendant thereon (e). 
 
 Repairs. It might Seem to follow, as a corollary from the above posi- 
 
 by Hilkvef. tion respecting the liabihties of particular persons and bodies, 
 that the level, or the public at large, would be always liable, as 
 a matter of course, when the individual or particular body were 
 exempt in their single capacity; and again, that when the 
 particular liability occurred, the level could not be called upon 
 to contribute, or to repair. This conclusion, however, cannot 
 be drawn ; the first proposition is true, but the latter is by no 
 means necessarily so ; and we must therefore proceed to explain 
 how it is that the public may occasionally be called upon, 
 although an obligation be immemorially, or otherwise, upon 
 other parties. 
 
 True it is that the level becomes chargeable, where no one 
 appears liable to the burthen, by tenure, prescription, custom 
 
 (e) See ^os/, Chap. III. 
 
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CHAP. II.] Duties and Powers of Commissioners — Repairs. 99 
 
 or covenant (y) ; but many cii'cumstances may happen which will 
 alter the condition of the public, even though one be liable by 
 such tenure, &c. As, if through the neglect of the particular 
 individuals, the lands which these last were bound to sustain 
 become surrounded by the sea, so that the public welfare be 
 endangered ; or if such lands be overflown and lost, through 
 the violence of the waves (g). So it is if the tenure itself be 
 extinguished, as by escheat (A). So again, supposing the 
 country to be in obvious and imminent hazard, although no 
 actual mischief have occurred, the commissioners are not to 
 wait for the tardy or inefficient exertions of the party bound 
 by tenure, &c., but are under an obligation to act immediately, 
 in order that the neighbourhood may not be surrounded by the 
 water («). And here the owner, or person bound, may or may 
 not be in fault, according to the circumstances of each case; 
 for if the threatened mischief be great, and that in all likelihood 
 he may not be able to repair the damage sufficiently, the level 
 is to supply the emergency, and the owner will not be answer- 
 able for more than his share;* for which, indeed, he would be, 
 in case he were in default, although it might not be wortli 
 while, in general, for the commissioners to proceed against such 
 a person. 
 
 Keighley's case (k) is a well-known authority to show, that 
 in case of a sudden and unusual increase of water, the level will 
 be liable, provided there be no default in the party ; " 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 inevitable and indefensible" (I). There- 
 fore, if there be a great tempest, or other violent convulsion, 
 and the party liable have not been guilty of any default, the 
 level will be liable ; and even in case of default, as we have said, 
 the commissioners are not to delay supinely, until the damage 
 
 (/) Callis, 145 ; 7 Com. Dig. 346. 
 
 (g) Ibid. 
 
 {h) Ibid. 
 
 (j) Ibid. 
 
 * As, if one held by tenure, at the yearly payment of ten shillings; 
 should this sum be insufficient to do the repair, the remainder must be 
 charged upon the level. (Callis, 148.) 
 
 (k) 5 Rep. 139. And see post, in this Chapter. 
 
 (;) Callis, 116. 
 
 h2 
 
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100 Duties and Isomers of Commissioners — Repairs, [chap. ii. 
 
 be inflicted, but they must enforce or perform the repairs, and 
 charge the party or the public with the expenses, on the prin- 
 ciple above stated, namely, that where the individual has been 
 to blame he must pay, and where not, the public must contri- 
 bute ; or they may tax the level, in case of the party's default ; 
 and every one of the level may have an action against the 
 defaulter (m). This observation may serve to reconcile any 
 seeming contradiction in the case which we are now about to 
 cite. In the case of Keighley above referred to, the Court of 
 Common Pleas resolved, that if one be bound by prescription 
 to keep a wall in good repair, and then, through some unaccus- 
 tomed deluge of water, the defence be broken, the tax should be 
 upon the level. They said, that the statute of Hen. 8 would 
 bear this construction, namely, that a person under a prescrip- 
 tive obligation, or otherwise, ought certainly to repair; but 
 that in case of his inability, or of inevitable necessity, it ought 
 to be repaired by others, to prevent mischief (w). If the party 
 bound be in default, he only ought to be charged ; but if the 
 danger become imminent, the level may be charged, and the 
 defaulter becomes liable to the public. And a case from the 
 Year Books was mentioned (o), where an action was brought 
 against the defendant, because he had not repaired a certain 
 wall, in contravention of an immemorial obligation to do so ; 
 whereupon the water entered, and drowned the plaintiff's land. 
 The defendant traversed this prescription, and the jury found 
 for the plaintiff, and that there was a defect in the wall ; upon 
 which the plaintiff recovered his damages ; and there went 
 a writ from the sheriff to distrain the defendant to repair the 
 wall (p). 
 
 And, moreover, in the above-mentioned case the relations of 
 lessor and lessee were touched upon ; and we may remember, 
 that in a decision lately cited at some length, where the executor 
 was held liable, the Court held, that commissioners of sewers 
 could enforce a covenant by a lessee to repair generally. There- 
 fore, although in cases where the lessee enters into an express 
 
 (m) 10 Rep. 139 (i). 
 
 (m) S. P., by Walmesley, J., 5 Rep. 100. 
 
 (o) 18 Edw. 3, u. 23. 
 
 (p) Keighley's case, 10 Rep. 139. And see Sty. 179. 
 
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CHAP. II.] Duties and Powers of Commissioners— Repairs^ 101 
 
 covenant to repair, he is not liable to the penalty without any 
 default of his own upon extraordinary emergencies, as where a 
 house is burnt by lightning, a fire, or overthrown by the winds, 
 or the rage of the sea, &c. ((f), yet where such a covenant exists, 
 the lessee remains under the obligation, notwithstanding these 
 sudden and remarkable events. And thus a difference is observ- 
 able between prescription and a deed ; in the former case, as we 
 have seen, a party, uncontaminated by default, may be relieved, 
 to some extent, from his responsibility, whereas in the latter, sup- 
 posing the existence of an express covenant to repair, he cannot 
 ■so shelter himself. The two authorities which we next cite esta- 
 blish the distinction between default and due caution in a very 
 convincing degree. A rule had been obtained, calling on the 
 commissioners of sewers for Somerset to show cause why a cer- 
 tiorari should not issue to remove their orders for the erecting a 
 new sea-wall in Huntspill. They had directed this new defence 
 to be made, and had ordered a rate throughout the level. It 
 appeared, that a sea-wall had stood from time immemorial on 
 the spot in question, that the level had never been rated to the 
 repairs of this old sea-wall, but that the owners and occupiers of 
 certain lands within the level had always done repairs, and had 
 rebuilt, as occasion required, and that a storm had, in the course 
 of the preceding winter, destroyed the old sea-wall. It further 
 appeared, that, about seven years since this overthrow took 
 place, the sea suddenly and unavoidably broke through a neck of 
 land on the western side of the river Parrett, that its inroads had 
 been gradually increasing, and that, upon the occasion alluded 
 to, a most violent storm arose, accompanied by an extraordinary 
 tide, by which the sea was driven through the new channel di- 
 rectly against the sea-wall, with much greater violence than if 
 the new channel had not been formed. It is material to add, 
 also, that the wall in question was in 7nore complete repair at 
 the time of this flood than formerly. The consequence of this 
 assault by the sea was the demolition of the wall. It was then 
 stated, that the damage done, as well as the formation of the 
 new channel, were inevitable ; that the persons who had been 
 
 (5) In this case the lessee was only relieved from the penalty ; he was 
 held bound to do repairs as soon as possible, because of his express cove- 
 nant; Dy. 33(a); 10 Rep. 139 (i); Mo. 62; Griffith's case, Mo. 68 ; Id. 
 73, per Dyer, C. J,, and Welch, J. ; Co. Litt. 53 ; and see 2 Inst. 305. 
 
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102 Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 accustomed to keep the wall in repair, could not have prevented 
 the accident, and, consequently, that no default or neglect 
 could be charged upon them. New works had been con- 
 structed to meet this difficulty, and the price for rebuilding the 
 defence was estimated at thirty times as much as would have 
 been necessary to have restored the old wall. Upon a due 
 statement and review of these facts, and of the authorities above 
 referred to, the counsel in support of the rule declared fairly, 
 that he could not resist the decisions ; and Lord Kenyon, con- 
 curring in this course, observed, that it had been frequently 
 said, that no certiorari ought to be granted to remove a prior 
 rate, lest the poor should starve in the mean time ; and that 
 there was almost as strong a reason against removing such an 
 order as the present, lest in the mean time the whole county be 
 inundated (r). Here there was no default, but the damage 
 arose from inevitable accident. 
 
 The facts in the next case substantiate the difference above 
 mentioned. A mandamus had been applied for and obtained, 
 commanding certain commissioners of sewers to reimburse one 
 A. H., a sum expended by him in the repair of a sea-wall 
 next adjoining his lands. It appeared, that A. H. was an 
 owner and occupier of land in the level, that all lands in 
 the level derived benefit from the sea-wall, but that the com- 
 missioners of sewers had always assessed the owners of lands 
 to the repair of so much of the sea-wall as abutted on their 
 respective lands. An extraordinary high spring tide, accom- 
 panied by a violent tempest, did such damage to A. H.'s wall, 
 as to raise apprehensions that the greater part of the level 
 would be flooded. The wall was sworn to have been at the 
 time of the accident in a usual and fair state of repair, as 
 good as for eight years preceding, and such as would have 
 resisted the ordinary flux and reflux of the waters. The marsh 
 bailiff ordered A. H. to repair the wall soon after the storm, 
 which he did at a great expense, and then memorialized the 
 
 ()•) The King v. The Commissioners of Sewers for the Western Division 
 of the County of Somerset, 8 T. R. 312. In Henley v. The Mayor of 
 Lyme, Best, C. J., cited a ease to the same effect, tried before him at 
 Gloucester, where the jury found, that certain mounds had been kept in 
 good repair, and that a particular loss which had happened was the result 
 of a high tide, which had never before been experienced in those parts. 
 (5 Bing. 113.) 
 
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CHAP. II.] Duties and Powers of Commissioners — Repairs. 103 
 
 commissioners for a reimbursement, which memorial, after con- 
 sideration, they dismissed. 
 
 Affidavits on the part of the commissioners were put in, 
 showing, that various orders had been made from time to time 
 that A. H. should repair the wall, but that he had neglected to 
 do so, and that had he fulfilled those directions, no damage 
 would in all likelihood have accrued from the spring tide and 
 high wind ; and that the partial damage which arose, was 
 occasioned by the imperfect state of repair in which the wall 
 had been generally allowed to remain ; and, moreover, that the 
 sea-wall of A. H.'s land, within the level, had always, during 
 the memory of living witnesses, been maintained at the sole 
 costs and charges of the several owners and occupiers for the 
 time being of the said lands. 
 
 The counsel for the commissioners relied upon the distinction 
 as established by the authorities, and said, that the opinion of 
 Walmesley, J., in 5 Co. (s), namely, that the commissioners 
 ought not to charge a party, liable by prescription to repair a 
 river-bank, with the whole of the expense, but that the whole 
 level ought to be taxed, was explained, by taking this difference. 
 The counsel in support of the mandamus endeavoured to open 
 the general question, whether a party, bound to repair under 
 the circumstances, might not call upon his neighbours for con- 
 tribution ; for it was sworn, that A. H., although possessed of 
 only one-eleventh part of the lands, was obliged to support 
 one-sixth part of the sea-wall of the whole level.* The Court, 
 however, said, that it was too late to discuss that matter. They 
 said, that if the question of default were doubtful in the case 
 before them, they would grant the mandamus, but here the 
 repairs required by the sewers' jury had not been done ; and it 
 had been, moreover, sworn, that in the event of such repairs 
 having been completed, the mischief would, in all human pro- 
 bability, have been averted. It was impossible to say but that 
 A. H. was in fault, and the rule was discharged with costs, the 
 
 (s) 5 Rep. 100, ante, p. 100. 
 
 * But it also appeared, that the marketable value of estates within the 
 land was greatly influenced by the state of the sea-wall, which the owners 
 were bound to repair, (1 B. & C. 479.) 
 
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104 Duties and Poroers of Commissioners — Repairs, [chap. ii. 
 
 motion having been made against a public body (t). Again, if 
 there be a prescriptive obligation to repair, the question for the 
 jury will be, not whether the sea-wall was competent to resist 
 ordinary floods, but whether the owner was bound to provide 
 against extraordinary deluges (m). 
 
 New walls, Another occasion upon which the original proprietors are 
 °" discharged from their prescriptive liabilities, is where the old 
 
 wall has been destroyed, and a new one erected in its room. 
 In such a case, the commissioners must lay the charge upon the 
 whole level, as well in respect of the building as of the main- 
 taining of the new defence, for no one can be bound by pre- 
 scription, custom or tenure, to such repairs (as). A case in 
 Keble, unexplained, seems to militate against this doctrine. 
 There was a motion for a certiorari to remove an order of 
 sewers, because the plaintiff had been charged alone to the 
 repair of a new sea-wall, and the Court held this ill, because the 
 same persons were chargeable to the new wall who should have 
 repaired the old ; but an affidavit was required from the plaintiff, 
 that there was no danger in the state of the wall, or that it was 
 in repair ((/). The point in this case does not seem very clear; 
 it might have been that the level originally had repaired the old 
 wall, or that those who had so repaired were under an obligation 
 to do so by covenant ; and in either of these not improbable 
 events, the decision is not irreconcilable with the general prin- 
 ciple, nor with prior authorities. 
 
 There may, however, be a liability to repair rations tenurco 
 although damage be occasioned by a tempest, without default. 
 It seems that such a liability is only limited by the ability of the 
 party, or the value of the lands granted (s). 
 
 Let us endeavour to ascertain the principle which arises fi-om 
 
 («) The Kingu. The Commissioners of Sewers for Essex, 1 B. & C. 477. 
 
 (m) R. v. Leigh, 10 Ad. & El. 398. 
 
 (x) Callis, 148. 
 
 \y) The King and Day v. The Commissioners of Sewers, 2 Keb. 129. 
 
 {%) R. V. Leigh, 10 Ad. & El. 398; 2 Per. & D. 357. Minutes of the 
 Court of Sewers, commencing seventy years back, containing orders upon 
 the holders of the estate to repair the wall in question, were held admis- 
 sible in evidence, although it did not appear that such orders had ever been 
 acted upon. 
 
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CHAP. II.] Duties and Powers of Commissioners — Repairs. 105 
 
 the cases and observations above mentioned, respecting these 
 vera defences. It is clear, then, that to make a party charge- 
 able for a new wall, independently of the public, he or his 
 ancestors must have entered into an obligation so to do, and in 
 case of the heir, he must have been expi'essly named, and have 
 received a sufficiency of assets by descent; and thus it is, that 
 modus et cottventio vinciunt legem, and so it was held in the. case 
 of the executor above cited (a). But, on the other hand, where 
 the individual is bound by tenure, or prescription only, he 
 becomes released from his sole and several charge by the 
 erection of a new defence (that is to say, a defence of a different 
 description, or of a larger dimension) ; for the immemorial 
 liability, like other matters which depend upon a usage beyond 
 time of memory, becomes extinguished by the alteration. 
 
 These points regarding individual and other liabilities, not of Repairs ty 
 an universal character, being settled, we come to speak of the public. 
 responsibility of the level, or public generally, it being quite 
 certain, that if no one be answerable in particular, the level 
 decidedly lie under that obligation. And here the question of 
 particular exemptions, which have been often claimed, but 
 seldom with success, presents itself to us. It has been con- 
 tended, that the king's lands are not liable to this tax for repairs, 
 notwithstanding the express words of the statute. It had, 
 however, been received for law, during many years, that they 
 were so liable, and Callis expressly affirms that to be the 
 law(&). And so it was objected to a distress made by com- 
 missioners of sewers, that eight hundred acres of the king's 
 lands had not been assessed, and the Court held it a good 
 exception, observing, that the king's lands were taxable by the 
 statute (c). 
 
 The question was, however, submitted to the Court of King's 
 Bench a short time since. Trespass had been brought for 
 taking the plaintiff's goods, and a verdict was found in his 
 favour, subject to a case. The goods appeared to have been 
 taken as a distress for non-payment of a rate made by certain 
 
 (a) Jvte, in this Cliapter. 
 
 \b) Callis, 131 ; 7 Com. Dig. 346. 
 
 (c) Whitley v. Fawsett, Sty. 12. 
 
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106 Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 commissioners of sewevs. The assessment was in respect of a 
 messuage, or tenement, in the king's dock-yard in Deptford. 
 The plaintiff was clerk of the survey in the dock-yard, and paid 
 no rent for the house ; but he resided there, and was remov- 
 able at pleasure. The dock-yard appeared to have been prin- 
 cipally drained by sewers, made and maintained at the expense 
 of the Crown ; but the plaintiff's house, in common with the 
 rest of the dock-yard, derived a benefit from the public sewers, 
 which were under the direction and management of the com- 
 missioners. The authority of the commissioners within that 
 district was founded upon certain local acts, by virtue of which 
 they made the charge objected to. 
 
 It was urged generally for the plaintiff, that the possessors of 
 the houses were not liable to rates ; that the king was not to be 
 barred by a right or privilege by general words in an act of 
 Parliament ; that the statute of Edw. 6 restrained the former 
 statute of Hen. 8 to lands in possession of the king's tenants, 
 yielding a profit; that the mode of levying rates upon defaulters 
 was by distress, and that lands in the possession of the Crown 
 were not amenable to that process ; that the sewers rate being 
 imposed on the tenant by the local act, with a provision for 
 reimbursement by the landlord, could not apply to the king, 
 inasmuch as he was not expressly named. On the other hand, 
 it was said, that this proj)erty yielded a profit because the 
 occupier of the house gave his services in lieu of rent ; that by 
 the statute of Hen. 8 the Crown lands were expressly bound, 
 and that the statute of Edw. 6 did not restrain the former act, 
 since it provided only for particular cases of lands of the king, 
 whose tenants paid rent, leaving all other cases as they stood 
 before. The Court gave judgment for the defendant. The 
 statute of Hen. 8 was made to remedy a great public incon- 
 venience, and to introduce a great public benefit. Bj the ninth 
 section, tlie lands of the king were expressly bound. Then, in 
 order to remove any doubt as to the levy and distress upon 
 Crown lands, the statute of Edw. 6 makes those lands liable to 
 be distrained upon ; that was certainly a general legislative 
 direction, that a distress for those rates might be taken upon the 
 lands of the king. The subsequent clause did not restrain the 
 general words there mentioned as prescribing the distress, so 
 
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CHAP. II.] Duties and Powers of Commissioners— Mepairs. 107 
 
 as to confine that power to such lands only as were in the 
 possession of the king's tenants. Judgment of nonsuit was 
 accordingly given (a!). 
 
 But a distress cannot be levied for sewers rates within the 
 precincts of a Royal Palace occupied as the residence of the 
 sovereign. Kensington Palace comes within that description (e). 
 
 Apartments in Somerset House have been held liable (_/"). 
 For by 52 Geo. 3, c. xlviii, s. 7, all persons are liable to the 
 sewers rate under that act as occupiers of premises rateable 
 thereto, who are de facto rated in respect of such premises to 
 the poor rates of the parishes to which that act applies (f/). 
 
 So again, ecclesiastical persons cannot claim an exemption Ecclesiastical 
 from the tax in respect of their glebe lands, or their meadow *^'^°''^- 
 and pasture land, for these are not so sacred as tithes, having 
 been conferred upon the clergy by the benevolent gifts of 
 laymen, and so the burthen which was imposed upon the lay 
 donor remains (h). 
 
 So lords of manors are taxable for their quit-rents, and rents Lords of 
 of assize (i). Though if the rents be so small as that they are 
 scarcely worth the collecting, the commissioners, it is said, may 
 spare them upon the principle, de minimis nan curat lex (k). 
 But they are not chargeable for the freehold of their copyholds ; 
 for the seisin is but in imagination and construction of law, 
 since the copyholder is the receiver of the visible and substantial 
 profits (l). 
 
 Therefore a copyholder cannot claim an exemption from this Copyholder, 
 cliarge (m), and we shall see by and by, that by virtue of a par- 
 ticular enactment, a copyholder may lose his land for non- 
 
 (d) Netherton v. Ward, 3 B. & A. 21. 
 
 (e) Attorney-General v. Donaldson, 10 Mees. & W. 117. 
 (/) Soady v. Wilson, 3 Ad. & El. 218 ; 4 Nev. & M. 777. 
 (g) S.C. 
 
 {!,) Callis, 131 ; 7 Com. Dig. 346. 
 
 (!) 7 Com. Dig. 316 1 Callis, 139. 
 
 (k) Callis, 110. 
 
 (l) Id. 133; 7 Com. Dig. 347. 
 
 (otI Id. 132—136; 7 Com. Dig. 346. 
 
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108 Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 payment (w). Again, a commoner is liable to be charged, that 
 is to say, he who has a common of piscary, turbary, or pasture 
 in great fens, marshes, and wastes ; but a common, after the 
 corn is severed, cannot, it seems, be charged, as being of small 
 value (o). But one who has the vesture, or herbage of lands, 
 as their i^rima ionsura, is liable (|j). 
 
 Ferry. Again, one who has a ferry may be charged (q) ; and so, again, 
 
 may a person who enjoys a free passage for his boats upon a 
 river, although this last class of contributors must be understood 
 to mean such as have free and customary passage, as a liberty 
 and inheritance, and not poor boatmen, who come thither 
 accidentally by the general custom of the realm (r). 
 
 Custom to 
 be exempt. 
 
 Moreover, it seems, that it is incompetent in general to plead 
 a custom, or prescription, to be exempted, although, according 
 to Mr. Sergeant Callis, such a relief may be claimed by special 
 custom. And the learned writer cites a case in confirmation of 
 this, where a custom in Lincolnshire was alleged to be freed from 
 the repairs of the sea-banks, by reason of some other repairs 
 which the proprietor and his ancestors had done, and which he 
 was wont to do for the benefit of the public. This custom was 
 stated to exist in the town and manor of Mabblethorp (s). But, 
 ordinarily, the Sergeant observes, there cannot be such a claim 
 of exemption (t). 
 
 Reversioners. In respect, however, that the beneficial occupier is usually 
 assessed in the first instance, however he may be entitled to 
 demand reimbursement from his landlord in the absence of a 
 covenant, on his part, to pay the tax — it follows, that the lessor, 
 or reversioner, is not commonly liable in his own capacity to the 
 immediate assessment, that is to say, not to the usual charges. 
 But where extraordinary repairs are required for the benefit of 
 the inheritance the case is different, as if a new wall, &c., be 
 
 (n) Post, Chap. III. 
 
 (o) Callis, 137; 7 Com. Dig. 346, 347. 
 
 (p) Callis, 137. 
 
 (?) Ibid. 
 
 (r) Ibid. ; 7 Com. Dig. 346. 
 
 (s) Sir George Fitzwilliam's case, Callis, 223. 
 
 (t) Ibid.; 7 Com. Dig. 346. 
 
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CHAP. II.] Duties and Powers of Commissioners— Repairs. 109 
 
 erected, or if the ancient defences be materially decayed. 
 These last reparations are not of an ordinary and annual nature, 
 but continue permanent for the benefit of the lessor, or of him 
 in reversion, whereas the other sort of repairs would probably 
 expire during the term of the lease ; therefore the landlord is 
 chargeable for the extraordinary improvements, and the tenant 
 for those which are common and frequent (m). 
 
 And although Sir Robert Heath observed upon one occasion, 
 that commissioners of sewers may charge the lessor or lessee at 
 their discretion, though it were for a new defence (a;); yet this 
 opinion, with regard to the charge of new defences, stands well, 
 if it be judged by the difference above pointed out. And, at the 
 present day, as the lessee most usually covenants to pay all 
 sewers rates, it becomes more convenient for the commissioners 
 to resort to the lessee, who is in possession of the land, in the 
 first instance, and who, if he have an objection to sustain the 
 charge, may, under the statute, require reimbursement from his 
 landlord. But a remainder, or a reversion expectant after an 
 estate tail, is not chargeable; but the burthen falls solely upon 
 the lessee in tail in possession, and not upon " dry and fruitless 
 remainders," for it is more to be feared that tenant in tail will 
 cut off the remainder and reversion by a recovery, than that the 
 sea shall drown his estate by an overflow (i/). 
 
 According to the above principle, a mortgagor shall not be Mortgagor, 
 taxed by reason of his equity of redemption, nor he who has a 
 title by land by entry, &c., or who has a contingent use, nor a 
 bargainee of land before enrolment (z). Nor, again, the owner 
 of an advowson, whether he be the patron or the founder, for 
 this property, though a tenement in law, does not yield any 
 immediate profit (a). Nor, moreover, are such as have proxies, 
 synods, &c., liable, although of an annual value (J), nor persons 
 
 (m) Callis, HO— 144; 7 Com. Dig. 316. 
 
 {x) Mar. 198. 
 
 (i/) Callis, 140; 7 Com. Dig. 347. Two tenants in common may be 
 assessed according to their proportions (Callis, 210), and the tax shall not 
 be doubled. (Id. 212.) 
 
 (2) Callis, 139; 7 Com. Dig. 347. 
 
 (a) Callis, 139. 
 
 (i) Id. 138; 7 Com. Dig. 347. 
 
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 &c. 
 
no 
 
 -Repairs, [chap. 
 
 II. 
 
 Offices, &c. 
 
 Annuitants. 
 
 What lands, 
 
 &C. 
 
 Duties and Powers of Commissioners- 
 
 who have the use of fairs, markets, &c., provided they receive 
 but a casual profit (c). Although the proprietor of a market, 
 who draws an annual rental from the use of it, might, it seems, 
 be taxed by the commissioners at their discretion. 
 
 So, again, offices, as a town clerkship, the clerkship of a 
 market, &c., though confined to a place within the level, are not 
 liable to this assessment {d). 
 
 So, the clerk of works at Chelsea Hospital was held not 
 liable, and the sewers rate made upon him was held void ; and 
 it was considered no estoppel that the commissioners of the 
 Hospital had traversed the presentment, and had a verdict 
 against them before a jury of sewers (e). Nor is the West- 
 minster Bridewell, occupied by prisoners only, liable ; the house 
 of the governor being separately assessed to the rate {f). 
 
 Annuitants, further, are not chargeable, unless occasionally 
 under the statute of 43 Eliz. {g), for the tax relates to land, 
 and the annuity is payable to the person (A). And the law is 
 the same, though a corporation seised of lands be the grantors 
 of the annuity, for they are chargeable in respect of their 
 possessions («). 
 
 The persons who are, or are not chargeable, have thus been 
 mentioned at some length, and we proceed just to notice shortly, 
 the nature of property assessable, which, however, to a certain 
 extent, has been already done. And it may be remarked, that 
 lands in general constitute the property chargeable ; but the 
 statute mentions lands or tenements, or common of pasture, or 
 profit of fishing, and the word tenement being, as is well known, 
 of larger import than lands, containing all that the word " lands" 
 has, together with all things else which lie in tenure (A), many 
 other kinds of property, for instance, ferries, liberties of free 
 
 (c) Callis, 138 ; 7 Com. Dig. 347. 
 
 [d) Ibid. 
 
 \e) Neave v. Wrather, 3 Q. B. 984 ; 3 Gale & D. 221. 
 
 (/) Tracey v. Taylor, 3 Q. B. 966 ; 3 Gale & D. \i. 
 
 (g) See post. Chap. III. 
 
 (A) Callis, 136; 7 Com, Dig. 347. 
 
 (/) Callis, 136. 
 
 (k) Id. 139. 
 
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CHAP. II.] Duties and Powers of Commissioners — MejMirs. Ill 
 
 passage, &c., are taxable, as we have above stated. Thus also 
 meadows, marshes, mills, woods, &c., are included (Z). And so, 
 again, are parks and warrens (m) within the level ; but Mr. 
 Sergeant CalJis inclines, that chases, as such, are not chargeable, 
 because deer, which are force naturts, are not bound to certain 
 precincts; but he adds, that as lands, such chases may be 
 assessed (w). 
 
 Some discussion has taken place as to the liability of the Tithes, 
 owner of tithes (o) ; and it may be observed, that where such 
 tithes were in the hands of a layman, they might be rated upon 
 these commissions, but they could not be assessed in the hands 
 of a spiritual person without a custom expressly for that purpose. 
 And although this description of property was certainly liable 
 to many imposts, yet it will be found on examination, that par- 
 ticular acts of Parliament create the charge upon those occa- 
 sions, as, for example, the 43 Eliz. c. 2, made the tithe owner 
 liable to the poor ra.te{p). And so, likewise, although 
 spiritual corporations, and other individuals, have been charged 
 at various times to the repair of bridges, &c., yet custom, pre- 
 scription, or tenure, seem to have governed their responsibi- 
 lities (q) ; and thus the general principle is substantiated, 
 namely, that, unless there were a direct affirmative custom in 
 favour of the taxation, the clergy could not be rated to the 
 sewers rate in respect of their tithes. 
 
 And now, by 6 & 7 Will. 4, c. 71, s. 69, every rent-charge 
 payable instead of tithes (tithes being abolished by that act), 
 shall be subject to all parliamentary, parochial, and county and 
 other rates, charges, and assessments, in like manner as the 
 tithes commuted for such rent-charge have heretofore been 
 subject. The question seems to be, whether a sewers tax or 
 assessment can be included under the words " other rates," &c. ; 
 for if not, as a sewers rate is not a parliamentary rate (?-), nor a 
 
 (0 7 Com. Dig. 346 ; Callis, 139. 
 
 (m) Ibid. 
 
 (n) 7 Com. Dig. 138. 
 
 (o) See Callis, 129—132. 
 
 (p) See the note to Callis, 132. 
 
 Iq) Callis, 131. 
 
 (V) Palmer v. Earith, 14 L. J., Ex. 256. 
 
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112 Duties and Pojvers of Commissioners— Repairs, [chap. ir. 
 
 parochial nor county rate, the owner of the rent-charge wouM 
 not be liable. It would appear, however, that the word " otlier," 
 upon this occasion, may be said to embrace rates independent of 
 all tliose which are particularly mentioned, and that the word 
 cannot be limited in its application. And if this be so, the 
 owner of the rent-charge will stand in the position of the ancient 
 tithe owner, as to the sewers rate and tax, and will be governed 
 by the rules of law which we have above set forth. 
 
 But some lands are not liable; for instance, mountainous, 
 or high lands, which cannot be surrounded, are in general 
 exempt (s) ; and we have before seen, that these do not come 
 within the survey of the commissioners {t). 
 
 Nevertheless, these high lands shall contribute to repairs for 
 the benefit of the country in general, although they be not 
 liable to damage from the waters ; and the principle is, that 
 which we have so often found consistent, namely, that those 
 who derive benefit must contribute to its source. Therefore, it 
 is said, that upland countries may be assessed towards the 
 repair of ports or havens ; for the owners of those lands, being 
 made partakers of marine commodities, derive necessarily a 
 profit from the maintenance of those public conveniences, and, 
 therefore, the extraordinary repairs of those ports are not 
 confined to the level, but may be levied upon the country at 
 large (u). This is the strict interpretation of the law, for a 
 general tax of this nature eo nomine is not of common occur- 
 rence ; nevertheless, as sums are frequently voted by Parliament 
 for the maintenance of public works, and, moreover, as piivate 
 individuals have, at different seasons, obtained charters, with 
 many privileges for their enterprising execution of public im- 
 provements for the advancement of commerce, the country is 
 indirectly taxed for these repairs, and thus the position of the 
 learned Sergeant is illustrated and established. 
 
 Goods. But even goods and chattels are not always exempt from 
 
 these assessments. The statute 43 Eliz. c. 4, which was an act 
 to redress the misemployment of lands, goods, &c., given to 
 
 (s) 7 Com. Dig. 347; Callis, 136, 223. 
 
 (t) Ante, in tliis Chapter. 
 
 (a) Callis, HS ; 7 Com. Dig. 316. 
 
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CHAP. II.] Duties and Powers of Commissioners— Repairs. 113 
 
 certain charitable uses, contains in its preamble these words, 
 " ports, havens, causeways, sea-banks :" being some of the 
 subjects to which the lands and goods in question were devoted 
 by way of charitable use ; and thence it is, that if goods and 
 chattels, or annuities, be given to these uses, they may come 
 under the cognizance of commissioners of sewers, who may 
 make an assessment upon them by virtue of the laws of sewers. 
 And thence it is said, that if lands or chattels be given for the 
 reparation of a sea-wall, the commissioners acquire a jurisdiction 
 over such, and may meddle with them (x). And tithes, when 
 in the hands of a layman, become mere chattels, according to 
 the saying. Tunc res spirituales jiunt temporales, et transeunt 
 decimce in catalla {y). 
 
 To proceed : the consideration of the duration of this tax is Perpetual 
 deserving of attention, it being a matter of some importance, Lndf,'' &o° 
 whether the assessment continue to be the same in perpetuity 
 or not. It has been held, says Mr. Sergeant Callis, that the 
 commissioners of sewers cannot bind any man's inheritance to 
 a perpetual charge by any power or authority given under this 
 statute (of Hen. 8) (z) ; and Lord Chief Baron Comyns says, 
 accordingly, that such a perpetual tax cannot be imposed, unless 
 it be warranted by a special custom, and then a perpetual decree 
 may be made (a). And the learned writer on sewers agrees, 
 that there may be the custom of a town or county to repair 
 each his own particular portion perpetually (&) ; nevertheless, 
 inasmuch as by the customs of Romney Marsh, such a charge 
 ought to be perpetually imposed, and as the commissioners of 
 sewers were empowered under the statute to make laws and 
 ordinances in imitation of those of Romney Marsh, the sergeant 
 seems of opinion, that such a perpetual charge may be made (c). 
 And he adds, that upon decrees for sale of land, it is usual in 
 those decrees to bind those lands to perpetual repairs (d). 
 
 We have thus mentioned the persons who are liable to be 
 assessed by commissioners of sewers, whether they be solely 
 
 {x) Mar. 200, by Brampston, C. J., and said to have been so adjudged. 
 (y) Callis, 131. W Callis, 201. 
 
 («)Id. 201. (c) Id. 292. 
 
 (a) 7 Com. Dig. 346, 347. {d) Ibid. 
 
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114 Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 answerable in their own persons respectively, or jointly with 
 others, preserving still a responsibility separate from that of the 
 public ; or again, whether they be answerable in respect of their 
 condition as part of the level, that is, of people inhabiting lands 
 exposed to the damage of sudden floods ; or lastly, as part of 
 the community at large. We have seen that lands, and some- 
 times chattels, are within the jurisdiction of the commissioners, 
 and the different properties enjoyed in respect of lands have 
 also been noticed with reference to this tax. It follows, there- 
 , fore, that when no claim upon private persons exists, when no 
 exemption can be pleaded, the whole district receiving benefit 
 from the assessment must be fairly, equally, and impartially 
 burthened with the necessary expenses of repairs or improve- 
 ments. However, as we have some'times used the word " level," 
 sometimes "district," and sometimes "the people at large," it 
 is desirable to explain here, that each of these terms has been 
 used synonymously for " the public," since although there may 
 be, and frequently are, several subdivisions upon the same level, 
 yet where the tax is laid generally upon any one of these sub- 
 divisions, it is an universal assessment as far as that separate 
 portion of the level is concerned, and may thus be said to be 
 imposed on the public. And we shall see presently, that com- 
 missioners have no power to alter the customary divisions of a 
 level, so as to levy upon the whole of these divisions at one 
 time, and to tax the different portions of it at another, for 
 this might create a considerable injustice. A certiorari was 
 moved for against the commissioners of sewers for the Tower 
 Hamlets, for the purpose of removing a presentment made 
 by a jury within their limits, and also a certain order for a 
 rate over the whole of the hamlet founded on the above 
 presentment. It appeared, that the commissioners had always 
 acted under one commission for the whole district; that they 
 always considered the district as containing six different levels 
 or lines of large leading sewers; and that they had always 
 acted upon the understanding that such was the case, each 
 district being made liable to the repair of those sewers only 
 from which it derived benefit. It further appeared, that 
 separate presentments and rates had been made for these 
 levels respectively, until 1821 ; and that, until then, they had 
 been treated as distinct from each other; but that at that 
 
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CHAP. II.] Duties and Powers of Commissioners — Repairs. 115 
 
 period a desire was manifested, that one rate should be applied 
 to the whole district, and steps were soon afterwards taken to 
 effect that purpose. The inhabitants of Hackney, one of the 
 six levels above mentioned, resisted the equalization of the rate 
 and intermixture of the levels throughout the district, inas- 
 much as they derived no benefit from the sewers on the five 
 other levels ; and because, also, they had been accustomed to 
 maintain their own sewers at a much less expense in proportion. 
 And the Court, after much deliberation, made the rule for a 
 certiorari absolute, holding that the rate had been improperly • 
 made. For the principle clearly was, that none except those 
 who claimed benefit from sewers should be called on to con- 
 tribute towards them ; and the inhabitants of Hackney, in this 
 case, had sworn that they gained no advantage whatever from 
 the sewers on the other five levels. Then, the Court said, if it 
 should be holden that the present rate was good, not only would 
 the practice in the district in question, which had prevailed so 
 long, be overturned, but all other rates made for distinct and 
 separate levels, would thus be adjudged invalid, and rendered 
 liable to be quashed. The Court then instanced some cases (e) 
 in which commissioners of a large district had subdivided the 
 lands within their own limits, and the rule was made abso- 
 lute (y). Lord Tenterden finally made some observations on 
 the meaning of the word " level," denying that it meant, as had 
 been insinuated at the Bar, an artificial division of land, but, 
 on the contrary, alleging its meaning to be the particular 
 character and situation of the country (^). And this is quite 
 difierent from a case where commissioners of sewers had united 
 levels which were once separately assessed, and then made one 
 uniform rate for the whole. This was held to be a correct 
 proceeding, and within the statutes 23 Hen. 8, and 2 & 3 
 Will. & M. Sess. 2, c. 8. In R. v. The Tower Hamlets Com- 
 missioners, there was not even a junction between the sewers 
 themselves Qi). 
 
 (e) Rooke's case, 5 Rep. 99 (b) ; Stafford v. Hamston, 2 B. & B. 691 ; 
 Netherton v. Ward, 3 B. & A. 21. _ 
 
 (/) The King v. The Commissioners of Sewers for the Tower Hamlets, 
 9 B. & C. 517. 
 
 (ff) Id. 524. 
 
 (A) St. Katherine's Dock Company v. Higgs, 14 L. J. 348; confirmed 
 in error, 16 L. J., Q. B. 377 ; 10 Q. B. 641. 
 
 I2 
 
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116 Duties and Pomers-of Commissioners — Repairs, [chap. ii. 
 
 The authority of Rooke's case shall close this part of the 
 subject, and it has been reserved until now by reason of the 
 comprehensive law which it applies to general taxation in re- 
 spect of sewers. One Rooke brought replevin against Withers, 
 and the defendant justified under commissioners of sewers, be- 
 cause one C. was assessed to every acre for the repairing of a 
 bank, for the nonpayment of which charge the distress was 
 taken. The plaintiff replied de injuria absque tali causa. The 
 jury found the commission, and the stat. of Hen. 6, and Hen. 8, 
 and that the commissioners had impanelled a jury to inquire 
 of defaults, who presented that seven acres of meadow, in which 
 the distress was taken, were next adjoining the river, and that 
 the hank of the river adjoined the seven acres. The jury further 
 found, that the occupiers of these seven acres had used always 
 to repair those seven acres, sometimes voluntarily, sometimes by 
 presentment. They further found, that there were eight hundred 
 other acres in occupation within the same level, and subject to 
 the inroads of the water in default of the bank, and the question 
 was, whether these last lands should not have been taxed 
 towards the repairs of the bank. It was held, first, that the 
 finding of the repair by the occupiers was not material, because 
 these occupiers might have been tenants at will, or other par- 
 ticular tenants, who could not bind the inheritance. And 
 secondly, that the commissioners ought to have taxed all who 
 were in danger of being damaged, and not him only whose lands 
 adjoined the river, since the statute of Hen. 8 had expressly 
 declared, that no person of any estate or condition should be 
 spared. And judgment was, accordingly, given for the plain- 
 tiff' {€). Here no one individual in particular was found to be 
 under the obligation, and consequently the whole level was 
 chargeable. 
 
 Having ascertained the persons who are to be assessed, we 
 proceed to inquire as to what improvements or repairs the com- 
 missioners are empowered to effect, and also respecting the 
 extent of their jurisdiction in those particulars. 
 
 And here it may be anticipated, that their authority may be 
 
 (j) Rooke's case, 5 Rep. 99(b); S. C, recognized 2 Ro. Rep. 289; 
 S. P., recognized * Mod. 350. 
 
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CHAP. II. j Duties and Powers of Commissioners— Mepairs. 117 
 
 exercised to compel all ordinary repairs of the different defences 
 committed to their charge by the statute, that is to say, of walls, 
 ditches, banks, gutters, sewers, goats, causeways, bridges, &c. 
 And thus in a great case respecting Bracebridge, in Lincoln- 
 shire, the commissioners were holden justified in compelling the 
 repair of it. It was found by inquisition, that the bridge above 
 mentioned, standing on the river Wytham, thirty miles from 
 the sea, was fallen into great decay, so that carts, &c., could not 
 pass over it as had been the custom. The defaulters were 
 declared to be Henry Sapcots, Esq., who, by reason of his manor 
 of Bracebridge, was bound to repair a part ; one B. G., who by 
 reason of his house standing at the bridge foot, on the north 
 side of the river, was bound to repair another part ; the corpo- 
 ration of Lincoln, who were under an obligation to maintain a 
 third or other part ; and the county of Moreland, which had 
 been accustomed to repair another part. The repairs were 
 decreed against those persons and corporation accordingly. 
 But a bill in the Exchequer Chamber was filed against the com- 
 missioners by Mr. Sapcots, to be relieved, and it was alleged, 
 that this bridge stood far from the sea, and so that the sewers 
 laws could not extend to it ; but we are informed, that at the 
 hearing of the cause, ann. 16 Jac. 1, he was overruled in that 
 and all other parts of the suit (k). 
 
 By 24 & 25 Vict. c. 133, s. 59, the commissioners of sewers of Exchange of 
 one area may agree with the commissioners of an adjoining 
 area that they may do works upon payment of certain sums, 
 which may be leviable out of the rates as if the expenses had 
 been incurred within their own area, and they may do the same 
 in relation to any drainage board, or any drainage board may 
 so act with respect to any other drainage board. 
 
 It is not necessary to enlarge further upon this matter. New walls, 
 During the enumeration, in a prior page, of those defences 
 which lie within the survey of the commissioners, it appeared, 
 in a great measure, how far the powers of those officers extended, 
 in respect of particular objects; and it is clear, that the same 
 law which gives them power to view, in order to repair and 
 
 (ft) Sapcots V. Sir Thomas Grantham and others, Callis, 90. 
 
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 &c. 
 
118 Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 amend, conoeeds also the right of so repairing and amending. 
 But the question of new defences and improvements has not 
 been so fully discussed ; and it remains to say something upon 
 that point here. And first, it should be noticed, that notwith- 
 standing the difficulties which so long prevailed upon this 
 subject, the statute 3 & 4 Will. 4, c. 22, has in a great measure 
 removed the doubts and obstacles alluded to (Z). It is obvious 
 that a great difference exists between building a new wall upon 
 an ancient site, and erecting a new defence where there may not 
 have been any one before. The former of these acts seems to 
 be within the statute of Hen. 8, which has the words " make 
 new ;" but the latter proceeding was encumbered with doubt ; 
 and many arguments have been used for and against its 
 validity (m). Indeed, we have already seen, that the rebuilding 
 of an old wall in a new form is allowable, and that in many cases 
 such a work will not even vary the liability of the original 
 parties to repair, and that any little alteration for the public 
 convenience is certainly within the reach of the commissioners. 
 And so Callis says, that if it be fit to take an arch away from^ 
 or add a new one to a bridge, where none was before, it is most 
 fit to be done by these commissioners (n). So, it was laid down 
 by the Court, in the Isle of Ely case, that ancient walls, when 
 broken down by the water, might be replaced by others, to 
 defend the people and their lands within the same level, because 
 the manner of defence by walling could not be called a new 
 invention, but was the old way approved of by experience (o). 
 But it was said at the same time, that nothing absolutely new 
 could be introduced by the commissioners, such as an artificial 
 mill, to cast out the water, &c. ; for if such new inventions were 
 profitable no owner of land would refuse to contribute, it being 
 to his own advantage ; and then the taxation would be by the 
 voluntary consent of the individual, and not by constraint under 
 the commission of sewers (p). 
 
 So again, at the Court at Whitehall, in 1616, where the 
 Master of the Rolls and the Attorney-General were present, one 
 
 (0 See post. 
 
 (m) See, on the subject of new defences, Callis, 92—104, 
 
 (n) Callis, 89. 
 
 (o) 10 Rep. 142; 7 Com. Dig. 3il. 
 
 Ip) 10 Rep. 142. 
 
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CHAP. II.] Duties and Powers of Commissioners — Repairs. 119 
 
 of the objections was, that the commissioners of sewers had no 
 authority to cause new banks, drains, or sluices, to be made 
 where there had not been any before ; and although tlie opinion 
 of the council was contrary, yet it appears from hence, that 
 such a notion had obtained with respect to new walls (q). So 
 again, it was urged, on another case, that commissioners could 
 not order the erection of a new wall; but a representation 
 being made on the other side, that the erection proposed would 
 not be wholly new. Roll, C. J., assented, observing, that the 
 case of the Isle of Ely was for making a new wall totally, and 
 thus the principle was recognized (?•). And so far from the 
 building of a defence entirely new, it was said, in the case from 
 Coke above referred to, that if, by repairing the ancient wall, the 
 damage and peril could have been averted, there was no neces- 
 sity for making the old wall again de novo (j). 
 
 And Mr. Sergeant Callis, although of a different opinion upon 
 this question, admits, nevertheless, that the words of the statute, 
 literally taken, must mean such old fences as were before ; and 
 the taking this to be the construction, the power of making new 
 walls where none had existed before would clearly be excluded (<). 
 But the learned sergeant is, upon the whole, of opinion, 
 that the commissioners may, upon great and urgent occasions, 
 decree the making of new banks, new walls, goats, streams, sluices, 
 and other necessary defences (m). In support of this position he 
 cites the judgments of Popham, C. J., and Anderson, C. J., in a 
 case concerning new goats, in Lincolnshire. There had been a 
 great controversy in Lincolnshire concerning the building of 
 new goats at Skirbeck and Langrate for the draining of the 
 water out of the South Holland fens into Boston haven. Sir 
 Edw. Dimock advocated the works, and the county of Kesteven 
 opposed it. And the exception taken was, that commissioners 
 of sewers could not, by the power of their commission, make a 
 law for the erection of these new goats where none existed 
 before. But the two chief justices just alluded to said, that 
 these new goats might be made, if for the good and safety 
 
 (y) Mo. 825. 
 
 (r) Case of the vills of Newton and Tyd, Sty. 192. 
 
 (s) 10 Rep. 142. 
 
 (i) Callis, 93. 
 
 (m) Id. 103. 
 
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120 Duties and Powers of Commissioners — Repairs, [chap. ii. 
 
 of the county ; but they recommended caution to the commis- 
 sioners in acting thus, and warned them against promoting any 
 such works for the benefit of private individuals (jc). The 
 learned sergeant then mentions an order of council given at 
 Whitehall, (which was in those days deemed of much higher 
 authority than it would now be,) confirming the power of erect- 
 ing new works. The dispute in question arose in the counties 
 of Huntingdon, Cambridge and Northampton, concerning the 
 making of new cuts and drains in the Isle of Ely, the doing of 
 which had been assumed by the commissioners of sewers as 
 within their jurisdiction. The master of the rolls * and the 
 attorney-general I were present at the council, when the king's 
 order was made in favour of the commissioners' power, upon 
 this occasion. It had been denied that the commissioners could 
 make new banks, drains or sluices, where none had been before; 
 but their lordships thought that it neither consisted with law 
 nor common sense, that in a cause of such great consequence 
 the law could be so void of foresight as to restrain commis- 
 sioners from making new works to restrain the prey of the 
 waters, as well as to repair the old, in cases of necessity ; and 
 judgment was accordingly given for the commissioners, on this 
 as well as three other points which had been submitted to the 
 council board. And it was further understood, upon the con- 
 sideration of the question, that Lord C. J. Popham had de- 
 livered his opinion in writing upon all these points, and that his 
 decision had been in favour of the commissioners («/). Thence 
 Callis draws his conclusion, that new works may certainly be 
 made where necessity requires them, provided they be for the 
 benefit of the community {z). 
 
 There might, therefore, be said to have been conflicting 
 authorities or decisions upon this point. And perhaps it is not 
 unworthy of attention, while considering the report of Lord 
 Coke against the jurisdiction of commissioners, that the great 
 Chief Justice ostensibly lost his seat in the King's Bench, 
 
 {x) Sir Edward Dimock's case, Callis, 97. 
 * Sir Julius Caesar, 
 f Sir Francis Bacon. 
 (y) Callis, 98; Mo. 821. 
 (a) Callis, 103. 
 
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CHAP. II.] Duties and Powers of Commissioners. 121 
 
 through his adherence to the opinion he had formed and acted 
 upon in this matter. For, when the Lord Chancellor addressed 
 Sir Henry Montague, upon his election to the prime seat in the 
 King's Bench, then recently vacated by Lord Coke, he made use, 
 amongst other remarks, of the following expressions : — "He" 
 (Sir Edward Montague, Sir Henry's grandfather) " devised not 
 any new construction of laws against commissioners and judges 
 of sewers, nor to draw them into the danger oi prmmunire ; and 
 whilst they were in this Court disputing of tricks and moot 
 points concerning taxes, and making new gutters or walls, to 
 suflFer a great part of the realm to be surrounded and overflown; 
 for the winds nor the sea could be stayed with such new con- 
 structions and moot points " (a). However, besides the authority 
 of Lord Coke, there was a strong inclination towards the same 
 opinion, by Lord C. J. Roll, above cited ; and we are told, that 
 even Sir John Popham himself did not venture to compel any 
 contribution towards the making of a new river, which he had 
 began at his own expense, but brought a bill into Parliament for 
 the purpose; and this, although the ostensible object in making 
 the river seemed to have been the public good (6). The bill, 
 however, failed ; and it must be admitted that there is a con- 
 siderable distinction between a new wall, or sewer, and a new 
 river. All these observations are also to be found in the Digest 
 of Chief Baron Comyns, who does not impugn the cases in 
 Callis, but, on the contrary, seems to entertain the same distinc- 
 tion between building a new wall on an ancient site, and erect- 
 ing one entirely new, which we have above adverted to (c). 
 
 Upon the whole, it may be said, that very considerable doubts, 
 as we have intimated in a former part of this chapter, were 
 entertained for many years upon this subject, and to an extent 
 so serious, that the act of William and Mary, already referred 
 to, was passed in order to quiet all apprehensions upon the 
 subject; thereby including new sewers then made in London, 
 
 (a) Mo. 828. 
 
 (6) 10 Rep. 142(b). 
 
 (c) 7 Com. Dig. 341, 342. In p. 242 are these words, " Nor new drains, 
 banks or sluices." (Mo. 825.) But whatever might have been the 
 opinion of the Lord Chief Baron, there seems to be some mistake in citing 
 this from Moor, because the making of these new drains was one of the 
 difficulties urged against the commissioners of sewers at the council table ; 
 and their lordships expressly overruled that objection. See Mo. 824, &c. 
 
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122 Duties and Powers of Commissioners. [chap. ii. 
 
 Westminster, and other places there mentioned, within the 
 jurisdiction of sewers, and enabling commissioners at the same 
 time to make new sewers when and where they might see con- 
 venient (rf). 
 
 And further, in the county of Glamorgan, where it had been 
 found, that the sea sands had done considerable injury to the 
 lands adjoining, it was thought expedient to give a special juris- 
 diction to the commissioners of Glamorganshire by statute. 
 
 And thus by 1 Mar. sess. 3, c. 11, ss. 1 and 2, after reciting 
 the beneficial objects intended by the statute 23 Hen. 8, and, 
 moreover, that it was then the prevailing opinion, that the act 
 of Hen. 8 did not extend to repair any mischief done by reason 
 of sand arising out of the sea, and driven to land by storms and 
 winds so as to cover and render unprofitable much good giound 
 lying on the sea coast; .for remedy whereof, it was enacted, 
 that the commissioners for the county of Glamorgan, or six of 
 them, whereof three to be of the quorum, might act and make 
 laws for the regaining and delivering these lands from the sea 
 sands, as they were empowered to do by the statute of Hen. 8 
 for the withstanding and avoiding the outrageous course or rage 
 of the sea, or other waters. 
 
 And now the statute 3 & 4 Will. 4, c. 22, has taken an exten- 
 sive range of this subject, conferring an ample power to repair 
 ancient defences, as well as with certain consents (e) create 
 and preserve new works. Thus by sect. 19, it shall and may 
 be lawful, &c., for any Court of Sewers to decree and ordain 
 any new walls, banks, sewers, guts, gotes, calcies, bridges, 
 tunnels, culverts, sluices, floodgates, tumbling bays, cuts or 
 other works, aids and defences, or any alteration in the gauge, 
 dimension, course, direction or situation of any old or existing 
 walls, banks, rivers, sewers, guts, gotes, calcies, bridges, tunnels, 
 culverts, sluices, floodgates, tumbling bays, cuts and other 
 works, aids and defences to be constructed, made and done for 
 
 {d) See Callis, 104, who mentions two local statutes by which commis- 
 sioners were authorized to go through private grounds, upon making com- 
 pensation. 
 
 (c) Sect. 21, post. 
 
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CHAP. II.] Duties and Powers of Commissioners. 123 
 
 the more effectually defending and securing any lands, tene- 
 ments, hereditaments and premises within the jurisdiction of 
 such Court against the irruption or overflowing of the sea, or 
 for draining and carrying off the superfluous fresh waters, 
 according to the wisdom and discretion of such Court, and also, 
 in like manner and at their discretion, to decree and ordain any 
 former walls or defences against the sea, or against any rivers, 
 streams, sewers or watercourses, within their commission, to be 
 abandoned and given up, and new defences and walls, banks, 
 sluices, floodgates, tumbling bays, cuts and other works to be 
 made and continued in lieu thereof; and in every such case to 
 direct by inquiry and presentment of a jury in what manner 
 and proportions the same shall thereafter be repaired and main- 
 tained by the person, body politic or corporate, deriving ad- 
 vantage or avoiding damage thereby or therefrom, having 
 regard to previous liabilities in respect of the walls and defences 
 so to be abandoned and given up. 
 
 There is a saving clause as to Sandwich Haven. Thus, by 
 sect. 20, nothing hereinbefore contained, &c., shall be construed 
 to authorize or empower the commissioners acting under any 
 commission of sewers for the county of Kent, or any limits or 
 district within the same, to decree or ordain any wall, bank, 
 sewer, gut, cut, gote, calcey, sluice, floodgate, tumbling bay or 
 other work, aid or defence to be constructed, made or done for 
 conveying the waters of the river Stour, above Sandwich Bridge 
 in the county of Kent, into the part of Sandwich Haven below 
 the bridge, or into the sea at Pegwell Bay, not authorized by an 
 act passed in the sixteenth year of the reign of his late Majesty 
 King George the Third, intituled "An Act to enable the 
 Commissioners of Sewers for the several limits in the eastern 
 parts of the county of Kent more efiectually to drain and im- 
 prove the lands and grounds within the general valleys," or so 
 as in any manner to afiect, alter or interfere with the provisions 
 of the said act for the preventing of prejudice to Sandwich 
 Haven- 
 There follows, however, a proviso by sect. 21, "that none of 
 these works shall take place, i. e., where none have or hath or 
 shall have theretofore been," without the consent in writing, 
 
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124 Duties and Powers of Commissioners. [chap. ii. 
 
 certified to the Court of Sewers, of the ownere and occupiers 
 respectively, or their respective husbands, guardians, trustees 
 or feoffees, committees, executors or administrators of three- 
 fourths at the least in value of the lands and hereditaments 
 lying within the valley, level or district proposed to be charged 
 with the costs and expenses of making the new works. It will 
 be observed, that the assentients must be three-fourths in value, 
 not merely in numbers. Again, by 24 & 25 Vict. c. 133, s. 29, 
 before commencing any improvements in existing woi-ks, or any 
 new works, where the same will cost more than 1,000/., plans 
 and estimates, and the area within which the rate is to be levied 
 must be produced, with a list of the names and addresses of 
 proprietors within the area, and the respective acreages. Two 
 months' notice must also be given : 1, by advertisement, stating 
 the work, the expense and the area, with a reference to plans or 
 boundaries or otherwise, and the place where such may be 
 inspected. 2. By placing a copy of the notice on the doors of 
 the church for three successive Sundays. By sect. 30, the 
 list of proprietors may be corrected within the two months, as 
 well as the acreages, upon application to the commissioners, 
 whose decision shall be final. After the two months the settled 
 list shall be conclusive evidence of proprietorship with regard 
 to dissents. By sect. 31, the dissent of one-half of the area 
 shall stop the work, upon notice in writing left at the office of the 
 commissioners. If no such dissent be shown, the works, after 
 the two months, may be begun ; and all expenses, not exceed- 
 ing the estimate, paid out of the rates within the area. By 
 sect. 32, if no proprietor of any particular land should appear, 
 his name shall be included in any computation. 
 
 Moreover, the stat. 11 & 12 Vict. c. 63 (The Public Health 
 Bill), enabled the local board appointed or elected under that 
 act to make contracts for carrying the act into execution. If 
 the board make a sewer through private lands, they must make 
 compensation, and it is no defence that the plaintiff has sus- 
 tained no damage by the making of the sewer (_/). 
 
 The 85th section of this act sets forth full particulars con- 
 
 (/) Re Arbitration between Bradley and the Local Board of South- 
 ampton, 24 L. J., Q. B. 239 ; 4 El. & Bl. 1014. 
 
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CHAP. II.] Duties and Powers of Commissioners. 125 
 
 cerning these contracts, which of course embrace sewerage and 
 drainage, as well as other sanitary improvements. 
 
 But whatever might have been the differences of opinion in 
 former times respecting new defences, the making of new works, 
 not being immediately connected with the general welfare, was 
 never deemed to be within their reach. Thus, in the case of 
 the Isle of Ely, one of the points there discussed was, whether 
 certain commissioners had done right in decreeing that a new 
 river should be made out of the old river of Ouse, and through 
 the main land within the same isle, for seven miles; and the 
 Court held, that no such power was vested in those officers. 
 For if commissioners were ex officio enabled to perform such 
 undertakings, great inconvenience for private lucre's sake might 
 ensue, as well in respect of public damage, as the stopping of 
 havens, and other common rivers, as of particular nuisances and 
 prejudices to private men, by the drowning of their lands and 
 inheritances. It was, therefore, holden, that such new rivers 
 could not be made without the king's licence, grounded upon 
 the writ of ad quod damnum (g). 
 
 Nor can the commissioners of sewers improve the navigation 
 of a river, or make a river navigable, which was not so before. 
 And although this position may at first seem to clash with the 
 doctrine so often mentioned before, namely, that commissioners 
 may act very remedially for the advancement of commerce, and 
 in furtherance of navigation ; yet it will be recollected, that 
 their power has never been asserted to extend beyond the 
 removal of obstructions, or, at the most, the erection of new 
 defences, which might in some measure be beneficial to traffic. 
 An order was made by certain commissioners, charging the 
 inhabitants of Westham for the erection of a tumbling bay, in 
 order to prevent any inconvenience which might arise from a 
 lock which had been set up, and assessing them for a lock, to 
 prevent the damage which the tumbling bay would occasion to 
 the navigation. In the order, the first lock was mentioned to 
 have been erected for a private benefit. It was moved to quash 
 this order; and the Court were clear that it was invalid, for 
 
 (g) The case of the Isle of Ely, 10 Rep. 141 ; Mich. 7, Jac. 1. 
 
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126 Duties and Powers of Commissioners — Annoyances, [ch. ii. 
 
 the commissioners possessed no power to charge inhabitants 
 for finding an expedient how a thing erected for a private 
 benefit might be continued, and yet be no nuisance; they ought 
 to have abated the nuisance. And with regard to improve- 
 ments, the Court added, that commissioners might preserve a 
 river in its original state, by removing obstructions, and by other 
 natural ways ; but that they could not even help the navigation 
 by erecting locks, or by any such artificial methods (Ji). And 
 from hence, too, it appears plainly, that nothing of a private 
 nature can be meddled with, unless it be for the public general 
 good ; and H fortiori, no private interests can be served, except 
 by the intervention of an act of the Legislature. 
 
 Destruction The next consideration which we propose, is the duty of 
 anoes!"^' Commissioners of sewers in the destruction and abatement of 
 annoyances. The impediments to navigation, and to the due 
 maintenance of sewage, have been mentioned above, such as 
 mills,'wears, flood-gates, &c. ; and it has been shown, under the 
 question of survey already discussed, that annoyances of these 
 descriptions are specially entrusted to the authority of commis- 
 sioners. The construction of the statutes concerning the 
 abolition of these annoyances has been, that wears, mills, and 
 other such impediments, which exist without lawful warrant or 
 authority, are within the reach of commissioners, who may 
 abate them at their discretion. And the meaning of these 
 words, " lawful warrant and authority," is held to mean custom 
 or prescription.* So that a mill or wear which has attained to 
 an immemorial existence, cannot be interfered with (i). 
 
 And further, if these immemorial wears, &c., should have 
 been enhanced so as to exceed their ancient size and compass, 
 the commissioners are empowered to abate and pull down the 
 excess only (A). 
 
 {h) The Queen v. The Inhabitants of Westham in Essex, 10 Mod. 159 ; 
 and see Callis, 270. 
 
 * The statute mentions the time of Edward 1. Mills, &c., erected before 
 that time are exempt from the jurisdiction of commissioners, unless they be 
 afterwards enlarged so as to become nuisances, 10 Rep. 138 ; 7 Com. Die. 
 312. 
 
 (i) See Callis, 256, &c. The case of Chester Mill, 10 Rep. 138. The 
 case of Sewers, 13 Rep. 36. 
 
 (/c) 10 Rep. 138(b). 
 
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CH. II.] Duties and Powei-s of Commissioners— Annoyances. 127 
 
 And it is again observable, that the destruction of these 
 matters is left principally to the discretion of the officers of 
 sewers, for such mills, &c., only as are hurtful ought to be abo- 
 lished ; for as Callis declares, " in some great havens and ports, 
 great abundance of piles and timber posts are set in the waters 
 to stay the rage, force, and violence of the waters, for the safe- 
 guard of the port and haven" (Z). 
 
 Clearly, therefore, if a stranger presume to meddle with these 
 matters within the limits of a commission of sewers, or if he 
 pitch down piles, or places stakes in any rivers or streams, he 
 may be punished by fine or amerciament, and be compelled to 
 remove the nuisance at his own expense (m). 
 
 Some few cases concerning the removal of the impediments 
 above alluded to shall be added here in their order. In an old 
 case, it was presented in the King's Bench, that one W. had 
 obstructed the course of the water of S., by suffering trees to 
 grow upon the bank to the hindrance of navigation ; and the 
 Court did not incline that he should be fined, because the 
 growing of the trees was not his act ; yet they agreed, that if 
 the nuisances were not removed, some remedy should be 
 applied («). 
 
 Upon another occasion, where a presentment had been found 
 before commissioners, that certain persons had turned the course 
 of the river Lea, having obstructed it with piles and stakes to 
 the hindrance of the craft which were accustomed to pass along 
 there, it was decreed, that those who were presented by name, 
 and had done part of the nuisance, should reform the same ; and 
 as to the other part of the nuisance the sheriff was directed to 
 reform it, the names of the other parties not having been 
 discovered : the sheriff to take the proprietors of the adjoining 
 grounds to his assistance for that purpose (o). 
 
 Mr. Sergeant Callis reports the following case, which occurred 
 in 19 Jac. 1. Queen Mary was seised of the manor of Mon- 
 
 (i) Callis, 266. 
 
 (m) Id. 267. 
 
 (n) 42 Ass. pi. 14, B.; and see Callis, 268, 269. 
 
 (o) 19 Ass. pi. 6 ; and see Callis, 269. 
 
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128 Duties and Powers of Commissioners — Annoyances, [en. ii. 
 
 mouth, and of a free fishing in the Wye, and of a wear and 
 fish-yard there. The wear appeared clearly to have existed 
 from time immemorial, and it came after various leases and 
 assignments to the plaintiff. In the year above mentioned, 
 however, the commissioners of sewers caused a jury to be 
 empanelled concerning this wear and fish-yard ; and they 
 found, that the plaintiff was possessed of the wear in question, 
 that it was very high and hurtful, and a considerable impediment 
 to navigation ; and that but for the wear, boats of two or three 
 tons could pass over the river ; that the wear was otherwise 
 mischievous, and a great annoyance to the whole country. The 
 commissioners decreed the abolition of the alleged nuisance in 
 consequence of this verdict, and the destruction was effected 
 accordingly. But the plaintiff brought the case into the Duchy 
 Court at Westminster, and the Court, consisting of several 
 Judges,* were of opinion, that being an ancient wear it ought 
 not to have been so overthrown by the decree of the commis- 
 sioners ; and that although it had been presented by the jury 
 that the wear was high and enhanced, yet because it had not 
 been stated how great the increase had been, nor in what 
 particular place it had occurred, that therefore the verdict was 
 of no validity {q). 
 
 The next case was where one Hide moved to quash an 
 indictment taken before commissioners of sewers, for a 
 nuisance to the high road, by penning back water in the 
 river at his mill, so that the banks were overflowed, and thus 
 the way was damaged. And it was objected, that the indict- 
 ment had not laid the stream to have been a navigable river; 
 but Roll, C. J., overruled that difficulty, mentioning another, 
 however, which he deemed unanswerable, namely, that com- 
 missioners of sewers had no authority to meddle with nuisances 
 in the way, but only with passages by water. And the indict- 
 ment was quashed (r). 
 
 Then, in the next reign, an order was made by commis- 
 sioners of sewers upon a miller, that he should repair his 
 
 » Sir Humphry May, Chancellor ; Baron Denham, Chamberlain, J., &c. 
 {q) Hall V. Mason and others, Callis, 262. 
 (r) Rex V. Hide, Sty. 60. 
 
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CH. II.] Duties and Forcers of Commissioners — Annoyances. 129 
 
 floodgates, and make them of less size than before; and amongst 
 other objections taken to these orders, it was said, that the 
 commissioners could not do this, because the mill ought to be 
 presumed to have been an ancient mill. But the Court said, 
 they would not intend this to be a mill erected before the time 
 of Edw. 1 ; and then, in the absence of any evidence of its being 
 an immemorial mill, the commissioners might certainly require 
 the alterations which had been resisted. But the order was 
 held void, notwithstanding, upon another ground (s). 
 
 Further, it is observable, that commissioners are bound to 
 abate these nuisances, and not merely to qualify them (<). As in 
 the case of the tumbling bay and lock above referred to, it was 
 not competent there for the commissioners to attempt a modi- 
 fication of the mischief which was anticipated from the making 
 of a lock, their duty being to extirpate the annoyance. A case 
 occurred lately, in which the directors of the Bristol dock 
 company were held strictly to this principle under the provisions 
 of the statute enabling them to alter and reconstruct rivers, 
 upon the formation of a floating dock at Bristol. The act of 
 43 Geo. 3, c. 140, empowered them, at the charge of the com- 
 pany, to form and complete a common sewer at a certain place, 
 [at Bristol], and also to form and complete collateral sewers 
 leading thereto, and to alter the sewers of Bristol in such a 
 manner as that the sewage discharged into the Avon above 
 Bristol Bridge might be for the most part carried off", and not 
 permitted to mix with the water in the floating harbour ; and, 
 further, to make such alterations and amendments as might be 
 deemed expedient in consequence of the floating harbour before 
 mentioned. In pursuance of this act, alterations were made 
 in the sewers, but an offensive nuisance was left, to the great 
 annoyance of the neighbourhood ; for although the sewers were 
 discharged considerably under the surface of the floating harbour, 
 the sewage continued to be highly obnoxious. A mandamus 
 was then applied for to compel the directors to make such 
 alterations and amendments as became necessary in consequence 
 of the harbour, and which, moreover, were prescribed by act of 
 Parliament. The directors returned, that they had done all in 
 
 (s) Inhabitants de Oldbery v. Stafford, 1 Sid. 145. 
 (<) 10 Mod. 159. 
 
 W. S. 
 
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130 Duties and Powers of Commissioners — Annoyances, [en. ii. 
 
 their power towards the fulfilment of the statute, that they had 
 altered, amended, and reconstructed sewers, but that as long as 
 the sewage continued to be discharged under the surface of the 
 floating harbour, according to the directions of the act of 
 Parliament, the nuisance must continue, and could not be 
 removed, and that the only remedy would be by constructing 
 new sewers, and that they had no lands through which any new 
 sewers could be made. But the Court held this return invalid, 
 and awarded a peremptory mandamus. It had been objected to 
 the writ, first, there was no distinct allegation that the alterations 
 became necessary in consequence of the discharge of the sewage 
 into the floating harbour : this, however, although no direct 
 allegation bad indeed been made, was expressed virtually by 
 terms which could not be misunderstood : then, secondly, when 
 the application was made to the company, no specific alterations 
 or amendments had been mentioned, and the writ, consequently, 
 took notice of none such. But the mode of proceeding in 
 making these alterations was left to the discretion of the 
 company, and the specification, therefore, was neither necessary 
 nor proper. Then, with respect to the return, the Court held, 
 that the power of discharging the sewage under the harbour was 
 quite consistent with an authority to carry the sewers elsewhere, 
 if expedient. The words " alterations and amendments," gave 
 the company a full power to do all that might be requisite in 
 consequence of the creation of this floating harbour. It had 
 been contended, that as the company did alter the sewers so as 
 to discharge them under the surface of the water of the floating 
 harbour, they had done all that had been required of them. 
 But if so, the latter part of the clause would be wholly 
 inoperative : it might as well be supposed that the Legislature 
 had given the company power to keep out the tide by stopping 
 the course of the rivers Avon and Frome : and that although 
 the rivers were thereby rendered so corrupt as to prove 
 unhealthy to all the neighbourhood, still that the nuisance 
 should be suffered to exist. The return was consequently 
 quashed, and a peremptory mandamus awarded (m). Hol- 
 royd, J., had at first doubted whether the company were not 
 bound to discharge the whole of the sewage into the floating 
 
 (m) The King v. Tlie Bristol Dock Company, 6 B. & C. 181. 
 
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CH. II.] Duties and Powers of Commissioners — Annoyances. 131 
 
 harbour, but he subsequently considered, that a discretion had 
 been vested in the company as to which sewers they might think 
 fit to discharge into the harbour, and that the words of obliga- 
 tion, as to discharging them under the surface of the water, 
 would be satisfied by applying them to the sewers so let into the 
 harbour by the discretion intrusted to the company {x). 
 
 Next, with respect to annoyances, impediments, or nuisances Private 
 
 , T«. . , 111 nuisances. 
 
 upon the grounds or private persons, it may be remarked, that 
 although commissioners of sewers cannot confer any benefit 
 upon such lands for the sake of individual convenience, yet they 
 may enter there to abate mischiefs which are occasioning 
 damage to the community. So that if there be an ancient 
 bridge over a great or less river over which a certain person 
 and his ancestors have been accustomed to pass towaids the 
 church, or the pasture lands, or the common, the commissioners 
 may destroy even this bridge if it be injurious to the public ; 
 and, on the other hand, they may maintain it against the 
 violence of the waters, if necessary (?/). 
 
 Nevertheless, the learned Callis is of opinion, that great 
 caution should be adopted in abolishing bridges which have 
 acquired an immemorial antiquity, since " time hath given 
 great approbation of them" (2); and in a subsequent part of 
 liis work, he clearly intimates that no mills, bridges, &c. should 
 be overthrown, unless they really be lets or impediments to 
 navigation (a). 
 
 Again, the learned sergeant observes with respect to private 
 walls, that in the county of Lincoln and other places in the 
 realm, many private persons have, for inning and for the safety 
 of their marshes and marsh grounds, cast great banks for their 
 private uses ; and that although such banks were not within the 
 protection of the laws of sewers so as to be maintained by virtue 
 thereof, yet that they might be extirpated if it should appear 
 
 (x) The King v. The Bristol Dock Company, 6 B. & C. 193. 
 ly) Callis, 89. 
 {z) Ibid, 
 (a) Id. 266. 
 
 k2 
 
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132 Duties and Powers of Commissioners— Annoyances, [ch. ii. 
 
 that their continuance were a hindrance to the common good of 
 the county (6). 
 
 We have seen in the first chapter, that a new jurisdiction has 
 been created respecting sewers by the statute 11 & 12 Vict. 
 c. 63 (c). And it was there mentioned, that the 43rd section 
 of the same statute vested, amongst other things, all sewers, 
 subject to certain exceptions there mentioned, together with 
 all buildings belonging thereto, in the local board {d). 
 
 The duties and powers of this local board, with reference to 
 sewers, are sufficiently extensive to require a separate notice. 
 
 The 11 & 12 Vict. c. 63, s. 44, enacts, that the local board 
 may purchase sewers subject to private rights ; and by sect. 45, 
 they shall repair the sewers thus vested in them, and may make 
 such sewers as may be requisite within their district. For this 
 purpose, the board may carry such sewers or drains through, 
 across, or under any turnpike road, or any street or place 
 laid out or intended for a street, or under any cellar or vault 
 which may be under the pavement or carriage-way of any street ; 
 and, after reasonable notice in that behalf, into, through, or 
 under any lands whatsoever. 
 
 Secondly, They may enlarge, lessen, alter, arch over, or 
 improve any of these sewers, and discontinue, close up, or 
 destroy such as they may deem unnecessary. But such dis- 
 continuance, &c. of the sewer must be so done as not to create 
 a nuisance ; and if any person should be deprived of the lawful 
 use of any sewer by reason thereof, the local board must 
 provide a sewer as effectual as that which they have taken 
 away. On the other hand, they are not empowered to make 
 new sewers out of their district. The Local Government 
 Act (e) only permits the exercise of powers beyond the district 
 for the purpose of outfall or distribution of sewage. So that 
 
 (ft) Callis, 76. 
 
 (c) Ante, p. 18. 
 
 (d) Ante, p. 26. 
 
 (c) 21 & 22 Vict. u. 98, s. 30. They may dispose of sewage, sect. 30 ; and 
 may obtain an order from a justice to cleanse all foul watercourses and 
 ditches, sect. 31. As to the sewering of highways, see sect, 38. 
 
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CH. II.] Duties and Powers of Commissioners — Annoyances. 133 
 
 an injunction was granted against the local board (/). Nor 
 can a vestry under 18 & 19 Vict. c. 120, s. 76, compel a man 
 to construct a sewer. Even where one was built under a mis- 
 apprehension, the vestry could not compel him to continue it, 
 and an injunction was granted to prevent the vestry from exer- 
 cising acts of demolition or injury (g). But they have a right 
 to dictate which sort of pipes shall be used, as Lambeth or 
 Aylesford, so that where the plaintiff did not obey the vestry by 
 putting down Lambeth pipes, the Court refused an injunction to 
 hinder them from entering his premises to take up the Aylesford 
 pipes (A). Again, the powers of commissioners are by no 
 means unlimited. If they have power to drain, they must not 
 drive away the fish, nor hinder cattle from drinking the water 
 of a river, although seven miles distant from the property of the 
 person aggrieved. Even, if they had used such a right before 
 that act, they would not be justified. A borough council having 
 assured the plaintiff that no mischief would occur, the lapse of 
 four years was considered to be no laches. For the prospect of 
 an injury does not give a right to relief (i). 
 
 The cleansing of the sewers comes next. By sect. 46, it lies 
 upon the local board to cause these sewers to be so kept as not 
 to be a nuisance, and to be cleared, cleansed, and emptied. 
 In order to do this, they may construct, either above or under 
 ground, any reservoirs, sluices, engines, and other necessary 
 works, and cause all or any of such sewers and drains to 
 communicate with and be emptied into such places as they may 
 think fit, or they may collect and sell the sewage, but not so as 
 to create a nuisance. But they cannot make these reservoirs 
 upon private grounds without an act (j). Then follows a 
 penalty for making sewers unauthorized by the local board. 
 By sect, 47, no sewer or drain shall communicate with or be 
 emptied into any sewer belonging to the local board, nor shall 
 any building be erected over such last-mentioned sewer, nor 
 shall any vault, arch, or cellar be built under the carriage-way 
 of any street, without the consent of the local board. A breach 
 
 (/) Hayward v. Lowndes, 28 L. J., Ch. 400; 4 Drew. 454. 
 
 (g) Clarke v. Paddington Vestry, 5 Jur. (N. S.) Ch. 138. 
 
 (A) Austin V. Lambeth Vestry, 27 L. J., Ch. 677. 
 
 (i) Attorney-General v. Birmingham Borough Council, 4 Kay & J. 528. 
 
 (j) Sutton V. Mayor, &c. of Norwich, 27 L. J., Ch. 739. 
 
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134 Duties and Powers of Commissioners — Annoyances, [ch. ii. 
 
 of this law is punishable by a penalty of bl., to be forfeited to 
 the board (k), and a further penalty of 40s. for every day during 
 which the offence shall be continued, after notice in writing 
 from the board (J). And if any sewer, drain, building, &c. 
 be so made, the local board may cause it to be altered, pulled 
 down, &c., and the expenses incurred may be recovered in the 
 summary manner provided by the act {m). But by sect. 48, 
 any owner or occupier of premises adjoining or near to, but 
 beyond the limits of any district, may cause any sewer or drain 
 belonging to such premises to communicate with any sewer of the 
 local board, upon such terms as may be agreed upon between 
 such owner and occupier and the local board, or, in case of 
 dispute, as shall be settled by arbitration (w). 
 
 The consideration of an improved sewerage, whether by the 
 maintenance of drains, or the closing of offensive ditches, &c., 
 is further carried on in the following clauses. The 49th section 
 provides, that no house shall be built or rebuilt, where it has 
 been pulled down as far as the ground floor, without covered 
 drains, to be constructed upon the report of the surveyor, 
 so as to provide effectual drainage. If the sea, or a sewer 
 belonging to the board, be within 100 feet of any part of the 
 site of the house in question, the drains shall communicate with 
 one of those means of drainage as the local board shall direct. 
 If there be no such means of drainage, then the drains shall 
 empty themselves into such covered cesspool, or other place, 
 not being under or within such distance from any house, as the 
 board may direct. Disobedience to this law is punishable by 
 a penalty of 50/., to be sued for by any pereon by action of 
 debt. 
 
 Again, if the surveyor should report to the board that any 
 house within the district, whether built before or after the act 
 may be applied, is without a drain, or without such a drain 
 communicating with the sea, or a sewer, as may be sufficient 
 for proper drainage of the house, and if the sea or a sewer 
 belonging to the board be within 100 feet of any part of the 
 house, the board shall give notice in writing to the owner or 
 occupier, requiring him forthwith, or within a reasonable time 
 
 (*) See sect. 129. (m) Ibid. 
 
 (/; Ibid. (k) See sect. 123, &c. 
 
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CH. II.] Duties and Powers of Commissioners — Annoyances. 135 
 
 therein specified, to construct and lay down in connection with 
 such house, and one of those means of drainage, one or more 
 covered drain or drains, as the. report shall declare to be neces- 
 sary. If the notice be not complied with, the local board may 
 do the work, and the expenses shall be recovered in a summary 
 manner (o), or deemed private improvement expenses, and 
 shall be recoverable accordingly ( "p). 
 
 And as to houses now built, the stat. 7 & 8 Vict. c. 84, s. 51 
 (the Metropolis Buildings Act), provides, that the drainage 
 shall be conducted according to Schedule (H.) of that act (i^). 
 And any person making default shall be liable to such penalties 
 as are attached to persons building contrary to the act (?•). 
 Moreover, as to the communication of such drains with sewers, 
 the same Schedule (H.) must be followed ; unless its provisions 
 be repugnant to the orders of commissioners of sewers, for the 
 powers of those commissioners are expressly saved by this 
 clause. And the stat. 18 & 19 Vict. c. 30, now at an end, 
 conferred further powers upon these commissioners with regard 
 to the drainage of houses, especially with a view of guarding 
 against zymotic diseases (/). 
 
 Where the evidence of scientific men conflicted, an injunction 
 was refused to hinder the vestry from meddling with pipes of 
 peculiar construction (<). And the bill was thereupon dismissed 
 with costs (m). 
 
 There is a beneficial clause for small parishes, enabling them 
 to have the benefits of sewerage and of water at the expense of 
 the poors' rate. By 11 & 12 Vict. c. 63, s. 50 (the Public 
 Health Act), if a majority of not less thau thiee-fifths of the 
 rated inhabitants of any parish or place, containing less than 
 2,000 before the last census, shall be of opinion at a public 
 
 (o) See sect. 129. 
 
 (p) See sect. 90. And as to the recovery of these private expenses, see 
 sect. 103, &c. And see sect. 75, as to the supply of water to houses. 
 
 {q) See the schedule. 
 
 \r) Under sects. 13 and 18. 
 
 (s) A statute of three sections to be construed as one with 11 & 12 Vict. 
 c. 112. 
 
 {t) Austin I'. St. Mary, Lambeth, 27 L. J., Ch. 388. 
 
 (a) Id. 677. 
 
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136 Duties and Powers of Commissioners — Annoyances, [ch. ii. 
 
 meeting (aj), (the parish or place is to be one not affected by 
 any order of council or provisional order under the act), that any 
 poo], place, open ditch, sewer, &c., should be drained, cleansed, 
 &c., or that a sewer should be made or improved, a well dug, 
 or pump provided for the inhabitants ; the churchwardens and 
 overseers of the parish shall procure an estimate, and call 
 another meeting for the purpose of approying of such estimate ; 
 after which, if such estimate shall be approved by the majority, 
 the works in question shall be executed by the direction of 
 such churchwardens, &c., and the costs of the same paid out of 
 the poors' rate. 
 
 Again, by sect. 51, there must not be any new house, nor 
 may any house be rebuilt as aforesaid, without a watercloset or 
 privy, and an ashpit, with proper doors and coverings ; and a 
 penalty of 20Z. is awarded for a default in this particular (j/). 
 And if the surveyor to the local board should report that there 
 is an absence of such privy, &c., in any house, the local board 
 shall give notice in writing to the owner or occupier, requiring 
 him to provide those conveniences. Then, upon his neglect, 
 the local board may do these or any other necessary works, the 
 costs of which may be recovered in a summary manner (z), or be 
 deemed private improvement expenses (a). However, should it 
 appear that the inmates of two houses are in the habit of using 
 the same privy, &c., or that, in the opinion of the local board, 
 there needs not be more than one, it shall not be necessary to 
 provide one for each house. 
 
 By the 52nd section, also, waterclosets shall be established 
 in factories, or other buildings, where above twenty persons of 
 both sexes are employed, or intended so to be. The owner or 
 occupier, after notice in writing from the board, must construct 
 a sufficient number of such waterclosets, for the separate use of 
 each sex, under a penalty of 20Z., and a further penalty, not 
 exceeding 40«., for every day of default (6). And by sect. 57, 
 
 (x) Which is to be called by the churchwardens and overseers by a 
 similar notice to that directed to be given to superintending inspectors 
 under sect. 9. 
 
 (^) This would apply only to houses within some district. 
 
 (a) See sect. 129. 
 
 (o) See sects. 90, 103. 
 
 (6) See sect. 129. 
 
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CH. II.] Duties and Powers of Commissioners — Annoyances. 137 
 
 the board may provide public necessaries, and pay the expenses 
 out of the district rate. 
 
 By 21 & 22 Vict. c. 98, s. 34, every local board may 
 make bye-laws as to the level, width and construction of new 
 streets, and the provisions for the sewerage thereof, and witla 
 respect to the drainage of buildings to waterclosets, privies, 
 ashpits, &c. 
 
 Invested with such unlimited powers over drains and sewers, 
 there is yet an obligation upon the local board that there shall 
 be no nuisances. For instance, by 11 & 12 Vict. c. 63, s. 54, 
 it is a duty of the local board to see and make provision that all 
 drains, privies, &c., within their district, are so constructed as 
 not to be a nuisance, nor injurious to health. The surveyor, 
 with a written authority from the board (but such authority 
 cannot be given unless there be a written complaint from 
 some person concerning the drain), may enter the premises of 
 an occupier, after twenty-four hours' notice, or, in case of emer- 
 gency, without notice, may cause the ground to be opened, and 
 lay open any drains, &c., with or without assistants. If the 
 drain, &c., turns out to be in good condition, the surveyor shall 
 immediately have the ground closed, and, as soon as possible, 
 make good any damage, and the expenses of these works shall 
 be defrayed by the board. On the other hand, if the drain, 
 &c., turns out not to be in good condition, or requires altera- 
 tion, then the local board must give the occupier notice to 
 execute the necessary work within a time therein specified ; and 
 should he make default, the local board shall then do the work, 
 and the expenses shall be recovered in a summary manner (c), 
 or be deemed private improvement expenses, and recoverable 
 as such {d). But time may be allowed by the board for 
 repayment by annual instalments, not being less than one- 
 thirtieth, with interest at 51. per cent., the mode of recovery 
 being nevertheless permitted, in default of repayment, as in 
 
 (c) See sect. 129. 
 
 (d) See sects. 90, 103. 
 
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138 Duties and Powers of Commissioners — Annoyances, [ch. ir. 
 
 other cases (e). The local board are the judges of these works, 
 not the justices. The justices cannot reyiew the determination 
 of the board (_/). 
 
 Again, the 58th section imposes another duty of this nature 
 upon the board. For they must drain, cleanse, cover or fill up 
 all ponds, pools, open ditches, drains and places of drainage 
 containing filth, &c., or any matter prejudicial to health. They 
 shall cause notice to be given to the person causing the nui- 
 sance, or to the owner or occupier of any premises, requiring 
 him to drain, &c. such places, or to construct a proper sewer or 
 drain. Upon the default of the person thus warned, the local 
 board may do the necessary works, and the expenses may be 
 recovered in a summary way ( ff), or be deemed private im- 
 provement expenses, and be recoverable as such (A). Still the 
 local board may order that a portion of the expenses incurred 
 in such works may be defrayed out of the general or special 
 district rates. Under 21 & 22 Vict. c. 98, s. 32, the times and 
 manner of cleansing and emptying privies, &c., is to be re- 
 gulated by a bye-law of the local board. The same clause 
 provides for the cleansing of the streets, and other such mat- 
 ters. By 11 & 12 Vict. c. 123, s. 7, to suffer any sewage, 
 &c. to run, flow into, or remain in any open ditch, gutter, drain 
 or water course, so as to be a nuisance or injurious to health, 
 from any new house, is declared to be a misdemeanor, or, 
 in Scotland, an offence punishable by fine and imprisonment. 
 And the offender shall be liable, in addition, to a penalty not 
 exceeding 51., for every day during the continuance of the 
 offence. This act is repealed, but another statute gives power 
 to the local authority to lay down sewers or other structures and 
 keep the same in good repair, and they have powers to enter 
 lands for that purpose, and they may assess any houses, &c., to 
 the payment of such expenses. This proceeding, however, 
 applies to ditches, &c., which cannot be rendered innocuous 
 without such a sewer or other structure. This act is the 
 
 (e) 11 & 12 Vict. c. 63, s. 146. 
 
 (/) Hargreaves ii. Taylor, 9 Jur. (N. S.) 1053; 32 L. J., M. C. 111. 
 
 (g) See sect. 129. 
 
 (A) See sects. 90, 103. 
 
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CH. II.] Duties and Powers of Commissioners — Annoyances. 139 
 
 18 & 19 Vict. c. 121, s. 22j authorizes the covering and im- 
 proving of open ditches. Under this section houses were 
 assessed which were then built and were using a sewer, and sums 
 were set opposite to the names of the owners. A resolution was 
 passed enabling parties to compound. The assessment did not 
 provide for houses to he built. The rate was held good, and 
 the resolution to compound was deemed to be no part of the 
 assessment (I). Again, houses using a ditch or sewer were 
 assessed at Qd. And, by a separate resolution, composition 
 was admitted. The composition was held to be distinct from 
 the rate which was confirmed, and the resolution to compound 
 was considered legal (m). The board cannot assess out of their 
 jurisdiction. There were two houses in A. where there was a 
 drainage which went into B. There was no nuisance in A. 
 but A. was assessed. The rule to issue a distress warrant was 
 discharged (w). Certain houses used a drain which was made 
 innocuous by a district local authority. They were held not 
 liable (o). But, upon another occasion, where the drainage 
 passed through the sewers, it was held, that this was a using 
 within the act(/)). The board cannot proceed before justices 
 for the pollution of a watercourse where both cause and effect 
 are out of their jurisdiction (g'). The local authority must assess 
 the houses, &c., using the sewers, &c., before they can resort to 
 the highway rates, and an order to the contrary made by jus- 
 tices was quashed (/•). 
 
 Again, there is a provision against the overflow of waste water 
 and privies. For by 11 & 12 Vict. c. 63, s. 59, whosoever keeps 
 any swine or pigstye in any dwelling-house, so as to be a nui- 
 sance, or suffers any waste or stagnant water to remain in any 
 cellar or place within a dwelling-house for twenty-four hours after 
 notice in writing from the local board to remove the same, or 
 
 {I) R. V. Middlesex Justices, 2 Jur. (N. S.) 10*5. 
 
 (m) Sembl. S. C. nom. R. v. Warner, 6 El. & Bl. 395. 
 
 (n) R. V. Warner, 27 L. J., M. C. 144. 
 
 (o) R. V. Tatham, 8 El. & Bl. 915 ; Ex parte Hornsey Local Board, 4 
 ■Tur. (N. S.) 609; nom. R. v. Warner, 27 L. J., M. C. 144. 
 
 (p) R. V. Bodkin, 30 L. J., M. C. 38. 
 
 (q) R. V. Cotton, 28 L. J., M. C. 22. As to the distinction between a 
 mere order to abate a nuisance under 18 & 19 Vict. c. 121, s. 12, and 
 structural works under s. 16, see Ex parte Mayor of Liverpool, 27 L. J., 
 M. C. 89. 
 
 ()•) R. v. Gosse, 30 L. J., M. C. 41. 
 
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140 Duties and Powers of Commissioners — Annoyances, [ch. ii. 
 
 shall allow any privy, &c., to overflow or soak therefrom, shall 
 forfeit 40s., and 5s. a day besides, for every day during which 
 the oifence is continued (s). Every such nuisance shall be 
 abated by the local board, and whatever expense they may be 
 put to in so doing, shall be reimbursed by the occupier, and 
 recoverable in the summary manner provided by the act (i). 
 And if the inspector of nuisances should be of opinion at any 
 time that any accumulation of dung, &c. should be removed, he 
 shall give notice to the person to whom it belongs, or to the 
 occupier, to remove it. And if after twenty-four hours the no- 
 tice be not complied with, all such dung, &c. shall be vested in 
 and sold by the local board, and the proceeds carried to the 
 district fund account. 
 
 And by sect. 60, if upon the certificate of the officer of health, 
 or of any two medical practitioners, the local board shall be of 
 opinion that any house or part thereof is in a filthy condition, 
 so as to endanger the health of any person, or that whitewash- 
 ing, cleansing, &c. will tend to check or prevent disease, the 
 board shall give notice in writing to the owner or occupier to 
 whitewash or otherwise cleanse the same, and, upon default, he 
 shall be liable to a penalty of 10s. a day during such default. 
 And the board may cause such house to be whitewashed, &c., 
 and the expenses shall be repaid by the owner or occupier, and 
 be recoverable in a summary manner (m). 
 
 Nevertheless it is declared and enacted by sect. 65, that 
 nothing in this act shall be construed to legalize any nuisance 
 independent of the act, nor to exempt any person from liability, 
 prosecution, or punishment, in respect thereof. These latter 
 provisions are made general throughout Great Britain and Ire- 
 land, by an act passed for the speedy removal of nuisances (x), 
 unless there should be a local board in any district (y). 
 
 By sect. 41, the local board shall, if they think fit, cause a 
 
 (s) See sect. 129. (<) Ibid. (u) Ibid. 
 
 (x) 11 & 12 Vict. c. 123, ss. 1, 2. And as to the recovery of expenses, 
 see Id. ss. 3, 4. This statute, however, and 12 & 13 Vict. c. Ill, were 
 repealed by 18 & 19 Vict. c. 121, and other provisions were made. 
 
 (y) 11 & 12 Vict. c. 123, is. 5. And as to the matters connected with the 
 mode of executing the act, see sect. 16, et seq. 
 
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CH. II.] Duties and Powers of Commissioners — Annoyances. 141 
 
 map of sewerage to be made upon a scale to be prescribed by the 
 general board. It is to be kept at their oflBce, and to be open 
 to inspection. And by sect. 42, the expense of the surveys, &c. 
 shall be borne by the general district rate. 
 
 The 74th section directs the local board to provide premises 
 to be used as public vi^alks and pleasure grounds, and to support 
 or contribute to any such premises when provided by any 
 person. 
 
 Then foUove sections concerning supplies of vpater for the 
 purposes of drainage, to which we will shortly advert, as being 
 nearly connected with sewerage. 
 
 By sect. 75, the local board must provide supplies of water 
 for sewerage, drainage, cleansing the streets, and for the do- 
 mestic use of the inhabitants, and for these purposes they may 
 contract with persons, and purchase waterworks, &c. And any 
 Water Company may make a contract for such supply, or sell 
 their waterworks to the board. But if any Waterworks' Com- 
 pany within the limit should be willing and able to lay on the 
 water required, the board must not in that case interfere to 
 construct their own works. The purposes, however, for which 
 such water is required, and the terms upon which the Water- 
 works' Company must supply it, are to be fixed by the general 
 board, upon report and inquiry of a superintending inspector ; 
 and all differences as to such arrangements, as well as the 
 ability of the company to supply the water, shall be settled by 
 arbitration (z). 
 
 Moreover, the board must provide and maintain good and 
 wholesome water, and so as to reach the top of the highest 
 house in their district (a). 
 
 By sect. 76, if it should appear upon the surveyor's report 
 that any house is without water, and that a supply of water can 
 be furnished at twopence a week, notice is to be given to the 
 
 (ai) See sect. 123, &c. (o) Sect. 75, ut supra. 
 
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142 Duties a'nd Powers of Commissioners — Annoyances, [ch. ii. 
 
 occupier to do the necessary works ; and, upon his default, the 
 board may do the works, levy a water rate, and recover the 
 expenses as private improvement expenses (6). 
 
 The 79th section inflicts a penalty of 5Z., to be forfeited to 
 the board, and a further penalty of 20.?. per day during the con- 
 tinuance of the offence, upon all persons injuring or damaging 
 the waterworks, or diverting or wasting the water (c). But it 
 is provided, that the owner and occupier of any house may use 
 streams of water as they were wont before the passing of the 
 act. Again, the 80th section prescribes a penalty of 5Z., and 
 20s. a day during the continuance of any ofience, after a written 
 notice, committed by persons bathing in water belonging to the 
 board, or fouling the water in any way (<?). And if any gas 
 proprietor, or person engaged in gas works, shall suffer any 
 washing or substance used in the manufacture of gas, to flow into 
 any stream, reservoir, &c. belonging to the local board, or wilfully 
 do any act to foul the water, or whereby it may be fouled, he 
 shall forfeit 200Z., and after twenty-four hours' notice in writing 
 from the board, a further sum of 20Z. per day during the conti- 
 nuance of the offence, to be recovered by action of debt. And 
 further, if the water be in any manner fouled by the gas of a 
 proprietary of gas, the proprietor, &c. shall forfeit a sum not 
 exceeding 20Z. to the local board, and a further sum not 
 exceeding \0l. for every day of the continuance of the offence, 
 after twenty-four hours' notice in writing from the local 
 board (e). And in order to ascertain these matters, the local 
 board may lay open the gas works, giving twenty-four hours' 
 notice of the time of examination. Tlien if the fact be affirmed 
 against the gas works, the expenses of the examination shall be 
 paid by the proprietor, &c., and be recovered summarily (/). 
 But if the contrary be proved, the local board shall bear the 
 expense, which shall be paid from the general district rate, and 
 be recoverable summarily {g). 
 
 ih) See sects. 90, 103, and sects. 77, 78, as to providing water for trading 
 purposes, and for making public cisterns, &c. 
 
 (c) See sect. 129. (/) Ibid. 
 
 (d) Ibid. (g) Ibid. 
 
 (e) Ibid. 
 
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CH. II.] Duties and Powers of Commissioners — Annoyances. 143 
 
 There are likewise several clauses providing for purchases of 
 lands and for contracts by the local board (/»). 
 
 By 24 & 25 Vict. c. 133, s. 58, no person shall drain any 
 obnoxious matter into sewers without the consent of the com- 
 missioners, saving legal right, under a penalty of 5Z., and 40s. a 
 day during the continuance of the nuisance. 
 
 {h) See 11 & 12 Vict. c. 63, ss. 84, 85. 
 
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C 144 ) 
 
 CHAPTER III. 
 
 Of the Proceedings of Commissioners of Sewers in furtherance 
 of the Powei-s intrusted to them. 
 
 In the last chapter we took occasion to set out the particular 
 authorities and powers which the statutes of sewei-s conceded to 
 the commissioners for the purpose of carrying into effect the 
 matters so intrusted to their charge ; we now proceed to mention 
 the various courses or proceedings which they may institute, in 
 order to insure the sufficient and effectual accomplishment of 
 their duties. 
 
 Thus the mode of summoning juries for the purpose of inquir- 
 ing into neglects and defaults on the part of persons bound to 
 keep defences in repair — the decrees and orders made by com- 
 missioners from time to time, directing the making of such 
 necessary repairs, together with the general ability of those 
 officers to ordain such laws at their discretion, as they may 
 deem useful — the assessments imposed, as well as the manner 
 of enforcing them, — will be treated of in the progress of the 
 present chapter. But since parties who have been assessed to 
 the charges of sewers, do not unfrequently omit or refuse to pay 
 their contributions, commissioners are amply empowered to 
 inflict various punishments and penalties upon such persons for 
 their misconduct, and these measures of punishment, whether 
 by fine, distress, imprisonment, or the sale of the defaulter's 
 lands, will be respectively presented to the attention of the 
 reader. 
 
 It will be, however, desirable that we should not omit to 
 state the nature of the Court which commissioners of sewers are 
 authorized to hold, in order to render effectual the intentions of 
 the statutes ; and, in pursuance of this, the particular jurisdic- 
 
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CHAP. III.] Proceedings of Commissioners. 145 
 
 tion of these commissioners, and the power which they are 
 enabled to exercise over officers appointed by them, with other 
 incidental matters, will be notiied in the first instance. 
 
 Notwithstanding some ancient opinions to the contrary (a), commis- 
 it is now agreed, that the proceedings of commissioners of sewe'rshave 
 sewers are not merely ministerial, but judicial, and, conse- ^j""/^"* 
 quently, that they have a Court; and, further, as they are 
 empowered to hold pleas concerning the matters intrusted to 
 them, their Court is one of Record, and an eminent Court of 
 Record, as Mr. Sergeant Callis expresses it (J). And so Lord 
 Coke, when writing of Courts, enumerates among them, " The 
 Court of the Commissioners of Sewers" (c). 
 
 And by 3 & 4 Will. 4, c. 22, s. 60, the words "Court," and 
 '' Courts of Sewers," shall mean every Court, sessions, assem- 
 blage, or meeting of any six or more commissioners of sewers, 
 (three whereof being of the quorum,) named in any commission 
 of sewers, and acting in the execution thereof.* 
 
 Callis gives the following reasons for holding the opinions 
 just mentioned. First, that these commissioners are frequently 
 called justices (d) ; secondly, that legal proceedings and pro- 
 cesses take place by their authority ; thirdly, because the 
 commission of sewers is a member of the ancient and renowned 
 Court of Oyer and Terminer ; fourthly, because commissioners 
 have a clerk proper to themselves for the registration of their 
 laws ; fifthly, because they may make orders, and decrees, some 
 of which cannot be reversed but by act of Parliament, and these 
 orders and decrees are, in effect, judgments ; and, lastly, because 
 writs of errorf have been brought to reverse judgments in the 
 
 (a) See Callis, 163, &o. 
 
 (i) Callis on Sewers, 164; 7 Com. Dig. 343. 
 
 (c) 4 Inst. 275. See as to the same effect, Mar. 291, by Brampston, C. J. j 
 8 Taunt. 631, by Burrough, J. 
 
 * Moreover, tbe singular number and masculine gender shall include the 
 plural number and feminine gender, and likewise bodies politic, &c., unless 
 otherwise specially provided for. 
 
 {d) 12 Edw. 4, c. 7; 23 Hen. 8, i^. 5, F. N. B. 113 (b); Mar. 201. 
 
 f But since the stat. 23 Hen. 8, no writ of error can be brought, because 
 the proceedings are in English instead of Latin, as before. Nevertheless, 
 the party aggrieved may discharge himself by plea, as in all cases where 
 there is neither a writ of error, nor an audita querela; and, moreover, a 
 
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146 Proceedings of Commissioners. [chap. hi. 
 
 Court of Sewers (e). And the learned writer adds, that the 
 circumstance of the Court not being holden in any particular 
 place makes no difference (/). 
 
 The Court may be held without the limits of the commission, 
 provided it be at no greater distance than ten miles* from any 
 part of the district within their jurisdiction, and all laws, &c., 
 made there are declared to be as valid and legal as though they 
 were made within the limits (g). 
 
 Being in the nature of judges, commissioners of sewers are 
 not liable to the same responsibilities as a sheriff, and so it was 
 held in a case concerning costs (A). 
 
 By 12 & 13 Vict. c. 50, s. 1, commissioners are empowered to 
 partition districts into sub-districts. By sect. 2, they may make 
 a separate rate for each district. The 3rd section gives them 
 authority to appoint dyke-reeves for both districts. By sect. 4, 
 the dyke-reeve must be an occupier of not less than ten acres of 
 sewable land, of full age and of sound mind. By sect. 5, he 
 must serve without fee or reward, or, upon refusal, forfeit a 
 sum not exceeding 201. By sect. 6, upon the presentment of any 
 dyke-reeve of any breach of the laws of sewers, the commis- 
 sioners may impose a fine of 40s. as they now may, upon the 
 presentment of a jury, &c., and no such fine shall be traversed. 
 The 7th section gives a remedy by distress for the non-pay- 
 ment of sewers' rates and fines, and costs incurred in obtaining 
 the warrant. In default of distress, the arrears may be levied 
 upon the lands, &c., in like manner as if such lands had been 
 assessed to the rates and fines. By sect. 8, one warrant may 
 issue against several persons. By sect. 9, the warrant may be 
 directed by the dyke-reeve, collector, bailiff, expenditor or other 
 officer of sewers, or to any other person or persons, as any two 
 
 certiorari lies to remove all the proceedings into the King's Bench. By 
 Brampston, C. J., Mar. 201. And there is not so great a strictness as in 
 indictments, 1 Sid. 78. 
 
 (e) Callis, 165, 166. 
 
 (/) Ibid. 167. 
 
 * The Stat, of William gave five miles. 
 
 (g) 3 & 4 Will. 4, c. 22, ss. 44, 45 ; 4 & 5 Vict. c. 45, s. 11. 
 
 (A) Pocock V. O'Shaughnessy, 6 Ad. & El. 808, n. 
 
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CHAP. III.] Proceedings of Commissioners. 147 
 
 commissioners granting the same may deem fit. Sect. 10 is the 
 interpretation clause. 
 
 In order to form a Court competent to sit by virtue of a com- six commis- 
 
 . . p 111. ■ sioners a 
 
 mission or sewers, there must, at least, have been six commis- court, 
 sioners present (i). But now three may be a quorum, except 
 where existing works are to be improved or new works made {j). 
 There is hkewise a chairman, concerning whose appointment the 
 Legislature has now interfered. For by 4 & 5 Vict. c. 45, s. 10, 
 if any difference shall arise upon the choice of a chairman, at 
 any Court or meeting of commissioners of sewers, such chair- 
 man shall be chosen by the majority of commissioners present, 
 and in case of an equal number of votes, that person shall be 
 chairman whose name stands first in the commission. The 
 chairman, moreover, of any such Court or meeting, in case of 
 an equal number of votes upon any question or matter (in- 
 cluding his own vote) shall have a casting or decisive vote. 
 
 The commissioners could always appoint their own days of Meetings. 
 meeting, and, therefore, in that respect the clause to which we 
 now invite attention is declaratory. By 3 & 4 Will. 4, c. 22, 
 s. 8, any three commissioners, or their clerk, upon the direction 
 in writing of such three or more commissioners, shall appoint 
 the first meeting of commissioners after the passing of the act 
 as the commissioners shall ordain, ten clear days' previous 
 notice being given by advertisement in some county newspaper. 
 
 The commissioners may adjourn according to their pleasure, 
 or to the will of the major part present, and no order shall be 
 made unless the major part present concur therein, subject, 
 nevertheless, to the casting vote of the chairman, including 
 his own vote (h). All acts, &c., may be done by such major 
 part, provided only there be three commissioners present, as fully 
 and effectually as if all the commissioners were present. How- 
 ever, supposing that a sufiicient number of commissioners 
 should not meet on the day appointed, or that there should be 
 a default in duly adjourning any meeting, the 4 & 5 Vict. c. 45, 
 
 («") Bratigy «. Lee, 4 Inst. 275; Sty. 178. 
 Ij) 24 & 25 Vict. c. 133, s. IS. 
 (A) 4 & 5 Vict. c. 45, ». 10. 
 
 1.2 
 
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meetings, 
 
 148 Proceedings of Commissioners. [chap. hi. 
 
 s. 12, enacts and declares, that any one or more of the commis- 
 sioners named in the commission may, by writing, appoint a 
 Court or meeting, to be holden at such time or place as he or 
 they may think fit. Ten clear days' notice of such meeting are 
 to be given by advertisement in some- newspaper circulated in 
 the county into which the commission runs, or, where the same 
 shall run into more than one county, then in some newspaper 
 circulated in each of the counties. Yet, although the number 
 of commissioners at a meeting may be less than six, the majority 
 may adjourn the meeting. Although there must be three as a 
 quorum to exercise the powers and authorities of the commis- 
 sion of sewers at any Court or meeting. 
 
 Special The Statute 3 & 4 Will. 4, c. 22, s. 9, contemplates the neces- 
 
 sity of special meetings upon emergencies. Thus, if after any 
 adjournment a special meeting upon the happening of some 
 emergency should be deemed necessary, any three commis- 
 sioners, or their clerk, upon their direction in writing, may 
 appoint such special meeting. Ten clear days' notice must be 
 given by advertisement in some newspaper of the county, and 
 generally circulated in the district, and no other than this 
 special business shall be transacted at such meeting. Never- 
 theless, in the event of any imminent danger being apprehended 
 from unusually high tides, or any other causes, and if two or 
 more commissioners shall be of opinion that ten days' notice of 
 the special meeting will be too long a delay, any two or more 
 commissioners, or their clerk under their direction in writing, 
 may convene, by a circular letter to each acting commissioner, 
 a special meeting for as early a day as such two or more com- 
 missioners may deem it right to appoint: such circular must 
 specify the particular object for which the meeting is convened, 
 and no business shall be transacted thereat except what strictly 
 relates to such object. 
 
 It becomes now our duty to inquire what proceedings these 
 justices are warranted in adopting, in order to fulfil properly 
 the duties committed to their charge. And, first, the appoint- 
 ment of fit persons to act as their officers in a matter of consi- 
 derable moment.* The officers mentioned in the commission 
 
 • These officers are appointed at discretion, Callis, 113. 
 
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CHAP. iii.J Proceedings of Commissioners. 149 
 
 under the statute of Hen. 8, are keepers, bailiffs, surveyors,* 
 collectors, expenditors(A), and other officers ; and in a subsequent 
 section (I), a remuneration of 2s. per day is prescribed for one 
 clerk, to be assigned by them. And a further recompense is 
 awarded to the clerk for writing of books and process,! and also 
 to the collectors, &c., according to the discretion of the commis- 
 sioners. The refusal to take an office of sewers, upon a due 
 election by the commissioners, is punishable by fine (m). 
 
 One thing must be remarked here. The clerk and treasurer 
 cannot be the same person. The stat. 3 & 4 Will. 4, c. 22, 
 s. 51, forbids this; neither can the partner of any clerk, nor the 
 clerk of any clerk be such treasurer, nor the clerk of the 
 partner; and, vice versa, no person in the employ of the 
 treasurer can be clerk. If default be made in these respects, 
 whether it be by the officer himself, or by deputy, or by any 
 one officiating for him, or if the treasurer shall hold any other 
 place of profit or trust under the Court except that of treasurer, 
 he shall forfeit 100/., to be recovered with full costs in any Court 
 of Record at Westminster, by action of debt or on the case, or 
 by bill, suit, or information, wherein no essoign, protection, or 
 wager of law, nor more than one imparlance shall be allowed. 
 
 The wages above mentioned are said to be paid in considera- officers 
 tion of service done in the execution of the commission. And for misbe- 
 
 it seems, that an officer of sewers so appointed is fineable for 
 neglect. As if a collector, or expenditor, or other officer, have 
 been careless of his duty, or commit falsities in his office, he 
 
 * As to surveyors, see Callis, 106 ; and as to their presentment, see 
 post. 
 
 (k) Dr. Lee, being appointed an expenditor, prayed his privilege : — 1. As 
 an ecclesiastic. 2. Because all the land he had in the marsh was leased 
 for ninety-nine years. Dr. Lee was also an archdeacon. It was answered 
 that the archdeacon's predecessors had executed the office. But the pri- 
 vilege was allowed and the writ granted, for the tenant, if any, ought to do 
 the office, and Moreton, J., thought the first reason sufficient, 1 Lev. 303 ; 
 Archd. de Rochester's case, 1 Ventr. 105 ; 1 Mod. 282. 
 
 (0 Sect. 13. 
 
 f By ] 3 Eliz. c. 9, s. 6, the clerk, or clerks, shall estreat all fines and 
 amerciaments into the Exchequer, annually, under a penalty of 51. 
 With regard to the writ of certiorari at the suit of the clerks, or other 
 ofiBcers, concerning their removal, it is of common right, as we shall see 
 hereafter. 
 
 (m) Callis, 175. 
 
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 haviour. 
 
of officers. 
 
 150 Proceedings of Commissioners, fcHAP. iii. 
 
 may be fined, having been sworn duly to execute the same, 
 whereas a neglect in an ordinary person is not to be punished 
 by fine; although, of course, every one become answerable 
 for the consequences of his particular misconduct. But if one 
 be rated towards repairs, and he neglect to pay at the appointed 
 time, he is not fineable, but is to be amerced (w). 
 
 Again, if a collector or expenditor be required by the Court 
 to account for money received, and there be a refusal to do so, 
 the party offending may be punished by fine (o), for the com- 
 missioners are intrusted with authority to hear and to examine 
 the accounts (/)), and are also expressly required to check 
 negligence and malversation in officers, and the statute 3 & 4 
 Will. 4, c. 22, imposes other summary punishments {q). So, if 
 an officer take more than he ought upon a distress, the commis- 
 sioners will compel him to return the overplus (»•). 
 
 Removal With regard to the removal of these officers, it seems, that it 
 
 is competent for commissioners to deprive them of their respec- 
 tive situations, according to discretion. Yet the Court of King's 
 Bench will, perhaps, direct a trial, in order that the title to the 
 office from whence the complainant may have been removed, 
 may be investigated. Thus, where a party having been appointed 
 clerk to a commission of sewers by surprise, as it was alleged, 
 he was turned out by succeeding commissioners of sewers, and 
 another person was placed in his room by order. Upon this the 
 Court of King's Bench were moved, and they granted a ceritorari 
 to remove the order, in order that they might see the title, 
 adding, that if they should see cause, they would grant a trial ; 
 and some of the Court observed, that the office was like that of 
 clerk of the peace. The reporter, however, makes a quaere 
 whether the clerk to a commission of sewers be not only at 
 will is). 
 
 (n) Callis, ITi. Amerciaments are more merciful penalties than fines, 
 and they are imposed by the jury ; whereas fines are assessed by the Court. 
 
 (o) Callis, 175. 
 
 (p) Anon., 1 Ch. Ca. 232, 
 
 \q) Sect. 48, post. 
 
 (r) 7 Com. Dig. 341 ; Callis, 219. 
 
 (s) Rex V. Banks and Arthur, Fortesc. 374. S. C, 8 Mod. 331, nom. 
 Arthur t). Commissioners of Sewers in Yorkshire. See Callis, 291. 
 
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CHAP. III.] Proceedings of Commissioners. 151 
 
 Yet officers may be removed from the possession of the com- 
 missioners' works. By 3 & 4 Will. 4, c. 22, s. 49, if any 
 officer or servant of any Court of Sewers shall be discharged, 
 and shall be in possession of any houses, &c.,* and shall refuse 
 to deliver up possession within two days after notice of his 
 being discharged, and of his being required to give up posses- 
 sion, or of such notice being left at his usual place of abode ; or, 
 in like manner, if the wife, widow, &c., shall make default 
 therein after the death of any such officer, — the Court of Sewers 
 may then, under the hands and seals of any six of them, order 
 a constable or other peace officer, with assistance if necessary, 
 to enter any such houses, &c., in the day time, and remove the 
 persons found therein, together with their goods, out of the 
 premises, and take possession thereof, and of all other property 
 belonging to the commissioners, and put their officer or servant 
 in possession thereof. 
 
 A very general power of remunerating officers (and witnesses 
 are included) is giv^ by 3 & 4 Will. 4, c. 22, s. 16. It is 
 enacted, that any Court may, out of the taxes, &c., raised under 
 the commission, allow to clerks and other persons employed by 
 the Court, and also to witnesses attending to give evidence 
 before the Court, either in support of any presentment or order 
 of the Court, or in opposition thereto, such sum, from time to 
 time, for their several expenses and loss of time, as to the said 
 Court shall seem just, and also all costs, &c., incurred in sur- 
 veying, measuring, planning, and valuing the lands and heredi- 
 taments, or otherwise preparatory to or in or about the making, 
 collecting, and expending such taxes, &c., or the hearing of 
 objections to the same, or in or about the carrying on of any 
 litigation or controversy arising out of the duties imposed on the 
 Courts of Sewers, and for the payment of all other necessary 
 allowances, charges, and expenses of putting the acts concerning 
 sewers into execution, and of working the commissions (i). 
 
 As this enactment partakes partly of the old legislation, with 
 reference to the payment of officers, and partly of new, as far as 
 
 * Houses, buildings, lands, flood-gates, sluices, dams, works, materials, 
 tools, implements. 
 
 (i) See 4 & 5 Vict. c. 45, ss. 1, 2, 3. 
 
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152 Proceedings of Commissioners. [chap. hi. 
 
 the remuneration of witnesses extends, the words used are, 
 " be it enacted and declared," the declaratory part referring, of 
 
 course, to the old provisions. 
 
 « 
 
 Moreover, by the 48th section of this statute, every clerk, 
 treasurer, collector, receiver, or other officer of sewers shall, 
 upon demand, give an account in writing, and deliver proper 
 vouchers to the Court, or to some person authorized by them, 
 of all their receipts and disbursements, and any balance in the 
 hands of the officer shall be paid to such person as the Court 
 shall appoint. Then, upon default upon the part of such officer, 
 either by a wilful refusal by, or neglect or refusal for fourteen 
 days after notice from the Court, in which default the non-delivery 
 of all books, writings, &c., is included, the Court may cause all 
 arrears to be levied by distress and sale, rendering the overplus 
 (if any), after deducting the costs of the distress. If sufficient 
 distress cannot be found, or if the officer gives a wilful refusal, 
 or is guilty of wilful neglect, an order of committal may be 
 made by the Court to any house of correction or common gaol 
 within their jurisdiction. And the officer may be there confined 
 without bail or mainprize till he shall have given a true account, 
 and shall have delivered up the vouchers, and paid the balance 
 (if any) in his hands, or until he shall have compounded with 
 the Court in respect thereof, and paid the composition, or until 
 he shall have delivered up the books, &c., or have satisfied the 
 Court concerning them. Nevertheless, the term of imprison- 
 ment in the case of a committal for want of sufficient distress 
 shall not exceed six calendar months. 
 
 Bond. It is customary for the commissioners to require a bond from 
 
 the collector of the rates, conditioned to render a faithful 
 account of the money received, by virtue of the assessments. A 
 case occurred not long since, in which it was contended on 
 behalf of the defendant, a surety for the collector, that newly- 
 appointed commissioners could not recover a sum of money 
 received by virtue of an appointment under a former commis- 
 sion. The condition of the bond was to render a just and faith- 
 ful account of all sums of money already collected, got in and 
 received, or which should at any time thereafter be collected, 
 and pay over the money so already got in, &c. The cause was 
 
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CHAP. II I. J Proceedings of Commissioners. 153 
 
 referred to arbitration under an order of nisi prius, and the arbi- 
 trator awarded 1,300Z. in respect of the breaches of the condition ; 
 and it was moved to set aside this award, on the ground that the 
 arbitrator had included 392Z. 10«., the aVrears of a former rate, 
 received by the collector before the issuing of the commission 
 under which the plaintiffs acted. H. had been collector for thirty 
 years before May, 1826; and in January, 1826, the commis- 
 sioners made a rate, and delivered the rate-book to H. in 
 February, with a warrant to collect it ; 392Z. 10s. were collected 
 under this warrant in February, 1826. Between 27th May, 
 1826, and 6th July, 1826, H. accounted for and paid that and 
 other money to the treasurer of the commissioners, by a check 
 on his banker, and he specifically appropriated that sum to the 
 collection which he had first made under the rate of 1826, 
 before mentioned. It was urged by the surety, the defendant, 
 that the collector had no power to make this appropriation; but 
 that the sum of 392Z. 10«. ought to be applied to the payment 
 of the money received under the new rate, and in respect of 
 which, it seems, there was a default. But the Court held, that 
 the arbitrator had done right in awarding the larger sum, for the 
 nature of a commission of sewers is to be permanent, although 
 the personal authority be but temporary. Commissioners are 
 in many respects analogous to a corporation. If a rate be 
 not wholly collected and accounted for before the issuing of a 
 new commission, it is to be collected after the new commission, 
 and must be paid to and applied by the persons acting under 
 the new commission ; the trust, the benefit, and the object, still 
 remaining unchanged. It was true, that a bond might be so 
 confined in its language as to apply only to the collecting and 
 accounting for a rate made under the commission in force at 
 the time of the appointment. But the Court held, that the 
 bond before them could not be so narrowed in its construction ; 
 for the condition spoke of " rates which shall he given, of 
 money already received, or to be hereafter received by virtue 
 of any rate." It appearing clear, therefore, to the Court, that 
 the whole frame of the bond plainly showed that it must be 
 intended to comprise the sum in dispute, the rule for setting 
 aside the award was discharged (w). 
 
 (m) Saunders and Others v. Taylor, 9 B. & C. 35. 
 
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154 Proceedings of Commissioners. [chap. hi. 
 
 So, where an exception was made to an order of commis- 
 sioners, concerning money received by the defendant, as treasurer, 
 in 1646, because it appeared judicially that the commission had 
 elapsed, being in another king's name, the Court overruled the 
 objection and awarded a procedendo. For although new com- 
 missioners cannot go on where the others have left oflp, yet they 
 may resume the old matters ; and in this case, the Court also 
 held, that although the commissioners might apply to equity, 
 yet that they might proceed in the King's Bench if they pleased. 
 A feigned issue, however, was subsequently granted on the ap- 
 plication of counsel {v). 
 
 And now by 3 & 4 Will, 4, c. 22, s. 50, the Court of Sewers 
 may take security from every treasurer, &c,, and other officer, 
 for the just execution of their duty, i. e., by bond to the clerk 
 of sewers. And, in case of forfeiture, the Court may sue upon 
 the bond in the name of their clerk, and carry on the suit at the 
 cost of the fund protected by the security, saving harmless their 
 clerk. And the suit shall not abate by the death, resignation 
 or removal of the clerk, or by the expiration of the commission 
 of sewers in question. 
 
 Similar provisions are to be found in the stat. 11 & 12 Vict. 
 0.63 (a;). 
 
 By the 39th clause of that statute, the local board shall take 
 security from their officers for the faithful execution of their 
 duties, and for duly accounting. The act further directs, that 
 monies received shall be paid over to the treasurer within seven 
 days, that a list of defaulters shall be furnished, and that a 
 perfect account, together with proper vouchers, shall be ren- 
 dered. In default, or if he do not deliver up all the papers, 
 &c., within five days after demand made, the officer may be 
 proceeded against before two justices summarily, and com- 
 mitted, without bail, till he has rendered his account, or given 
 up the books, &c. ; and if default be made as to the payment of 
 the monies, the proceeding may be before two justices by dis- 
 tress, and if there be not sufficient distress, the person may be 
 
 (») Rex V. Pratt, 2 Keb. 180, 220. 
 
 (i) The reader is referred also to 21 & 22 Vict. u. 98. 
 
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CHAP. III.] Proceedings of Commissioners. 155 
 
 committed for three months without bail, unless such monies 
 be sooner paid. The proceedings, however, may be by warrant, 
 if oath be made that the offender is likely to abscond. Then, 
 within twenty-four hours after his apprehension, the defendant 
 must be brought before a justice, who will use his discretion 
 either to discharge or to detain the defendant till he can be 
 brought before two justices, at a time and place to be named in 
 the order ; but bail for his appearance before two justices may 
 be accepted. And no surety shall be released from his lia- 
 bilities by reason of any such proceedings. 
 
 Constables are, moreover, under the necessity of obeying the Constables. 
 orders of commissioners. This obedience is enforced by the 
 Stat. 3 & 4 Will. 4, c. 22, s. 52. And it seems, that a refusal 
 or neglect to obey the commissioners will incur the penalty of 
 fine by the Court of Sewers, or that an indictment may be pre- 
 ferred against the party refusing or neglecting his duty in this 
 respect. 
 
 It is evident, therefore, from the instances above mentioned, 
 that the officers of sewers are very much under the control of 
 the commissioners, and afe fully open to punishmeHt where 
 their conduct deserves it. Of the power of fining we shall 
 speak somewhat more at large presently, when we come to 
 mention the various punishments which commissioners are em- 
 powered to inflict. 
 
 Having now mentioned the Courts of Commissioners of 
 Sewers in general, we call attention to another jurisdiction. It 
 is that of the Board of Health, divided into the General and 
 Local Boards. The 11 & 12 Vict. c. 63, is the statute upon 
 this subject. 
 
 By sect. 5, the General Board of Health is authorized to 
 appoint certain officers, as, for instance, a secretary and clerks, 
 and servants ; who are, however, to be removable at pleasure. 
 They are also to have a seal, so that any document, or copies 
 thereof, signed by any two of the board, and stamped with their 
 seal, shall be primd facie evidence in all Courts and places 
 whatsoever. Superintending inspectors may also be appointed 
 
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156 Proceedings of Commissioners. [chap. iii. 
 
 by the general board («/). And by sect. 7, there shall be paid 
 to one of the members of the general board, not being the pre- 
 sident, and to the secretary, clerks and servants, such salaries 
 or wages, and to the superintending inspectors such allowances, 
 as shall be appointed by the treasury, out of any monies pro- 
 vided for the purpose by Parliament. The allowance of the 
 inspector, however, shall not exceed 3Z. 3s. per day, besides 
 travelling expenses (z). 
 
 Moreover, the local board likewise is empowered to appoint 
 its own ofiBcers. 
 
 By 11 & 12 Vict. c. 63, s. 34, every non-corporate local board 
 shall hold an annual meeting, and meetings for business once 
 in each month, and, indeed, at other times, if necessary. The 
 board may make bye-laws with reference to the summoning, 
 notice, place, management and adjournment of meetings, and 
 generally as to the business of the act.* 
 
 Nevertheless, one-third of the members must be a quorum, 
 except at Oxford or Cambridge, where seven are to be the 
 quorum. The majority shall decide each question, and the 
 names of those present, and of those voting, shall be recorded. 
 And in any non-corporate district a chairman shall be appointed 
 
 ()/) Sect. 6. 
 
 (z) For the mode of appointing auditors, and concerning their duties, see 
 sect. 122. 
 
 * By 11 & 12 Vict. c. 63, s. 115, these bye-laws must be in writing, 
 signed by five or more members, and under their seal, or under the common 
 seal in the ease of a corporation. The board may, by such laws, impose a 
 penalty not exceeding bl. upon any persons who break them, together with 
 another penalty not exceeding 40s. per diem, for every continuing offence (a), 
 after written notice from the board. Such bye-laws may be altered or 
 repealed by any subsequent laws, properly signed and sealed, and these 
 must be so framed as to allow of the recovery of a sum less than the full 
 amount of the penalty. Still they must not be repugnant to the act, and 
 must meet with the approval of one of the Secretaries of State, and there 
 must be one month's notice of the intention to apply for confirmation of 
 these bye-laws ; and likewise, for one month previously to such application, 
 there must be a copy of such bye-laws kept at the office, and open to in- 
 spection. By sect. 116, these bye-laws shall be printed and hung up in 
 the office of the board, and copies shall be delivered to every rate-payer 
 upon application. 
 
 (a) See sect. 129, as to the mode of recovery. 
 
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CHAP. III.] Proceedings of Commissioners. 15" 
 
 by the board for one year, and, whenever he is absent, the 
 board shall appoint a chairman from those present. In case of 
 the death of the chairman, or other change, another chairman 
 shall be appointed for the year ; and in case of an equality of 
 votes, the chairman shall have a second or casting vote ; but 
 Oxford and Cambridge are entirely excepted out of these pro- 
 visions. 
 
 By sect. 35, the local board shall provide offices, and, if 
 non-corporate, shall provide a seal, and all documents or copies 
 signed by five or more members, and stamped with their seal, 
 or with the common seal, in the case of a corporation, shall be 
 evidence in all Courts and places whatsoever. 
 
 The 36th section of the 11 & 12 Vict. c. 63, enables the board 
 to appoint a committee to manage matters fit for a committee, 
 but the acts of such committee must be subject to the revision 
 of the board. 
 
 And by sect. 127 of the same act, all consents required from 
 the local board shall be in writing, under seal, and signed by 
 five or more members. 
 
 Next, with regard to their officers. 
 
 By 11 & 12 Vict. c. 63, s. 37, the local board shall appoint a 
 surveyor, inspector of nuisances, a clerk and a treasurer, sub- 
 ject, however, to the qualifications mentioned hereafter. And, 
 with the consent of the general board, they may appoint col- 
 lectors and other officers and servants to execute the act. They 
 may make bye-laws for the regulation of their officers and ser- 
 vants, and they may pay out of the general or district rate, 
 such reasonable salaries and wages as, subject to the approval 
 of the general board, they may think proper. Their officers 
 and servants are removable at pleasure, with this reservation, 
 that the appointment, removal and salary of the surveyor shall 
 be subject to the sanction of the general board. The same 
 person may be both surveyor and inspector of nuisances, with 
 the approval of the general board. But the clerk is not to be 
 treasurer, nor vice versd. And this prohibition extends to 
 
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158 Proceedings of Commissioners, [chap. hi. 
 
 partnerB and to all persons in the service and employ of 
 the clerks and treasurers respectively. The penalty for the 
 breach of these last provisions, to be recovered, with full costs 
 of suit, by any person by action of debt, is lOOZ. 
 
 By sect. 38, no officer or servant shall have any concern 
 with any bargain or contract made with the board. And if 
 such officer, &c. shall be so interested, or shall take any fee or 
 reward besides his salary or wages, he shall be incapacitated 
 from office or employment under the act, and shall pay 501., 
 to be recovered by any person, with full costs of suit, by action 
 of debt. 
 
 We have already seen that these officers must find security 
 for the faithful execution of their employments, and that they 
 must keep their accounts in a regular manner (&). 
 
 There are penalties for obstructing officers. 
 
 By sect. 148, whosoever shall obstruct any superintending 
 inspector, or member of the local board, or other officer, or 
 shall destroy, &c. any board where any bye-law, notice, &c. is 
 inscribed, shall be liable to a penalty not exceeding 51. (c). So 
 if the occupier of premises should prevent the owner from car- 
 rying the act into execution, any justice may, by an order in 
 writing, require such occupier to permit the execution of works, 
 provided the justice shall consider them to be works ordained 
 by the act. In default of obedience within a reasonable time, 
 the occupier shall be liable to a penalty not exceeding 51. for 
 every day during the continuance of such refusal ((^). Again, 
 if the occupier shall refuse to disclose the name of the owner to 
 the local board upon request, or omit to do so, or misstate the 
 name, he may be summoned by a justice to appear before him 
 or some other justice. Then if he do not appear, or do not 
 show good cause for his refusal, or if the omission or mis- 
 statement be proved, the justice may impose a penalty not ex- 
 ceeding 51. (e). 
 
 (b) Ante, p. 152. (rf) Ibid, 
 
 (o) See sect. 129. (e) Ibid. 
 
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CHAP. iii.J Proceedings of Commissioners. 159 
 
 Having thus given a short account of the constitution of the 
 Court of Sewers, and of their officers, vre may divide the subject 
 of this chapter, namely, the proceedings of the commissioners, 
 into two principal heads. 
 
 I. What they may do in furtherance of the great charges 
 
 reposed in them ; and, 
 
 II. How they may compel by punishments, or otherwise, the 
 
 execution of their commission. 
 
 However, before we enter upon their proceedings to compel 
 repairs, and to destroy annoyances, which are the two grand 
 objects intrusted to their care, it may just be observed, that, as 
 a Court of Record, they have the means of deciding all com- 
 plaints brought before them concerning matters within the im- 
 mediate scope of their commission (/). Thus, if an assessment 
 be laid upon any one, and the goods of B., a party not charge- 
 able, be distrained, B. may have his action, or may prefer his 
 complaint before the commissioners for the recovery of damages; 
 and this, says Sergeant Callis, because " it sprung by the 
 colour of the general power of the Court" (^). 
 
 So, if a distress be levied upon one person in a township, he 
 may have process in this Court to make the other inhabitants 
 contributory (A). And if more than the due distress be taken 
 from a man, we have seen that the officer may be compelled by 
 the Court to restore the surplus (i). 
 
 So, if the commissioners make an ordinance, by which certain 
 trees belonging to B. are taken by their officers for the repair of 
 defences, or if a tunnel be made by their order over the grounds 
 of B., in these cases B. has a remedy in the Court for the 
 recovery ; in the one instance, for a sufficient compensation ; 
 and, in the other, for damages (h). 
 
 (/) 7 Com. Dig. 343; Callis, 217. 
 
 Ig) Callis, 218 ; 7 Com. Dig. 343. 
 
 (A) Ibid. 
 
 (J) Ante, p. 150. 
 
 (k) Callis, 219; 7 Com. Dig. 343. 
 
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160 Proceedings of Commissioners, [chap. hi. 
 
 So, again, labourers, or carpenters, masons, &c. may recover 
 their wages before the justices of sewers; and for the same 
 reason, namely, that as the original cause sprang from the 
 commission, it is there determinable as incident to the authority 
 of the Court (Z). 
 
 These powers have been recognized by Mr. Justice Park, 
 who has observed, that in order to save the expense of proceed- 
 ings at law, parties are enabled to sue in the Court of the 
 commissioners, and before the commissioners, who may give 
 immediate remedy (w). 
 
 But no such authority as the above is vested in the Court 
 concerning collateral matters. As if there be a river within 
 the laws of sewers, and a tortious act be done there by any one, 
 by fishing, for instance, here no action of trespass lies in the 
 Court of Sewers («). Nor, again, has a party any remedy in 
 this Court, whose lands have been overflown by the neglect of 
 an individual liable by prescription, or otherwise, to repair his 
 bank (o). 
 
 To make These points of jurisdiction having been explained, it is 
 
 decrees. nccessary to observe, that in the prosecution of this under- 
 taking, commissioners are especially empowered by the statute 
 of Hen. 8 to make laws, ordinances and decrees concerning 
 the matters entrusted to them, and also to repeal laws according 
 to their discietion ; and new laws are to be ordained only for 
 the making of new defences, or the abolition of annoyances, 
 and for the continuation of the ancient walls, &c. ( p), where- 
 upon Mr. Sergeant Callis observes, that great caution is neces- 
 sary before an order be made for the destruction of an old 
 defence mlaintained by prescription or tenure, because the lia- 
 bility to repair will shift considerably upon the erection of a 
 new wall, the level generally, and not the particular individual, 
 being in that case responsible {q). 
 
 (I) Callis, 219; 7 Com. Dig. 344. (n) Callis, 218. 
 
 (m) 8 Taunt. 629. (o) Ibid.; 7 Com. Dig. 344. 
 
 (p) Callis, 282, and their orders are to be in English, and not in Latin. 
 1 Sid. 78. 
 
 (y) Id. 283, 288. 
 
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CHAP. III.] Proceedings of Commissioners— Jury. 161 
 
 Of the validity, and the continuance or duration of these 
 laws, enough has formerly been said (r), and also that commis- 
 sioners are not bound to follow the laws of Romney Marsh ; 
 and, moreover, that whatever decrees may be made, they must 
 be according to law and justice ; and, therefore, we proceed to 
 other parts of our inquiry. 
 
 The first act after survey, towards the accomplishment of i. To sum- 
 necessary repairs, or the demolition ot nuisances, seems to be 
 the summoning of a jury («), in order that a due presentment of 
 the matter in question may be made. The statute of Hen. 8 
 declares, that the sheriff shall cause to come before the commis- 
 sioners, or six of them, a sufficient jury from his bailiwick, as 
 well within the liberties as without (t). And the matters to 
 be inquired of by the jury are also declared by the statute to be 
 the ownership of lands to be charged, the wants of reparation, 
 and the mischiefs alleged to be common nuisances, together 
 with the authors of the annoyances, and the names of defaulters 
 in making needful repairs. They are also to be careful to 
 inquire whether there be any imminent danger, and again con- 
 cerning the owners of lands under obligation to repair, whether 
 the charge has arisen by prescription, tenure or otherwise (u). 
 And, lastly, their duty is to assess any amerciaments which it 
 may be necessary to impose {x). 
 
 The jury, it will be observed, are to present persons and 
 wants of repair generally, but not particular benefits. So that 
 they are not to inquire into the benefit of each work, nor to 
 present that certain parties have been benefited by such 
 works («/). Two districts having been rated for the repairs of 
 a sea-bank, and the rate having been collected by a single dike 
 
 (r) Ante, Chap. I. ; and see Callis upon this subject, 281—288. 
 
 (s) See post, as to dispensing with a jury. 
 
 (() 23 Hen. 8, c. 8, s. 4, commissioners may sit, and inquire by a jury on 
 Sunday. Heme, Lect. pp. 7, 8, for judicial acts propter necessitatem are 
 good on that day, and the sea is an enemy not to be repelled but by this 
 Court. (Callis, 167, note (b) ). And a commission of sewers need not be 
 adjourned, Custodes, &c. v. The Inhabitants of Outwell and Others, 
 Sty. 179. 
 
 (m) See Callis, 108—111. 
 
 {x) Callis, 109. 
 
 \y) R. V. Tower Hamlets Commissioners, 1 B. & Adol. 232. 
 
 W. M 
 
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162 Proceedings of Commissioners— Jury. [chap. hi. 
 
 reeve, the commissioners of sewers appointed two dike reeves, 
 one for each district, and rated each district exclusively for the 
 repairs of the bank, without any presentment of a jury. Cattle 
 having been taken as a distress, it was held that trespass lay 
 against the commissioners (2). 
 
 The omission of a statement upon the face of proceedings of 
 commissioners that the want of repair had been found by a jury 
 was a fatal omission (a). 
 
 The chairman at sessions intimated to the jury his ignorance 
 of the law co.ncerning a presentment for the non-repair of a 
 sea-wall : hei'e the Court granted a certiorari to remove the 
 presentment {b). 
 
 Twelve. Under the old law presentments must have been made upon 
 
 oath, and upon the oaths also of twelve men ; for where a 
 return was made generally, without mentioning the number of 
 persons, the Court held it invalid, for the presentment might 
 have been made by two or thi'ee only, instead of twelve (c). 
 
 But by the statute 3 & 4 Will. 4, c. 22, s. 11, the number of 
 jurors is augmented to eighteen. By that section, the sheriff, 
 bailiff, or other returning officer of every county at large, cinque 
 port, city, town, liberty, precinct, or place within the limits of 
 the commission, may be commanded by warrant or process under 
 the hands and seals of any six commissioners to impanel, summon, 
 and return, at such time and place as shall be therein expressed, 
 a jury of not more than forty-eight, nor less than eighteen 
 persons usually summoned on grand juries at sessions. The 
 persons summoned must thereupon appear at the Court of Sewers 
 or at some adjournment thereof, as directed, and attend accord- 
 ingly till discharged by the Court. They must be sworn in 
 open Court, and charged by the commissioners to make their 
 inquisition, and return their presentments. They must then 
 proceed in their inquiry in open Court, upon evidence given 
 
 (a) Wingate v. Wake, 6 M. & Wels. 739. 
 (a) R. V. Mathias, 2 Jur. 13. 
 \b) Anon., 1 Jur. 151. 
 
 (c) Mar. 198. See Madd. Firm. Burg. 84, discharge of fines for a 
 defect in the presentment by a jury in Somersetshire. 
 
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CHAP. III.] Proceedings of Commissioners — Jury. 163 
 
 either upon oath or affirmation, according to the rule observed 
 in Courts of common law. Further, the commissioners may 
 summon before them all clerks, keepers, bailifi's, engineers, 
 surveyors, collectors, expenditors, and other their inspectors 
 and officersof sewers, and such other persons as they may think 
 fit. And notice of the time and place of taking such inquisition 
 shall be affixed to the principal door of any church and chapel 
 in the several parishes, &c., in which the rivers, &c., and works 
 shall lie, be, or arise; or if there be no church, upon some 
 conspicuous place in such parish, &c., in the form of a printed 
 or written paper. The notice, in either case, must be signed by 
 the clerk seven days at least before the inquiry, and it must be 
 inserted seven days previously to such inquiry once in the 
 least in one or more of the newspapers published or circulated 
 in or near to the limits of the commission under the authority 
 of which the inquisition shall be taken. 
 
 This section sets at rest the difficulty which used to prevail as 
 to the summons of the jury from the body of the county. For 
 now such a jury may be summoned as are competent to serve 
 upon grand juries at the Court of Sessions of the peace. 
 
 Before this new act of Will. 4, it seemed to have been under- From whence 
 stood that juries should come not exclusively from the districts 
 where the breaches, or mischiefs exist, but from the body of the 
 county. Thus, where a presentment had been made by a 
 standing jury returned by the sheriff from certain parishes or 
 districts at the commencement of every new commission of 
 sewers, and composed of landowners who were interested in 
 escaping the general charges of the land, it was held to be void. 
 It appeared, moreover, in this case, that the foreman alone was 
 summoned by the sheriff on each particular occasion, and that 
 the foreman then convened the rest of the jury; and again, 
 that, after the jury so summoned had met, instead of presenting 
 their inquiries before the commissioners, by hearing evidence 
 on oath, they went out all about the country, and upon infor- 
 mation thus carelessly picked up, they were afterwards to make 
 their presentments. And the circumstance of the presentment 
 of this jury having been traversed, and the trial had before 
 another jury properly summoned from the body of the county,, 
 
 m2 
 
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164 Proceedings of Comrnhsioners — Jury. [chap. iir. 
 
 ■was considered to make no difference. For the act requires, 
 that the presentment should be made by a disinterested body 
 returned by the sheriff, and not by a body altogether alien from 
 the jurisdiction. That being so, the defect might be taken 
 advantage of as well after verdict as before, and no consent of 
 parties can give jurisdiction, where none is given by law. The 
 whole proceeding was thus adjudged to be irregular, and the 
 presentments and other proceedings complained of were accord- 
 ingly quashed (d). Upon a subsequent occasion, a presentment 
 of jurors of the same county was objected to as invalid, for the 
 want of a due summons by the sheriff, and it was intended, 
 notwithstanding the former decision, to insist, first, that a decree 
 founded by actual survey by the commissioners, and the present- 
 ment of the standing jury, was the judgment of the Court of 
 Record, and that the defect of the summons could not then be 
 inquired into. Secondly, that the jurymen had all been originally 
 selected by the sheriff, summoned by him, and sworn upon the 
 same jury, and that it appeared by the return, that in con- 
 sequence of the sheriff's precept delivered to the foreman, they 
 were by him summoned to appear before the commissioners of 
 the Court of Sewers, by which the decree was made. But the 
 Court adverted to a preliminary point concerning the duration 
 of the commission, and which has already been mentioned in the 
 first chapter, and the difficulty upon the point having proved too 
 serious to be overcome, it did not become necessary to enter 
 into the validity of the summons. The return to the mandamus, 
 therefore, which had been issued against new commissioners, in 
 order to compel them to execute a decree of their predecessors, 
 was, therefore, held good. It had been the intention of the new 
 commissioners to have resisted the old decree, on the ground of 
 the invalidity of the summons of the presenting jury (e). Upon 
 another occasion also, this doctrine, that the jury should be duly 
 summoned by the sheriff from the body of the county, was fully 
 sustained. The defendant justified in trespass under the com- 
 missioners for the Tower Hamlets. In order to satisfy the 
 requisition of the statute of Hen. 8 concerning the presentment, 
 
 (d) The King v. The Commissioners of Sewers for the County of 
 Somerset, 7 East, 71 ; 3 Smith, 105. 
 
 (e) The King v. The Commissioners of Sewers for the County of 
 Somerset, 9 East, 109. 
 
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CHAP. ni.J Proceedings of Commissioners — Jury, 165 
 
 namely, that it should be made previously to an assessment, the 
 defendant tendered the precept of commissioners to the sheriff 
 of Middlesex, for the purpose of summoning a jury, and it 
 appeared thereby, that the sheriff' had been directed to summon 
 a jury "resident within the Tower Hamlets." It was upon this 
 objected, that the summons ought to have been from the body 
 of the county, and, consequently, that the rate was bad. It was 
 answered, that the statute contained the words " place or 
 places," as well as "shire or shires," and that the commissioners 
 were authorized to procure a summons of the jury from the 
 immediate district for which they were to act ; the statute, 
 moreover, adding the expression, " where such defaults or 
 annoyances be." But by Lord Tenterden, "the words 'place, 
 or places,' in the acts are analogous, according to the common 
 construction of acts of Parliament, to the words ' shire, or 
 shires,' which immediately precede them." The learned Chief 
 Justice added, that he felt strongly, as then advised, that the 
 jury should come de corpore comitatus, that the commissioners 
 had no power to limit the district whence the sheriff should 
 return the jury ; that he might return whom he pleased, but 
 ought not to be confined in his discretion. The plaintiff" 
 accordingly had a verdict, the precept being illegal, and the 
 rate, together with the consequent proceedings, bad (_/). This 
 case was relied upon in trespass de bonis asportatis against 
 commissioners of sewers, where the sheriff' had summoned the 
 jury from a particular hundred. But as the precept was to 
 summon de corp. com., the Court of Exchequer came to the 
 conclusion that summoning from a particular hundred was the 
 most convenient way of executing the precept in the particular 
 case(^). In a case, reported by" Styles, it was urged, that 
 certain presentments, upon which an order for an assessment 
 was grounded, were void, because they were made by three 
 juries of several hundreds, whereas the level to be repaired did 
 not appear to have been within any of the hundreds from whence 
 the juries came, so that they had no authority to inquire; and 
 the Court held, that the commissioners had exceeded their 
 powers in making the tax; "therefore," said the Chief Justice 
 (Roll) " let there be a new law made by consent, and quash 
 
 (/) Birkett v. Crozier, Moo & Malk. 119; 3 C. & P. 63. 
 Ig) Taylor v. Loft, 22 L. J., Ex. 131 ; 8 Ex. 269. 
 
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166 Proceedings of Commissioners— Jury. [chap. in. 
 
 the presentments" {h). This case in Styles was cited in the first 
 case above quoted from East, in support of the limited sum- 
 mons ; but Lord Ellenborough, without oyerturning it, said, 
 that in the case referred to from Styles, " there was no question 
 but that the jury were to be returned by the sheriff" {%). 
 
 A point of considerable importance concerning these juries is 
 next presented to us, namely, that the liability to serve as 
 jurymen at the sessions of sewers, cannot be discharged without 
 an express provision for that purpose. Thus, where the lands, 
 which had been previously subject to the general jurisdiction of 
 commissioners of sewers, were placed by a local act in the hands 
 of particular commissioners, for the purposes of drainage, sewage, 
 &c., it was contended on behalf of the inhabitants of that 
 particular district, that the local statute had discharged them 
 from their previous obligation to serve at the sessions of sewers. 
 But the Court of Exchequer not only held, that the liability of 
 these inhabitants continued, there being no express provision to 
 exempt them, but refused also to discharge the estreats of fines 
 imposed at the sessions, and levied on the inhabitants for their 
 refusal to attend when summoned (A). 
 
 However, the Legislature has contemplated the circumstance 
 of a difference of opinion between the jurors of a mere general 
 jurisdiction, as of a county, and those of a minor jurisdiction, in 
 cases affecting property being partly in the county at large and 
 partly in the minor jurisdiction. And, accordingly, by 3 & 4 
 Will. 4, c. 22, s. 12, if, in the judgment of the Court, such 
 opposite conclusions shall be arrived at by different juries, or 
 opposite presentments be made under such circumstances, the 
 Court may issue a Warrant as well to the sheriff, &c. of the 
 county at large, as to the sheriff, &c. of the minor jurisdiction, 
 commanding them to summon and return a jury ; and although 
 out of his jurisdiction, such sheriff, &c., shall impanel, &c., as 
 in the warrant is expressed, a sufficient number, not exceeding 
 eighteen nor less than nine persons within his jurisdiction, and 
 not having composed part of the juries which have differed as 
 
 (A) Custodes Libertat. &c. v. The Inhabitants of Outwell, Sty. 184, 191. 
 
 (0 7 East, 80. 
 
 (ft) Ex parte Owst and Another, 9 Price, 117. 
 
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CHAP. III.] Proceedings of Commissioners — Jury. 167 
 
 aforesaid, and out of each panel so to be returned, the names 
 of fiine persons shall be drawn by the clerk of sewers or his 
 deputy after the manner adopted upon trials in the Courts at 
 Westminster. The eighteen jurymen so drawn shall be sworn, 
 and shall make their presentment as though the matters in 
 question were inquired into by a jury of the county, or a jury 
 of the lesser jurisdiction respectively. 
 
 Moreover, a presentment need not be made upon every 
 occasion of repair, provided there has been an original present- 
 ment. For, doubts having been entertained upon the subject, 
 it is enacted by 3 & 4 Will. 4, c. 22, s. 13, that wherever a pre- 
 sentment has been made respecting any particular work, and 
 that some person, body politic, &c., ought to repair the same in 
 respect of any lands, &c.; there need not be another present- 
 ment on account of the same works, but the party shall con- 
 tinue bound under the same presentment, and the commissioners 
 may direct the same to be repaired during the continuance of the 
 commission. But by sect. 17, nothing in the act shall prevent 
 the Court from making inquiry and presentment by jury con- 
 cerning the matters before such Court, as they have been autho- 
 rized by ancient custom, or to abridge or invalidate any of their 
 powers not expressly altered by the statute. Yet, the reader 
 will observe that the constitution of the jury is altered by the 
 statute, and that the saving clause only refers to the matters to 
 be inquired into, and to the powers of commissioners and not to 
 the jury themselves. Several defaults may be included likewise 
 in one presentment, by virtue of another clause of this statute (Z). 
 There needs not to be a second presentment, even although the 
 commission be renewed. A presentment made concerning a 
 work in 1819, and confirmed in 1837, by the new commission, 
 was held binding, and the rates flowing from it were deemed 
 valid (rn). But it seems that the order of sewers must be con- 
 fined to the original presentment. Thus, A. was presented as 
 owner to do certain repairs. They were not done. B. then 
 became owner, and presentments were made against him, and 
 orders under them. But the Court made the rule for quashing 
 these proceedings absolute, for the commissioners could not. 
 
 (;) Seat. i6, post. 
 
 (m) Taylor v. Loft, 22 L. J., Ex. 131 ; 8 Ex. 269. 
 
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168 Proceedinrjs of Commissioners — Jury. [chap. in. 
 
 during the same commission, proceed against a subsequent 
 owner. And it is doubtful whether there must not be the 
 intervention of a jurj', or a personal survey by the commis- 
 sioners or their official surveyor, to warrant such orders (re). 
 
 However, a great revolution has taken place with regard to 
 juries. For by 24 & 25 Vict. c. 133, s. 33, commissioners may 
 dispense with presentments by juries, as to works, rates, or any- 
 thing they might but for this section have made with such pre- 
 sentment, subject, nevertheless, to an appeal by any aggrieved 
 party (o). But it is observable, that the presentment by jury is 
 not done away with, and it may be wiser and better for com- 
 missioners to require the old presentment upon many occasions, 
 than to act with too great a latitude under this clause. 
 
 By 4 & 5 Vict. c. 45, s. 7, the Court may order any juryman 
 such allowance for his loss of time and expenses as they may 
 think fit, and such allowance is to be paid out of the sewers 
 rates. 
 
 Jurors are fineable by the commissioners in cases of mis- 
 conduct : as if there be a refusal by one or more to make a 
 presentment when required by the commissioners, or if a jury- 
 man depart after having been sworn, or before he be sworn, if 
 his appearance be recorded (p). 
 
 Surveyor's It may be added here, that a surveyor appointed under 
 
 presentment, ^i i r- • i , 
 
 the laws ot sewers may upon some occasions make a present- 
 ment. This is called by Mr. Sergeant Callis a supplemental 
 presentment ; for the surveyor cannot make an original pre- 
 sentment ; but if any one neglect to repair, in conformity to 
 the order of commissioners, after the first presentment by jury, 
 the surveyor may, after survey, present the non-repair (5). His 
 oath, on this occasion, is called an " oath of assistance," since, 
 by giving notice to the justices of the omission, they may cause 
 a greater amerciament to be imposed (r). 
 
 (n) R. V. Warton, 2 Best & Sm. 719 ; 31 L. J.. Q. B. 265 ; 9 Jur. (N. S.) 325. 
 (o) Sect. 47. 
 (p) Callis, 175. 
 iq) Id. HI. 
 (r) Ibid. 
 
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CHAP. III.] Proceedings of Commissioners — Jury. 169 
 
 Further, this latter presentment by the surveyor is said not Present- 
 to be traversable (s) ; but a presentment by a jury may certainly "hat'tra- 
 be traversed ; and herein the Court of Commissioners may be ™"*'''^- 
 resembled to a sessions of the peace (<). Thus, where one was 
 presented for not repairing a bank or wall, he is said to have 
 come in, and to have pleaded a plea before the commissioners (m). 
 And another case is cited by Callis, where presentments for 
 nuisances in the river Lea were traversed (as). 
 
 But the traverse must be made before the decree of the 
 commissioners, because the decree is the final judgment of this 
 Court, and cannot be traversed or tried by a jury (y). There- 
 fore, if a decree have passed against any one who feels himself 
 aggrieved, his course must be to prefer a bill of reversal, in like 
 manner as the practice is in the Court of Chancery (2). 
 
 Several defaults may now be included in one presentment, 
 and there may be to each a distinct traverse. The preamble 
 of the 46th section of the stat. 3 & 4 Will. 4, c. 22, states, that 
 in many cases the burden of repair of a common sea-wall, bank, 
 &c., may be divided among divers persons, each of whom may 
 be liable to the repair of a certain portion thereof. And then, 
 in order to avoid the necessity of presenting each of such persons 
 separately in respect of the non-repair of such common sea-wall, 
 &c., it enacts, that any sewers' jury, bailiff, surveyor, expenditor, 
 or other person, may present the whole of such sea-wall, &c., or 
 any part thereof, which may require repair or cleansing, and 
 may allege in such presentment what persons, or bodies corpo- 
 rate, are liable to the repair ; and may also specify what part of 
 such sea-wall, &c., each such person, &c., is bound or liable to 
 repair, without making a separate or distinct presentment. And 
 
 (s) Callis, 111. 
 
 (() Id. 215. 
 
 (a; Godfrey's case, Callis, 218. A presentment for not repairing ratiojie 
 tenurts is void, if he do not set out where the lands lie ; 5 Hen 7 3 • Callis 
 182. ' ' 
 
 (x) Callis, 216, citing 19 Ass. pi. 6. And see Commissioners of Sewers 
 «;. Wilmore, 2 Keb. 137. The names of every person benefited need not 
 appear in the presentment ; where the presentment found " all Fore street" 
 to be benefited, it was deemed sufficient. Warren d. Dix 3 C & P 71 
 
 (1/) Callis, 216; 7 Com. Dig. 350. , . . . 
 
 (z) Callis, 217. 
 
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170 Proceedings of Commissioners — Jury. [chap. hi. 
 
 upon twenty-eight days' notice of such presentment, to be left 
 with or at the last or usual place of abode or office of such 
 person, &c., each such person, &c. shall be at liberty to traverse 
 the allegation contained in such presentment as to the liability ; 
 and trial of such traverse shall thereupon be had, as if such 
 presentment had been solely and exclusively made against such 
 person, body politic or corporate, so traversing the same as 
 aforesaid. 
 
 Repairs, &c. Having obtained the presentment of a jury, or having dis- 
 pensed with it under 24 & 25 Vict. c. 133, the commissioners 
 are enabled to proceed in the accomplishment of their chief 
 duties, and to make their decrees for repairs, or removals, as 
 they see fit. And, further, they then become in a condition to 
 require statute duty, to take labourers, workmen, &c., for the 
 purposes of their decrees, paying them reasonable wages, and 
 also such timber, &c. as may be wanted, upon making the 
 proper compensation for the same (a). These powers, how- 
 evei', having been set forth fully in a former page, we need not 
 descant further on them here(&). 
 
 Assessments. Having ascertained the cost of the work to be done, the next 
 proceeding is, to compel those who are individually bound to 
 perform their obligations, and with regard to the level, to cause 
 all necessary undertakings to be completed, making a rate or 
 assessment to meet the expenses incurred. Some general obser- 
 vations remain to be made concerning the mode of directing 
 this assessment. Notwithstanding the full discussion of, and 
 the numerous questions which have arisen upon this subject, as 
 we have seen in the last chaptei', it seems that, as a general 
 principle, no more is required of commissioners, than that they 
 should lay a fair and impartial tax upon each level, and upon 
 each person in the level, in respect of the land or taxable 
 profits enjoyed by the visible owners or occupiers.* 
 
 (a) See 8 Taunt. 629. 
 
 (b) See Chap. II. 
 
 » For if the occupier be not liable for the whole, the commissioners may 
 relieve him upon proof. (7 Com. Dig. 344.) So if a tax be set on lands, 
 the owner may come and satisfy the commissioners that another has a 
 common or rent therefrom, upon which the commissioners will lay the 
 charge accordingly. (Callis, 1 4-3.) 
 
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CHAP. III.] Proceedings of Commissioners — Jury. 171 
 
 By 3 & 4 Will. 4, c. 22, s. 14, it shall be lawful for the said 
 commissioners to make separate and distinct rates, as occasion 
 shall require, for every separate and distinct level, valley, or 
 district, or any part of such level, valley, or district, within their 
 respective commissions, and to fix and specify the limits of 
 every such level, valley, or district, or of any such part of a level, 
 valley, or district, and to appoint surveyors, collectors, treasurers, 
 expenditors, and other officers, for every such level, valley, or 
 district, or any part thereof respectively, whenever the said 
 commissioners shall think fit so to do, and to cause separate and 
 distinct accounts to be kept of all monies collected and received 
 by virtue of any rate or rates which shall be made, under the 
 authority of the said recited acts relating to sewers, or of this 
 act, upon any lands or hereditaments within any such level, 
 valley, or district, or any part thereof respectively, and of all 
 payments and disbursements in respect thereof; and the said 
 commissioners are hereby authorized to apply the monies to be 
 collected and received from each distinct level, valley, or district, 
 or any part thereof respectively, by virtue of any such rate or 
 rates as aforesaid, to and for the several purposes to which the 
 same may be lawfully applied under the authority of the said 
 recited acts, or of this act, but so, nevertheless, that each level, 
 valley, or district, and every part of such level, valley, or dis- 
 trict, shall bear its own costs, charges, and expenses ; and in 
 case any such costs, charges and expenses shall apply to or be 
 incurred in respect of two or more levels, valleys, or districts, 
 or parts thereof respectively, the same shall be apportioned and 
 divided between such levels, valleys, and districts, or such parts 
 thereof respectively, in such manner as the said commissioners 
 shall judge to be fair and equitable. 
 
 Nevertheless, by sect. 15, nothing shall extend to discharge 
 any person or body corporate from any liability ratione tenurm, 
 frontage, prescription, custom, covenant, or grant j but in case 
 of non-repair by such persons, &c. of any walls, banks, sewers, 
 &c., and notice from the surveyor, dike reeve, or other officer, 
 to repair, the officer of sewers, such notice being disregarded, 
 may do the repairs ; and the person, or body politic, so liable, 
 shall bear the expenses thereof. The 18th section apportions 
 rates between outgoing and incoming tenants. Thus, the occu- 
 
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172 Proceedings of Commissioners— Jury. [chap. iii. 
 
 pier shall be liable to pay the scot or rate in proportion to the 
 time of his occupation, and the person removing shall pay in 
 like manner. And there shall be the like penalty of distress, 
 although the one had not removed, or the other had been 
 originally rated. In case of dispute, the Court of Sewers shall 
 settle it. Provided always, that no outgoing tenant shall be 
 entitled to have or claim any larger amount of rate than shall 
 have been actually paid by him, and not repaid by his landlord. 
 
 Upon each Upon eacli pcrson : that is, not in respect of his person, but 
 
 of the lands which he holds, for there must be an occupier de- 
 riving advantage. As in the case of Chelsea Hospital. And 
 although the commissioners of the Hospital had traversed the 
 presentment, and lost a verdict upon it, this did not afford a 
 ground of estoppel against them; but they were held justified 
 in maintaining an action of trespass against the collector. The 
 jury had found that a part of their property was rateable, and 
 they had presented the part liable to be charged (c). So, 
 again, in the case of the Westminster Bridewell. The governor's 
 house could not be rated ; and as the principle concerning 
 beneficial occupancy interposed itself, the part occupied by the 
 turnkey, matron, and prisoners, which composed the residue, 
 was equally exempt, as those persons, were not beneficial occu- 
 pants. Yet the building derived benefit from the sewerage, 
 and the powers of commissioners of sewers are saved by the 
 act((i). And although usual, it does not seem absolutely ne- 
 cessary to name the owners or occupiers ; for in a case were 
 equity was prayed, to relieve an officer of sewers, the lord chan- 
 cellor took occasion to observe, that if not naming the owners 
 would make the assessment void, there would be au end of all 
 assessments of commissioners of sewers (e). So, where an order 
 of sewers was made for levying nine pence per acre on one 
 
 (c) Neave v. Wrather, 3 Q. B. 981- ; 3 Gale & D. 221. 
 
 {d) Tracy v. Taylor, 3 Q. B. 966; 3 Gale & D. 14. 
 
 (e) 9 Mod. 95. It is, indeed, said, that the person to be assessed must 
 be designed in certain (Callis, 128, note (a) ), and there is a case in Siyles, 
 where Roll, C. J., said, that a tax upon the land of such an one and his 
 assigns was not good (in Whitley «. Fawsett, Sty. IS), but by denotino- the 
 portion of land distinctly on which the tax is assessed, the person seems to 
 be sufficiently pointed out, because the occupier of that land, whoever he 
 be, must be the party charged, and the tax mentioned in Styles was upon 
 one and his assigns, which made the matter uncertain. Nevertheless, it is 
 customary, and is certainly prudent, to name the individuals assessed. 
 
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CHAP. III.] Proceedings of Commissioners — Jury. 173 
 
 thousand three hundred and twelve acres, to be paid to the 
 defendant, and to be applied towards the defraying of charges 
 in and about the execution of the commission, it was objected, 
 that the tax ought to have been on the occupiers; but the Court 
 held the order good, and also, that the rate was well made to 
 reimburse charges, according to the express power given by the 
 statute, and the order was confirmed {f^. And it is no objec- 
 tion to allege, that there has been no presentment by a jury of 
 the work in respect of which such charges were incurred (gr). 
 
 So, likewise, the same rate was held good for the reimburse- 
 ment of previous law expenses (A). 
 
 And it was deemed sufficient to set out the names of the 
 occupiers, and their rentals (i). But where a rate was imposed 
 upon pieces of land, some of which the plaintiff in replevin 
 neither owned nor occupied, and the demand and distress were 
 for the aggregate sum. Lord Campbell said, that the rate was 
 null and void, and judgment was given for the whole of the 
 money levied {k). 
 
 Although this tax is directed to be laid upon the number of in respect 
 
 , ,^ , . • 1 . . n , of the lands, 
 
 acres (/), yet the commissioners need not inquire oi the value oi &o. 
 every acre ; if they ascertain the general value of the property 
 belonging to each person, and rate him accordingly, it is suffi- 
 cient. On one occasion, the defendant justified a distress for an 
 acre tax, and the Court conceived it to be unnecessary to be so 
 particular as to each acre, and not to be the fit mode of assess- 
 ment; nevertheless, on the return of the orders of certiorari, 
 
 (/) Case of the Level of Hull, 2 Str. 1127 ; R. v. Tower Hamlets Cotn- 
 iriissioners, 1 B. & Adol. 232. 
 
 (g) R. V Tower Hamlets, supra. 
 
 (h) R. 0. Tower Hamlets. In this case also the words " works done, or 
 to be done," were held quite capable of being read " works done and to be 
 done." 
 
 (0 S. C. 
 
 (/r) Tuckers. Maitland, 24 Law T. 111. No opinion was given on the 
 other point: i. e., 1. The rate was made for a district which had not been 
 constituted a sub-division or smaller level under 12 & 13 Vict. c. 50 ; 
 2. It was not only made for sea- banks, but also for costs incurred in 
 opposing the plaintiff's traverse, in which he was defeated. Hurrell v. 
 Wink, 8 Taunt. 369, and Warren v. Dix, 3 C. & P. 71, were cited. 
 
 {1} See Brungy v. Lee, Sty. 178. 
 
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174 Proceedings of Commissioners— Jury. [chap. iii. 
 
 they said, that the commissioners must determine the matter, 
 for that they could not do soj axidiS. procedendo was awarded (m). 
 Therefore, it follows, that a general assessment on all lands, 
 from such a place to such a place, would be a wrong mode of 
 proceeding, and it was so held by Lord Chancellor Parker; 
 and he declined to relieve an officer of sewers who had exposed 
 himself to actions at law, in consequence of the illegal charge 
 above mentioned (n). And thus, also, an assessment upon a 
 township is irregular, unless there be a special custom to warrant 
 such a tax (o). Although, for the purpose of raising contingent 
 expenses, but no other, we have seen, that the stat. 4 & 5 Vict, 
 c. 45, has authorized the making and levying of a tax in gross 
 upon any parish, township, or place (p). However, if a tax 
 be laid upon a township in general, it is said, that they may 
 afterwards apportion it amongst themselves (i^) ; but it may be 
 doubted, whether, in the absence of a particular custom to that 
 effect, such a mode of taxation could be supported, and, unless it 
 be afterwards apportioned, it is agreed on all hands that the 
 assessment would be invalid (>•). Thus, the assessment upon 
 the level, both in the making of the decree judicially, and also 
 in the form of entering it in the rate-book ministerially, presents 
 a fair and impartial reckoning of the sums required from the 
 owners or occupiers of lands ; and although not absolutely 
 indispensable, it is both customary and prudent to insert the 
 name of the party to be charged, as well as the land in respect 
 of which the obligation attaches.* 
 
 The rating by sewers' commissions is further established by 
 24 & 25 Vict. c. 133, s. 38. Generally, the commissioners may 
 rate in respect of any act of parliament, law, or custom. 2. Where 
 the expenditure exceeds 1,000Z. the rate is " special," and a tax 
 
 (m) Commissioners of Sewers v. Newburg, 3 Keb. 827. 
 
 (n) Bow V. Smitli, 9 Mod. 91; 2 Eq. Ca. Ab. 94. 
 
 (o) jinte. Chap. II. 
 
 (p) Ante, p. ^Q. 
 
 (?) 7 Com. Dig. 345; Callis, 127. 
 
 (r) 7 Com. Dig. 345; and see Callis, 122—130; 10 Rep. 143. 
 
 * The tax for keeping up embankments upon the Isle of Canvey was 
 not allowed to the owner of lands there in calculating his amount of poor's 
 rate. He had taken the lands subject to the liability to pay this tax. 
 R. V. Vange, 3 Q. B. 242 ; 2 Gale & D. 476. The Licensed Victuallers' 
 Society were held liable to the sewers' rate, R. i>. Licensed Victuallers, 30 
 L. J., M. C. 131. 
 
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CHAP, in.] Proceedings of Commissioners — Assessments, 175 
 
 upon the owners of property. Without that expenditure, rates 
 are payable by persons in respect of the same property as they 
 are now payable. If the owner make default, the amount shall 
 be levied upon the occupier, but not exceeding the rent due 
 during the occupancy, and the occupier may deduct the sum, in 
 the absence of any agreement, from the rent. The receipt from 
 the commissioners to the occupier shall discharge the owner. 
 The definition of "owner" is thus given: — In assessing, if the 
 name of the owner or occupier be not known, the words " owner 
 or occupier" in the rate shall be sufficient. Subject as aforesaid, 
 and without presentment, but with the right of appeal, and a 
 saving of agreements between landlord and tenant («), sewers' 
 rates may be levied, &c,, as heretofore. By sect. 39, for the 
 purpose of assessment, overseers must allow the inspection of 
 the poor rate book, under a penalty of bl. 
 
 By 4 & 5 Vict. c. 45, s. 8, on all appeals from any rates Amendment 
 made by virtue of a commission of sewevs, the Court before 
 which it is made may amend the rate, either by inserting therein, 
 or striking out therefrom, the name of any person, or by altering 
 the sum therein charged on any person, or in any other manner 
 the Court shall think just, without quashing the rate. But the 
 Court may quash it, if they shall think that the rate should be 
 quashed. A rate may be retrospective, unless there is anything 
 to show a prohibition. In replevin the defendants avowed 
 under a public local act. The replication was de injuria. The 
 rate was retrospective, to pay money borrowed by commis- 
 sioners under a public drainage act, and the Court held it well 
 imposed, as there was nothing in the act to show that it might 
 not be retrospective (t). 
 
 Bv 21 & 22 Vict. c. 98, s. 54, whenever special district rate Hates under 
 
 , 21 & 22 Vict. 
 
 is mentioned in the Public Healtli Act, 1848, that act shall be c. as. 
 read as if no such rate were mentioned therein. 
 
 (s) All agreements between landlord and tenant afe expressly saved by 
 sect. 61. 
 
 (t) Harrison d. Stickney, 2 H. L.Cas. \(ii,ante, 76. Parke, B., cited St. 
 Katherine Dock Company v. Higgs, ante ; and Cortis v. Kent Waterworks 
 Company was cited in argument, but there tlie provisions of the act would 
 not admit of its being construed so as to give validity to a retrospective 
 rate. 
 
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176 Proceedings of Commissioners— Assessments, [chap. iii. 
 
 No publication of any private improvement rate shall be 
 required. The costs of the levy of arrears of any rate may be 
 included in the warrant for such levy. Upon appeal or dispute, 
 the time between the settlement or other final proceeding shall 
 be excluded from the six months within which the rate may be 
 made retrospectively. And notice of the demand of rates may 
 be served as in the case of taking land under sect. 75. Then, 
 by 11 & 12 Vict. c. 63, s. 87, the treasurer shall keep a sepa- 
 rate account, called " The District Fund Account ;" and the 
 monies carried to such account are to be applied to the ex- 
 penses of the local board not otherwise provided for. The 
 local board may likewise levy a rate or rates, to be called 
 " General District Rates,'' for defraying the expenses charged 
 upon that rate by the act, and such other expenses of executing 
 the act in any district as are not otherwise provided for, and 
 not defrayed out of the district fund account (u). 
 
 The third kind of rate (which is rather by way of penalty), is 
 called a private improvement rate. 
 
 By sect. 90, where the local board have incurred or become 
 liable to any expenses which are declared to be private improve- 
 ment expenses, they may levy upon the occupier one or more 
 rates, called " Private Improvement Rates," in addition to all 
 other rates, and of such amount as will discharge the debt with 
 interest at 5Z. per cent., within a period not to exceed thirty 
 years, as the said local board shall direct. Should the pre- 
 mises, in respect of which any private improvement rate is made, 
 become unoccupied before the expiration of the time for which 
 the rate was made, or before it is fully paid off, it shall be a 
 charge upon and be paid by the owner as long as the house 
 remains unoccupied. 
 
 However, under sect. 92, this improvement rate may be 
 redeemed before the expiration of the time by repayment of the 
 rate, or of any part remaining unpaid. 
 
 («) See 21 & 22 Vict. i;. 98, s. 55, jiost. 
 
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CHAP. 111.] Proceedings of Commissioners — Assessments. 177 
 
 By sect. 91, the occupier at rack rent may deduct three- 
 fourths of the amount paid on account of the rate, from the rent 
 payable to the landlord. If he hold at less than the rack rent, 
 he may deduct such proportion of the three-fourths as his rent 
 bears to the rack rent. Then if the landlord from whose rent 
 this deduction is made, be himself liable to rent with respect to 
 the same premises, and holds for a term of which twenty years 
 are unexpired, he may deduct his proportion in like manner, 
 and so on in succession, if there be other such holdings ; pro- 
 vided that there shall be no deduction beyond the whole rent 
 due. 
 
 And by 21 & 22 Vict. c. 98, s. 63, the apportionment of 
 expenses payable by owners shall be conclusive after a notice 
 of three months given to them of the account. 
 
 By 11 & 12 Vict. c. 63, s. 92, these special district and im- 
 provement rates might be redeemed at any time during their 
 continuance, either by the owner or the occupier, by paying to 
 the local board the expenses in respect of which the rate was 
 made, or such part thereof as may not have been defrayed by 
 sums already levied in respect of the same. 
 
 By 21 & 22 Vict. c. 98, s. 62, all expenses due from owners 
 are declared to be charges upon the premises ; and by sect. 65, 
 all memorials under 11 & 12 Vict. c. 63, s. 120, shall be sent 
 to the Secretary of State, who shall have the same powers as 
 the latter act gives. 
 
 Fourthly, there is the water rate. This rate is to be levied 
 for the purposes of domestic use, cleanliness or drainage, under 
 the 93rd section of 11 & 12 Vict, c. 63. By sect. 94, the water 
 rate is to be paid in advance ; and, in case of non-payment, 
 power is given to the board to stop the water, in addition to a 
 penalty which may be incurred. 
 
 The next questions are, by whom these rates are to be paid, 
 and upon what property they are to be assessed. 
 w. N 
 
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178 Proceedings of Co'mmissioners— Assessments, [chap. hi. 
 
 By 21 & 22 Vict. c. 98, s. 55, the general district rates shall 
 be made and levied upon the occupier of all property liable to 
 the poors' rate, and to the full annual value ascertained by the 
 last poors' rate. At the option of the board, the owner, instead 
 of the occupier, may be rated where the rateable value is under 
 10^., or where there are weekly or monthly tenants, or where 
 there are separate apartments, or where the rents are collected 
 sooner than quarterly, but he is to have the benefit of a reduced 
 estimate of not less than two-thirds, nor more than four-fifths, 
 but in respect of tenements at one-half. 
 
 However, the calculation is to be only one-fourth of the net 
 annual value upon the owners of tithes, the commutation, 
 rent-charges, occupiers of arable, meadow or pasture grounds, 
 of woodlands, market gardens or nursery grounds, of land 
 covered with water, or used as a canal or towing path for the 
 same, or as a railway constructed under any act of Parliament 
 for public conveyance. And all exemptions under any local 
 acts are saved, in respect of general rates, within the parts to 
 which the exemptions apply, unless a provisional order should 
 otherwise direct. And the estimate shall be prepared before 
 the rate is made (3/). 
 
 A commutation rent-charge is not liable to the sewers' tax 
 under 18 & 19 Vict. c. 120, s. 161. It is exempt under sect. 
 164, the practice before 11 & 12 Vict. c. 112, being to exempt 
 the parish from the rate (z). Existing exemptions are to be 
 allowed (a). And the rate must be allowed by the landlord (6). 
 A rate under the Local Management Act (Sewerage) was held 
 good, although it neither set out the precept of the board, 
 nor the order of vestry. Nor was it a good objection that 
 the order of vestry was addressed to the overseers instead of 
 the guardians. After the heading there appeared the names of 
 five guardians of the parish, and, at the end of the rate was the 
 usual declaration, " We, the guardians of the poor, &c.," 
 
 {y) 11 & 12 Vict. c. 63, s. 88 ; 21 & 22 Vict. c. 98, ». 55. 
 (a) R. V. Goodchild, 27 L. J., M. C.251. Whether there be any liability? 
 Qu. ? See s. 163. 
 (a) Sect. 164. 
 lb) Sect. 169. See ss. 175, 176. 
 
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CHAP. HI.] Proceedings of Commissioners —Assessments. 179 
 
 signed by six guardians, three of whom had signed the rate. 
 This rate was held to have been sufficiently signed (c). 
 
 By 21 & 22 Vict. c. 98, s. 56, poor rate books are to be 
 accessible for rating under Public Health Acts. 
 
 We have seen that the private improvement rate is to be 
 paid by the owner when the premises are unoccupied, as long as 
 they so remain without a tenant. And by 11 & 12 Vict. c. 63, 
 s. 93, the water rate is to be made upon the occupier also 
 (except where otherwise provided). This rate is likewise to 
 be assessed upon the net annual value, to be ascertained as 
 above in the case of special and general district rates. But 
 when several houses in the separate occupation of several 
 persons are supplied with water by one common pipe, the 
 houses shall be charged as if each house had been supplied by 
 a separate pipe. 
 
 By 11 & 12 Vict. c. 63, s. 89, the general district rates may 
 be levied for future charges, i. e., prospectively, or for charges 
 already incurred, i. e., retrospectively. Should the premises 
 be unoccupied, the owner was to pay the special rate, but there 
 is to be no charge in respect of the general rate, although the 
 premises are to be included in the rate. But as soon as the 
 premises are occupied, the name of the incoming tenant shall 
 be inserted in the rate, but he shall pay only proportionably to 
 the time of his occupation. And again, both in the case of 
 owner and occupier, there shall be an apportionment, if either 
 owner or occupier cease to have an interest in the premises, and 
 be succeeded by others, and vice versa. 
 
 And further, under the same section, the local board may 
 divide any district into parts, and make a separate assessment 
 in respect of it, which shall be in lieu of any other assessment 
 under the act. Yet if expenses are incurred in respect of two 
 or more parts of a district in common, there shall be a fair and 
 equitable apportionment. 
 
 (c) Christie, app., Guardians of St. Luke, Chelsea, resps., 27 L. J,, 
 M. C. 153. Whether any right of appeal lay was made a query; but in 
 Empson v. Metropolitan Board, 25 J. P. 677, this right was acknowledged. 
 
 n2 
 
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lyO Proceedings of Commissioners — Assessments, [chap. hi. 
 
 In the above section we have seen, that the owner was 
 rateable to the special rate where the premises are without 
 an occupier. In the following cases he is also subject to the 
 general rate. By 21 & 22 Vict. c. 98, s. 55, if the rateable 
 value of the premises does not exceed lOZ., or if such 
 premises are let to weekly or monthly tenants, or in separate 
 apartments, the rent being payable at a less period than quar- 
 terly, the board may compound with the owner for the rates, 
 upon such reduced estimate of the net annual value, being not 
 less than two-thirds, nor more than four-fifths, as the board may 
 deem reasonable (c?). If the owner refuses,- he must pay the 
 rates assessed. In either case the arrears may be recovered by 
 distress and sale of the goods of the owner, or of the occu- 
 pier (e). Yet the occupier may deduct the amount from the 
 rent due, or from time to time accruing due, unless there be an 
 agreement to the contrary, and that shall be a sufficient dis- 
 charge for the owner. Still the occupier shall not be liable 
 beyond the rent actually due at the time, and the owner shall 
 not be liable to any increased rate after he has compounded. 
 Nor shall there be any alteration in the relation between land- 
 lord and tenant (_/) ; so that an agreement by the tenant to pay 
 the rate will be binding. 
 
 Other incidents to rates are, that they may be remitted or 
 reduced in cases of poverty {g) or sickness ; and that notice of 
 a general rate shall be given, but no proof of such notice need 
 be made in case of distress. 
 
 By 11 & 12 Vict. c. 63, s. 100, these rates may be inspected 
 by persons interested in or assessed to them, together with any 
 estimates, and copies or extracts from them may be likewise 
 taken without fee or reward; and if any person i-efuses to 
 allow of such inspection, &c., he shall forfeit a sum not ex- 
 ceeding 5Z. (A). 
 
 If the name of the owner or occupier be not known to the 
 
 (d) Ante, p. 177. 
 
 (e) See 11 & 12 Vict. c. 63, s. 103. 
 
 (/) Id. sect. 97. A contract which does not comply with these provisions 
 cannot be enforced. Friend v. Bennett, i C. B. 576 ; 27 L. J,, C. P. 314. 
 (g) Id. sect. 96. 
 (A) See sect. 129. 
 
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CHAP. III.] Proceedings of Commissioners — Assessments. 181 
 
 board, such person so liable may be designated "The Owner," 
 or " The Occupier," without more («'). 
 
 The 102nd section gives full powers to the local board to 
 amend a rate in any way; and it likewise gives the right of 
 appeal, as though the amendment had been part of the original 
 rate(j). 
 
 The publication of these rates is to be the same as in the case 
 of the poors' rate (A). The time and mode of payment of them 
 are to be under the order of the local board. Fourteen days 
 after demand the rate may be recovered by distress, after due 
 process by summons before a justice. And again, if there be 
 no sufficient distress within the jurisdiction of the justice who 
 has granted the distress warrant, and it appear upon oath, before 
 a justice of another jurisdiction, that the defaulter has goods 
 in that jurisdiction, the justice last mentioned shall indorse 
 his name upon the warrant, and the distress may then be levied. 
 So if a person owing a rate quit or be about to quit his premises, 
 without payment, he may be forthwith proceeded against by 
 summons and distress. Where a local act gave power to 
 recover rates in any of her Majesty's Courts of Record at 
 Westminster, it was, nevertheless, held quite competent to sue 
 in the County Court under 9 & 10 Vict. c. 95, s. 58, that being 
 a later and a general act {J). 
 
 The 104th section refers to Schedule (D.) of the act as the 
 form of the distress warrant. And if any constable should 
 refuse, after having been required by a collector, to make the 
 distress, he shall forfeit a sum not exceeding 5Z. (m). 
 
 By sect. 106, the production of the rate book shall be prima 
 facie evidence of the validity of the rate. 
 
 Returns must be made annually of all rates, scots, &c. (ri). Returns. 
 
 («) Sect. 101. 
 (j) See sect. 135. 
 
 (A) 11 & 12 Vict. t. 63, B. 103. Not of any private improvement rate, 
 21 & 22 Vict. c. 98, ». 54. 
 
 {I) Stewart ». Jones, 22 L. J., Q. B. 1. 
 
 (»») See sect. 129. 
 
 (n) 23 & 24 Vict. c. 51. 
 
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182 Proceedings of Cammissioners — Assessments, [chap. iii. 
 
 Appeal. There may be an appeal against these rates. By sect. 135, 
 
 the general quarter sessions next after the making of the rate, 
 or accrual of the cause of complaint, is to be the tribunal of 
 appeal against any rate, order, conviction, &c. A notice of 
 fourteen days is required, together with a statement of the 
 grounds of appeal. The decision of the Court concerning the 
 matter of the appeal shall be conclusive, and the costs shall be 
 in their discretion. If there be not time before the next sessions 
 to give such notice, the next practicable sessions must be ap- 
 pealed to. But no grounds of appeal shall be entertained except 
 those set forth in the appellant's statement.* 
 
 Power was given under 18 & 19 Vict. c. 121,, s. 22, to 
 construct a sewer, and to assess property in respect of it, either 
 immediately, or by distribution over a term of years, provided 
 that the assessment should in no case exceed Is. in the pound 
 on the assessment to the highway rate. The levy and the right 
 of appeal were to be similar to the highway rate. It was held 
 that the fourteen days' notice of appeal ran from the service of 
 the notice, not from the time when the amount was fixed, and 
 that the proviso limiting the annual assessment to Is. in the 
 pound did not prohibit the whole assessment in respect of one 
 structure from exceeding that amount when distributed over 
 several years, provided it did not so exceed in any one year (n). 
 And this direction as to the appeal takes away the power of 
 stating a case under 20 & 21 Vict. c. 43, s. 2 (o). 
 
 By sect. 136, the same power is vested in the sessions with 
 respect to amending and quashing rates, and with respect to 
 costs, as in the case of poors' rates. Nevertheless, though 
 the rate be quashed, all monies may, if the Court please, be levied 
 as if an appeal had been made, and such monies shall be deemed 
 to be payment on account of the next efiective rate. And by 
 sect. 137, no rate shall be quashed for want of form, or be re- 
 movable by certiorari or other process. Although presentments 
 
 * It was intended by the Legislature that a recognizance should be en- 
 tered into, but, by a strange omission, the recognizance, although alluded 
 to in the latter, is not mentioned in the former part of this section. 
 
 (n) R. V. Middleton, 28 L. J., M. C. 41 ; I El. & El. 93. 
 
 (o) R. II. Newman, Sic, Justices of Gloucestershire, 29 L. J., M. C. 
 117. 
 
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CHAP. III.] Proceedings of Commissioners — Assessments. 183 
 
 by jury may now be dispensed with, an appeal is, nevertheless, 
 given by 24 & 25 Vict. c. 133, s. 47, against all orders, requi- 
 sitions, or rates. The Court of Quarter Sessions may confirm, 
 modify or annul. The time of appeal must be within four 
 months, and ten days' notice in writing must be given stating 
 the grounds, and must be served on the commissioners. Within 
 four days after such service, the appellant must enter into a 
 recognizance with two sureties before a justice, to prosecute, and 
 abide the order of sessions. However, by sect. 48, if the ques- 
 tion be one of account, or of engineering, or science, the Court 
 may refer it to arbitration of one or more to be appointed by 
 the parties, or if they cannot agree by the Court, and the award 
 shall be enforceable as an order of sessions. By sect. 49, tiie 
 17 & 18 Vict. c. 125, shall extend to these arbitrations, and the 
 word " Court" shall include the Court of Quarter Sessions. The 
 50th section provides as to the decision of questions by justices 
 or by arbitration. 
 
 A Local Drainage Act (9 & 10 Vict. c. cxxviii.), s. 81, pro- 
 vided that the commissioners should assess the occupiers of cer- 
 tain lands with an acre tax. By sect. 84, if default were made 
 for ten days, interest was recoverable in like manner as the rates. 
 By sect. 85, the sums paid might be deducted from the rents, 
 only that no more than the rent which should from time to time 
 become due should be paid. By sect. 89, upon default for thirty 
 days, the commissioners might levy by distress and sale. By 
 sect. 90, the lands were to be the security for the rate. It was held, 
 1, that an occupier coming in after thirty days from the time of 
 payment of the rate might be distrained on, there being a con- 
 tinuing default, but for interest only from the time of his coming 
 into occupation, and in respect not only of rent due, but also 
 of rent accruing due {p). It is no ground for dispensing with 
 this rule, that the rate may have proceeded upon an erroneous 
 principle {q), A. B. was presented by a jury to do repairs as 
 owner. The commissioners during the same commission made 
 a rate upon one who had become an owner since the present- 
 er) Mattison v. Hart, 23 L. J., C. P. 108 ; 14 C. B. 357. 
 \q) Metropolitan Board v. Vauxhall Bridge Company, 26 L. J., Q. B. 
 213. 
 
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184 Proceedings of Commissioners — Mortgage, [chap. hi. 
 
 ment. They did this upon the evidence of the marsh bailiff 
 without another presentment. The rate was held bad («). 
 
 By 18 & 19 Vict. c. 120 (Metropolis Local Management), 
 s. 161, the overseers of the poor of every parish to whom an 
 order from a vestry or district board is sent shall levy the amount 
 by separate equal pound rates, amongst others a separate rate to 
 be called a sewers' rate. The assessment is to be upon the net 
 annual value of the property, ascertained by the poors' rate, and 
 the levy is to follow the rules prescribed in raising the poors' 
 rate ; and, likewise, as to appeal and excuses for poverty. Then 
 the amount, when levied, is to be paid to the treasurer of the ves- 
 try or board. By sect. 163, the sewers' rate shall only be assessed 
 at one-fourth part of the annual value in respect of land used as 
 arable, meadow, or pasture only, or as woodland, orchard, 
 market garden, hop, herb, flower, fruit, or nursery ground. 
 By sect. 164, all property exempted or subject to reduction or 
 allowance under 11 & 12 Vict. c. 112, shall continue to enjoy 
 such privileges {t). By sect. 169, all powers on the part of 
 tenants to deduct sewers' rates from their landlords' rents are 
 saved, whether the tenancy have commenced before or after 
 this act. By sect. 176, the places mentioned in Schedule (C), 
 and which are not now rated shall remain free, except as to 
 contributions towards preventing the metropolitan sewage from 
 flowing into the Thames, yet so far only as those places may be 
 benefited. This principle of benefit prevails, but with the 
 qualification that no reference to the amount of benefit can be 
 permitted. If the appellants have only derived half the propor- 
 tionable benefit, their case will fail (u). 
 
 Borrowing Commissioners of sewers may, moreover, raise money upon 
 
 money. mortgage. And their powers are in this respect applicable to 
 
 {s) R. V. Warton, 7 El. & Bl. 964; 31 L. J., Q. B. 265 j 9 Jur. (N. S.) 
 325. 
 
 [t) See sects. 166, 168, as to the recovery of such rates from parishes. 
 And see 12 & 13 Vict. c. 93, s. 17, where annuities may be granted to satisfy 
 mortgages in force, although the commission should be at an end, and may 
 be enforced by rates, in the case of the expiry of the commission by the 
 Justices of Middlesex, Surrey, Kent, and Essex. 
 
 (u) R. 0. Head and Metropolitan Board of Works, 3 Best & Sm. 419- 
 9 Jur, (N. S.) 871 ; 32 L. J., M. C. 115. 
 
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CHAP. III.] Proceedings of Commissioners — Mortgage. 185 
 
 new as well as to ancient works. The securities they give are 
 transferable. 
 
 By 3 & 4 Will. 4, c. 22, s. 41, they may take up any sum for 
 the purchase of messuages, lands, &c., or defraying the costs of 
 any work of repair within their commission, or any new work 
 connected with the sewers, whether a defence or otherwise. 
 The repayment, with interest, is to be secured by a decree 
 under the hands of any six commissioners, charging the lands 
 of those receiving benefit or avoiding damage by reason of the 
 works and the owners or occupiers, or owners and occupiers 
 for the time being, with such repayment, according to ,the pro- 
 portions and in the manner returned in and by any presentment 
 touching the costs and charges of such last-mentioned works, or 
 the lands, &c. receiving benefit and avoiding damage thereby. 
 Nevertheless, the consent of the owners and occupiers, being 
 three-fourths in value, of the lands, orof their respective husbands, 
 guardians, &c., must be previously certified in writing. Then 
 follows another provision, that no owner of lands shall be charged 
 with the payment of more than one-fifth part of the value of his 
 lands at the time of the borrowing. And further, provision is 
 made that repayment of the borrowed money shall take place 
 within a time to be named in the decree, not being more than 
 fourteen years from the making thereof, by equal annual or 
 shorter instalments and interest. The decree is to remain in 
 force until such sums so borrowed shall have been satisfied. 
 
 By sect. 42, the Court of Sewers may grant securities, in the 
 form of a certificate, under the hands and seals of six commis- 
 sioners, to the parties advancing money. The amount borrowed, 
 the rate of interest, the periods of repayment by instalments, 
 and a general description of the particular lands, or, if by assess- 
 ment, the district, limit, or level in which the lands are situate 
 which are to be charged with such repayment, must appear in 
 the certificate. The form of the security is then given, which 
 will be found in the note.* 
 
 » " By virtue of an act passed in the third year of the reign of his Majesty 
 King William the Fourth, intituled [here insert the title of this acf], we the 
 undersigned, being six of the commissioners [here insert the general descrip- 
 tion of the commission under which they act'], in consideration of the sum 
 of of lawful money of Great Britain to [here insert the name of the 
 
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1°6 Proceedings of Commissioners— Mortgage, [chap. iir. 
 
 By sect. 43, every person, body politic, &c,, and his, her, or 
 their executors, &c., may from time to time, personally or by 
 attorney, make a transfer of the right to the principal and 
 interest above alluded to. The course is, to indorse upon the 
 security, in the presence of a witness, who shall subscribe his 
 name thereto, a form of transfer (which shall be found beneath*), 
 and such transfer shall be produced and notified to the clerk of 
 sewers before any principal or interest shall be received by 
 virtue of the transfer. The clerk must then make an entry, 
 amongst the records of the commissioners, of the particulars of 
 the transfer, and indorse a minute of the entry of the transfer, 
 and sign the same. And for such entry and minute he shall be 
 entitled to a fee of 5s., and no more. 
 
 These mortgages or borrowings, it will be observed, relate to 
 the making of works for repairs, and other defences. But there 
 are, as we have seen, many other expenses incident to sewers(ac), 
 and a general sewers' rate is not the work of a day. It is, 
 therefore, now permitted by the Legislature to commissioners 
 of sewers to raise money for these contingent expenses. And 
 therefore, by 4 & 5 Vict. c. 45, s. 4, power to borrow money 
 for these purposes is given. And the security for repayment, 
 with interest, is to be guaranteed under a decree under the 
 hands and seals of at least six commissioners. The general 
 
 receiver of the district] lent and paid by do hereby certify, that {here 
 
 describe the particular lands, or, if by assessment, the valley, level, or limit in 
 which the lands are situate, which are to be charged^, are become charged 
 with the repayment of the said sum, in instalments of one part on 
 
 the day of in every year, together with interest on such 
 
 part of the said principal' money as shall remain unpaid from time to time 
 at and after the rate of pounds per centum per annum, until the 
 
 whole thereof shall be repaid ; which sum so lent and advanced by the said 
 is part of a capital sum of which at a Court of Sewers 
 
 holden at on the day of last was decreed and ordered 
 
 to be taken up and borrowed for the purpose of [here briefly state the general 
 cause or object of borrowing the money'}. In witness whereof we have here- 
 unto set our hands and seals the day of ." 
 
 * " 1 [or we] [A. B. of, Sfc], in consideration of the sum of to me 
 
 this day paid by [C. D. of, *c.], do hereby transfer the within certificate 
 of charge, with all my right and title to the principal money thereby secured 
 and now remaining due thereon, and to all the interest money now due or 
 hereafter to become due unto his [her, or their] executors, adminis- 
 
 trators, successors, and assigns [as the case may be]. Given under my hand 
 and seal this day of 
 
 " Witness, ." 
 
 {x) See ante, p. 97, 3 & 4 Will. 4, u. 22, s. 16. 
 
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CHAP. III.] Proceedings of Commissioners— Mortgage. 187 
 
 sewers' rates, or any of them, may be charged with the payment, 
 and the time hmited for completing that payment is seven years; 
 the payment to be made by equal annual or shorter instalments, 
 together with interest. Then the 5th section makes similar 
 provisions with those which have been already mentioned under 
 3 & 4 Will. 4, c, 22, s. 42, for the creation of securities, but 
 as the burthen in this case is not upon the lands, but upon the 
 rates, the certificate given must mention the particular genei'al 
 sewers' rate which is to be charged with the repayment. Then 
 follows the form of the security, to which the reader is referred 
 in the note.* 
 
 The 6th section provides for the transfer of these securities, 
 and for the form of the transfer, with other incidents, but as 
 these provisions are exactly similar to those of the stat. 3 & 4 
 Will. 4, c. 22, s. 43, which have been already set out(y), we 
 will merely refer to them. So under 21 & 22 Vict, c 98, s. 8, 
 all sanctions, &c., of the General Board of Health as to mort- 
 gages are expressly saved. 
 
 Other powers as to mortgage are given by 24 & 25 Vict. 
 c. 133, s. 40. Mortgages may be generally effected on the 
 security of the rates. But 1. The sanction of the Inclosure 
 Commissioners must be obtained. 2. By agreement with the 
 mortgagees the borrowing may be for a time not exceeding 
 thirty years. And if part only of a district be benefited, the 
 borrowing and repayment shall be in respect of that part only. 
 
 * " By virtue of an act passed in the year of the reign of her 
 
 Majesty Queen Victoria, intituled [here insert the title iff this act'], we, the- 
 undersigned, being six of the commissioners .[here insert the general descrip- 
 tion of the commission under which they actl, in consideration of the sum of 
 of lawful money of Great Britain to [here insert the name of the 
 treasurer'] lent and paid by do hereby certify,, that the several general 
 
 sewers' rates to be made and levied within [here insert the name of the district 
 or level] under and by virtue of the said act are become charged with the 
 repayment of the said sum, in instalments of one part on the 
 
 day of in every year, together with interest on such part of the said 
 
 principal money as shall remain unpaid from time to time, at and after the 
 rate of pounds per centum per annum, until the whole thereof shall 
 
 be repaid ; which sum so lent and advanced by the said is part of 
 
 a capital sum of which, at a Court of Sewers holden at on 
 
 the day of last, was decreed and ordered to he taken up 
 
 and borrowed. In witness whereof we have hereunto set our hands and 
 seals the day of ." 
 
 (j/) Ante, p. 186. 
 
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188 Proceedings of Commissioners — Mortgage, [chap. hi. 
 
 By sect. 41, the clauses of 10 & 11 Vict. c. 16 (Commis- 
 sioners' Clauses Act), shall be incorporated as to these mort- 
 gages. 
 
 Mortgage. The rates under the Acts for Promoting the Public Health 
 
 may be mortgaged by the local board. 
 
 By 21 & 22 Vict. c. 98, s. 57, the board may borrow 
 money. for the purposes of the act, and charge the incumbrance 
 upon the rates, i. e., upon the kind of rates applicable to the 
 matters in respect of which the money is borrowed. But the 
 mortgage shall only be in respect of works of a permanent 
 nature, and shall not at any time exceed in the whole the 
 assessable value for one year of the premises assessable under 
 the act, within the district or part of it where the money is 
 borrowed. By sect. 78 of the same act, where the cost of 
 works exceeds one year's assessable value of the premises, the 
 board may petition a Secretary of State to borrow or re-borrow 
 for such works upon mortgage of the rates leviable under 
 11 & 12 Vict. c. 63, or this Act, an amount not exceeding two 
 years' assessable value of the premises, to be repaid within fifty 
 years (z). By 11 & 12 Vict. c. 63, s. 108, the commissioners 
 under 5 Vict. c. 9, sess. 2 (a Public Works' Act), may advance 
 money for these purposes, without further security than the 
 mortgage of the rates. The 109th section gives the local board 
 the following power. They may borrow money at a lower 
 rate of interest than that secured by any mortgage previously 
 made by them, and then outstanding, in order to pay off any 
 securities bearing a higher rate of interest, and may charge the 
 sum so borrowed at the Ibwer rate upon the rates as aforesaid. 
 And if the local board be not prepared to pay off the money 
 due upon any mortgage at the time appointed, they may 
 borrow money for that purpose upon the credit of the rates, at 
 such interest as above in the case of other mortgages (a). 
 
 The 111th section speaks of the form. The deed must fully 
 state the date, consideration and place of payment. It shall 
 have the seal of the local board, or the common seal of a cor- 
 
 («) See also sects. 79, 80, 81. 
 (a) Sect. 110. 
 
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CHAP. III.] Proceedings of Commissioners — Mortgage. 189 
 
 poration, and be signed by five or more members, and it shall 
 be framed according to Schedule (B.) of the act (6). 
 
 There must be kept at the office of the local board a separate 
 register of the mortgages upon each rate, and within fourteen 
 days after the date of any mortgage, an entry must be made in 
 each register of the number and date, and of the names and de- 
 scription of the parties thereto, as stated in the deed. Every 
 register shall be open for inspection during office hours, without 
 fee or reward, and any clerk, having the custody of the same, 
 and refusing to allow of such inspection, shall forfeit a sum not 
 exceeding 51. (c). 
 
 The 1 12th section enables persons to transfer their mortgages, 
 and directs the register of transfers. 
 
 The 58th and 59th sections of the statute 21 & 22 Vict. c. 98, 
 relate to rent-charges in respect of money advanced, and their 
 registry. 
 
 A receiver may, in certain cases, be appointed under 11 & 12 
 Vict. c. 6.3, s. 114. Thus, if six months after any principal or 
 interest has become due in respect of a mortgage under the act ; 
 and if, after demand in writing, the same be not paid, the mort- 
 gagee or other person entitled may, without prejudice to any 
 other mode of recovery, apply to two justices to appoint a 
 receiver. Upon which, after a hearing, such justices may ap- 
 point such a person to collect and receive the whole or a com- 
 petent part of the rates, liable to the payment of principal and 
 interest, until the same, with the costs of the opposition and of 
 the collection, be paid. The rates shall then be so paid, and 
 shall be money had and received to the use of the parties on 
 whose behalf the application is made. But the sum due must 
 amount to 1,000/. upon this occasion. It must either be due 
 to one person, or make up that sum in the aggregate due to 
 two or more applicants. 
 
 Again, commissioners of sewers may purchase lands for their purchase of 
 
 , lands. 
 
 works. 
 
 (6) See Schedule (B.) at the end of the book. (c) See sect. 129. 
 
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190 Proceedings of Commissioners — Purchase of Lands, [ch. iii. 
 
 By 3 & 4 Will. 4, c. 22, s. 24, they may treat with the owners 
 of and persons interested in any messuages, lands, tenements, 
 hereditaments and premises, for the purchase thereof, in order 
 to widen, deepen, strengthen, maintain, &c., any rivers, streams, 
 &c., and defences, within their jurisdiction, and for the loss or 
 damage which such owner, &c., may sustain by the purchase. 
 All bodies corporate, &c., tenants for life or in tail, husbands, 
 guardians, trustees, feoffees in trust, executors, administrators, 
 and all other persons may contract, not only for and on behalf 
 of themselves, their heirs and successors, but also for and on 
 behalf of the person entitled in reversion, &c., and for or on 
 behalf of their cestuis que trust, -wheiheT femes covert, infants, 
 or issue unborn, lunatics, idiots, or others, and to and for all 
 femes covert who are or shall be seised of or interested in their 
 own right, and to and for any person, who is or shall be 
 possessed of or interested in any such lands, &c., or who shall 
 sustain any damage as aforesaid, with the said commissioners 
 for the sale thereof respectively, or for the satisfaction to be 
 made for the same, or for such damages as aforesaid, and by 
 conveyance may convey unto the said commissioners all or any 
 of such messuages, &c., or any part thereof for the purposes 
 aforesaid, and all contracts, &c., which shall be so made shall 
 be good, valid, &c., without fine or recovery, and siiall be a 
 complete bar to all estates tail, and other estates, &c. And all 
 such bodies politic, &c., and all other persons are declared to 
 be indemnified for their acts. The form of conveyance is 
 prescribed by the 25th section, and is appended in the note 
 beneath.* 
 
 The 26th section contemplates an unwillingness on the part 
 
 • 3 & 4 Will. 4, c. 22, s. 25. Be it further enacted, That all such con- 
 veyances of any lands, tenements, or hereditaments to be purchased by the 
 said commissioners of sewers shall be expressed in the following or similar 
 form of words, as the circumstances of the case may require : 
 
 " I of in consideration of the sum of to be paid 
 
 by six or more of the commissioners of sewers acting in and for several 
 limits \here describe the limits as set forth in ike commission of sewers'], do 
 hereby grant and release to the commissioners of sewers acting in and for 
 the said limits all [^describing the premises to be conveyed'] and all my right, 
 title, and interest in and to the same and every part thereof, to hold to the 
 said commissioners, their successors and assigns for ever, by virtue of the 
 several acts and laws now in force concerning sewers. In witness whereof 
 I have hereunto set my hand and seal this day of in the 
 
 year of our Lord ." 
 
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CH. III.] Proceedings of Commissioners— Purchase of Lands. 191 
 
 of owners to treat. It enacts, that if any such body politic, 
 &G., or other person interested in such lands, &c., or sustaining 
 damages, upon notice given, or left in writing at the dwelling- 
 house or place of abode of such person, or of the principal 
 officer of any such bodies politic, &c., or at the house of the 
 tenant in possession of any such lands, &c., of thirty days, 
 neglect or refuse to treat, or shall not agree in the premises, or 
 by reason of absence shall be prevented from treating, the 
 commissioners or any six of them may then issue their warrant 
 under their hands and seal, to the sheriff, bailiff, or other 
 returning officer of the county or place where the matter in 
 question shall lie, or, if the sheriff, &c., be interested, then to 
 one of the coroners, commanding such sheriff, &c., to impanel, 
 summon, and return a jury. The said sheriff, &c., is hereby 
 required accordingly to summon twenty-four men qualified as 
 in cases for trial at Westminster. These twenty-four persons 
 are then to appear at the quarter sessions or at some adjourn- 
 ment thereof, for the county where the lands, &c., lie. Then, 
 if twelve persons do not appear, the number of twelve shall be 
 made up by the sheriff, &c. from other honest and indifferent 
 persons. All persons may have their lawful challenge. The 
 clerk of the peace, moreover, may summon all who may be 
 thought necessary persons as witnesses, and may authorize the 
 jury, or any six of them, to have a view. The jury shall then, 
 upon their oaths (which oath, as well as the oath to the wit- 
 nesses, the justices may administer) assess the value of the lands 
 or matter in dispute, or the recompense for damages, and shall 
 settle the proportions to be paid to the persons interested, 
 upon which the justices shall give judgment for such purchase 
 monies or recompense. And such verdict and judgment 
 shall be binding and conclusive against all persons, bodies 
 politic, &c. 
 
 The warrant and requisition under this section needs not to 
 refer to the notice, nor give the particulars of the lands required, 
 in order to invest the sheriff and jury with jurisdiction. In a 
 case decided under a drainage act, certain lords of manors or 
 their agents being commissioners, it was objected, that no such 
 reference appeared in the warrant and requisition. But the 
 Court took notice that the particulars had been furnished to the 
 
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192 Proceedings of Commissioners — Purchase of Lands, [ch. ui. 
 
 party, that he had received due notice under the act, and that 
 what the jury had to deal with was the compensation. They 
 cited Taylor w. Clements (li), and refused to set aside the requi- 
 sition (e). 
 
 By sect. 27, if any sheriff, &c. should make default he is to 
 be fined 20/. for each offence. If any juryman should make de- 
 fault, refuse to be sworn, or give his verdict, or if any witness 
 shall not appear, or refuse to be sworn or examined, every such 
 offender, having no reasonable excuse, shall forfeit a sum not 
 exceeding t>l. And by sect. 28, all agreements, contracts, sales, 
 and conveyances, and also all verdicts and judgments (the 
 said verdicts and judgments being certified by the clerk of the 
 peace), shall be deposited with the clerk of sewers for the dis- 
 trict, and filed with the rolls of the Court, And the same, or a 
 true copy, shall be admitted as evidence in all Courts, and all 
 persons may inspect them and take copies, upon paying \s. for 
 each inspection, and for every copy not exceeding seventy-two 
 words the sum of 4rf., and so in proportion for any greater 
 number of words. 
 
 There is some doubt whether the statute extends to copy- 
 holds. Still a party who has concealed from the commissioners 
 that his land is copyhold, and has treated with them, shall not 
 be permitted to take the objection {f). 
 
 In calculating the measure of damages, it would seem, that 
 the value of the land taken, at the time of the purchase, and not 
 the cost of restoring it to its original condition, should be the 
 criterion for the jury (^). 
 
 The 29th section of this same act, 3 & 4 Will. 4, c. 22, s. 29, 
 ordains, that in case a jury shall give a verdict for more money 
 
 (rf) 11 CI. & F. 610 ; 3 Railw. Cas. 65, where it was objected that the 
 warrant and inquisition did not state that the owner had refused to treat, 
 &c., nor that the company had served the notice on him. But all these 
 necessary facts appeared aliunde, and the House of Lords held, that the 
 sheriff and jury had jurisdiction. 
 
 (c) Ostler V. Cooke, 18 L. J., Q. B. 185 ; affirmed in error, 22 L. J., Q. B. 
 71; 18 Q. B. 831. 
 
 (/) R. ti. South Holland Drainage, 8 Ad. & El. 429 ; 1 Per. & D. 79. 
 
 (g) Jones ». Goodday, 8 Mees. & W. H6 1 1 Dowl, N. S. 50. 
 
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CH. 111.] Proceedivgs of Commissioners— Purchase of Lands. 193 
 
 than the commissioners have offered before the summoning, or 
 returning of the jury, then the costs of the jury and witnesses 
 and all other expenses attending the hearing and determining 
 of such difference shall be paid by the commissioners out of their 
 fund for that purpose. Such costs and expenses shall be settled 
 by an officer of one of the superior Courts of Record at West- 
 minster, to be nominated in ease of dispute, in Middlesex, by 
 the Lord Chief Justice of the Queen's Bench, and in every 
 other county by the senior Judge of the gaol delivery for the 
 time being. On the other hand, if the verdict shall be for no 
 more, or for less money, then the costs and expenses, to be 
 ascertained as aforesaid, shall be paid by the party. Such costs 
 last mentioned may be levied by distress and sale, by warrant 
 under the hands and seals of two justices of the peace for the 
 county or place within which such verdict or judgment shall 
 have been given, and the surplus (if any), after deducting the 
 costs and expenses, and the costs of the distress and sale, shall 
 be returned, upon demand, to the owner of the goods and 
 chattels distrained upon. If the commissioners refuse to pay, 
 they may be compelled by mandamus. 
 
 The words " all other expenses attending the hearing," &c., 
 are of large import, and thus are worthy of observation. For 
 upon several occasions, where particular expenses have been 
 mentioned in the act, the Courts have excluded other expenses 
 not named. Here, however, is a more general provision (A). 
 
 Further provisions concerning the purchase of lands are 
 enacted by 24 & 25 Vict. c. 133. By sect. 21, unless by agree- 
 ment with the owner, lands cannot be taken, but recourse may 
 be had to Parliament. The 22nd section enters upon these 
 proceedings. It directs the mode of publishing notices before 
 application is made to Parliament, and the serving them upon 
 the owners, lessees, and occupiers, stating that land is to be 
 taken, and requiring the assents and dissents, or neuters. Also 
 the delivery, personally, or to the agent of the owner, &c.; if 
 abroad, leaving the notice at the party's last known place of 
 
 (70 See R. v. Justices of York, 1 Ad. & El. 828; 2 Railw. Cas. 166; 
 R. ji. Sheriff of Warwickshire, 3Nev. & M. 685; R. v. Gardner, 6 Ad. &• El. 
 112; 1 Nev. & P. 308. 
 
 W. 
 
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194 Proceedings of Commissioners — Purchase of Lands, [ch.iii. 
 
 abode, or forwarding a prepaid letter to such place. These 
 preliminaries being obeyed, the commissioners enter upon the 
 field, presenting a petition to the inclosure commissioners as to 
 the land, the use of it, and the Lands Clauses Act («). Upon 
 proof of these things the inclosure commissioners may either 
 dismiss, or send an inspector to inquire concerning the peti- 
 tion (A). By sect. 25, the inspector is to give notice of the 
 time and place of hearing. The 26th section contains the 
 usual provisional order, subject to confirmation by act of Par- 
 liament. By sect. 27, the costs of obtaining the act shall be 
 paid out of the rates applicable to the particular works. The 
 restrictions being complied with as above, the commissioners of 
 sewers may purchase both lands and easements, taking the 8 & 9 
 Vict. c. 18, and 23 & 24 Vict. c. 104, as incorporated with their 
 act (J). Moreover, this part of the act shall be deemed to be 
 the special act ; the commissioners shall be deemed the " pro- 
 moters;" and " land or lands'' shall include any easement in or 
 out of lands. 
 
 Under the Bedford Level Act, commissioners are empowei-ed 
 to purchase and make satisfaction for lands, and for damage, 
 and a jury was to be summoned in case of refusal. There was 
 a further provision that if the land owners and commissioners 
 could not agree as to the compensation for damage, the same 
 was to be ascertained by a jury, to be impanelled and returned 
 as aforesaid. It was held, that in this last case the owners and 
 not the commissioners were to apply to the magistrates (w). 
 
 The next clauses point out from what fund the monies are to 
 come, and what is to be done with them. And it is observable, 
 that the commissioners ought to pay the expenses of the invest- 
 ment in the funds (n). 
 
 By 3 & 4 Will. 4, c. 22, s. 30, every sum of money and recom- 
 pense to be agreed for or assessed as aforesaid, shall be paid out 
 of the monies which are levied on the messuages, &c., receiving 
 
 (0 Sect. 23. 
 
 {k) Sect. 24. 
 
 (I) Excepting sects. 16, 17, 84 — 91, 123. 
 
 (m) Ex parte Onslow, 3 Sim. 435 ; In re Eau Brink Drainao-e. 
 
 (m) Ex parte Onslow, 1 Y. & Col. 553. ° 
 
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CH. III.] Proceedings of Commissioners — Purchase of Lands. 195 
 
 benefit or avoiding damage from the works of the commis- 
 sioners. Then upon payment to those persons, or their agents, 
 or left* at their places of abode, or with the tenant in possession 
 of the lands, &c., or into the Bank of England, as directed by 
 the act (o), the lands, &c,, shall be vested in the commis- 
 sioners (f>), and shall and may be taken and used for their 
 works, and the right to such lands, &c., shall be divested out of 
 the said persons, &c. 
 
 The next section provides for persons under disabilities. 
 
 By sect. 31, money assessed as aforesaid, and due as aforesaid, 
 to any body politic, &c., or feoffee in trust, executor, adminis- 
 trator, husband, guardian, committee, or other trustee, for any 
 infant, lunatic, idiot, feme covert, cestui que trust, or other 
 person whose lands, &c., are or may be limited in strict or other 
 settlement, or to any other person under any other disability 
 or incapacity whatsoever, shall be paid as soon as may be into 
 the Bank of England, and placed, ex parte the commissioners 
 of sewers in question, to the account of the Accountant-General 
 of the Court of Exchequer without fee or reward. And such 
 money shall be applied, upon petition, by the parties who would 
 have been entitled to the rents and profits of such lands, under the 
 order of the Court of Exchequer in the purchase or redemption of 
 the land tax, or in the discharge of any debt or incumbrance, or 
 part thereof, which may affect the lands, &c., taken, or any 
 other lands, standing settled therewith to the same or the like 
 uses, trusts, intents, or purposes. And if the money shall not 
 be so applied, then it shall be laid out under the like direction, 
 in the purchase of other lands {q), &c., which shall be settled to 
 the like uses, &c., as the lands taken, or such of them as at the 
 time of making such conveyance or settlement shall be existing 
 undetermined and capable of taking effect. In the mean time, 
 the money shall, upon application to the Court, be invested by 
 the Accountant-General in the three per cents, reduced j and 
 the dividends of the stock until it be sold for the purposes 
 
 * /. e. The money being left, 
 (o) Post. 
 
 (p) See sects. 38 and it, post. 
 (}) See sect. 36, post. 
 
 o2 
 
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196 Proceedings of Commissioners — Purchase of Lands, [ch. iii. 
 
 aforesaid, shall be paid, from time to time, to the person who 
 would for the time have been entitled to the rents and profits of 
 the lands, &c., to be purchased as aforesaid, in case such settle- 
 ment or purchase were made. 
 
 By sect. 32, if the money assessed shall not amount to 200?., 
 and yet be of the value of 20Z., or upwards, it shall be at the 
 option of the person entitled to the rents or profits of the lands 
 sold for the time being, or of his guardian, &c., to be signified 
 in writing, to have such sum paid into the Bank of England, 
 to the account of the Accountant-General as aforesaid, and to 
 be applied as hereinbefore directed, or otherwise to have it paid 
 to two or more trustees nominated by himself, and approved by 
 six or more of the commissioners of sewers interested, (the 
 consent being signified in writing by the person and the com- 
 missioners,) in order that the principal money and dividends, 
 &c., may be applied as hereinbefore directed, if possible, without 
 the intervention of the Court of Exchequer. 
 
 And by sect. 33, should the sum be less than 201., then the 
 party entitled for the time being, or the guardian or committee 
 for the benefit of the person so entitled, shall have it. 
 
 Thus, if the party be under no disability, he shall have his 
 money summarily under the 30th section ; but if he should be 
 affected with disability, or if a corporation should be entitled, 
 the money must then be invested according to the provisions of 
 the 31st and following sections. If there be any difficulty as 
 to the title to these monies, the party in possession shall be 
 deemed entitled to them, unless the contrary be shown to the 
 satisfaction of the Court of Exchequer. This is provided for 
 by the 34th section, and the dividends and capital shall be 
 applied accordingly, unless a wrongful possession should be 
 disclosed to the Court, and that some other person was lawfully 
 entitled to such lands, &c., or to some estate or interest therein. 
 
 The 35th section supposes that the person in possession may, 
 from some cause, refuse to accept the money ; or that he may 
 not be in a condition to make a good title to the satisfaction of 
 six commissioners ; or, again, that he may not be found : in 
 
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CH. iii.J Proceedings of Commissioners — Purchase of Lands. 197 
 
 these cases, respectively, any six commissioners may order the 
 sums assessed to be paid into the Bank of England to the 
 account of the Accountant-General as aforesaid, to the credit 
 of the parties interested in the said lands, &c. (describing them ), 
 subject to the order of the Court of Exchequer. The Court, 
 upon the application of any person making claim upon petition 
 or motion, may then summarily order the money to be laid out 
 in the public funds, and likewise distribution or payment of the 
 dividends, according to the estate, &c. of the person making 
 claim, and may make any other order which may be reasonable ; 
 and the cashiers of the Bank shall give a receipt for the same to 
 the person paying it in. 
 
 We have seen in the 31st section, that other lands may be 
 occasionally purchased with the money arising from the sale of 
 lands to the commissioners. The mode of dealing with these 
 expenses forms the subject of the 36th section. Thus, where 
 by reason of the disability or incapacity of the person or corpo- 
 ration entitled to any lands, &c., the purchase money is to be 
 applied towards the purchase of other lands (r), the Court of 
 Exchequer may order all reasonable expenses, with the costs of 
 the order, to be paid by the commissioners, or any six of them, 
 and the commissioners may reimburse themselves out of the 
 rates under the act. 
 
 A special provision forbids the commissioners from taking 
 without leave any house or building, or any garden, yard or 
 paddock, or any park, planted walk or avenue to a house, or 
 any inclosed ground, planted as an ornament or shelter to a 
 house, or planted or set apart as a nursery for trees, or any part 
 thereof. If consent be given, it must be in writing, and given 
 by the owner or proprietor, or the person, body politic or cor- 
 porate, authorized to sell or convey by virtue of the act («). 
 
 The commissioners may not want all the land they have bar- 
 gained for. In this case, any six of them, in whom the lands, 
 &c., are vested, may sell and dispose of them either together, or 
 in parcels. The produce is to be applied to the making and 
 
 (r) See sect. 31. (s) See sect. 37. 
 
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198 Proceedings of Commissioners — Purchase of Lands, [ch. iii. 
 
 maintaining of the sewers in the district. Nevertheless, the 
 purchaser shall not be answerable for any misapplication or 
 non-application of such money. The owner of the adjoining 
 ground is to hare the first offer, and an affidavit before a 
 Master in Chancery, or justice of the peace, where the lands 
 lie, by some person not interested in the premises, stating, that 
 the commissioners made the offer, and that it was not accepted, 
 shall be sufficient evidence in all Courts that such offer was 
 made and refused. In case, however, of assent on the part of 
 the person to whom the land is offered, and of a difference of 
 opinion as to its value, the price thereof shall be ascertained by 
 a jury, in like manner as is directed by the act, when the com- 
 missioners are the purchasers (i) ; and the expense of hearing 
 and determining the difference shall be paid as is directed with 
 respect to purchases made by the commissioners, mutatis mw- 
 tandis («). 
 
 The form of conveyance by the commissioners is given by 
 the 40th section, and will be found in the note below.* 
 
 It has already been mentioned, that as soon as payment is 
 made by the commissioners of sewers, the lands, &c. purchased 
 by them become vested in them (as). So careful has the Legis- 
 lature been of this issue, that other sections have renewed this 
 guarantee in the most explicit manner. 
 
 Thus, by sect. 38 of the same statute (3 & 4 Will. 4, c. 22), 
 upon payment or legal tender of such sum as shall have been 
 contracted or agreed for, or assessed by juries, for the purchase 
 of any messuages, &o., or as a compensation for losses or 
 damages, within thirty days after the agreement or assessment, 
 
 (<) See sect. 26. 
 
 (w) See sect. 29. 
 
 * " We, six of the commissioners of sewers acting in and for 
 
 several limits \here describe the limits as set forth in the commission i^ sewers,} 
 in consideration of the sum of to us paid by of do 
 
 hereby grant and release to the said all [describing the premises to be 
 
 conveyed,"] and all right, title, and interest of the commissioners of sewers in 
 and to the same and every part thereof, to hold unto the said his 
 
 heirs, executors, administrators, and assigns for ever. In witness whereof 
 we have hereunto set our hands and seals this day of in the 
 
 year of our Lord ." 
 
 (x) Sect. 30. 
 
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CH. III.] Proceedings of Commissioners— Purchase of Lands. 199 
 
 or upon payment of the same into the Bank of England within 
 thirty days as aforesaid, the commissioners, their agents, ser- 
 vants and their workmen, may enter upon such messuages, &c., 
 and the property in such messuages, &c. shall then become 
 absolutely vested in the commissioners for ever. Such pay- 
 ment, moreover, shall bar all right, title, claim, &c., and also 
 dower, and all estates tail, and all other estates, whether in 
 reversion or remainder. 
 
 And by sect. 47, the property of and in all lands, tenements, 
 hereditaments, buildings, erections, works and other things 
 which shall have been or shall hereafter be purciiased, obtained, 
 erected, constructed and made by or by the order of, or which 
 are or shall be within or under the view, cognizance or manage- 
 ment of any commissioners of sewers, with the several conve- 
 niences and appurtenances thereunto respectively belonging, 
 and also all and singular the goods, tools, utensils, materials 
 and things whatsoever had and to be had, bought, procured or 
 provided by or by the order of, or which are or shall be within 
 or under the view, cognizance or management of such commis- 
 sioners, shall be, and the same are hereby vested in the com- 
 missioners of sewers within or under whose view, cognizance 
 or management such lands, tenements, hereditaments, buildings, 
 erections, works, goods, tools, utensils, materials and things 
 shall respectively be, who are hereby empowered to bring or 
 cause to be brought any action or actions, or to prefer or order 
 the preferring of any bill or bills of indictment, against any 
 person who shall dig up, break or pull down, damage, destroy, 
 injure, spoil, steal, take or carry away, or wilfully and wrong- 
 fully buy or receive any such lands, tenements, hereditaments, 
 buildings, erections, works, goods, tools, utensils, materials and 
 things whatsoever as aforesaid, or any part thereof; and in 
 every such action and indictment the said lands, tenements, 
 hereditaments, buildings, erections, works, goods, tools, utensils, 
 materials and things, shall be laid or described to be the pro- 
 perty of the said commissioners, without stating or specifying 
 the name or names of all or any of such commissioners. 
 
 The words of this section are very general, and at first sight 
 might seem to vest all lands in the commissioners which are 
 
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200 Proceedings of Commissioners — Purchase of Lands. [cH. iii. 
 
 within their view, management and cognizance. But no such 
 issue can be allowed upon further consideration of the point, 
 for to hold that doctrine would be to assent to the divest- 
 ing of the fee simple of large estates from their owners, and 
 vesting the same in commissioners of sewers. In a case, how- 
 ever, where some waste land has been taken by commissioners 
 without purchase, it was endeavoured to obtain for the commis- 
 sioners this enlarged interpretation of the statute. But tlie 
 Court of Exchequer repelled the claim of the commissioners. 
 And Lord Abinger, in giving judgment, observed, that the 
 clause should be read thus : All lands, &c. shall be vested in 
 commissioners after the due purchase of them ; and all build- 
 ings, erections, works, &c., which are within their view, cogni- 
 zance or management, shall likewise be vested in them ; thus 
 dividing the subject-matters with a regard to the grammar of 
 the sentence. And Parke, B., added, that the effect of the act 
 was, the lands purchased by one set of commissioners might be 
 held also by subsequent commissioners, as a corporation. The 
 Court gave judgment for the plaintiff (y). 
 
 The Stat. 21 & 22 Vict. c. 98, s. 75, enables the local board 
 to purchase lands under these conditions : — 1. The Lands 
 Clauses Consolidation Act shall be incorporated with this act. 
 2. Publication and service of notices. 3. A petition to the 
 Secretary of State. 4. An inquiry by him. 5. A provisional 
 order by him (z); and 6. To be confirmed by parliament. The 
 costs, with interest, to be a charge upon the general district 
 rates. 
 
 We have now shown the proceedings of commissioners in 
 the fulfilment of their duties, from the commencement of their 
 inquiries by survey to the final accomplishment of them, by a 
 due assessment for the works they feel bound to direct, as well 
 as the raising of the necessary cost of their works by mort- 
 gage. 
 
 Lastly, commissioners are required to decree costs, conse- 
 quent upon their decrees under the sewers' laws. Thus, by 3 & 
 
 (y) Stracey t). Nelson, 12 Mees. & Wels. 533. 
 (a) See 8 Vict, c. 18, s. 6, &c. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 201 
 
 4 Will. 4, c. 22, s. 55, in all the orders, decrees, &c. of com- 
 missioners of sewers, it is competent for them to order that the 
 costs, charges and expenses of putting their decrees in force, 
 shall be paid by the person, body politic, &c., upon, or against 
 whom, or by reason of whose default, or for whose benefit, such 
 orders, &c. shall be made ; which costs, &c. may be ascertained 
 under the authority of the Court. And when any such costs, 
 &c. shall be so ordered to be paid, and such orders, &c. shall 
 not be altered, reversed or quashed, either by any Court of 
 Sewers, or any other Court upon removal of the same by cer- 
 tiorari, or otherwise, the same costs, &c. shall, at any time 
 after the Court of Sewers immediately following the granting 
 or passing of such orders, &c. (such Court being at the distance 
 of twenty-one days at the least from the service of such orders, 
 &c.), be levied and raised, together with the costs of the dis- 
 tress, by distress and sale of the goods of the defaulter. And 
 the bailiff, expenditor, &c., or any constable, &c., named in 
 the order, &c., may levy the same without any further order 
 or decree of sewers. Provided, that if no distress be found, the 
 costs, &c., and the costs of the distress, shall be raised out of 
 the lands, &c., within the limits of the commission, belonging 
 to such defaulter, as if the same lands had been duly assessed 
 to the amount of such costs, &c. for a rate. And such lands, 
 &c. shall be subject to the same orders, &e. as the same would 
 have been subject to, and such order, &c. shall be of the same 
 force and authority, as if such costs, &c. were a lawful rate 
 assessed and unpaid. 
 
 By sect. 56, all such sums so raised for costs, &c., shall be 
 paid into the hands of the treasurer or expenditor of sewers, and 
 shall be laid out in defraying and reimbursing the costs, &c. 
 which have been incurred as aforesaid, subject to the order of 
 the commissioners, or any six of them. 
 
 According to the principle established upon other occasions, 
 a local board was held to be entitled to the costs of opposing 
 proceedings, instituted against them on account of works exe- 
 cuted by them (a). 
 
 (o) R. V. Harris, 21 J. P. 580. 
 
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202 Proceedings of Commissioners — Punishments, [chap. in. 
 
 Punish- We come now, secondly, to consider the various modes of 
 
 ments by , 7 j i . „ 
 
 commis- punishment which the commissioners may resort to in cases of 
 
 siouers. 
 
 disobedience to, or neglect of, their orders. And the stat. of 
 Hen. 8 awards them ample authority on this head. For those 
 who are found negligent in doing the work, reparations, or 
 reformations prescribed, as well as defaulters in the due exe- 
 cution of the commission, are alike to be punished by distress, 
 fines, and amerciaments, or by other punishments, as may be 
 deemed expedient. And they are further empowered even to 
 decree lands from their owners, upon default of the payment 
 of charges. They may also commit oflFending persons to 
 prison upon certain occasions, and it will now be our purpose 
 to examine separately each of these penalties, and to set out 
 the particular occasions upon which each of them may be in- 
 flicted. 
 
 Fines. And first, with respect to fines. We have seen (6) that 
 
 commissioners may fine their officers for misconduct, and that 
 a fine may be imposed for refusing an office of sewers. And it 
 may even be added, that other persons are equally liable to a 
 fine for misbehaviour, as a sherifi", if he do not duly return the 
 jury, or the writs sent to him, &c., for all these ministerial acts 
 are done in furtherance of the commission, which the commis- 
 sioners are expressly authorized to enforce (c). And Callis 
 says, that if any one oppose the law of sewers refractorily, that 
 is to say, by dissuading persons assessed against payment of 
 their proportions, or by wilfully disobeying decrees, such an 
 one may be fined (cZ). And if this be done in the face of the 
 Court, the ofience will be much aggravated, and this is the 
 rebelling, says Callis, which the statute speaks of (e). 
 
 If a purpresture be committed, by driving piles and stakes 
 into navigable rivers, or by diverting ancient channels from 
 their due courses, the offenders are said to be fineable on pre- 
 sentment, that is to say, if the purpresture be done forcibly, or 
 be presented by the name of purpresture (/). Thus, the abbot 
 
 {b) Ante, p. 149. 
 
 (c) Callis, 175. 
 
 (d) Id. 171. 
 
 (e) Ibid. 
 
 (/) Ibid. 174, citing Keilw. 141. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 203 
 
 of Mellefont was fined for erecting a wear in the royal river 
 Boyne, this being a purpresture (/).. And it had been very 
 anciently determined, that a nuisance done in the king's stream 
 was equally a purpresture with these committed in the highway, 
 for a navigable river is a highway. So, when commissioners 
 set a fine upon one for not obeying their orders, the Court 
 entertained no doubt but that such an act of obstinacy was 
 punishable in this manner (^). 
 
 But here a distinction very worthy of consideration may be 
 remarked ; for the rule adopted is this : that a party cannot be 
 fined, but merely amerced by a jury for neglects or omissions, 
 although, if he disobey an express decree, or commit some 
 forcible and outrageous act, or if he be especially presented as 
 the author of a nuisance, he certainly incurs the punishment of 
 fine. Thus, it is said, that if one be rated towards repairs, and 
 he neglect payment at the appointed time, he shall not be fined, 
 for this is but a bare omission (A). 
 
 So, if the offence be not found, but omitted, an amerciament 
 is only due(i); by which expression of the learned sergeant 
 (Callis) we may understand, that if the charge be not expressly 
 presented to be an ofi'ence done by force, or a purpresture, the 
 party will be merely punishable as for neglect. And clearly, 
 if an opposition be made in a fair manner, by questioning the 
 legality of a decree, the party resisting it cannot be fined (K). 
 
 The quantity of these fines, although left to the discretion of Fine rea- 
 commissioners (J), must yet, in conformity with the statute of 34 
 Eliz. c. 3, concerning fines by justices of peace, be reasonable, 
 the nature of the offence being first duly weighed and ex- 
 amined (m). 
 
 A difference has been taken regarding the traverse of fines, ^'°\ 
 
 ^ o ^ o 7 whether 
 
 between such as are imposed immediately by the act of the traversable. 
 
 (/) Callis, 175. 
 
 Ig) The Protector v. Bruster, Sty. 415. 
 
 {h) Callis, 174. Yet, if there were an express order made upon the 
 individual, a neglect to pay would, it is suggested, be fineable in that case. 
 
 (j) Callis, 174. (I) Id. 113. 
 
 (ft) Id. 171. (m) Id. 176. 
 
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204 Proceedings of Commissioners — Punishments, [chap. hi. 
 
 Court, and those made upon a presentment by jury; the former 
 are said not to be, the latter to be, traversable («). 
 
 Lastly, it is laid down, that the fines must be assessed, 
 abated or increased, in full Court, and not elsewhere (o). 
 
 Araercia- Something bas already been said concerning amerciaments : 
 
 they are assessed by the jury of sewers for neglect, as of pay- 
 ment of rates, &c., and are considered a more merciful punish- 
 ment than the penalty of fine(^). Thus, if one permit a wall, 
 bank, or other defence belonging to sewers, to fall into decay, 
 contrary to his obligation under which he may be bound to 
 maintain the same in respect of frontage, tenure, custom, pre- 
 scription, or covenant, he may be amerced for his omission (q). 
 So, again, if a person be presented for casting dirt, &c. into 
 rivers, or for pulling down walls unless the offence be presented 
 as having been done forcibly, or expressly as a purpresture, by 
 that word, he shall only be amerced (r). And thus it is also, 
 if sand beds be suffered to choke up a stream which an indi- 
 vidual is bound to cleanse for the passage of boats, or for the 
 draining of the waters, here, again, the party in question is 
 liable to an amerciament, and not to a fine («). But violent 
 irruptions of the sea, or sudden inundations will not, of course, 
 subject a party to any forfeiture of this sort, where the defences 
 have been kept and maintained in reasonable strength, because 
 no policy nor power can resist such visitations {t). And in 
 support of this position, Callis cites the case from the Year 
 Book (m) above referred to (a;), where a party was held not to 
 be amerciable, because he had suffered trees to grow into the 
 water, whereby the stream was impeded, for the natural growth 
 of the trees created the nuisance, and not the individual. The 
 sheriff, however, was ordered to abate the nuisance.* 
 
 (n) Callis, 176. (s) Ibid. 
 
 (o) Ibid. (t) Ibid. 
 
 ip) Id. 177. (m) 42Ass.pl. 14. 
 
 (?) Id. 178. (x) Ante, Chap. II. 
 
 (r) Ibid. 
 • Probably the person presented was the owner of the adjoining land. 
 But it did not appear that he lay under any particular obligation to repair ; 
 for had that been so, it is difficult to conceive how he could have been re- 
 lieved or excused from his responsibility, inasmuch as it would have been 
 his duty to have removed the trees. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 205 
 
 Lastly, it is said, that these amerciaments may be made, not 
 only by a jury, but also by the presentments of surveyors of 
 sewers (2/), which, as we have seen, are not traversable. So 
 that if a man be directed to put down a nuisance, and lie dis- 
 obey the order, he may be fined by the Court, or amerced upon 
 the presentment of the surveyor, that the work has not been 
 done. 
 
 And an amerciament, unlike an assessment, could always 
 have been made upon a whole township. A distress, therefore, 
 consequent upon an amerciament, made for a" neglect to repair 
 was held good, although it was a question whether such a dis- 
 tress could be sold independently of 3 & 4 Will. 4, c. 22 (z). 
 
 Another and a serious punishment, which, as we have said, imprison- 
 may be occasionally inflicted by commissioners of sewers (a), is 
 imprisonment. It is hardly necessary to observe, that great 
 caution should be observed in depriving the subject of his 
 liberty; for however correct such a course may be in many 
 instances, circumstances have occurred in which commissioners 
 have widely erred in inflicting a sentence of imprisonment, and 
 have been severely punished for so doing. 
 
 Nevertheless, as imprisonment may be sometimes a legal 
 punishment by the laws of sewers, it becomes our concern to 
 explain where it may be safely ordained, where not. And, in 
 the first place, it appears to be clear, that the refractory con- 
 temning of an ordinance of sewers, or of the authority of the 
 commissioners, may be punished by imprisonment (6), for this 
 conduct is an affront to the commissioners when acting in the 
 execution of their office (c). So, again, the commission of some 
 outrageous act, as the obstruction of a stream, the breaking 
 down of a defence, &c., are offences for which the author of 
 them may be deprived of his personal liberty : and here the 
 principle above mentioned in the case of fines applies again, 
 namely, that if a matter be presented as a purpresture, 
 
 (j/) CallJs, 179. 
 
 («) Ramsey ». Nornabell, 11 Ad. & El. 382; 3 Per. & D. 253. 
 
 (a) See Callis on this subject, 167 — 177. 
 
 (6) Callis, 171. 
 
 (c) Ibid. 
 
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200 Proceedings of Commissioners — Punishments, [chap. hi. 
 
 eo nomine, the party presented will fall under the risk of this 
 punishment. And so, again, a wilful refusal (not a bare neglect) 
 to obey the express ordinance of the commissioners, will subject 
 the individual resisting to a similar infliction ; for what is this 
 but rebelling against the authority of those who are bound to 
 see that one of the most important commissions of the kingdom 
 be not despised with impunity ? (d). 
 
 It seems, however, to be the proper way for commissioners to 
 summon, or cause the offender to be brought before them ; 
 because this power of imprisonment is understood to apply to 
 contempts done in their presence, so that, in case of refusal 
 before them, the party may be committed. 
 
 It appears from a review of the above principles and cases, 
 that where the man is fineable, he may be also imprisoned (e) ; 
 and whether the one or other punishment, or whether both be 
 inflicted, is for the commissioners to determine (_/) : and so, 
 again, the length of the confinement is at the discretion of the 
 justices of sewers {g). But they will, of course, abstain from 
 exercising their power too harshly ; for as it is said that a fine 
 must be reasonable, so it still more strongly behoves commis- 
 sioners to ordain a merciful imprisonment. And, indeed, to 
 follow a contrary course would be to occasion the removal of 
 their proceedings into the Court of King's Bench, where, to say 
 the least, a severe reprimand would follow upon the due 
 explanation of the complaint. 
 
 The power of distress in case of fines is awarded to the com- 
 missioners of sewers by the stat. 3 & 4 Will. 4, c. 22. Before 
 that act fines imposed by the commissioners were directed by 
 the statute of Elizabeth to be estreated into the exchequer, and, 
 therefore, it was not competent to levy such fines, and a 
 sentence of imprisonment until the fine were paid was illegal 
 
 (d) 1 Sid. 145. But this passage applies only to orders respecting repair. 
 If a person be guilty of any outrageous wrong, or act of force against the 
 works of sewers, it should clearly seein, that he may be imprisoned for his 
 fault, whether he submit or not. 
 
 (e) Callis, 171. 
 (/) Id. 176, 177. 
 (g) Id. 113. 
 
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CHAP. III. J Proceedings of Commissioners. — Punishments. 207 
 
 and void (A). It appears, therefore, that imprisonment could 
 not be ordained for the non-payment of a fine, because the 
 Court of Sewers possessed no further jurisdiction, as far as fines 
 were concerned, than the mere imposition of them. 
 
 Thus, where commissioners of sewers, having assessed a fine 
 upon the vill of D., directed that it should be levied upon W. H. 
 The cattle of this person was accordingly taken to satisfy this 
 fine; and upon this W. H. brought actions, and obtained 
 judgments in the King's Bench, against the persons who had so 
 taken his cattle. But the commissioners sent for him, and 
 having questioned him concerning the matter, urged him to 
 release the actions against those who took his cattle ; and, on 
 his refusal, sent him to the gaol of Peterborough, without bail 
 or mainprize, till further order. The Court, upon this, was 
 moved for the discharge of this W. H., and for an attachment 
 against the commissioners. And Lord Chief Justice Coke 
 greatly reprehended the conduct of the commissioners upon that 
 occasion ; for the imprisonment, until W. H. should release a 
 judgment, was an illegal act, and the rule for an attachment was 
 made absolute. Upon the return of this rule, the commissioners 
 being unable to make any satisfactory defence, were severely 
 reprimanded, the whole Court agreeing, that they had done a 
 grievous wrong, in the first instance, by amercing a whole town 
 as they had done, and directing that the whole assessment 
 should be levied upon one man {i). 
 
 Again, a mere neglect to repair, or to pay an assessment, 
 will not be a sufficient cause — it must be an offence of com- 
 mission not of omission. Thus, where certain commissioners 
 had made orders for the reducing of the size of flood-gates, and 
 also for the imprisonment of all millers who should infringe 
 their first-mentioned orders, it was moved in the King's Bench 
 to quash these decrees ; and the Court held, that the order for 
 imprisoning was invalid, for that it could only be understood of 
 a contempt committed in their presence. Pro tanto, the order 
 was declared void ; but as it was agreed by the Court that an 
 order might be good in part, and bad in part, the remainder of 
 
 (h) Callis, 176. 
 
 \i) Hetley v. Sir .rohn Boyer and Others, 2 Bulst. 197 ; Cro. Jao. 336. 
 
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208 Proceedings of Commissioners — Punishments, [chap. hi. 
 
 the decree was allowed to stand {k). Indeed, as the learned 
 writer on sewers remarks, one punishment may be inflicted for 
 contempt of the Court (if such be the case), and the other for 
 the wrong committed {l), and vice versd, or both punishments, 
 as was before said, may be awarded, in reason, for the same 
 offence. 
 
 But, nevertheless, supposing that some orders of commis- 
 sioners were pending in the Court for the purpose of being 
 confirmed or quashed, and they be compelled, in the mean time, 
 to make a new order, here, if the refusal to obey this last mandate 
 be a fit matter for imprisonment, the justices of sewers have full 
 authority to commit, for the commission itself is not removed into 
 the Court of King's Bench (to). 
 
 And now by 3 & 4 Will. 4, c. 22, s. 53, no fine, amerciament, 
 &c., for not cleansing, &c., any walls, banks, &c., or for any other 
 cause shall be returned into the Court of Exchequer, but the 
 same shall and may be demanded and received by the officer of 
 the commissioners appointed to receive the same. And if not 
 paid upon demand, it may be levied by distress, by warrant 
 under the hands and seals of any six commissioners, together 
 with the costs of such distress, rendering the overplus (if any), 
 to the party entitled thereto. And the commissioners are 
 authorized to issue this warrant, and the said fines, &c., when 
 received, shall be applied by the commissioners to the same 
 purpose, as the monies received for the general expenses of 
 sewers. 
 
 The form of the warrant is given by the 54th section, and 
 subjoined in the note.* 
 
 (It) Inhabitants de Oldbery e. Stafford, 1 Sid. 145. 
 
 {I) Callis, 176. 
 
 (m) See The Protector v. Bruster, Sty. 445. 
 
 * *• To our bailiff of sewers, and to and 
 
 our collectors, and to each and every of them, and to all constables 
 and other peace officers. 
 "Whereas at the Court \^or session] of sewers holden for the limits [here 
 state the name of the commission] on the day of last, A. B. of 
 
 in the county of carpenter, was fined [amerced, or otherwise, 
 
 as the case may be] in the sum of which sum it hath this day been 
 
 proved to us, the undersigned, being six or more of the justices and com- 
 missioners of sewers for the aforesaid limits, by the oath of duly 
 appointed to receive the same fine, [amerciament, penalty, or forfeiture, as 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 209 
 
 Again, commissioners are expressly empowered by the Legis- Distress, 
 lature to obtain payment of assessments by distress. Indeed, 
 the word " distress" stands at the head of prescribed punish- 
 ments in the statute of Hen. 8. 
 
 Lastly, the stat. 7 Ann. c. 10, which was passed for the pur- 
 pose of including copyhold lands within the powers of commis- 
 sioners, so that they might decree such lands from their owners 
 in cases of default (n), gives a general power of distress, which, 
 of course, embraces copyhold property. 
 
 By stat. 3, it is enacted and declared, that the commissioners, 
 or any six of them, may, by warrant under their hands and 
 seals, give authority to any person to levy assessments upon the 
 lands, meadows, marishes,* or grounds liable or chargeable, by 
 distress and sale, the overplus of the money arising from such 
 sale to be returned to the owner of the goods distrained, after 
 deducting reasonable charges. 
 
 Callis divides the distresses made by virtue of a commission 
 of sewers into three sorts: 1st, such as are judicial; 2nd]y, 
 ministerial ; and 3rdly, of common right ; which latter are levied 
 by a lord whose tenant holds land by the tenure of repairing a 
 bank, wall, or other work of sewers (o). 
 
 The judicial distress is for the purpose of removing a nuisance, 
 or upon the presentment of a decayed wall or bank, in which 
 case a warrant goes to the sheriff to distrain A. B. to the repair, 
 or is awarded in like manner for the destruction of the nui- 
 sance (p). Nevertheless, there is a loose note in Keble, where 
 
 the case may ie], that the said hath neglected or omitted to pay 
 
 when demanded of him : These are therefore to authorize and command 
 you, any or either of you, to levy the said sum of by distress and 
 
 sale of the goods and chattels of the said together with the costs 
 
 and charges of such distress and sale, rendering the overplus, if any, to the 
 said . Given under our hands and seals the day of 
 
 in the year of our Lord one thousand eight hundred and ." 
 
 (m) See jDos* on this subject. 
 
 * Marshes. 
 
 (o) Callis, 180, 181. 
 
 (p) Id. 180. 
 
 W. P 
 
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210 Proceedings of Commissioners — Punishments, [chap. in. 
 
 it is said, that the Court denied a distringas prayed for in order 
 to compel the repair of certain sea walls in Essex, there being no 
 such judicial writ, but only in the statute Westm. 2,* and only 
 in the chancery {q) ; and it will be observed, that no present- 
 ment appears to have been made in this case. The usual course 
 now is, to avoid these difficulties by directing the repair wanted, 
 and assessing the offender upon a presentment by jury, and 
 then the distress becomes merely ministerial, being executed by 
 the officer in the ordinary way. 
 
 And this mode of distress for assessments or for arrearages 
 has always been acquiesced in (r). For the purpose of abating 
 a nuisance, a presentment is made by the jury, and the Court 
 may then direct a writ of distress to the sheriff, in order to put 
 down the thing complained of. 
 
 Warrant. It was, doubtless, customary, before the Statute of Anne, for 
 
 the officer to procure a warrant from the commissioners to 
 distrain, and that act expressly declares, that the warrant for 
 that purpose shall be under the hands and seals of the commis- 
 sioners ; nevertheless Mr. Sergeant Callis was of opinion, that 
 the collector might take goods without any such express war- 
 rant, because he says, that the statute and commission, which 
 are the general laws, give of themselves the power of distress (s). 
 And, therefore, taking the statute to be declaratory, a distress, 
 without a warrant, might not, however unadvisedly made, be 
 altogether adjudged void. However this be, some notice of the 
 tax demanded must be given to the party, before a distress can 
 be made, and a demand of the sum due must take place. For 
 want of showing such a notice, a plea in trover justifying the 
 taking of cattle under commissioners of sewers, was holden 
 bad {t). 
 
 And, further, the warrant should mention the name of the 
 party refusing to pay, so that where for want of such proof it 
 
 * Cap. 36. 
 
 (q) Anon., 2 Keb. 255. 
 
 (r) See 5 Rep. 100. 
 
 (s) Callis, 180 ; 7 Com. Dig. 347. 
 
 (<) Whitley v. Fawsett, Sty. 13. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 211 
 
 was urged, that the warrant was upon the face of it illegal, the 
 Judge held the objection valid* (m). 
 
 There was an act for draining and preserving the fens near 
 the river Witham. A warrant was issued under it to two 
 persons, a collector and a bailiff, but the distress was made by 
 one only of those persons. An action having been brought, 
 the verdict was for the defendants. But a new trial was moved 
 for, on the ground that a joint warrant to two could not be 
 executed by one. The Court, however, discharged the rule on 
 the authority of Lashbrooke's case (a;), and also because the 
 objection was one of form, for the right to make the distress was 
 not disputed {y). 
 
 In adverting for a moment to the place where a distress may where. 
 be made by commissioners of sewers, we may bear in mind the 
 decisions on this subject above mentioned, and observe, that in 
 case of a distress by the lord upon a person bound to repair by 
 reason of tenure, it must be made upon the land so held by 
 tenure, and not elsewhere (z). So, secondly, if there be a 
 judicial process of distress for the purpose of compelling repair, 
 or abolishing nuisances, this must take place within the limits 
 of the commission (a). And, thirdly, a distress for a rate or 
 tax imposed by commissioners, may be taken anywhere within 
 the realm (6), 
 
 In support of the first point, we have a case, where an abbot 
 and his predecessors were charged with the repair of a gutter 
 by reason of their tenure. The presentment, however, failed to 
 show where the lands lay which were charged, and for that 
 cause it was deemed to be void (c). Here Callis observes, that 
 
 * This was a case of replevin, in which the defendants had avowed under 
 a warrant from the commissioners of sewers. ]t was urged, that the de- 
 fendants ought to produce the inquisition which must have been taken by 
 the commissioners before their warrant could be made out, but the learned 
 Judge would not allow of this objection. 
 
 (m) Farr v. Crisp and Others, 2 Barnard, K. B. 321. 
 
 («) Hutt. 157. 
 
 (y) Lee v. Vessey, 25 L. J., Ex. 271. 
 
 (s) Callis, 182, 184. 
 
 (a) Id. 183, 185; 7 Com. Dig. 348. 
 
 (b) Id. 185; 7 Com. Dig. 348. 
 
 (c) Callis, 182. 
 
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distress. 
 
 212 Proceedings of Commissioners — Punishments, [chap. hi. 
 
 if the charge be upon land, by virtue of a prescription or custom, 
 the obligation upon the tenant cannot be enforced in any other 
 manner than by presentment (a! ). 
 
 Whose goods. With respect to the property in the goods taken, the following 
 distinction has been adopted, namely, that if the charge be on 
 the lands, as in case of arrearages, taxes, &c., the goods of a 
 stranger may be the subject of the distress, as well as those of 
 the party charged ; but if the person only be charged, as in the 
 case of an amerciament, the goods of the party amerced, and 
 none other, can be touched (e). However, according to an 
 opinion expressed by Brampston, C. J., in Thorne and Tyler's 
 case {f^, namely, that the goods of an under-tenant may be 
 distrained for an amerciament imposed upon the customary 
 tenant, it should seem, that in the case of an amerciament by 
 virtue of a law of sewers, the cattle or goods of an under-tenant 
 might also be taken, that is to say, where the penalty is imposed 
 upon the landlord {g^. 
 
 Sale of the Some doubt seems to have prevailed at one time, whether 
 
 commissioners were empowered to sell the goods so distrained 
 by them as we have above mentioned (A) ; but there is now no 
 difficiilty upon that point, since both the statute of Anne, as 
 well as prior decisions, have expressly recognized the propriety 
 of such a sale. Mr. Sergeant Callis, after entering into cases 
 analogous to the present, concludes that, as the commissioners 
 are empowered to follow the customs of Romney Marsh, and as 
 those customs warrant the sale of distrained goods, the com- 
 missioners may therefore adopt that precedent (i). 
 
 And, further, no question exists, but that the assignee of land 
 may lose his goods by distress and sale on account of this tax 
 of sewers, because the assessment is a charge upon the land, to 
 whomsoever it may belong. And the assignee is no stranger to 
 
 {d) Callis, 183. 
 
 (e) Id. 185, 186; 7 Com. Dig. 348. This was doubted by Roll, J., in 
 Sty. 13. 
 (/) Mar. 161. 
 
 (g) Callis, 188, note to the Ed. of 1685. 
 {h) See Callis, 188, 192. 
 (;) Callis, 192. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 213 
 
 the land, inasmuch as he takes it cum onere(k). But the third 
 point, regarding the sale of a stranger's goods, seems to present 
 some difference of opinion. Calh's is express on this point, 
 namely, that no goods can be sold by the power of these laws 
 of sewers, except those of the party assessed ; because, says the 
 learned author, it is not agreeable to any rule of law that the 
 goods and chattels of a stranger should be absolutely taken 
 away from him, and sold for the debt and default of another 
 man (I). So again. Lord Chief Baron Comyns recognizes the 
 authority of Callis in this particular, observing, that the goods 
 of a stranger cannot be sold for an assessment upon A., though 
 levant and couchant upon his land (to). The above position 
 in Callis, however, may be understood with a qualification ; for 
 instance, if one who has been taxed in respect of this impost, 
 assign or let his land to another, there the assignee or lessee 
 shall certainly be charged, because, as we have already said, 
 the land is taken upon such occasions cum oneve («). 
 
 Again, in the case of Whitley v. Fawsett, which has been 
 referred to in a former page, although no doubt seems to have 
 existed as to the sale of distresses which belonged to the owner 
 of the lands, yet the Court hesitated concerning the beasts of a 
 stranger, and, finally, it was determined, that property of the 
 latter description could not be disposed of in this way (o). 
 
 Nevertheless, a case subsequently occurred, in which the 
 matter appears to have been decided differently. It was an 
 action of trover, and the evidence upon a plea of not guilty was, 
 that the goods were taken and sold by virtue of a commission 
 of sewers. Roll, J., said, that the commissioners might sell the 
 distress, and that he, in common with Bacon, J., had doubted 
 of that in Whitley and Fawsett's case, and the issue was accord- 
 ingly found for the defendant. Now, as the doubt in the case 
 from Style was only concerning the beasts of a stranger, it 
 results, that the Court on the last case had given their sanction 
 to a sale of such property, and it is therefore impossible to con- 
 
 (i) Callis, 193, note (a), Ed. 1685. 
 
 {I) Id. 192, citing Dy. 199. 
 
 (m) 7 Com. Dig. 318. 
 
 (m) Callis, 193, note (o) to Ed. 1685. 
 
 (o) Sty. 12. 
 
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214 Proceedings of Commissioners— Punishments, [chap. xii. 
 
 sider the law upon this point of distress as consistent, unless 
 indeed we call in the distinction above adverted to regarding 
 the assignee or lessee to our aid, of which however there is no 
 proof in the report of Combs v. Cheny {p). 
 
 Warrant. Lastly, it is observable, that the statute of Anne speaks of a 
 
 warrant for the distress and sale, and however possible it might 
 be, that a distress without warrant might not be considered 
 void, it appears certain, that a sale without such a sanction 
 would be entirely invalid. The bailiff, therefore, not being 
 competent, ex officio, to effect such a sale, must have recourse 
 to the commissioners, who, if they see fit, will issue a special 
 warrant for that purpose {q). 
 
 Replevin. A few words on the subject of replevying these distresses will 
 
 close that part of our subject ; and since the doubts expressed 
 by Lord Kenyon, concerning the authority of Callis, touching 
 the replevin for sewer rates, it may not be too much to suggest, 
 that if the question be raised, the decision may possibly be, that 
 a replevin lies in all eases of distress made under the authority 
 of commissioners of sewers (r), 
 
 Mr. Sergeant Callis thought, that neither the sheriff, nor his 
 deputy, could award warrants of replevin ex officio upon these 
 occasions, because the distress was under the protection of a 
 superior Court of a higher degree than a sheriff's ministerial 
 warrant (s). But he agrees, that a replevin lies out of the 
 king's Courts at Westminster to deliver a distress so taken, 
 because those Courts are of a higher nature than Courts of 
 Sewers (<) ; and, in either case, if the distress be taken, and 
 sold, the learned writer allows of a replevin, for, by the sale, 
 the goods no longer remain under the protection of the law of 
 sewers (m). And so, again, supposing that such a tax were 
 
 (p) Combs V. Cheny, Al. 92. By custom, however, such a sale may take 
 place. 
 
 (q) Callis, 192. If there be a summons, the warrant will be good, 
 although it do not recite the presentment. Warren v. Dix, 3 C. & P. 71. 
 With respect to the proceeding by distress under the Health of Towns' Bill, 
 11 & 12 Vict. c. 63, see that statute, sects. 103, 131, &c. 
 
 (r) But see Willes, 672, note (d), by Mr. Durnford. 
 
 (j) Callis, 199. 
 
 (0 Ibid. 
 
 («) Ibid. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 215 
 
 imposed upon A., and the goods of B. were taken in the house 
 of A. for this tax, " B." says Callis, " may sue out a replevin 
 from the sheriff, inasmuch as his goods are expressly bound by 
 the laws of sewers " {x). And so, again, for the like reason, a 
 distress made by a lord upon his tenant for non-repair, to which 
 he may be bound ratione tenurts, is replevisable ( y). So, if one 
 grant a rent out of his land, with a cause of distress, together 
 with a grant or covenant that the grantee may distrain and 
 detain the distress till he shall be satisfied his rent, yet a 
 replevin lies also in that case (z). But if there be a judgment 
 in the king's Court, or upon a decree made in the Court of 
 Sewers, and a writ, or a warrant of distringas ad reparandum 
 be awarded, and the goods of the defaulter be taken, here the 
 goods, says the learned sergeant, cannot be delivered by re- 
 plevin, either out of this Court, or any other Court of the king, 
 because it is an execution out of a judgment (a). 
 
 It was more particularly concerning this latter proposition, 
 that Lord Kenyon expressed his doubts in a case, where the 
 authority of Callis was strongly pressed upon the Court in 
 opposition to a replevin. A rule had been obtained, calling 
 upon the plaintiff to show cause why the plaint, removed by 
 accedas ad curiam from the hundred Court of Thornbury, in 
 Gloucestershire, should not be quashed. It appeared that a 
 warrant had been issued by the commissioners at a Court of 
 sessions of sewers, held for the lower level of Gloucestershire, 
 to demand a certain sum from A., or her tenant (the plaintiff), 
 for expenses incurred in the repairs of a sea-wall, neglect hav- 
 ing been made to do the same in pursuance of a presentment. 
 The warrant further directed, that in case of refusal or omission 
 to pay, these expenses were to be levied by distress and sale. 
 Both A. and the plaintiff refused to pay, and the defendant in 
 consequence distrained a mare belonging to the plaintiff. The 
 mare was then replevied by the steward of the hundred Court 
 of Thornbury, and the plaint was afterwards removed into the 
 Court of King's Bench. The Court of King's Bench were 
 
 (a:) Callis, 199. And, in illustration of this position, he cites Rooke's 
 case, 5 Rep. 100. 
 (j/) Callis, 200. 
 (z) Ihid. 
 (a) Ibid. 
 
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216 Proceedings of Commissioners — Punishments, [chap. in. 
 
 strongly inclined to discharge this rule ; but the opinion of 
 Callis being urged, the Court took time to advise ; and, on a 
 subsequent day, the counsel against the rule having observed 
 that no judgment appeared to have been given according to the 
 affidavits, but merely a presentment without any trial, the Court 
 said, that this at all events was a reason why they ought not to 
 interfere in a summary way by quashing the proceedings. The 
 defendant might put his objection upon the record in a formal 
 manner ; and it is further said, that Lord Kenyon, during the 
 argument, expressed very strongly doubts respecting the opinions 
 cited from Callis (J). 
 
 Nevertheless, there are authorities to the effect, that where a 
 distress and sale of goods are ordered by virtue of an act of 
 Parliament, it is a proceeding, as Callis observes, in the nature 
 of an execution, and that a replevin will not lie. And it ap- 
 pears, that attachments have been known to issue against the 
 sheriff upon one occasion, and against the party on the other, 
 for replevying under such circumstances (c). However, it 
 should be added, that in a case under the Highway Act, 
 13 Geo. 3, where this argument was again urged, namely, tliat 
 a replevin cannot be enforced whei'e the distress arises under 
 tlie directions of a statute, the Court of Common Pleas refused 
 to interfere, and discharged with costs a rule to show cause 
 why certain proceedings in replevin should not be set aside {d). 
 
 Avowry. By 23 Hen. 8, c. 5, s. 11, if any action of trespass, or any 
 
 other suit, be attempted against any one for taking any distress, 
 or for any other act done by order of the commission, or the 
 laws and ordinances thereof, the defendant may avow, make 
 cognizance or justify, alleging that the distress has been taken 
 under the commission for the tax due, or for any other cause 
 under the same authority, and without expressing any other 
 matter, or any commission, laws or ordinances. The plaintiff 
 may then reply de injuria, and the issue shall then be tried in 
 the accustomed way by jury, and the whole matter shall be 
 
 (6) Pritchard v. Stephens, 6 T. R. 522. 
 
 (c) See Willes, 673, in the note, where the cases have been collected by 
 Mr. Durnford. 
 
 {d) Fenton ». Boyle and Others, 2 New Rep. 399. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 217 
 
 given in evidence. And by sect. 13, if, after issue tried, a 
 verdict pass for the defendant, or the plaintiff be nonsuited, the 
 defendant shall recover treble damages, with costs also in that 
 behalf, to be assessed by the same jury, or Court, to inquire of 
 damages, as the cause shall require. In order that the de- 
 fendant may be entitled to damages under this section, it is 
 necessary that he should claim them on the record ; and Lord 
 Ellenborough refused to give the defendant damages upon one 
 occasion where the defendant had neglected to make such a 
 claim, the learned chief justice observing, that he did not wish 
 to introduce such an anomaly (e). 
 
 It being possible, that notwithstanding the penalty of a fine, Decree of 
 the punishment of imprisonment, and the ulterior proceeding of their 
 distress, the commissioners might yet fail in their chief object, ''™"'('''- 
 that, namely, of obtaining payment of the tax assessed, or other 
 sum required by them, the stat. of Hen. 8 invests them with a 
 power of an order superior to the above, and empowers them to 
 decree lands from their owners in default of such payment. 
 The 8th section of the act prescribes this as follows : If any 
 person be assessed, or taxed to any lot, or charge for any lands, 
 tenements or hereditaments, within the limits of any commission 
 of sewers, and he do not pay the said lot and charge, so that 
 there be in fact a lack of payment thereof, the commissioners, 
 in such case, may ordain and decree the same lands, &c. from 
 the owner and his heirs, to any person for years, or for life, in 
 fee simple or fee tail, for payment of the charge in question (^). 
 Every such decree, however, must be written on paj-chment in- 
 dented, and must be under the seals of six commissioners (A), 
 and being so made, it shall bind every person who may have, 
 at the time of the decree, any interest in said lands, &c. in use, 
 possession, reversion or remainder, their heirs and feoffees ; and 
 further, such decree shall not be reformed unless by authority 
 of Parliament hereafter to be summoned and holden within the 
 
 (c) 3 C. & P. 71, n. 
 
 (/) It is worthy of remark, that the Metropolis Sewers Act, II & 12 
 Vict. c. 112, s. 145, now superseded, which applied the statute of Hen. 8, 
 concerning sewers, to that act with certain exceptions, made the decree and 
 ordinance of lands from their owners one of these exceptions. 
 
 {g) 23 Hen. 8, c. 5, s. 8. 
 
 \h) 13 Eliz. c. 9, s. 1. 
 
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218 Proceedings of Commissioners — Punishments, [chap. iii. 
 
 realm. And the 9th section of the stat. of Hen. 8 provides, 
 that not only the lands of private persons, but those of the king 
 also, shall be bound by these laws and ordinances, and not 
 lands, tenements or hereditaments only, but all other casual 
 profits, advantages or commodities whatsoever (i). 
 
 Upon a review of these sections (which, notwithstanding that 
 they are introduced by a proviso, are, as Callis observes, the 
 first legislative enactments respecting the decreeing of lands 
 from their owners by commissioners of the rate), it is worthy of 
 particular remark, that they apply to assessments only. If lands 
 be charged with this assessment, the general principle is, that 
 they may be sold for non-payment of the rate (k). So if an 
 assessment be laid generally on a vill, and by a decree of the 
 commissioners the tax be afterwards distributed in particular 
 sums upon individuals, here the lands of those in the vill, who 
 make default, may be decreed from them(Z). The stress laid 
 by the statute is upon disobedience to the decrees of the com- 
 missioners ordaining a tax. Thus, supposing that the lands of 
 A. be generally charged, as by prescription, covenant, or other- 
 wise, to repair a sea-wall, and he neglect to repair, although, as 
 we shall see presently, his lands cannot be taken away for the 
 mere neglect, yet if the commissioners make a rate upon him 
 for the expenses of this repair, and he do not pay it, here he 
 may lose his lands by virtue of a decree of sewers ; for, notwith- 
 standing that the charge accrued by the rules of the common 
 law, yet the assessment was imposed by the authority of the 
 statute (m). So, again, if land be holden by the tenure of 
 paying so much for repairing a bank, here, if the commissionere 
 order the party to pay the money according to the terms of the 
 tenure, the commissioners may decree the defaulter's land from 
 him upon his neglect, for here the ordinances of the justices of 
 sewers would be disobeyed (n). 
 
 But, independently of a decree, the commissioners cannot 
 exercise the power, as for mere neglect, &c. ; nor can they 
 
 (i) 23 Hen. 8, u. 5, s. 9. 
 
 (k) 7 Com. Dig. 348. 
 
 ll) Callis, 205 ; 7 Com. Dig. 348. 
 
 (m> Callis, 204; 7 Com, Dig. 348. 
 
 (n) Callis, 204. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 219 
 
 decree away lands in any cases except those of defaults in 
 paying assessments. Therefore, an omission to fulfil an obli- 
 gation to repair, imposed as a condition of tenure, will not of 
 itself work this forfeiture (o). So it is also of one bound by 
 prescription, covenant, &c., there being no decree, and, conse- 
 quently, no act of disobedience to the commissioners. 
 
 Again, if the name of the owner of the lands be not inserted 
 in the assessment there is no power to decree them away; and 
 so in the case of a vill, if a charge be laid generally, without 
 any decree upon particular persons, the land of the township 
 cannot be taken awa,y(p); that is to say, admitting that a 
 township can be assessed at all without a special custom, which, 
 as we have seen before (q), is questionable. 
 
 Then, again, this punishment must be confined to defaulters 
 in the payment of assessments for non-repairs, &c. ; and, conse- 
 quently, if a fine be set, or an amerciament assessed, the party 
 refusing, or unwilling to pay, cannot lose his lands as above 
 mentioned; because these are "mulcts and punishments," not 
 assessments towards the works of sewers (r). And thus, more- 
 over, if there be a decree to abate a nuisance, and the party 
 against whom the order is made resist the authority of the 
 commissioners, he cannot be deprived of his land for this fault ; 
 although if an expense were incurred by the commissioners in 
 abolishing the mischief complained of, and they should then 
 levy an assessment to reimburse themselves, a party refusing to 
 pay might certainly, in that case, come within the provisions of 
 the 8th section. 
 
 A question naturally arises here, whether commissioners are 
 enabled absolutely to deprive a person of his land upon his 
 default; and it may be remarked, that the power with which 
 they have been invested by the statute of Henry 8 is somewhat 
 qualified. And the principle is, that they ought not to take 
 more than will satisfy the demand which they have upon the 
 
 (o) Callis, 204; 7 Com. Dig. 348. 
 
 (p) Callis, 205) 7 Cora. Dig. 349. 
 
 (q) Ante, p. 96, and so 4 & 5 Vict. c. 45, s. 1, &c., ante, p. 
 
 (r) Callis, 205 ; 7 Com. Dig, 349. 
 
 96. 
 
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220 Proceedings of Commissioners — Punishments, [chap. hi. 
 
 land. Whence it follows, that if the granting of a term for 
 years would satisfy the tax, they ought not to convey away a 
 defaulter's estate in fee simple («) ; for the law intends, that 
 moderation should be used in this particular (<). 
 
 Three hundred acres of land in the fens were demised to A., 
 who covenanted to pay all taxes. A tax of 30Z. was imposed on 
 this land, and a penalty of 3Z. incurred, and the officers sold one 
 hundred acres to one of the commissioners for 33Z. The lessor, 
 upon this, brought a bill for relief, alleging a combination be- 
 tween the lessee, who had rent suffi^cient in his hand to satisfy 
 the sum of 33Z., and the purchaser ; and, further, that the pro- 
 perty was worth 400Z. The defendant, denying the combination, 
 pleaded the statute of draining, and that the sale was made 
 according to the provisions of such statute. The Lord Chan- 
 cellor allowed the plea, observing, that he could not relieve 
 against an act of Parliament ; for that, if he were to do so, the 
 whole economy of the preservation of the fens would be de- 
 stroyed (u). But the custom of the fens appears to be, that the 
 sale of land there is made four months after default of payment, 
 twice in the year, pursuant to the act of draining; that, in the 
 first place, a certain number of acres are exposed for sale to 
 make up the sum required, that the quantity of land ia in- 
 creased until a purchaser be found, and that they never sell for 
 more than the arrears of the tax and penalty,* it not being 
 competent for them to do so (as). 
 
 What lands With regard to the property which may be thus decreed for 
 sale, it seems that all lands within the limits of the commission 
 may be so treated; but that none, except such as are charged 
 with the assessment, can be thus disposed of (y). Formerly, 
 in the time of Callis {z), copyhold lands could not be sold for 
 
 (s) Callis, 212. 
 
 (0 Ibid. 
 
 (a) Brown i>. Hatnond, 2 Ch. Ca. 249. 
 
 * With regard to the penalty, the power to sell for that must be under 
 the particular act; as we have seen, that, according to the general rules 
 of sewers, a sale of land cannot be made for the non-payment of fines and 
 penalties. 
 
 {x) 2 Ch. Ca. 250, note. 
 
 (y) See Callis, 206. 
 
 (e) Ibid. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 221 
 
 these purposes, because the customs of manors would have been 
 thereby contravened ; nor could the freehold of the copyhold be 
 so evicted, because the lord's right was but the shadow, but the 
 copyholder's the substance (a). Nevertheless, by 7 Ann. c. 10, 
 ss. 1 and 2, the following provisions were made for the sale of 
 copyhold lands upon these occasions. Commissioners of sewers 
 were thereby enabled to decree such lands from the owners, and 
 their heirs, to any person, to the extent of the estate possessed 
 at the time of the decree by such owner, such decrees to be 
 executed in the same manner as decrees concerning freehold. 
 But it is provided, for the benefit of the lord of the manor, that 
 the purchaser, before he shall enter, and take any profit, must 
 agree with the lord of the manor for the usual fine, and then the 
 lord shall grant the copyhold to the vendee at the next Court 
 and shall admit him as tenant (b). 
 
 Something remains to be said with respect to the liability of whotound 
 
 ..,, n .., •'iy these 
 
 individuals to these decrees, as far as their particular estates are decrees. 
 concerned. And, first, the statute is considered to bind heirs 
 in tail, so that they will be bound by a sale of the land of the 
 ancestor in tail (c). There are express words to bind the heirs 
 " in tail," and with regard to the heirs of tenants in fee simple, 
 these last would have been concluded without the word 
 " heirs" (d). Moreover, it is said, that women under coverture, 
 infants, insane persons, and such, are under the force of these 
 decrees, because the decrees are made for the benefit of the 
 commonwealth (e). 
 
 It is laid down, that although, in the making of an assessment, 
 commissioners are not bound to take notice of the particular 
 nature of the estate, yet that they must take this matter into 
 consideration, when they come to decree away the lands from 
 their owners {/) ; and this observation materially applies to the 
 cases of tenants in common, and joint-tenants. So that if a 
 joint-tenant, or tenant in common, refuse or neglect to pay his 
 proportionable share, a moiety only of the lands of these persons 
 
 (a) Callis, 206. 
 
 (i) 7 Ann. c. 10, ss. 1 and 2. 
 
 (e) 7 Com. Dig. 349. 
 
 {d) Callis, 208. 
 
 (e) Id. 210 ; 7 Com. Dig. 349. 
 
 (/) Callis, 210. 
 
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222 Proceedmgs of Commissioners — Punishments, [chap. iii. 
 
 respectively shall be sold (^). Callis writes thus concerning 
 tenants in common : " Yet, in this case of joint assess imposed 
 upon tenants in common, and one would pay his moiety, and his 
 companion refuseth, the commissioners of sewers cannot sell a 
 moiety of the land, for that it is a joint sess, and was not imposed 
 by moieties, 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" (A). 
 
 However, religious corporations are not affected to the same 
 extent as individuals by the statute. And, therefore, it is laid 
 down, that the successors of bishops, deans, prebends, parsons, 
 vicars, &c., seised of lands in their public capacity, cannot be 
 deprived of their lands by virtue of such decrees of sewers (i). 
 And for this reason : the statute of sewers extends to bind lands 
 in perpetuity, and the statutes of Elizabeth restrain alienation ; 
 and, therefore, the general statutes of sewers shall not have the 
 effect of dispensing with the restraining statutes (/*). And Mr. 
 Sergeant Callis adds, that although the statute mentions heirs, 
 it is silent as to successors ; nevertheless, he is of opinion that 
 these ecclesiastical persons are bound for neglect during their 
 enjoyment of the lands ; and, consequently, that lands may be 
 decreed from them so as not to prejudice those who come after 
 them (Z). 
 
 To whom Lastly, it is said, that lands may not be decreed to a corpora- 
 
 decree™*'' * tion, as a mayor and commonalty, dean and chapter, &c., by 
 reason of the statute of mortmain, inasmuch as the Mortmain 
 Act is not repealed by the statute of sewers in this respect (m). 
 
 Mandamus. The conservators of the Bedford Level moved for a mandamus 
 against persons alleged to be liable ratione tenura to repair the 
 banks of the Ouse. But as it appeared that the prosecutors 
 were commissioners of sewers, the rule was discharged, there 
 being another remedy (»). 
 
 {g) 1 Com. Dig. 349. 
 (h) Callis, 211. 
 
 (j) Id. 209 ; 7 Com. Dig. 349. 
 (k) Callis, 209. 
 (0 Ibid, 
 (m) Id. 212. 
 
 (n) That is to say, under 15 Car. 2, c. 17, s. 15 j R. v. Gamble, 11 Ad. & 
 El. 69; 3 Per. & D. 122. 
 
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CHAP. III.] Proceedings of Commissioners— Punishments, 223 
 
 Commissioners of sewers may also proceed by indictment in indictment. 
 their Court against persons, for instance, who commit nuisances 
 within their jurisdiction. But it must be remembered, that 
 they cannot exceed the limits of their commission ; so that, 
 where an indictment was removed into the King's Bench by 
 certiorari, although the particular exceptions made against it 
 were overruled, yet Roll, C. J., said, that it was bad, because 
 it set forth a damage to the highway, with which the commis- 
 sionei's had no concern, for their power extended to passages of 
 water only (o). 
 
 And now that we are upon the subject of indictments, it may 
 not be improper to observe, that a facility is aiforded by the 
 law for the conviction of such as commit depredations upon 
 commissioners of sewers. Thus by 7 Geo. 4, c. 64, s. 18, it 
 was enacted, that in any indictment or information for any 
 felony or misdemeanor committed on, or with respect to any 
 sewer, or other matter within or under the view, cognizance or 
 management of any commissioners of sewers, it shall be suf- 
 ficient to state any such property to belong to the commissioners 
 of sewers, within or under whose view, cognizance or manage- 
 ment any such things shall be, and it shall not be necessary to 
 specify the names of any of such commissioners. And similar 
 provisions with reference to persons who damage or steal from, 
 or otherwise injure these buildings or works, are made by 3 & 
 4 Will. 4, c. 22, s. 47. General words embodying all these 
 offences, and ordaining that all property of commissioners of 
 sewers may be laid without naming them, may be found in 11 
 & 12 Vict. c. 43, s. 4. 
 
 The commissionere may sue in the name of their clerk either Actions, 
 at law or in equity, in any matter concerning their lands, or 
 any river, &c., or work, under their management. The action 
 may be brought in the name of one commissioner, or in the 
 name of the clerk. And in an action of ejectment for recover- 
 ing their property, or houses, &c., the demise may be laid in 
 the names of six commissioners, or in the name of their clerk, 
 and no action shall abate or be discontinued by reason of the 
 
 (o) Rex V. Hide, Sty. 60. 
 
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224 Proceedings of Commissioners — Punishments, [chap. hi. 
 
 death, resignation or removal of such commissioners or of their 
 clerk, or by the expiration of any commission of sewers (p). 
 A notice by the clerk is a notice by the commissioners, and 
 every such notice is evidence, without more(^). And by 24 & 
 25 Vict. c. 133, s. 43, all notices, after service, shall be binding 
 on " all persons claiming by, from, or under the owner, as if 
 served on such persons." By sect. 44, personal service (unless 
 a special mode is provided) is required, or the notice should be 
 left at the last place of abode, or in case of absence from the 
 United Kingdom, or if such place cannot be found, then with 
 the occupier, or fixed upon some conspicuous place, part of the 
 lands, if there be no occupier. So, by sect. 45, in the case of a 
 corporation, joint stock company, &c., at the office, or upon the 
 agent, or, in default, upon some conspicuous place. So, by sect. 
 46, as to the occupier : 1, personal service ; 2, the last place of 
 abode ; 3, the fixing at some conspicuous place, if absent from 
 the United Kingdom, or if the last place of abode cannot be 
 found. 
 
 By 3 & 4 Will. 4, c. 22, s. 58, every clerk and commis- 
 sioner whose name shall be used in any bill, information, 
 prosecution or indictment under the act, and every commis- 
 sioner in whose name the commissioners shall sue, shall be fully 
 reimbursed his costs, &c., as plaintifi" or defendant, or in 
 respect of Ws name being used, out of the monies in the hands 
 of the clerk, treasurer or expenditor, or out of the sewers' rates, 
 which rates may be levied under the act for the purposes afore- 
 said. 
 
 And by 24 & 25 Vict. c. 133, s. 52, all costs, &c. in legal 
 proceedings shall be defrayed out of the rates, and no commis- 
 sioner shall be personally liable. 
 
 By 3 & 4 Will. 4, c. 22, s. 59, the circumstance of the clerk 
 being plaintiff, prosecutor, or defendant in any action, suit, &c., 
 shall not affect the competency of such clerk to be a witness in 
 any such action, &c., in the same manner as if his name had 
 not been made use of as the plaintiff, &c. 
 
 (p) 3 & 4 Will. 4, c. 22, s. 57. 
 (?) 24 & 25 Vict. c. 133, s. 42. 
 
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CHAP. III.] Proceedings of Commissioners — Punishments. 225 
 
 And by 4 & 5 Will. 4, c. 45, s. 9, no person rated or liable 
 to be rated to any tax, rate or scot, under or by virtue of any 
 commission of sewers, shall be deemed an incompetent witness 
 before any Court of Sewers (r). 
 
 It was determined, upon one occasion, tbat commissioners of No action of 
 sewers had not such a possession in their works, as to enable against 
 them to maintain trespass against wrongdoers. The plaintiffs doer"^' 
 were commissioners of sewers for the Pevensey or Pett Level, 
 and the defendants were the commissioners of Rre Harbour. 
 The action was trespass, for breaking into and weakening a 
 wall, a bank, and a dam, belonging to the plaintiffs, situate at 
 Rye, and taking away certain materials therefrom, so that the 
 wall, &c. became exposed to the descent of the water, and 
 whereby also the said wall, &c., were uttei'ly demolished and 
 destroyed. There was a second count, for taking away the 
 bricks of the plaintiffs. After a considerable body of evidence 
 on both sides, as to whether a certain dam and sluice had been 
 necessary for the purposes of drainage, a verdict passed for the 
 plaintiff, subject to the question, whether the commissioners 
 could be said to have had such a possession as would enable 
 them .to maintain the action. And after a solemn argument, 
 the Court gave judgment of nonsuit ; for the justices are not 
 invested with these powers as individuals, but in their public 
 capacity ; and they are incompetent to do any act ^s commis- 
 sioners, which goes either to show exclusive possession, or any 
 possession whatever (s). 
 
 But the Stat. 3 & 4 Will. 4, c. 22, s. 47 (<), has effected an 
 alteration in this respect, as we have just seen. And although 
 all lands within the view and cognizance of commissioners of 
 sewers are not vested in them, yet the statute above men- 
 tioned vests all buildings and works belonging to their juris- 
 diction in them, so as to enable them to recover in trespass 
 
 (r) See also the stat. 6 & 7 Vict. c. 85, s. 1, partially repealed by 14 & 15 
 Vict. c. 99, quod vide. 
 
 (s) The Duke of Newcastle and Others v. Clark and Others, 8 Taunt. 
 602 ; 2 Moore, 666. 
 
 (0 See ante, p. 199. 
 
 W. Q 
 
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226 Proceedings of Commissioners — Punishments, [chap. iii. 
 
 against any person who may do damage to such buildings or 
 works. 
 
 Certain commissioners under a drainage act, 6 Geo. 4, c. 145, 
 were empowered to make an assessment, and to appoint asses- 
 sors. The apportionment of the rate was to be made in writing, 
 and signed by the assessors. Three were appointed, and all 
 three met ; but two only at length signed the apportionment, 
 and it was attempted, through the means of a mandamus, to 
 compel the other to sign. But the Court discharged the rule, 
 for a majority had signed, and such concurrence and signatures 
 were sufficient. And Grindley v. Barker (x) was referred to 
 as an authority upon this point by Lord Tenterden (y). 
 
 Proceedings Sundry proceedings in the nature of punishments are en- 
 12 Vict. c. 63. trusted to the Boards of Health under 11 & 12 Vict. c. 63. 
 
 We have seen that the remedy by distress may be occasion- 
 ally resorted to under that act. 
 
 By 11 & 12 Vict. c. 63, s. 129, damages, costs and expenses, 
 directed to be ascertained or recovered in a summary manner, 
 shall be so recovered before two justices with costs, and in de- 
 fault a distress warrant may be issued. So, again, a penalty 
 imposed under any bye-laws, may likewise be recovered before 
 two justices with costs, and levied by distress. And until a 
 return be made to the distress warrant, the justices may detain 
 the party, unless he give security for his appearance on the day 
 of the return, which day shall not be more than eight days 
 from the time of taking the security. Then upon a return 
 made that no sufficient distress can be had, the offender may be 
 imprisoned for a term not exceeding three months, without 
 bail, unless such penalty and costs be sooner paid. The 130th 
 section points to Schedule (E.) of the act as the form of con- 
 viction. The 131st section ordains, that one justice may grant 
 any summons under the act, unless it be otherwise provided ; 
 and the justice granting the summons, or two justices, as the 
 
 (x) 1 Bos. & Pul. 229. 
 
 (i/) R. «. Whittaker and Others, 9 B. & C. 648. 
 
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CHAP, in.] Proceedings of Commissioners —Punishments. 227 
 
 case may be, shall hear the case upon oath. The costs, how- 
 ever, are to be in the discretion of the justice or justices. In 
 case of distress, the surplus is to be rendered to the party dis- 
 trained upon, on demand, and no distress shall be unlawful for 
 want of form, &c., but damages may be recovered in an action 
 upon the case. The 132nd section enacts, that justices, being 
 also members of any local board, may, in petty sessions, exer- 
 cise the jurisdiction vested in them as such justices under this 
 act. Then, with respect to informers, the 133rd section ordains, 
 that the leave of her Majesty's Attorney-General in writing 
 must first be had, before proceedings are commenced 5 unless 
 in the cases of proceedings by a party grieved, or by the local 
 board. The time for proceeding is limited to six months, and 
 half the penalty, unless otherwise provided for, shall go to the 
 informer, and half to the local board ; unless the local board be 
 the informers, in which case they shall have the whole. All 
 sums recovered by the board shall be paid to the treasurer, and 
 be carried to the district fund account. However, by sect. 134, 
 it is declared and enacted, that no person shall be relieved from 
 any other liability by reason of his being liable to any penalty 
 under the act. 
 
 The appeal clause (2:) applies to any rate or to any order, 
 conviction, judgment, &c. of justices under the act. By sect. 
 137, no rate, nor any order, conviction, &c., shall be quashed 
 for want of form, nor be removable by certiorari or other 
 process. 
 
 Lastly, by sect. 138, the local board of any noncorporate 
 district may sue and be sued in the name of their clerk, and in 
 ejectment the demise may be laid in his name ; and in cases of 
 stealing, or of wilful damage, the property may be laid in him, 
 and all legal proceedings shall be carried on in his name. No 
 proceedings shall abate or be discontinued by reason of his 
 death, resignation or removal, or by reason of any change or 
 vacancy in the local board. And all the expenses of the clerk 
 shall be repaid him out of the general district rates (a). 
 
 (z) 11 & 12 Vict. u. 63, s. 135. 
 (o) See Clements v. Pollard, 10 Ex. 817. 
 q2 
 
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228 Proceedings of Commissioners— Punishments j [chap. hi. 
 
 Perjury. By sect. 147 of this same statute, every person who, upon 
 
 any examination on oath under the provisions of the act, shall 
 wilfully and corruptly give false evidence, shall be guilty of 
 perjury. 
 
 All penalties under the 24 &, 25 Vict. c. 133, are, by sect. 51, 
 to be recovered under the provisions of 11 & 12 Vict. c. 43. 
 
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( 229 ) 
 
 CHAPTER IV. 
 
 Of the various Proceedings which may he had against 
 Commissioners of Sewers. 
 
 We have now shown the nature of commissions of sewers, the 
 duties and authorities of commissioners in the execution of the 
 office entrusted to their care, and the proceedings which they 
 may institute in order to enforce obedience to their laws. We 
 proceed, lastly, to mention the different remedies which may 
 be had against the commissioners, when they exceed or mistake 
 their authority, whether it be by the promulgation of illegal 
 orders, by acts of oppression in the performance of their under- 
 takings, or by neglect to carry into execution some arrange- 
 ment, to the fulfilment of which they may be bound. 
 
 Several remedies are open to persons who may happen to be 
 aggrieved by the proceedings of the officers of sewers ; but the 
 course most frequently pursued, is to move the Court of King's 
 Bench for a writ of certiorari to remove the orders complained 
 against into that Court, for the purpose of being quashed. 
 Another method of obtaining redress is, in some instances, to 
 move the Court for a writ of mandamus to compel the commis- 
 sioners to the performance of some act, which they may have 
 neglected. And it should be recollected, that whatever reme- 
 dies may be mentioned in the progress of this inquiry as the 
 right of the subject, he may always resort to his action at com- 
 mon law, if he has sustained a grievance for which a jury of 
 his country ought to award him damages. 
 
 It has been said, that the Court of King's Bench has a juris- 
 diction to revise the orders and conduct of commissioners, upon 
 many of the occasions above referred to. But this position is 
 not so universally true, as to enable those Judges to control a 
 new judicature of sewers. Thus, by the stat. 12 Car. 2, c. 11, it 
 was ordained, that certain commissioners should have power to 
 
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230 Remedies against Commissioners. [chap. iv. 
 
 receive claims concerning the fens of Cambridgeshire, Hunt- 
 ingdonshire, &c., that they should decide upon the boundaries 
 of the same, should make decrees, and return them into the 
 Petty Bag Office in Chancery. Writs oi certiorari were sub- 
 sequently moved for at several times for the removal of the 
 orders of the commissioners into the Court of King's Bench; 
 but after consulting the statute in question, the Judges resolved 
 that no such writ should issue, and that if any had issued there 
 must have been a procedendo. For here was a new judicature 
 absolutely vested in the commissioners, with which the Court 
 of King's Bench had no concern, as long as the statute which 
 conferred the authority should be adhered to by the commis- 
 sioners. Had they, however, neglected to pursue the requisi- 
 tions of the act, the whole of their proceedings would be coram 
 nonjudice, and so void, and the parties might enter upon that 
 point by bringing an action at common law (a). 
 
 Certiorari. Having premised thus much, we come, first, to speak of the 
 
 writ of certiorari, as employed to check the acts and orders of 
 commissioners of sewers. And here it should be remarked, 
 that all the various causes for which orders may be, or have 
 been quashed, will not be enumerated in this place. A great 
 variety of these instances has been already mentioned in former 
 chapters ; and it is rather with the nature of the remedy, and 
 the forms of the respective orders and of the returns to the 
 writs, than with the intrinsic merits of the orders, that we have 
 at present to deal. Therefore, although numerous examples 
 might be adduced of circumstances under which the Court of 
 King's Bench would direct orders of sewers to be quashed, 
 such as the absence of any benefit accruing to those on whom 
 they may have been made, the impossibility of complying with 
 them, the want of jurisdiction in the parties making the decree, 
 &c. (6) ; yet we shall here confine ourselves to the practical 
 part of the proceeding. And, in the first place, it is proper to 
 give notice of the intended motion, which must be served upon 
 those against whom the complaint is to be made, or whose 
 orders are to be called in question. There is a rule in the 
 
 (a) Ball V. Pattridge, 1 Sid. 296 j nom. Bell v. Partridge, 2 Keb. 82. 
 See 2 Keb. 43. 
 
 (6) See Cro. Jac. 336 ; 1 Ventr. 67 ; 7 Com. Dig. 351. 
 
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CHAP. IV.] Remedies against Commissioners. 231 
 
 King's Bench to this effect (c). And where a motion was 
 made for the removal of orders, upon affidavits that such a 
 course could not operate in any way to prejudice the country, 
 the Court refused even a rule to show cause, because there was 
 not an affidavit of notice of the motion (d). 
 
 It is also to be remarked, that the application must not be 
 delayed. A party was assessed in August, 1841 ; he appeared 
 to object to the presentment, and tendered a traverse in writing. 
 The clerk, however, demurred to it for informality, as being 
 vague and insufficient. The party then asked leave to amend, 
 tendering a second traverse, but this was refused; and the 
 Court gave judgment upon demurrer, to quash the plea. This 
 was in September, 1841. A rate was made, and an order to 
 pay it issued in June, 1842, and a distress, in respect of the 
 same, was levied in July, 1842. On the 10th of May, 1843, a 
 certiorari was moved for to remove the presentment, judgment, 
 rate and order; but the Court considered the application out of 
 time-, and discharged the rule ; being of opinion, nevertheless, 
 that the commissioners had done wrong in not admitting the 
 demurrer, and, at all events, that they should have allowed the 
 party to amend (e). " He might have applied by mandamus 
 after the rejection of his second traverse " (/). And by Cole- 
 ridge, J. : " They (the commissioners) should have looked into 
 the traverse, to see whether it would put in issue the matter 
 proposed " (^). 
 
 Due intimation of the intended application having been given, 
 the Court will grant the writ, if they see a reasonable ground 
 for so doing. And notwithstanding a case in Keble, which at 
 first sight may seem to be to the contrary, it is clear that the 
 Court have been accustomed to exercise a discretionary autho- 
 rity with regard to these orders. A certiorari was prayed to 
 remove an act of Parliament, together with certain proceedings 
 of the commissioners of the fens, which were said to be absolute, 
 
 (c) 2 Hawk. P. C. 288. 
 
 (d ) Rex V. Butler, 2 Barnard, K. B. 283. The notice should be served 
 upon the clerk of the sewers. See Bunb. 61. 
 
 (e) R. «. Tower Hamlets Commissioners, 5 Q. B. 357 ; Dav. & M. 232. 
 (/) S. C, per Williams, J. 
 {g) S. C. 
 
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•'32 Remedies against Commissioners, [chap. iv. 
 
 and without appeal. It was suggested, according to the report, 
 without affidavit, that the officers had proceeded unreasonably, 
 and the Court granted the writ as the right of the subject, say- 
 ing, that they should ultimately judge, by the return, whether 
 the commissioners had pursued the legislative power entrusted 
 to them (K). This case may, nevertheless, be taken with some 
 qualification, namely, that the right of the subject must yield 
 to the good of the country at large. And, accordingly, it will 
 be found that the motion for a certiorari has seldom, if ever, 
 met with opposition, where no danger has been apprehended 
 from the removal of the orders ; and it is moreover customary 
 to allege in affidavits, that no prejudice is likely to happen to 
 the country in consequence of the application. However, upon 
 some applications, the Court feel it impossible to grant the writ. 
 As, where it was prayed to remove a presentment in Middlesex 
 by certiorari, the Court said, that without oath made that the 
 commissioners had refused a traverse, they would grant no cer- 
 tiorari, especially being on the view, and moreover, that on 
 the distress for the fine, the defendant might try the matter over 
 again in the King's Bench (j). 
 
 It follows from the above, that the Court will inquire into 
 the particular facts of the case, prior to their decision concern- 
 ing the issuing of the writ. And thus it was said by Holt, 
 C. J., that, in the case of sewers, this Court (the King's 
 Bench) inquires into the nature of the fact before they grant a 
 certiorari, that no mischief may happen by inundation in the 
 mean time (h), and that the Court was accustomed to be cau- 
 tious in the granting of these writs, because whilst the commis- 
 sioners were suspended by the certiorari, the country might be 
 drowned (Z). In this last case, which concerned the repairing of 
 Cardiff Bridge, it had been objected, that here was a new juris- 
 diction erected by a new act of Parliament, the trust of the exe- 
 cution of which was reposed in the justices, and that the Court 
 of King's Bench could not intermeddle with it. But the 
 objection was disallowed, for the Court declared their power of 
 
 (Jt) Rex !). The Commissioners of the Fens, 2 Keb. 43. 
 
 li) Commissioners of Sewers v. Wilmore, 2 Keb. 137 ; R. t. Inhabitants 
 
 of , in Glamorganshire. See Id. 469. 
 
 (k) 1 Salk. 146. 
 
 (/) I Ld. Raym. 580. 
 
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CHAP. IV.] Remedies against Commissioners. 233 
 
 examining the proceedings of all jurisdictions erected by act of 
 Parliament, so that if any encroachment were made by such 
 newly-constituted authorities, the Court would send a certiorari 
 to them, in order that the matter might be investigated, and the 
 new Judges restrained within their proper bounds (to). And 
 this position by no means clashes with the judgment in Ball v. 
 Partridge, above cited, for the Court upon this occasion inti- 
 mated, that they wanted jurisdiction over the commissioners 
 then newly appointed, only so long as those commissioners 
 abided by the act of Parliament which created them. 
 
 Again, Lord Kenyon said, upon discharging a rule for a 
 certiorari to remove orders made for the erection of a new sea- 
 wall, that the preponderance must be very strong against the 
 propriety of orders of this sort, to induce the Court to allow of 
 their removal («). Should the matter appear doubtful upon 
 the hearing of the case and affidavits, the Court will direct the 
 trial of feigned issues, and will subsequently either file the re- 
 turn or supersede the certiorari, as they may see fit. 
 
 Sometimes an act of Parliament takes away the certiorari, 
 as where certain commissioners under an act of Parliament were 
 empowered to form and make sewers, and jurisdiction was given 
 to justices at sessions, whose judgment was to be final. Still if 
 the commissioners exceed their limits, a Court of Equity, at all 
 events, will interfere. Commissioners are not to form and make 
 their sewers to the injury of property which is not situated within 
 their act (o). 
 
 There is one instance in which the removal of an order of Removal of 
 sewers has been held to be of common right. The commis- 
 sioners had removed their clerk, and the Court said, that here 
 the issuing of the writ was not discretionary, as in the case of 
 other orders, where great inconveniences might follow by 
 inundation in the mean time {p). In another report of this case 
 it is said, that the Court granted a certiorari, as of right, but 
 that one of the Judges denied that a certiorari was a writ of 
 
 (m) 1 Ld. Raym. 580. 
 
 (n) 3 T. R. 314. 
 
 (o) Birley v. Cliorlton-upon-Medlock, 3 Beav. 499. 
 
 (p) Case of the Commissioners of Sewers for Yorkshire, 1 Str. 609. 
 
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234 Remedies against Commissioners. [chap, iv, 
 
 right, for were it so, it could never be refused, but that it had 
 often been denied by the Court (q). The distinction, however, 
 between removals of orders to the prejudice of the country, and 
 under circumstances where no detriment to the public could 
 possibly occur, was not adverted to. 
 
 The stat. 5 & 6 Will. 4, c. 33, however, enacts (sect. 1), that 
 no writ of certiorari shall issue from the Court of King's Bench 
 at the instance of the prosecutor, or any other person except 
 his Majesty's Attorney- General, without motion first made in 
 the Court of King's Bench, or before some Judge of that Court, 
 and leave obtained, as similar motions are now made on the 
 behalf of defendants, nor unless it can be made appear to 
 the Court that questions of unusual difficulty may arise, or 
 that a special jury may be required (r). 
 
 To illustrate this point farther, we shall find that, after 
 the granting of the certiorari, the Court will not quash an order 
 for drainage or repair, without a certificate that the place in 
 question has been cleansed or amended in conformity with the 
 order ; and they will award a procedendo, if the order be not so 
 far executed (/). But the party who repairs shall, if he be so 
 entitled, recover his costs for so doing from the level, and an 
 order upon him for payment of the expenses or repairs under 
 such circumstances would be quashed. But if, upon showing 
 cause against the issuing of a certiorari, the defendants intended 
 to rely upon the injury that could happen to the country, they 
 must set out such facts in their affidavits, as will prove that the 
 public are mainly interested in the question. Where the de- 
 fendants merely declared, that the place to which the orders 
 related was not repaired, but continued to be a great nuisance 
 to the inhabitants of the town, the Court held it insufficient, 
 because it had not been sworn, that the non-repair was injurious 
 to the country in general (i). 
 
 (y) Arthur v. Commissioners of Sewers in Yorkshire, 8 Mod. 331 ; 7 Com. 
 Dig. 351. It was likewise said in this case, that if one writ of certiorari 
 were quashed, another might he granted. 
 
 (r) 16 & 17 Vict. c. 30, s. 4. Except in the case of bodies corporate. 
 
 (s) Seigneur de Dunbarr's case, 1 Sid. 78; Rex w. Wright, 2 Keb. 42. 
 And see The King and Day v. Commissioners of Sewers, Id. 129 ; 7 Com. 
 Dig. 351. 
 
 (t) The King J). Commissioners of Sewers in Lincolnshire, 2 Barnard, 
 379. 
 
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CHAP. IV.] Memedies against Commissioners. 235 
 
 The rule for a certiorari is a rule to show cause, for the Court 
 of King's Bench will not remove orders of commissioners of 
 course (m). 
 
 The certiorari we will now suppose to have issued, and it what foi- 
 will be remembered, that, unless there be an apprehension of the issuing 
 some mischief, the Court will in general accede to the appli- tLmrir' 
 cation. The question now before the Court is, whether the 
 return to the certiorari shall be filed, or whether a procedendo 
 shall be awarded. If the former event happen, the orders are 
 quashed, because the Court cannot grant a procedendo after 
 the filing (as) ; if the latter, the certiorari is considered to be 
 superseded, and the validity of the orders established. The 
 matter is, therefore, debated by counsel on either side, upon 
 the return of the writ, and before the return is filed (?/) ; and 
 here some inquiry will naturally arise as to the sufficiency of 
 the return. 
 
 First, it may be remarked, that the Court inclines strongly 
 against mere technical and formal objections to such a return. 
 Thus, in a case where a procedendo had been awarded, because 
 the applicant for the certiorari refused to consent to the repair, 
 it was said incidentally, that the powers of commissioners of 
 sewers are not so strict as indictments (2). Again, exceptions 
 were taken to an order of sewers under the following circum- 
 stances: 1, There was an order of respite to May 1, 1666, and 
 further order, and in the interim a fine was set, i. e., in March. 
 2. The plaintiff was to do iron-work, after stone-work done by 
 others, and as the latter had not yet made the stone-work, the 
 plaintiff could not be compelled to do his share. But the Court 
 refused to quash upon such objections, for that they were 
 
 (m) Anon., 2 Barnard, 151 ; Anon., 2 Chit. Rep. 137. It was a case con- 
 cerning the removal of orders for a rate to repair Martello towers. 
 
 (x) Anon., 1 Salk. 145, pi. 6. The reporter adds, Sed per Cur. 4 Ann. 
 B. R., "We will file them in any case where no apparent danger is likely 
 to ensue by the delay." Which may be understood to mean, in order to 
 reconcile it with the former position, that, supposing the invalidity of the 
 orders to appear, the Court, nevertheless, would not quash them, if there 
 were any danger of inundation, or other damage, See also 2 Str. 1263 ; 7 
 Com. Dig, 351. 
 
 iy) 2 Keb. 340. 
 
 (a) 1 Sid. 78. 
 
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236 Remedies against Commissioners. [chap. iv. 
 
 merely mispleading, and the party, if distrained upon, might 
 replevy. To be sure, if a penalty were laid on one individual 
 which ought to have been levied on a township, the case would 
 be different, and the order might be quashed, but that was not 
 the case here (a). 
 
 Again, it was moved upon another occasion to quash an 
 order of the commissioners of sewers of Bromley Marsh : first, 
 because it had been made on a bare suggestion of one of the 
 commissioners; secondly, because none of the yeomen were 
 mentioned ; next, because it was not alleged that the defendant 
 was chargeable. But the Court disallowed the exceptions, and 
 refused to quash the order: and, per Windham, J., the com- 
 missioners of sewers shall have as much favour as may be (6). 
 In this case the repairs required appeared to have beeu indis- 
 pensable, and the Court likened the emergency of the occasion 
 to the pulling down of a house upon an alarm of fire. 
 
 The following exceptions were made to a return upon another 
 certiorari, to one of which the Court seemed inclined to yield. 
 Commissioners having made a certificate, it was objected, 1st. 
 That it did not appear that the certificate was under the great 
 seal of England, according to the requisition of the 23 Hen. 8. 
 2ndly. That the certificate did not express the names of the 
 jurors, nor show that twelve had been sworn, who made the 
 presentment. 3rdly. That although the plaintiff had been pre- 
 sented for that he ought to repair a wall, yet that it had not 
 been said for what cause, whether by reason of his land, by 
 prescription, or otherwise. 4thly. That although the present- 
 ment stated the want of reparations, it did not show that the 
 place to be repaired lay within the level and commission. 
 5thly. That there was an assessment upon the plaintiff in 
 respect of the above wall; and of another, in respect of which 
 latter there had been no presentment. 6thly. That the tax had 
 been laid upon the person, instead of the land. 7thly. That no 
 notice of the assessment had been given to the plaintiff. These, 
 although some others, which do not seem tenable, were taken, 
 
 (a) The King and Heart v. Commissioners of Sewers in Lincolnshire, 2 
 Keb. 339. 
 
 (A) The Inhabitants of Bromley and East Marsh, at Blackwall, 1 Keb. 4. 
 
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CHAP. IV.] Remedies against Commissioners. 237 
 
 were the chief objections ; and with regard to the exception, 
 that there was no mention of the commission under the great 
 seal, Kelyng arguendo, said, that an order had been adjudged 
 insufficient for that cause, in a case which he then cited to the 
 Court (c). T]ie Judges thought many of the exceptions valid, 
 and especially that which suggested the want of the words 
 virtute literarum patentium. The matter was postponed, how- 
 ever, in order to hear counsel on the other side {d). 
 
 It may be added here, that if it be wished to amend a return 
 to a writ of this nature, the proposed alteration must be made 
 during the term in which the return was made. Thus, in a 
 case where several exceptions had been made to a return, it was 
 moved to amend it. But the Court said it could not be, because 
 the return had been made in the term before. And it was 
 ordered, that cause should be shown on a future day, why the 
 return and proceedings should not be quashed (e). 
 
 But supposing that commissioners (and such a case has Disoiiedieiice 
 
 t to cBTtiovctvit 
 
 occurred) should pay no attention to the writ of certiorari, and 
 make no return, the course is to proceed against them in the 
 King's Bench, and they will be punished for their disobedience. 
 For instance, one Smith and others, commissioners of sewers, 
 received a certiorari for the removal of their orders. They 
 would not at first allow the certiorari, but, nevertheless, having 
 afterwards allowed it, they proceeded de novo upon the same 
 matter, and made another order, which being resisted, the com- 
 missioners fined the parties disobeying the order lOZ. each. A 
 second certiorari was then taken out and delivered to the com- 
 missioners, but even after that they imprisoned persons for not 
 executing and obeying their warrant made upon their second 
 order, and fined them 51. each for speaking contemptuous words 
 concerning the commissioners. Their plea was, that they had 
 acted under the advice of their counsel, who was reprimanded, 
 being then in Court, and the commissioners were sent to prison. 
 
 (c) Hunger's case, 14 Car. in K. B. ; S. C, nom. Hungate's case, cited 
 Sty. 85 ; S. P., Allen v. Carter, cited Sty. 85; Rayl and Mannings' case, 
 cited ibid. ; S. P., Rex v. Apsley, Sty. 85 j Semb. S. C. as that next cited 
 infra. 
 
 (d) Anon., Mar. 123, pi. 202. 
 
 (e) Rex t>. Apsley, Sty. 85. 
 
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238 Remedies against Commissioners. [chap, iv. 
 
 Having made and filed the return, they were in about a fortnight 
 afterwards called up to receive the judgment of the Court, and 
 were fined for their misconduct, all the Judges agreeing, that 
 the officers in question had committed a great offence and con- 
 tempt (_/). And by Twisden, J., " I have known, that upon 
 an unmannerly receipt of a prohibition, they (commissioners of 
 sewers) have been bound to their good behaviour" (^). 
 
 Again, in the well-known case of Sir Anthony Mildmay and 
 others, it appeared that actions had been brought against them, 
 as commissioners of sewers, for supposed illegal acts in the 
 execution of their office, and that one of the persons who had 
 brought his action, and obtained judgment, had been called 
 before the commissioners, and urged to release his suit; and, 
 upon his refusal to do so, had been committed to prison. The 
 Court, upon ascertaining these facts, were very indignant against 
 the commissioners, and fined one of them 200Z., Sir Anthony 
 Mildmay having feigned sickness, and being absent (h) ; and 
 Sir Anthony experienced considerable difficulty in pleading his 
 pardon upon a subsequent occasion, the Court observing, when 
 at length they allowed it, that he must be more careful for the 
 future, and take heed of running into such offences {i). 
 
 However, the certiorari, it will be observed, does not remove 
 the commission, but only the particular orders complained 
 against. So that where commissioners had made a new order 
 after a certiorari, and had fined a party for disobedience to it, 
 the Court said, that commissioners might proceed upon the 
 commission notwithstanding the certiorari, and that no attach- 
 ment should issue against them (A) ; thereby intimating, that, 
 provided they did not proceed upon the order appealed against, 
 the officers of sewers might still continue to exercise their powers 
 under their respective commissions. 
 
 (/) Smith's case, 1 Ventr. 67; Rex v. Smith and Others, Commis- 
 sioners of Sewers, 1 lev. 288 ; 1 Mod. 44 ; 2 Keb. 635; The. Raym. 186. 
 See also 1 Ld. Raym. 469 ; 7 Com. Dig. 351. 
 
 (g) 1 Mod. 45. 
 
 [h) Hetley ». Boyer, Mildmay and Others, 2 Bulstr. 197. 
 
 (i) The King v. Sir Anthony Mildmay, 2 Bulstr. 299. 
 
 (/r) The Protector v. Bruster, Sty. 445. 
 
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CHAP. IT.] Hemedies against Commissioners. 239 
 
 It will be readily perceived, that the course usually pursued 
 upon these occasions of neglect or contempt, is to move for an 
 attachment against the commissioners offending. And so it is, 
 if it be intended to punish these officers for any other malversa- 
 tion in their offices, although, as we shall see presently, other 
 remedies are sometimes open to the subject. 
 
 The certiorari and return being now before the Court, the what done 
 next proceeding is, as we have before said, either to quash or return of the 
 confirm the orders ; and it may be added here, that the orders 
 may be quashed as to part, and confirmed as to the rest. Thus, 
 in a case where three exceptions were taken to an order of com- 
 missioners, the Court, although as to one point they held the 
 order void pro tanto, yet confirmed it against the two other 
 objections, saying, that the order might be confirmed for part, 
 and void for part {I). 
 
 The objections being decreed invalid, ^procedendo is awarded. Procedendo. 
 A procedendo will be awarded if the defendant does not, upon 
 suing out his writ of certiorari, enter into the recognizances 
 under 5 & 6 Will. 4, c. 33, whatever might have been the con- 
 trary practice (w). Upon one occasion, on the motion to file 
 certain orders, the commissioners agreed to try any issue that 
 the defendant could take respecting them ; and upon the refusal 
 of the defendant, the Court inclined for that reason to grant a 
 procedendo. However, on consideration, they thought they 
 could not refuse to hear the objections, although they would 
 not permit the order to be filed, because it might remain in 
 their power to send the orders back («). 
 
 On the subject of costs, it may be observed, that they lie in Costs. 
 the discretion of the Court ; and Hawkins states it to be the 
 rule, that if the certiorari prove groundless, the Court will 
 decree costs against the prosecutor of it (o). 
 
 The certiorari to remove orders of sewers issues from the Motion in the 
 
 Exchequer to 
 discharge 
 
 (I) Inhabitants de Oldbery v. Stafford, 1 Sid. 145; 7 Com. Dig. 351. ''"^'• 
 
 (ffl) R. ■;. Baker, 28 L. J., Q. B. 377. 
 (m) Rex t>. Sir Robert Cann, 2 Str. 1263. 
 (o) 2 Hawk. P. C. 228, ^. 27, s. 3i. 
 
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240 Remedies against Commissioners. [chap. iv. 
 
 Court of King's Bench, and thus we must understand a case in 
 the Exchequer, where it was said, that no certiorari would lie 
 originally to remove their order. It was moved to discharge 
 fines which had been set by certain commissioners of sewers, 
 and it was ordered that they should show cause on notice to the 
 clerk of the sewers ; though it was doubted, adds the reporter, 
 whether this could be done by motion, because it was a judg- 
 ment of commissioners (p). 
 
 But the Court of Exchequer will not interfere to settle points 
 which may be easily raised, by removing the orders of commis- 
 sioners of sewers into the Court of King's Bench. So that upon 
 a motion to discharge certain fines and amerciaments imposed 
 by the commissioners of sewers for Somersetshire, and estreated 
 into the Exchequer, that Court refused to enter upon a dis- 
 cussion as to the validity of the practice of the Court of Sewers 
 upon a disputed question. It appealing, however, that one of 
 the fines sought to be discharged had been imposed upon a 
 juryman for refusing to be resworn, he having contended at the 
 session of the commissioners that every juryman was compellable 
 to serve for life, or until discharged, and consequently that he 
 ought not to be resworn, and the Court finding the usage to be 
 so, discharged the amerciament as to him without costs. And 
 Alexander, C. B., observed, that had this been a refusal to 
 serve, the case would have been difierent; but here the com- 
 missioners had mistaken their course, because the reswearing 
 was admitted on all hands to have no foundation by usage {q). 
 
 Prcemnnire. Another method which was formerly adopted to punish com- 
 missioners of sewers for misconduct, was by an indictment for a 
 frceviunire, and Sir Anthony Mildmay was actually proceeded 
 against in this form (r). But as this severe punishment has 
 fallen into disuse, it has not been thought necessary to allude 
 farther to it, than to mention the above case. Sir Anthony was 
 indicted upon 27 Edw. 3, c. 1, for a high contempt, for com- 
 mitting an individual to prison, because he refused to release a 
 
 (p) Rex V. Bishop and Others, Bunb. 61. 
 (?) Ex parte Taylor, 3 Y. & Jer. 91. 
 
 (r) The King v. Sir Anthony Mildmay, 2 Bulstr. 299; Cro. Jac. 336; 
 and see 1 Mod. iS>, per Twisden, J. ; 7 Com. Dig. 351. 
 
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CHAP. IV.] Remedies against Commisnoners. 241 
 
 judgment obtained against some of the officers of sewers, for an 
 illegal distress of his cattle. 
 
 Although the Court will not grant a mandamus to commis- Mandamus, 
 sioners to make any alterations, or do other acts specified in the 
 writ, without good cause shown, yet there are occasions upon 
 which this course is the only efficient remedy. As where the 
 Bristol Dock Company made certain changes in the construction 
 of the sewers of Bristol, but so as to occasion a nuisance to the 
 neighbourhood through the offensiveness of the sewage dis- 
 charged: here the Court awarded a mandamus, and holding 
 the return on the part of the compan}'' to be insufficient, subse- 
 quently directed a peremptory writ to issue is). Upon another 
 occasion, a writ of mandamus issued to the commissioners of 
 sewers for Somerset, requiring them to direct a rate to be levied 
 on the level, for the reimbursement of certain persons ; but 
 here the commissioners were successful, having made a special 
 return to the satisfaction of the Court (i). 
 
 It is not sufficient to deny the allegations of a mandamus in 
 the words of an act of Parliament. Some sufficient reason must 
 be given why the writ should not be obeyed. Thus, a local 
 act directed that a certain sum of money should be paid to com- 
 missioners in order to execute certain works which from time to 
 time should be deemed necessary. A mandamus, reciting this 
 clause, was moved for, stating that the money had been so paid, 
 and requiring that the commissioners might be compelled to put 
 certain works into repair, &c., according to the words of the 
 statute. The commissioners made a return, that they had done 
 the necessary works, and thus followed exactly the terms of the 
 act. The Court held this an insufficient return, and awarded a 
 peremptory writ (m). 
 
 A mandamus to inspect books was refused under the following 
 circumstances : an owner of land disputed the legality of a joint 
 
 {s) The King ». The Bristol Dock Company, 6 B. & C. 181 ; 2 D. & R. 
 700. 
 
 («) The King v. The Commissioners of Sewers for Somerset, 9 East, 109 ; 
 3 Smith, 105. 
 
 (k) R. v. Ouze Bank Commissioners, 3 Ad. & Ef. 5'14. 
 
 W. H 
 
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242 ^ Remedies against Commissioners. [chap. iv. 
 
 rate made in two separate divisions, and gave notice to the 
 commissionei's that he should move for a certiorari to quash it. 
 The Court refused a mandamus to allow him to inspect all com- 
 missions, plans, &G., as he had already been permitted to see all 
 documents relating to the rates on the united level (a;). 
 
 Mandamus will not lie to the local authority at the suit of 
 a party grieved, under 18 & 19 Vict. c. 121, s. 14, for refusing 
 to enforce steps to cleanse a: drain {y). 
 
 A mandamus was held bad : — 
 
 1. For not showing that a reasonable time had elapsed. 
 
 2. Th'at there was a present duty to drain the particular 
 spot. 
 
 3. That the consent of the Metropolitan Board had been 
 obtained {z). 
 
 So again, against the same parish, the writ failed for want of 
 a sufficient demand and refusal {a). 
 
 Actions. It has been remarked, that whatever remedies may be adopted 
 
 against commissioners of sewers, the common law right of action 
 still remains, if the subject think fit to redress his grievance, 
 whatever it may be, by damages. There is an instance in the 
 reign of Hen. 4, where the Abbot of Glastonbury brought 
 trespass against the defendant for entering into his royaltj', and 
 taking his beasts at Wells. The defendant justified under com- 
 missioners of sewers, but the Court gave judgment that the 
 lands in the hands of the abbot were discharged (6). And 
 since that time many actions have been prosecuted against com- 
 missioners with success. But although we cannot profess to 
 enter upon the various grievances, for which actions on the 
 case, or of trespass, may be maintained against commissioners, 
 our principal object being to enumerate and set forth the reme- 
 dies which may be had, yet one important decision upon this 
 
 (x) Rex V. Commissioners of the Tower Hamlets, excluding St. Katha- 
 rine's and Blackwall Marsh, 3 Gale & D. 92 ; 3 Q. B. b70. 
 (y) Ex parte Bassett, 7 El. & B. 280 ; 26 L. J., M. C. 64. 
 (a) R. V. St. Luke's, Chelsea, 31 L. J., Q. B. 50 ; 1 Best & Sm. 903. 
 
 (a) Ex parte Champ, 20 J. P. 756. 
 
 (b) 11 Hen. 4, 34. 
 
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CHAP. IV.] Remedies against Commissioners. 243 
 
 subject occurred a few years since, which especially claims our 
 attention in this place. 
 
 The plaintiff brought an action on the case as owner of the 
 reversion of a house, in the parish of St. Clement Danes, against 
 the defendants, who were employed under the commissioners of 
 sewers, for damage done to his house. There were two ques- 
 tions in the cause. The first was, whether a sufficient descrip- 
 tion of the intended action had been conveyed by the notice ; 
 and the next respected the extent of the liability of the commis- 
 sioners. The notice stated that the action was brought, " for 
 that the defendants did by themselves, their servants or work- 
 men, make, alter, cut, dig, work and enlarge, certain sewers, 
 gutters, ditches and works then being and running under, 
 through, or adjoining, or near unto a certain messuage or tene- 
 ment, shop and premises of the plaintiff, situate and being, &c., 
 in the tenure or occupation of E. H., his tenant, in so negli- 
 gent, incautious, unskilful, improvident and improper a man- 
 ner, that the said messuage or tenement, shop and premises, or 
 the greater part thereof, fell and were greatly damaged, weak- 
 ened and destroyed, and rendered unfit and dangerous for use 
 or habitation." It was objected to this notice, that it did not 
 contain an account of the specific mischief which in reality 
 occasioned the damage in question, and consequently that the 
 notice was calculated to mislead the defendants. But as to 
 this, the Court held, that a notice of this kind ought not to be 
 construed with great strictness, because the object of such an 
 intimation is simply to inform the defendants of the substantial 
 grounds of the case, and not of the mode by which the hijury 
 was sustained. 
 
 Then, secondly, as to the extent of the commissioners' lia- 
 bility, the facts appeared to be these : the sewer, which it was 
 found necessary to repair, passed close to five houses adjoining 
 that which belonged to the plaintiff; and a stack of chimneys 
 belonging to one of those house was built upon the arch of the 
 sewer. It became necessary to rebuild the arch in the procfress 
 •of the work ; and in order to support the chimneys in the mean 
 time, a transverse and two upright posts were placed under 
 them for the purpose of support. The chimneys, however, fell, 
 
 r2 
 
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244 Remedies against Cummissioners. [chap. iv. 
 
 and the adjoining houses, including that of the plaintiff, fell 
 also. Moreover, the witnesses for the plaintiff were of opinion, 
 that if raking shores had been placed externally to support the 
 chimneys, in addition to the props already mentioned, the acci- 
 dent would not have happened ; while those for the defendant 
 contended, that no skill could have averted the fall of the 
 chimneys. No specific notice had been given to the owner of 
 the house of the dangerous state of the chimneys, but a general 
 notice had been given to the inhabitants, to secure their houses 
 wJiile the sewer was in the course of repair. And, further, the 
 commissioners of sewers had contended, that the owners of the 
 houses had incurred the obligation of securing their own houses, 
 whilst the owners, on the other hand, considered that the com- 
 missioners had acted at their peril. The jury having found 
 negligence on the part of the defendants, and having returned a 
 verdict for the plaintiff, a rule was obtained for a new trial, and 
 it was urged for the defendants, that they had acted bona Jide 
 in the discharge of a public duty imposed by law, and that an 
 action could not, therefore, be maintained against them. They 
 had acted for the best, and used all the skill which they pos- 
 sessed. Besides, the damage arose from the improper con- 
 struction of the stack of chimneys which rested on the arch of 
 the sewer, and the houses would have fallen in a short time 
 from the decay of the sewer, whether the defendants had done 
 any repairs or not. Notwithstanding, the Court discharged 
 the rule, thus giving judgment against the defendants. The 
 question had been fairly left to ihe jury, and they had found that 
 the defendants had conducted themselves negligently, and whe- 
 ther the chimneys might or might not have been saved by 
 shoring, still it was the duty of the defendants to have given a 
 specific notice to the owners of the danger which was appre- 
 hended, and in the absence of such notice, they could not be 
 otherwise than responsible (c). 
 
 A sewer had been commenced under a local act, which 
 ordained that no ditch, &c., should be arched over without the 
 consent of the trustees under the act upon pain of a forfeiture 
 of bQl. A surveyor of the highways, however, ordered this 
 
 (c) Jones V. Bird and Others, 5 B. & A. 837 ; 2 D. & R. 497. 
 
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CHAP. IV.] Remedies against Commissioners. 24& 
 
 ditch to be continued, without such consent, and debt was 
 brought against him. His defence was, that the sewer had 
 been begun before he took any part in it, and that he was, in 
 fact, the servant of those for whom the work was done, and, 
 therefore, could not be liable. But the Court were clearly of a 
 dififerent opinion, and a rule which had been obtained for enter- 
 ing a nonsuit was discharged (d). 
 
 The defendant had been employed by commissioners of 
 sewers to make a sewer in a public highway. The plaintiff 
 declared against hina for keeping and continuing in his custody 
 and care certain iron gratings belonging to the sewer, without 
 placing a light to show the gratings. The jury found that 
 the defendant was not guilty of keeping the sewer as alleged. 
 The rule for a nonsuit was made absolute. 1. The custody and 
 care were immaterial. 2. The fact of the gratings being in 
 such custody and care was not admitted upon the plea of not 
 guilty (e). 
 
 There was a single outlet from a mews, and commissioners 
 of sewers made a trench there, upon which a cabman who per- 
 sisted in leading his horse out, met with an accident. Case 
 being brought, the defendants justified under the commissioners. 
 Replication de injurid. The opening was not fenced, but notice 
 thereof had been given to the occupiers of the stables. The 
 evidence, however, as to express warning, was contradictory. 
 The defendants, indeed, pointed to the outlet on one occasion, 
 but were not present when the plaintiff ran the hazard in ques- 
 tion. The jury gave 20/. damages, the value of the horse 
 which was killed, and the rule for a new trial was discharged. 
 The Court said, that if the danger was so great as that no sen- 
 sible man would have passed through, the verdict should have 
 been for the defendant; but that the plaintifi" was justified in 
 running a moderate risk. The Jury seemed to have disbelieved 
 the evidence as to caution (/"). 
 
 (d) Woodward v. Cotton, 1 Cr., M. & R. 44. 
 
 (e) Grew v. Hill, 18 L. J., Ex. 317 ; 3 Ex. 801. 
 
 (/) Clayard v. Dethick, 12 Q. B. 439 ; and Proctor v. Harris, 4 C. & P. 
 337; Drew v. New River Company, 6 C. & P. 754; Harling v. Cooper, 8 C. 
 & P. 473, were cited. 
 
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246 Remedies against Commissioners. [chap. iv. 
 
 Another case as to liability may be inserted here. Case was 
 brought against the commissioners of a navigation. They might 
 be sued in the name of their clerk, but were not to be personally 
 liable, nor liable for any damages incurred in executing the act. 
 A contract had been agreed upon at a regular meeting by a 
 majority. Three only were named in the contract as parties to 
 it, and by none of these parties was it executed, nor did it 
 otherwise appear that the contract had been regularly entered 
 into, but the contract recited the resolution which had been 
 come to at the meeting. It was held, under these circumstances, 
 that the commissioners would be liable for negligent damage 
 done by their contractor in execution of that contract (g). 
 However, the case was that the plaintiff's orchard became over- 
 flown by drains, and the contractor had done this. There did 
 not appear to have been any attempt made to prevent the mis- 
 chief by securing the drains from bursting, and the contractor 
 bad turned in the water without authority. The question was 
 Vfhether this could be called a work done in the execution of the 
 contract under the act. The Court said, that if the work were 
 strictly done in pursuance of the act, and if the defendants, the 
 commissioners, had improperly let in the water in pursuance of 
 such contract, they would be clearly responsible. But here the 
 contractor being a person carrying on an independent business, 
 had acted without authority ; the work was specified and de- 
 scribed, and was not one which the surveyor of the commis- 
 sioners was empowered to do. The defendants, therefore, were 
 not liable for this conduct of their contractor, and the rule was 
 made absolute for entering a nonsuit (h). And the opinions of 
 Lord Tenterden, and Littledale, J., in Laugher v. Pointer (i) 
 (where the Court was divided), were said here to be the more 
 correct judgments (A). Upon another occasion, trespass was 
 brought for taking the plaintiff's goods, and the defendant jus- 
 tified under the commissioners of sewers for the Tower Hamlets. 
 It appeared, that a jury had presented, that the lands in ques- 
 tion had been benefited by the sewers, and that the owner had 
 
 (g) By Lord Denman. The work done under the contract was work done 
 by them as commissioners. 
 
 (A) Allen v. Hayward, 7 Q. B. 960 ; 4 Railw. Cas. 101. 
 
 (i) 5 B. & C. 547. 
 
 (k) 7 Q. B. 960, ubi supra. And see Dawson v. Paver, 5 Hare, 415 i 4 
 Railw. Cas. 81. 
 
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CHAP. IV.] Remedies against Commissioners. 247 
 
 been summoned, that he had neg;lected to traverse the present- 
 ment, and that a distress had consequently issued. Loid Ellen- 
 borough was of opinion, that these facts formed a sufficient 
 answer to the action, but he reserved this and the other points 
 to be argued in a special case. The matter, however, was after- 
 wards compromised {l). 
 
 A local board may be sued for negligence in constructing a, 
 sewer (m), and likewise for not cleansing a sewer and gully, 
 and so keeping them. The plaintiff's premises were overflown 
 with foul water through a violent storm of rain. The defence 
 was, an unusual storm, and that the plaintiffs had thrown their 
 refuse into the sewer. This evidence was deemed admissible, 
 but no answer to the declaration. The sewers were vested in 
 the defendants (ji). 
 
 By 3 & 4 Will. 4, c. 22, s. 57, commissioners of sewers may 
 be sued in the name of any one commissioner, or in the name 
 of their clerk, either at law or in equity ; and no action shall 
 abate or be discontinued by reason of the death, resignation or 
 removal of the commissioners, or of their clerk, or of the expi- 
 ration of the commission. Provided that no execution shall 
 issue against the commissioners or clerk until six months after 
 final judgment (o). However, the commissioners, or their 
 clerk, may be reimbursed their costs, upon any occasion of 
 their being sued or prosecuted, as we have already seen ( p). 
 And such clerk, as we have likewise mentioned, may be a 
 witness, although he be a defendant {q). And again, as we 
 
 (0 Warren ». Dix, 3 C. & P. 71. 
 
 (m) Southampton Proprietors d, Southampton Local Board, 28 L. J., 
 Q. B. 41. 
 
 («) Meek v. Whitechapel Board of Works, 2 Post & P. 144; Brown v. 
 Sargent, 1 Post. & P. 112; Ruck w. Williams, 3 Hurlst & N. 808; 27 L. J., 
 Ex. 357. The defendant contracted with H. to do certain works, under 18 
 & 19 Vict. c. 120, s. 77. Here H., not the defendant, was liable, and there 
 was nothing in the 110th and 111th sections to make him responsible. Gray 
 .,. Fullen, 32 L. J., Q. B. 169. By 18 & 19 Vict. c. 120, the board were 
 enabled to make sewers, &c., making compensation, with a provision as to 
 the mode of estimating the damage. A. sustained damage through a con- 
 tractor acting under the board. An action lay against the contractor. 
 Clothier v. Webster, 12 C. B., N. S. 790 ; 31 L. J., C. P. 216. 
 
 (o) ^nte, p. 223. 
 
 (p) Ante, p. 224. 
 
 (?) Ibid. 
 
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248 Hemedies against Commissioners. [chap. iv. 
 
 have also seen, there is no objection to the competency of any 
 witness, by reason of his being rated (r). 
 
 Commissioners of sewers may, for the most part, justify 
 generally, as that the)' took the distress in question for a cer- 
 tain tax assessed under the commission. But this form will 
 not be sufficient as against the Crown, in an information of 
 intrusion (s). 
 
 Continuing damage only happens where each day brings a 
 succession of injury, not where the damage remains perpetually 
 the same. The defendants dug a sewer, under the Brighton 
 Improvement Act and in so doing cracked the walls of the 
 plaintiff''s house^ The plaintiff having recovered, it was moved 
 to enter a nonsuit, on the ground that the action was too late, 
 as it had been brought above six calendar months after the 
 crack. It was said that the defendants had admitted a con- 
 tinuing responsibility by shoring up the plaintiff's house ; and 
 Gaselee, J., observed, that this was the only point in their 
 favour, but the Court held that the rule must be made absolute. 
 As to the shoring, supposing that to have been injurious, it was 
 not comprehended in the notice of action, nor in the declaration, 
 and, therefore, was out of the question; so that, there being no 
 repetition of mischief in respect of the crack, the proceedings 
 came too late. And Mr. Justice Gaselee, who tried the cause, 
 admitted that he had not sufficient doubt to induce him to 
 divide the Court (t). 
 
 Notice of A local act, 57 Geo. 3, c. 29, required twenty-one days' 
 
 notice of action* to be given to the clerks of the commissioners 
 of sewers or trustees, &c. An action was commenced against 
 a contractor for tbe removal of dust, who was appointed by the 
 London commissioners of sewers, for seizing a cart (which the 
 defendant considered as a dust cart), and for assaulting and 
 imprisoning the driver. The Court held, that the plaintiff must 
 
 (r) Ante, p. 225. And see S & 7 Vict u. 85, s. 1, partially repealed by 
 13 & 14. Vict. c. 99, quod vide. 
 
 (s) Attorney-General v. Donaldson (Re Kensington Palace), 10 Mees. & 
 W. 117. 
 
 («) Lloyd V. Wigney and Others, 6 Bing. 489. 
 
 • The Stat. 3 & 4 Vict. c. 97 (The Uniformity of Process Act), by sect. 4, 
 requires a notice of one calendar month. 
 
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 action. 
 
CHAP. IV.] Remedies against Commissioners. 249 
 
 be nonsuited, for want of the due notice of action prescribed by 
 the statute, being of opinion, that the clause applied to the case 
 then upon trial (?<). 
 
 And by the stat. 11 & 12 Vict. c. 63, s. 139 (the Public 
 Health Act), a notice of one month, -which means calendar 
 month (sect. 2), is required, before an action can be brought 
 against any officer of the board of health, for anything done 
 under the provisions of the act. The action must be brought 
 ■within six months next after the cause thereof, and not after- 
 wards. The venue must be in the county where such cause of 
 action occurred. The defendant may plead the general issue, 
 and give the special matter in evidence. And tender of amends 
 with the usual incidents is allowed. 
 
 However, by sect. 140, no person acting under the board, in 
 pursuance of the act, shall be personally liable, and any expense 
 incurred shall be paid out of the general district rates. All 
 persons acting bond fide under the direction of the commis- 
 sioners are absolved from personal liability (a;). 
 
 By sect. 138, the local board of any noncorporate district 
 may be sued in the name of their clerk ; and there shall be no 
 abatement nor discontinuance by reason of the death, resignation, 
 or removal of the clerk, or of any change or vacancy in the 
 local board ; and the clerk shall be fully reimbursed all his costs 
 and expenses out of the general district rates. 
 
 And generally, with respect to notices, the 150th section of 
 the act provides, that any summons, notice, writ or proceeding 
 of any kind, which is to be served upon the Local Board of 
 Health, may be so served through the post office, by being left 
 there, or sent through it, directed to the local board at their 
 offices, or by being delivered to the clerk there personally. 
 Again, with reference to an owner or occupier, the description 
 of notice to him as " owner" or "occupier" of the premises, 
 (naming him,) shall be sufficient, without further name or 
 
 («) Breedon «. Murphy, 3 C. & P. 574. 
 
 (x) Ward v. Lee, 26 L. J., Q, B. 142 ; 7 El, & BI. 4.26. 
 
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250 Memedies against Commissioners. fcHAP. iv. 
 
 description. This last notice shall be served personally, or 
 delivered to some inmate of the place of abode where the 
 owner or occupier dwells; or, in the case of the occupier (and 
 also in case of the owner, if his place of abode be unknown), 
 upon any inmate of the premises mentioned in the notice. If 
 the premises be unoccupied, the notice, if to be served upon 
 the occupier, shall be fixed upon some conspicuous part of the 
 premises. And so, likewise, if the notice be required to be 
 served upon the owner, and his abode be unknown. Yet, if the 
 owner live out of the district, a notice to him through the post 
 shall be sufficient. 
 
 Tender of Bv 24 & 25 Viot. c. 133, s. 53, if before action brought, suffi- 
 
 cient tender of amends be made, the plaintiif shall not recover. 
 If no such tender be made, the defendant may, by leave of that 
 Court, pay money into Court, to abide the verdict. 
 
 By 12 & 13 Vict. c. 93, s. 4, the commissioners of the metro- 
 politan districts might make compensation for any damage or 
 loss caused by accident or failure of works under tlieir control, 
 although such compensation might not be recoverable at law 
 against them («). 
 
 Injunction. The Court of Chancery, regarding the writ of certiorari from 
 the King's Bench as an eflicient and summary remedy against 
 commissioners of sewers, has refused to grant an injunction 
 under the following circumstances. The commissioners ordered 
 the plaintiff to remove a float, under a penalty, which, on his 
 refusal to remove, was levied by distress, and upon that he 
 brought his bill, praying a perpetual injunction. The bill 
 alleged, that the water had not been raised higher than before, 
 and that there would not be sufficient for navigation at a less 
 height. The answer insisted upon the jurisdiction of the 
 commissioners to remedy the injury to the adjoining lands from 
 the increased height of the water, and submitted, whether the 
 
 (z) This act is repealed. With regard to private sewers, wliich do not 
 belong to this work, it may just be said that if the owner of land, where there 
 is a house, constructs a sewer improperly upon another part of the land, and 
 lets the house thus injured by his act, he is liable to an action. Alston v. 
 Grant, 3 El. & Bl. 128; Tenant v. Golding, 2 Ld. Raym. 1080, Holt, C. J., 
 approved by Lord Campbell. 
 
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CHAP. IV.] Remedies against Commissioners. 251 
 
 Court of Chancery had any jurisdiction ; and whether, sup- 
 posing that the proceedings of the commissioners had been 
 illegal, the plaintiff ought not to have applied to the Court of 
 King's Bench. The Lord Chancellor said, that he had ex- 
 amined the matter with great attention, and that he had found 
 that the Court of King's Bench always exercised due caution 
 before they interfered with commissioners of sewers, that the 
 application to that Court was a much shorter course than the 
 present plaintiff had adopted, and that, without deciding whe- 
 ther there might not be cases in which a Court of Equity would 
 interfere, the plaintiff ought, on this occasion, to have sought his 
 remedy at law. The injunction was accordingly dissolved (a). 
 So, again, an injunction was asked by the local board of 
 Sheerness against the Secretary of War, by reason of his filling 
 a ditch there with soil, to which, it was alleged, Sheerness waa 
 entitled. But no danger being threatened to the people there, 
 the Vice-Chancellor refused the motion, for the " real objects of 
 all parties were in common" (6). But an injunction has been 
 granted against commissioners under a local drainage act, to 
 prevent them from signing their final award, and proceeding to 
 enforce the payment of costs, although the act gave jurisdiction 
 to the quarter sessions (c). 
 
 On the other hand, an injunction was granted to commis- 
 sioners of sewers against a railway company, who were med- 
 dling with a natural deposit of beach protecting the level from 
 the inundations of a tidal navigable river. It was no answer 
 to say that the lord of the manor had sold the spot to the 
 company under an act of parliament (d). 
 
 Case was brought for obstructing a watercourse. The ob- Arbitration. 
 struction was denied, and the right was traversed. Compen- 
 sation had been offered and refused. After a vain attempt 
 during four years to come to a settlement, it was moved by the 
 defendants to set aside the Judge's order of reference, and to 
 
 (a) Kerrison v. Sparrow, 19 Ves. jun. 449 ; Coop. Ch. C. 305. See 
 Cust. Oxford V. Everett, Gary, Rep. 27. How Commissioners of Sewers are 
 to be named in Chancery, see Beames's Ord. 42, and Id. 43. 
 
 (6) Felkin v. Lord Herbert, 30 L. J., Ch. 604. 
 
 (c) Armitstead v. Durham, 11 Beav. 556. The Lord Chancellor attached 
 the condition of bringing money in Court. 
 
 (rf) Crossman v. Bristol, &c. Railway Company, 11 W. R. 981, 
 
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252 Remedies against Commissioners. [chap. iv. 
 
 add a plea under 22 Hen. 8, c. 5, which plea would defeat the 
 action. It appeared that some imposition had been practised 
 on the commissioners of sewers by the plaintiffs' predecessors. 
 But it was answered, that it would be hard upon the plain- 
 tiffs to suffer for the fault of those who had gone before them. 
 The Court said, that the commissioners should abide by the 
 first offer, and then, upon the plaintiffs' refusal, the rule might 
 be made absolute, and the plea added. No costs on either 
 side (d). 
 
 An action was brought against the clerk to a commission of 
 sewers, for damage done to the house of the plaintiff by the 
 improper construction of a sewer. The case was referred to 
 arbitration. The arbitrator reported in favour of the commis- 
 sioners, that they had done their work skilfully by tunnelling, 
 but that less risk would have happened, had the sewers been 
 made by open cutting, instead of tunnelling. The commis- 
 sioners were held not liable (e). Again, the Metropolitan 
 Board of Works in making a sewer, cut a high road contiguous 
 to the lands of the plaintiff, so as to destroy the water of an 
 ancient spring, and lay dry a rivulet and some ponds, extending 
 three quarters of a mile. The landowners filed a bill, claiming 
 a right to the spring from time immemorial. The Court re- 
 fused to restrain the defendants, or to compel them to make the 
 sewer water-tight, or to do any act to restore the ancient water. 
 Although they might require compensation for the damage, 
 the plaintiffs had no remedy in equity {_/). The landowneis 
 then obtained a mandamus for compensation, but on the autho- 
 rity of Chasemore v. Richards {g), Wightman and Melloi-, 
 Js. (Cockburn, C. J., contrd) held, that no compensation could 
 be claimed (/t). 
 
 Ariiitratinn In cascs of Compensation under the Public Health Act, there 
 
 under U & , „ , • • i • ,., . 
 
 12 Vict. may be a reference to arbitration, and an umpire may likewise 
 
 (d) Medley and Others v. Pritchard and Another, 6 Bing. N. C. 442. And 
 see further as to compulsory arbitration, 21 ii; 22 Vict v;. 98, ss. 69, 70, 74- 
 
 (e) Grocers' Company v. Donne, 3 Bing. N. C. 34. 
 
 (/) Stainton v. Woolrych, 26 L. J., Ch. 300; v. Metropolitan 
 
 Board, Lewisham, 23 Beav. 225. 
 
 (g) 29 L. J., Ex. 81 I 7 H. L. Cas. 349. 
 
 (A) R. V. Metropolitan Board, 32 L. J., Q. B. 105 ; 9 Jur. (N. S.) 1008 j 
 see R. !/. Bullock, Times, June 10, 1864. 
 
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CHAP. IV.] Remedies against Commissioners, 253 
 
 be named. The reader is referred to the sections of the act c. 63 (The 
 
 Public 
 
 which provide for these matters (i). The arbitration under Health Act). 
 11 & 12 Vict. c. 112, s. 69, was held not to reach cases in 
 which the commissioners dispute altogether the right to com- 
 pensation. The limit was as to the amount (k). 
 
 There were two records upon presentments removed by cer- Trial. 
 tiorari. The defendant entered his record first. The prose- 
 cutor then entered his. It was held, that the latter could not 
 of right have his record tried first, but that the cases must be 
 taken in order as entered {I). 
 
 The defendant was convicted of obstructing a public sewer. New tiiai. 
 Upon a motion for a new trial, it was held, that he needed not 
 to be present in Court. He was not liable to a personal punish- 
 ment, only to a fine (w). 
 
 (j) Sections 123—128, inclusive, and 21 & 22 Vict. c. 98, ss. 69, 70. 
 (i) R. V. Metropolitan Commissioners, 22 L. J., Q. B. 231 ; 1 El. & Bl. 
 694. 
 
 (0 R. v. Leigh, 7 C. & P. 813, per BoUand, B. 
 (m) R. V. Parkinson, Den. & P. 459. 
 
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( 254 ) 
 
 CHAPTER V. 
 
 Of the Drainage Acts. 
 
 We have now gone through the law of public sewers and 
 public drainage. A work, however, upon that subject would 
 seem to be incomplete, unless the Acts of Parliament which 
 agricultural improvements have rendered necessary were to be 
 noticed. These, for the most part, relate to private water- 
 courses and drainage. Their origin was a desire to accommo- 
 date tenants for life, and persons under disabilities, by confer- 
 ring powers upon individuals so as to enable them to bring the 
 lands entrusted to their care into a better state of cultivation 
 through drainage. The usefulness of the system, and the in- 
 creasing regard for farming improvements, together with rising 
 ideas of sanitary reform, soon induced the government to hold 
 out temptations for these purposes by loans of money, to be 
 repaid within certain limits of time, and upon certain con- 
 ditions. 
 
 And these views being to a great degree seconded by the 
 owners of land, a general measure relating to drainage was soon 
 introduced, under which considerable facihties are afforded to 
 all persons who may be desirous of augmenting the value of 
 their estates by a more efficient drainage. 
 
 It may be the most convenient course to set out these 
 statutes respectively. And first, with regard to 3 & 4 Vict. 
 c. 55, " An Act to enable the owners of settled estates to defray 
 the expense of draining the same by way of mortgage,'' which 
 is the first upon the subject, it may be observed, that although 
 the proceedings under it were protected by the act which fol- 
 lowed it soon afterwards, provided they should be completed 
 under the new act (a), yet the act itself was entirely repealed by 
 
 (o) 8 & 9 Vict. c. 56, s. 2, 
 
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CHAP, v.] Of the Drainage Acts. 255 
 
 the 8 & 9 Vict. c. 56. It was a very short statute, consisting 
 of but five sections, the first of which permitted tenants for life 
 to apply to the Court of Chancery, by petition, for leave to 
 make permanent improvements in their lands. By sect. 2, a 
 copy of the petition was to be served upon the parties interested. 
 The 3rd section empowered the tenants for life to make the 
 proposed improvements if confirmed by the Court. Tlie 4th 
 enabled the Court to charge the costs of the improvements upon 
 the estates intended to be benefited, upon certain conditions 
 there mentioned. The 5th section allowed of amendment or 
 repeal during the session. 
 
 The 8 & 9 Vict. c. 56, after repealing the prior act of 3 & 4 
 Vict. c. 55, and saving the proceedings then pending, provided 
 that they should be completed under the provisions of the 8 & 
 9 Vict., goes on to enact, by sect. 3, that any tenant by the 
 curtesy, or for his own life, or for any other life or lives, or 
 years determinable on any life or lives, or any infant, by his 
 guardian or next friend, or any idiot or lunatic,* by his com- 
 mittee, or any married woman entitled for her separate use, by 
 her next friend, or the husband of any married woman entitled 
 in her right, or any feoffees or trustees for charitable purposes, 
 or any ecclesiastical or other corporation, aggregate or sole, or 
 any incumbrancer or mortgagee in fee in possession, or any 
 person entitled to the equity of redemption and in possession,^ 
 may apply to the Court of Chancery by petition to the Chan- 
 cellor or Master of the Rolls for leave to make any permanent 
 improvement in the land to which such person or corporation 
 shall be so entitled, or any part thereof, by draining the same 
 with tiles, stones, or other durable materials, or by warping, 
 irrigation, or embankment, in a permanent manner, or by 
 erecting thereon any buildings of a permanent kind, incidental 
 or consequential to such draining, &c., and immediately con- 
 nected therewith, and, moreover, may apply to make such 
 
 * It is proper to proceed under the Drainage Acts for the purpose of 
 improving a lunatic's estate. The Master had allowed 148L out of the 
 lunatic's estate for drainage. The Lord Chancellor said, I cannot confirm 
 this order. Had the son been remainderman it might have been done, but 
 not for his brother. Why did not you proceed under the Drainage Act? 
 You may take an order, allowing it to be advanced under the Drainage 
 Acts. Ex parte Clarke, 2 Phil. Ch. Rep. 382. 
 
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256 Of the Drainage Acts. [chap. v. 
 
 improvements a charge upon the inheritance.. An estate of fen 
 land was charged by a local though public act with taxes for 
 drainage and embankment. Of these taxes a purchaser had no 
 express notice. It was held, that he was not entitled to com- 
 pensation for such taxes (J). 
 
 The petition on behalf of an infant must be presented in the 
 name of the guardian (c). 
 
 The petition made as above ordained by the 3rd section is to 
 be referred to the Master, who having examined the estimates 
 and valuations is to make his report as to the beneficial tendency 
 of the proposal {d"). The report is then to be filed, and if within 
 fourteen days after filing there be no special application to 
 review it, the Court may confirm it, upon the petition of the 
 party, without the attendance of counsel or solicitor. Upon 
 which the improvements may be made, and the Master may 
 certify that any person advancing money for that end will be 
 entitled to a charge upon the land, with interest, upon his being 
 satisfied that the money has been duly expended in the 
 improvements, or in obtaining the authority of the Court in 
 respect of the same. Still, the Court may, upon the petition 
 to confirm, refer the matter back to the Master, or may re- 
 ceive such evidence in support of the Master's finding or other- 
 wise for the purpose of ascertaining the matters in issue more 
 satisfactorily {e). 
 
 The Master having entered upon all these inquiries, and 
 fully satisfied himself as to the expenses incurred and the 
 money expended, may endorse upon the certificate those facts, 
 and the inheritance shall, upon such finding, be deemed to be 
 charged with interest. And such charge shall have priority 
 over other charges, except tithe commutation rent-charges and 
 any quit or chief rents incident to tenure, and a memorial of any 
 such certificate charging hereditaments in Middlesex and York- 
 shire, or any hereditaments in Ireland, may in all respects be 
 
 (6) Barraud e. Archer, 2 Sim. 433. 
 
 (c) Stanhope v. Stanhope, 3 Beav. 517. 
 
 (d) Sect. 4. 
 (t) Sect. 5. 
 
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CHAP. V.J Of the Drainage Acts. 257 
 
 registered, as deeds are now registered in Middlesex, Yorkshire, 
 and Dublin, and without payment of any fee (/). The cer- 
 tificate, made as above, is to be filed in the Report Office, and 
 a duplicate is to be delivered to the lender of the money which 
 shall be evidence of his title, and the security shall take effect 
 as from the granting of the certificate (^). By the 8th section, 
 the rate of interest for the money advanced, and any monies 
 remaining unpaid shall be four per cent. The Chancellor, &c., 
 may make such orders as they may think fit for facilitating the 
 mode of application to the Court and of the proceedings before 
 the Master or otherwise (h). 
 
 Moreover, the Master may call to his aid a surveyor to 
 report, in order to facilitate his proceeding, or he may take the 
 evidence of the surveyor appointed by any party applying to the 
 Court. And the Lord Chancellor, &c., of England and Ireland 
 may appoint persons to report to or give evidence before the 
 Master to whom the matter shall be referred (i). 
 
 However, it is to be remarked, that under this statute the 
 Court will not take upon itself the jurisdiction which is thereby 
 conferred on the Master. It was thus decided under the 
 repealed act of 3 & 4 Vict. c. 55. The Court confirmed the 
 report of the Master, which sanctioned the draining of a settled 
 estate, and it then declared itself Junctus officio, for the residue 
 was to be carried out, according to the act, not by the Court, 
 but by the Master (K). 
 
 Thus far, we see, that certain persons under disabilities may 
 have their lands permanently improved through the agency of 
 their guardians or friends. But these improvers could not 
 borrow money under 8 & 9 Vict. c. 56. If they were not 
 prepared to advance the money needful for drainage from 
 private funds, the land must have remained unimproved. Yet 
 
 (f) Sect. 6. 
 
 ig) Sect. 7. 
 
 (A) Sect. 12. 
 
 (i) Sect. 14. In Ireland the Lord Chief Baron is, by the same clause, 
 invested with the same power as the Chancellor, and the matters confided 
 to a Master in Chancery in England may be equally done by the Chief Re- 
 membrancer of the Court of Exchequer there. 
 
 (k) Ex parte Mills, 13 Sim. 591. 
 
 W. S 
 
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land, 
 
 258 Of the Drainage Acts. [chap. v. 
 
 the advantages of drainage were so obvious as to induce the 
 Legislature to make advances of money to all owners of land for 
 these purposes, and, consequently, the parties of whom we have 
 been speaking under the 8 & 9 Vict, come in for their full share 
 of the benefits propounded by a far more general and extensive 
 owjersof statute. That act, the 9 & 10 Vict. c. 101, has the words, 
 "any owner of land," and the interpretation clause, (sect. 49), 
 declares that "owner of land" shall mean such person as would 
 be deemed an owner of land under 6 & 7 Will. 4, c. 71 (the 
 Tithe Commutation Act). And there,* " owner of lands," by 
 sect. 12, includes every person in the actual possession or 
 receipt of the rents and profits of any lands (except any tenant 
 for life or lives or for years, holding under a lease or agreement 
 for a lease on which a rent of not less than two-thirds of the 
 clear yearly value of the premises comprised therein shall have 
 been reserved, and except any tenant for years whatsoever, 
 holding under a lease or agreement for a lease, for a term which 
 shall not have exceeded fourteen years from the commencement 
 thereof), and that without regard to the real amount of interest 
 of such person ; and in every case in which any land shall have 
 been leased or agreed to be leased to any person for life or lives, 
 or for years, by any lease or agreement for a lease on which a 
 rent less than two-thirds of the clear yearly value of the 
 premises comprised therein shall have been reserved, and of 
 which the term shall have exceeded fourteen years from the 
 commencement thereof, the person who shall for the time being 
 be in the actual receipt of the rent reserved upon such lease or 
 agreement for a lease shall, jointly with the person who shall be 
 liable to the payment of such rent of such lands, be deemed for 
 the purposes of the act to be owner of the lands. And in every 
 case in which any person shall be in possession or receipt of the 
 rents and profits of any land, under any sequestration, extent, 
 elegit, or other writ of execution, or as a receiver under any 
 order of a Court of Equity, the person against whom such writ 
 shall have issued, or who, but for such order would have been 
 in possession, shall, jointly with the person in possession by 
 virtue of such writ or order, be deemed to be for the purposes 
 of the act owner of such lands (Z). 
 
 • /. e. under 6 & 7 Will. 4, c. 71. 
 
 (I) See also 6 & 7 Will. 4, c. 71, s. 13. And by 10 & 11 Vict. v;. 11, s. 15, 
 in Scotland, the words " owner of lands " shall include any corporation. 
 
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CHAP, v.] Of the Drainage Acts. 259 
 
 Thus, the persons mentioned in the former statute, being in 
 possession of the receipts and profits of the lands, may be 
 considered as owners under the 9 & 10 Vict. c. 101, and entitled 
 to the privileges of that statute. 
 
 By the 9th section of the 9 & 10 Vict. c. 101,* the inclosure The stat. 
 
 . . 9 & 10 Vict 
 
 commissioners for England and Wales shall be the commis- c. loi. 
 sioners for executing the act in question for Great Britain, and 
 they may appoint ofiicers or employ those already appointed 
 under their own commission, and may remove them, and may 
 also order allowances and expenses to be paid to them as under 
 the Inclosure Act, the 8 & 9 Vict. c. 118. In Ireland the 
 commissioners of public works are empowered to execute the 
 act there, and appoint officers. Then, again, as regards lands in 
 Great Britain, all the provisions of the Inclosure Act as to the 
 proceedings and inquiries of the commissioners, and the 
 authentication of instruments (w), shall extend to the proceedings 
 under this act. Provided that they shall not be authorized, by 
 summons or otherwise, to compel the attendance of any wit- 
 
 * The Interpretation Clause of the 9 & 10 Vict. c. 101, is as follows: — 
 
 '* Commissioners," as regards lands in Great Britain. The Inclosure 
 Commissioners for England and Wales, In Ireland, the Commissioners of 
 Public Works and Drainage there. 
 
 "Commissioners of the Treasury." The Lords Commissioners of the 
 Treasury, &c., or the Lord High Treasurer, &c. 
 
 " Court of Session." The Court of Session in Scotland, in either division 
 thereof, in time of session, or the Lord Ordinary officiating on the bills in 
 time of Vacation. 
 
 " Lord Chancellor." Also " Lord Keeper," and " Commissioner of the 
 Great Seal." 
 
 " Masculine Gender." A female as well as a male. 
 
 " Owner of Land." As to land in England and Wales, such person, as 
 under 7 Will. 4, c. 71, would be deemed such owner. 
 
 As to lands in Ireland, such person, as, under 1 & 2 Vict. c. 109, s. 8 
 ("An Act to abolish Composition for Tithes in Ireland," &c.), should have 
 the first estate of inheritance or other estate or interest equivalent to a per- 
 petual estate or interest thereon. 
 
 As to land in Scotland. Every fiar, life renter, heir of entail, husband of 
 a married woman seised in her own right, tutor, curator, and other guardian 
 for any infant, minor, lunatic or idiot, fatuous or furious person ; and 
 every trustee who respectively shall be in the actual possession of the land, 
 or in receipt of the rents payable on the tacks, leases, or tenancies of the 
 tenants in the actual possession thereof. 
 
 "Person." Any body corporate, aggregate, or sole, as well as an in- 
 dividual. 
 
 "Singular Number." Several persons, &o., and several things, &c., as 
 well as one, and the converse. By sect. 50, the act might have been 
 amended or repealed during that session of Parliament. 
 
 (m) See 8 & 9 Vict. u. 118, ss. 2, 9. 
 
 S2 
 
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2G0 Of the Drainage Acts. [chap. v. 
 
 nes9(w). And as to Ireland, the powers of the stat. 1 & 2 
 Will. 4, c. 33, are vested for the purposes of this act in the 
 commissioners of public works in Ireland by sect. 12. By 
 sect. 13, every assistant commissioner and surveyor in Great 
 Britain, and any commissioner, engineer, and surveyor in 
 Ireland may receive declarations under the act, and examine 
 upon declaration all such persons as may voluntarily attend 
 upon them. 
 
 Another act, later than either the 8 & 9 Vict. c. 56, or the 
 9 & 10 Vict. c. 101, above adverted to, makes the same appoint- 
 ment of the inclosure commissioners to carry its provisions into 
 execution (o). By sect. 2, all the powers given by 8 & 9 Vict, 
 c. 118, to the assistant commissioners to require the attendance of 
 witnesses (p), to administer or receive declarations and examine 
 witnesses (q), and to cause to be produced before them writings 
 and documents (?■), and the power given to the commissioners 
 to delegate to assistant commissioners their own powers (s), 
 (except the power to do any act required to be done under the 
 seal of the commissioners,) shall be applicable to and may be 
 exercised for the purposes of the act in question, as fully as 
 under the 8 & 9 Vict. c. 1 18. By sect. 3, the commissioners 
 must give annually to one of the secretaries of state a report of 
 their proceedings, and such general report shall be laid before 
 both Houses of Parliament by the secretary of state within six 
 months after its receipt, or, if Parliament be not sitting, then in 
 six weeks after the next meeting thereof. 
 
 dTances of The next point is that relating to advances of money. These 
 
 '"'^^' advances are authorized to a limited extent by 9 & 10 Vict. 
 
 c. 101, an act which extends to Scotland and Ireland as well as 
 
 to England and Wales. But as we do not purpose here to 
 
 enter upon the consideration of all the Scotch and Irish acts, 
 
 (n) 9 & 10 Vict. c. 101, s. 11. But a later statute (10 & U Vict. c. 38, 
 s. 2) permits this power of compelling the attendance of witnesses to assistant 
 commissioners. 
 
 (o) 10 & 11 Vict. c. 38, s. 1. 
 
 (p) 8 & 9 Viet. c. 118, s, 9. 
 
 (?) Ibid. 
 
 (r) Ibid. 
 
 is) Sect. 10. 
 
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CHAP. V.J Of the Drainage Acts. 261 
 
 it may be sufficient to refer to them (<). They are all acts for the 
 advancement of public works and drainage in Ireland. And, 
 with reference to Scotland, the statutes 9 & 10 Vict. c. 101, 
 10 & 11 Vict. e. 113, may be consulted. 
 
 An important statute upon the general subject is 24 & 25 Vict. 
 c. 133, Part III. of which relates to agricultural drainage, and 
 compels adjoining owners to permit useful drains («<). 
 
 We proceed to the clauses of the acts for England and Wales, 
 respecting advances. And, first, by 9 & 10 Vict. c. 101, the 
 Commissioners of the Treasury were authorized to advance a 
 sum not exceeding 2,000,000Z. for Great Britain on exchequer 
 bills to that amount, yet not to exceed two millions altogether. 
 The 2nd section prescribes the form of the exchequer bills. The 
 3rd section extends the powers of the acts concerning exchequer 
 bills to this act. The 4th section fixes the rate of interest at 
 3g(^. per cent, per diem. The 5th section provides for the date 
 and payment of these bills. The 6th provides for theii- currency. 
 They are to be payable out of the consolidated fund (sect, 7). 
 By 19 Vict. c. 9, if the commissioners approve of an advance, 
 they may, with the sanction of the Treasury, issue a provisional 
 certificate. 
 
 By the 26th section of 9 & 10 Vict. c. 101, the Governor 
 and Company of the Bank of England shall cause a separate 
 account to be opened in their books with the inclosure commis- 
 sioners, and with the Receiver-General of Stamps and Taxes, 
 under the title of " Drainage Advances and Repayments' 
 Accounts." The 27th section provides for the like in Ireland. 
 And the 32nd section empowers the commissioners, under the 
 authority of the Treasury, to sell such exchequer bills as may 
 be issued for their respective accounts, at the Banks of England 
 or Ireland, and to cause the produce thereof to be placed to 
 the drainage advances and repayment account at such Bank. 
 And by sect. 33 of the same act, the inclosure commissioners 
 
 (() 4 & 5 Vict. c. 89; 5 & 6 Vict. c. 89 ; 8 & 9 Vict. c. 69 ; 9 & 10 Vict. 
 cc. 4, 101, 108; 10 & 11 Vict. cc. 79, 106 ; 12 & 13 Vict. c. 23 ; 13 & 14 
 Vict. c. 31, s. 11 ; 16 & 17 Vict. c. 130 ; 18 & 19 Vict. t. 110 ; 19 & 20 
 Vict. c. 62 ; 26 & 27 Vict. cc. 26, 88. 
 
 («J Sect. 72, &c. 
 
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262 Qj the Drainage Acts. [chap. v. 
 
 shall notify under their seal to the commissioners of stamps 
 and taxes the particulars contained in any warrant or order for 
 advances, with the date of the payment thereof by the Bank of 
 England ; upon which, the commissioners of stamps must cause 
 a record to be made in the books of account in their office, to be 
 kept upon the principle of double entry, debiting therein the 
 land in respect of which the advance shall be made with the 
 amount of the same, and crediting it by the rent-charge received 
 from time to time by their officers in respect of such balance. 
 
 Moreover, by sect. 48, the inclosure commissioners and the 
 Receiver-General of Stamps and Taxes shall cause to be made 
 up for examination and audit an annual document, certified by 
 them, of the amount of credits, or of exchequer bills placed to 
 their account at the Bank of England, the sums issued thereafter 
 upon wari'ants for advance for loans, and the repayments on 
 account of such loans, to the 31st of March of each year, and 
 shall deliver the same to the commissioners for auditing the 
 public accounts, such accounts to be deemed public accounts, 
 and to be inquired into and audited, and to be within the 
 provisions of all acts passed for auditing the public accounts of 
 Great Britain. 
 
 The 14th section provides, that every owner {x) of land who 
 may purpose to improve the same by works of drainage, and 
 may desire an advance under this act, may apply to the in- 
 closure commissioners. The application must contain parti- 
 culars of the land to be drained, of the manner of drainage, 
 the expense, and the expected increase of value by means of the 
 drainage. The estate or interest of the applicant in the land 
 must also appear, and whether the advance applied for is 
 intended to cover the whole or what portion of the expense of 
 the works. Certain expenses are contemplated in order to 
 investigate the propriety of advancing the money. By the 
 15th section, the commissioners may require security by bond 
 or otherwise, in respect of which no stamp duty is payable («/), 
 for this purpose from the owner who applies. And the like 
 again for the repayment of expenses of inspecting and ascer- 
 
 {x) See as to owner, sect. 49, and 6 & 7 Will. 4, c. 71>s. 12. 
 (y) Sect. 47. 
 
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CHAP, v.] Of the Drainage Acts. 263 
 
 taining the due execution of the work, if the commissioners 
 should issue a provisional certificate («). Moreover, unless the 
 commissioners shall otherwise direct, the payment shall not be 
 a charge upon the land, but shall be upon the person applying, 
 and the expenses must be paid before the issue of the certificate. 
 By sect. 16, the commissioners (having regard to the statements 
 in the application and to the available balance in their hands), 
 may cause the land, and the plan (a), estimate, and specification 
 of the proposed drainage to be inspected and examined by an 
 assistant commissioner or surveyor, or engineei-, who shall report 
 upon the same, and if he shall be of opinion that the proposed 
 drainage will effect an improvement in the annual value of the 
 land beyond the annual amount which can be charged thereon 
 under this act in respect of the advances applied for, and that 
 the drainage is proposed, under the plan and specification, to be 
 effected in a substantial and durable manner, he shall annex to 
 his report the plans, estimates, and specification, or duplicate 
 thereof; and the commissioners may make such other inquiries 
 in relation to any such application as they may think fit. 
 
 In Ireland, the report must specify not only the denomi- 
 nation of the land, but also the barony and county where it is 
 situate (&), and no stamp duty is payable in respect of any 
 certificates under the act (c). 
 
 Then follows the provisional certificate. By 19 Vict. c. 9, s. 1, The provi- 
 if the commissioners shall approve either wholly or in part of the ufloater"^" 
 advance, they may apply to the Treasury for their sanction for 
 the commissioners to issue to the owner of the land applying, 
 or, should his interest have determined, to the owner of the 
 land for the time being, a provisional certificate. This certifi- 
 cate shall declare, that upon its being shown to the satisfaction 
 of the commissioners, that the proposed works have been exe- 
 cuted according to the plan {d) and specification annexed to 
 the report of the commissioners or assistant commissioner, &c., 
 in a substantial and durable manner, the commissioners will 
 
 (a) See 19 Vict. c. 9, s. 1, iTifra. 
 
 (a) See 10 Vict. c. 11, s. 2, post. 
 
 (b) 9 & 10 Vict. c. 101, s. 30. 
 
 (c) Id. s. 47. 
 
 (d) See 10 Vict. c. 11, s. 2, post. 
 
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264 
 
 Of the Drainage Acts. 
 
 [chap. y. 
 
 Provisional 
 certificate 
 may be 
 assigned. 
 
 certify to the Treasury in favour of the advance expressed in the 
 certificate (e), but still limited to a certain sum, to be expressed 
 in such cei'tificate. 
 
 Again, there may be an advance on account. For, by the 
 same clause, such a partial advance may be made in respect of 
 the vv^orks in part executed. The provisional certificate may so 
 express it. 
 
 And by 10 & 11 Vict. c. 11, s. 9, this certificate may be 
 assigned. For any owner of land, having such certificate, or any 
 subsequent owner, may assign it, as a security for an advance of 
 monies for the execution of the works therein mentioned. The 
 assignment may be made by indorsement on the certificate, in 
 the form set forth in the schedule annexed to the act,* upon 
 which the assignee shall be in the same situation with reference 
 to the advance as the owner, yet subject to an account as 
 between the owner and such assignee as far as the security. 
 Then, subject to the rights of the assignees, each advance shall 
 be made to the owner who has executed the work, and who 
 shall accordingly have been named in the certificate, or to the 
 owner's legal personal representative. And where an aggregate 
 advance shall be made in respect of works which shall have 
 been in part executed by an owner whose ownership shall have 
 ceased, and in part by a subsequent owner, the advance shall be 
 apportioned between them, as by the report of a surveyor, or 
 assistant commissioner, shall appear reasonable to the commis- 
 sioners, having regard to the sums expended by the successive 
 owners ; and such successive owners may be named in the cer- 
 tificate accordingly. 
 
 (e) As to a deviation from the proposed plan, see 10 Vict. c. 11, s. 2, 
 •post, 
 
 * Form of Assignment. 
 
 " I, A. B. of in consideration of the sum of pounds paid to 
 
 me {or of the advances which may be made to me] by C. D., do hereby 
 assign to the said C. D. the within-written provisional^ certificate, and all 
 my right and interest in and to the advances which may be made in virtue 
 thereof, and that the said C. D., his executors, administrators and assigns, 
 may claim and receive such advances, and may thereout retain the said 
 sum of with interest for the same at per centum per annum [or 
 
 such sums as may be advanced to me by the said C. D. as aforesaid] with 
 interest at per centum per annum from the time of the respective 
 
 advances thereof. In witness whereof 1 have hereunto set my hand this 
 day of 18 ." 
 
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CHAP, v.] Of the Drainage Acts. 265 
 
 By 11 & 12 Vict. c. 119, s. 1, lands in second and subse- 
 quent certificates may be specified by reference to the first. 
 Sect. 2 permits the cancelling of certificates. Sect. 3 relates to 
 such cancellation in Scotland. By 13 & 14 Vict. c. 31, s. 4, 
 the Inclosure Commissioners may authorize the application of 
 advances to other works than those mentioned in the proviso 
 certificate. 
 
 Then, with reference to the expenses of the investigation of 
 the application, and of overseeing the due execution of the 
 works, by 19 Vict. c. 9, s. 1, if the commissioners see fit, all, 
 or a part, of such expenses may. be laid as a charge upon the 
 land in question, and may form part of the expenses of the 
 loan. However, by 9 & 10 Vict. c. 101, s. 18, such pro- 
 visional certificate shall not be issued till notice shall have 
 been given by advertisement, for two successive weeks, in a 
 newspaper, circulating in the county or district where the 
 land may be situated, and also in the London, Edinburgh, 
 and Dublin Gazette, accordingly as the said lands shall be 
 situate in England, Scotland or Ireland; and two calendar 
 months must elapse from the publication of the last adver- 
 tisement. Then, if any person, having any estate in or charge 
 upon the land, shall dissent in writing within two calendar 
 months, and state the nature of his interest or charge, the 
 commissioners shall certify such dissent to the owner of the 
 land, and shall not issue such provisional certificate till the 
 dissent shall have been withdrawn, or an order made by the 
 Court of Chancery, &c., authorizing the applicant to obtain his 
 advance. 
 
 The dissent not being withdrawn, is not by any means to be 
 an insuperable obstacle to the improvement. For, by 9 & 10 
 Vict. c. 101, s. 20, if any owner of land in England or Ireland 
 shall be desirous of proceeding, notwithstanding the dissent, he 
 may, in England, apply by petition to the Court of Chancery, 
 i. e., the Chancellor or Master of the Rolls, and in Ireland, to 
 the Court of Chancery, or equity side of the Exchequer. That 
 Court may then, without counsel or solicitor, refer the matter to 
 a Master in Chancery, or to the Chief Remembrancer, in Ire- 
 land, to make inquiries on the subject, and consider the evidence 
 
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266 Of the Drainage Acts. [chap- v. 
 
 adduced, and report his opinion. Due notice of this order 
 must be served upon the party dissenting, and he may attend 
 the proceedings, and the report above mentioned shall be filed. 
 And then, if no petition be presented within fourteen days 
 against the confirmation of such report, praying that it may be 
 reviewed, the Court may, upon petition, and without counsel or 
 solicitor, confirm the report absolutely ; and (if the report be 
 favourable) authorize the advance sought for. But if a petition 
 be presented against the report, &c., the Court may either con- 
 firm the report, or refer it back to the Master, &c. ; and the 
 Court may, if it think fit, receive further evidence previous to 
 making its order. And in order to render the proceedings as 
 inexpensive as possible, the respective Courts aforesaid may, 
 from time to time, make such orders and provisions in their 
 respective Courts as they may think proper. 
 
 The Court of Session is the tribunal in Scotland where ap- 
 plication is to be made in cases of dissent (/). But, inasmuch 
 as the person dissenting is bound to give notice to the owner of 
 the land (sect. 18), so must he also receive notice of the 
 petition from the owner of the land. This is done by serving 
 a copy of the petition, fourteen days at least before the hearing, 
 upon the dissenting party, or, should he be out of the United 
 Kingdom of Great Britain and Ireland, then upon such person 
 as the Court to which the petition shall be preferred shall ap- 
 point. With regard to costs, the Courts aforesaid may order 
 them to be paid by the petitioner, or by the person dissenting, 
 if his dissent shall appear to the Court to have been vexatious 
 and improper {g). Hence it follows, that if the dissent be not 
 signified within the time and in the manner aforesaid, or if it be 
 withdrawn, the order of the Courts is unnecessary (A). And, 
 in addition to the owner's application, where the land is held 
 in right of any church, chapel or other ecclesiastical benefice in 
 England and Ireland, the commissioners must have the assent in 
 writing of the bishop of the diocese, and likewise of the patron 
 of the benefice {€). 
 
 By sect. 24, a saving clause is provided in cases both of ap- 
 
 (/) 9 & 10 Vict. c. 101,5. 21. 
 (g) Sect. 22. (A) Sect. 23. (i) Sect. 19. 
 
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CHAP, v.] Of the Drainage Acts. 267 
 
 plication and dissent, in favour of persons under disabilities 
 whose friends are enabled to act for them. The clause enables 
 all husbands, guardians, committees, tutors and curators for 
 married women, infants, minors, lunatics, idiots or fatuous 
 or furious persons, and all feoffees and trustees, judicial factors, 
 executors and administrators, - to have the same powers con- 
 cerning application and dissent as such married women, &c. 
 would have had, if free from disability, or as such feoffees, &c. 
 would have had, if they had been possessed respectively in their 
 own rights ; but no such guardians, &c. shall be under any ob- 
 ligation to apply or to dissent, or be in anywise responsible for 
 the consequences of such application, or of the charge made in 
 pursuance thereof. 
 
 The investigation having been gone through, and the provi- 
 sional certificate issued, the works commence ; for although the 
 certificate sanctions the advance, yet the work must be either 
 wholly, or proportionally, completed first. And the commis- 
 sioners may cause these works, to which the provisional certifi- 
 cate relates, to be inspected by a commissioner, assistant coni- 
 missioner, surveyor or engineer, in order to ascertain the due 
 execution of such works ; and such commissioner, &c. may 
 require the- production of such vouchers, bills of account, or 
 other documents, as may enable him to ascertain such due 
 execution, and the amount of the expenses which shall have 
 been actually incurred in the execution of such works. 
 
 But previously to our stating the actual advance of money Modiflca- 
 under tlie act upon the completion of the work, it may be as st°t.^9°& lo 
 well to refer for a moment to a subsequent statute, which ^'°'' °" '*"• 
 modifies and renders more accommodating the provisions above 
 set forth. 
 
 Thus, upon some occasions, the plans, estimate and specifi- 
 cation may be dispensed with (A). By 10 & 11 Vict. c. 11, 
 s. 2, where by the 9 & 10 Vict. c. 101 (Z), the plan, &c. of the 
 proposed drainage is required to be inspected or examined by, 
 
 (/c) See sect. 16. 
 
 (I) Which, as to this, is incorporated with the 10 & II Vict, c, 11, 
 by the 11th section of the latter statute. 
 
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268 Of the Drainage Ads. [chap. v. 
 
 and to be annexed to the report of, the assistant commissioner, 
 &c., it shall be sufficient for the assistant commissioner, &c., 
 unless the commissioners shall otherwise direct, to inquire into, 
 and to embody in his report, such particulars of the land to be 
 drained, and of the proposed or any other manner of the drain- 
 age, and of the estimated expenses thereof, as shall appear to 
 him necessary, in order to enable the commissioners to judge 
 of the expediency of an advance for the works. This dispenses 
 with the inspection and examination of the plan, &c. under 
 9 & 10 Vict. c. 101, s. 16. Again, where in the provisional 
 certificate, or elsewhere, reference is, by the same act, required 
 to be made to the plan and specification annexed to such report, 
 reference may be made thereto, or to the said report, as cir- 
 cumstances may require. 
 
 Another modification is, that the applicants for advances 
 may, at any time before the issue of the provisional certificate, 
 withdraw, by writing addressed to the commissioners, or reduce, 
 the amount of the advance applied for ; and the commissioners 
 may deal with the application for the reduced sum in the same 
 manner as if such reduced sum had been that originally applied 
 for(m). By sect. 4, any party so withdrawing or reducing the 
 amount of his advance, may substitute for such application, at 
 the time of such withdrawal or reduction, an application in 
 respect of other lands. And if the advance thus applied for do 
 not exceed the amount before applied for, either in the case of 
 withdrawal or of reduction, the commissioners may give the 
 same the benefit (if any) in respect of priority, to which they 
 might have deemed it entitled if it had been made at the same 
 time, and instead, in whole or in part, of the previous applica- 
 tion. Nevertheless, there must be an advertisement (w), and 
 all other inquiries and proceedings, in this latter case, as though 
 it were an original application. 
 
 The 5th section consolidates applications. Thus, supposing 
 several applications made separately either in respect of the 
 same or of different lands, or applications for further advances, 
 the commissioners may consolidate them, with the owner's 
 
 {m) 10 & 11 Vict. c. 11, s. 3. 
 (h) 9 & 10 Vict. c. 101, s. 18. 
 
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CHAP. V.J Of the Drainage Acts. 269 
 
 consent, either by their provisional certificate, or by any other 
 writing under seal, and, in that case, all the certificates and 
 documents are to be treated as if there had been one single 
 application : a provision which saves much expense which 
 would otherwise accrue in preparing separate instruments. 
 Yet there must still be a notice by advertisement as before, and 
 persons may dissent as in other cases (o), and the provisions as 
 to dissent in the stat. 9 & 10 Vict. c. 101, shall apply in this 
 case likewise. 
 
 Every preliminary arrangement having been made, and it 
 being shown to the commissioners that the works proposed for 
 are either wholly or partially finished, the commissioners are 
 in a condition to issue their full certificate for the money. But, 
 first, it may be noticed, that by 10 & 11 Vict. c. 11, s. 8, both 
 certificates and provisional certificates under 9 & 10 Vict. 
 c. 101, may be made in such form as the commissioners may 
 think fit. Such certificates, likewise, are to be deemed conclu- 
 sive evidence of the due carrying out of all the applications and 
 acts previously necessary in the proceedings, and also, that an 
 advance may be issued by virtue of such certificate, and that 
 the land shall become charged in respect of such advance; and 
 no such certificate or provisional certificate shall be impeached 
 by reason of any omission or mistake therein. 
 
 And, again, in order that no doubt might exist as to the 
 nature of certain works which should earn the advances men- 
 tioned, the stat. 10 & 11 Vict. c. 11, s. 1, after reciting the 9 & 
 10 Vict. c. 101, enacts, that the works following shall be 
 deemed works of drainage, in respect of which advances may 
 be made: 1. The expense of making or improving and se- 
 curing [from or*] for the benefit of the land proposed to be 
 improved by drainage an outfall through other land, or such 
 part as the commissioners may think reasonable of the expense 
 of the same, for the benefit of that or of other land ; 2. The 
 expense of making open drains and watercourses, including 
 such as may need frequent repair, where reasonable security 
 
 (o) 9 & 10 Vict. 0. 101, s. 18. 
 
 * Sic in the statute, " from or" should be left out \ 
 
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270 
 
 Of the Drainage Acts. 
 
 [chap. v. 
 
 for their maintenance shall appear to the commissioners to be 
 afforded by the interests or liabilities of the tenants and occu- 
 piers of the land ; and 3. The expense of fencing, trenching, 
 and clearing the surface of land to be drained, for the purpose 
 of converting the same from waste or pasturel and into arable 
 or tillage land, where such fencing, &c. shall appear to the 
 commissioners necessary to secure and render productive the 
 proposed improvement by drainage. Provided, that it shall 
 appear to the commissioners, that in all the-cases aforesaid the 
 works will effect an improvement in the yearly value of the 
 land, which will exceed the utmost yearly amount which can 
 be charged thereon under the act in respect of the advance 
 applied for. 
 
 Completion 
 of works. 
 
 There is also a time limited for the completion of the works. 
 For by 10 & 11 Vict. c. 11, s. 7, no provisional certificate shall 
 be issued, unless the commissioners shall be satisfied, either by 
 security or otherwise, by the party applying for the advance, 
 that the works in question will be completed within five years 
 from the date of the certificate. And there shall be annexed 
 by the commissioners to any provisional certificate a provision, 
 that all works in respect of which they shall certify their 
 opinion that an advance should be made, shall be completed 
 within five years. And, again, no provisional certificate shall 
 be issued in favour of the same owner for any larger sum than 
 10,000/. Nevertheless, if such security or satisfaction as afore- 
 said can be produced that the works may be completed within 
 three years, and that it shall also appear, to the satisfaction of 
 the commissioners, that such works are to be executed within 
 any district in Scotland in which distress prevails, and that 
 such works may be executed by the labour of the inhabitants of 
 such district, the commissioners may, on the application of any 
 owner, and with the sanction of the Treasury, issue a provisional 
 certificate, or provisional certificates, for such larger sum or 
 sums as they may see fit, subject to a provision to be annexed 
 to such last-mentioned certificate that such woj'ks shall be 
 completed within the said period of three years. 
 
 Artvanceof The provisional certificate does not produce the money. It 
 ™°"^^' is only an encouragement or guarantee to the owner, that when 
 
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CHAP, v.] Of the Drainage Acts. 271 
 
 his works are either wholly or in part completed, he shall 
 have his advance. The advance itself is made by virtue of 
 another certificate, and under the 3rd section of the statute 
 19 Vict. c. 9. By that clause, when the commissioners shall 
 be satisfied, by the report of a commissioner, assistant com- 
 missioner, surveyor, or engineer, or otherwise, that the works 
 referred to in the provisional certificate, or part, have been 
 duly executed, and shall also be satisfied that such expense 
 has been incurred as will justify the advance, the commis- 
 sioners shall forward a certificate of advance under their seal, 
 and accompanied with their recommendation, to the Treasury, 
 for an advance. The certificate shall specify the land in 
 respect of which the advance is to be made, and shall certify 
 that the sum therein mentioned should be issued to the person 
 therein named in respect of the drainage of such land. 
 
 Then, by sect. 4, the Commissioners of the Treasury, upon 
 the application of the commissioners, may direct the Comptroller 
 of the Exchequer to give the necessary issue (whether by a 
 credit on the growing produce of the Consolidated Fund, or by 
 exchequer bills), to enable them to make the proposed ad- 
 vances. Upon receipt, the Comptroller-General is to give 
 credit to the commissioners, or place exchequer bills to their 
 account, for the amount specified in such direction from the 
 Treasury. The commissioners shall then, upon such credits 
 or produce of the sale of such bills, give warrants or orders 
 under their seal to the Governor and Company of the Bank 
 of England or Ireland, to pay from the " Drainage Advances 
 and Repayment Account" to the respective parties named in 
 such warrant or orders the sums specified therein. 
 
 In Scotland, by sect. 5, the commissioners must deliver the 
 certificate of advance to the owner, and he shall have it 
 registered in the general or particular register of sesines, and 
 return it, indorsed by the keeper of the register, to the com- 
 missioners. 
 
 In Ireland, a memorial is to be registered, and the duplicate 
 certificate transmitted by the registrar of deeds, and the owner 
 
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vances. 
 
 272 Of the Drainage Acts. [chap. v. 
 
 respectivelj', to the commissioners, who are to transmit them to 
 the Treasury {q). 
 
 Repayment Having now mentioned how the advances for drainaere are 
 
 of expenses ° ... 
 
 and ad- to be obtained, togetlier with the preliminary investigation re- 
 quired upon applying for the grant, we proceed to set out the 
 various clauses which provide for the repayment of the monies 
 thus expended by the Government. 
 
 And first, with regard to the investigation necessary previous 
 to and pending the continuance of the provisional certificate (r), 
 the Stat. 9 & 10 Vict. c. 101, s. 46, provides, that the commis- 
 sioners, having regard to the time, labour and expenses of the 
 commissioner, assistant commissioner, surveyor, or engineer, or 
 other person, employed about the preliminary investigation, or, 
 in the case of a provisional certificate, about the inspection of 
 the works, may by order under seal direct that a sum shall be 
 paid by the owner of the land to the commissioners in respect 
 of such time, &c., or by his heirs, executors, or administrators, 
 according to the terms of the order, and such sum shall be a 
 debt payable to the commissioners. The sum thus received 
 is to be paid into the Exchequer as part of the Consolidated 
 Fund. Provided, that where the commissioners have directed 
 that all or a part of these expenses shall be included in the 
 expenses in respect of which the loan and the advances on 
 account thereof shall be made, the commissioners may retain 
 such sum, or such part thereof as is expressed in the certificate, 
 out of the money to be advanced by them to the land owner 
 under the authority of the act. 
 
 Then, with respect to the repayment of the loan and advances, 
 the Stat. 8 & 9 Vict. c. 56, s. 9 (which we may now consider 
 to be superseded), directed that the principal should be repaid 
 by equal annual instalments. Such instalments, in the case of 
 improvements by drainage, warping, irrigation, or embank- 
 ment, were to be not less than twelve, nor more than eighteen, 
 in number ; and in the case of improvement by the erection of 
 
 (?) 9 & 10 Vict. c. 101, s. 31. 
 
 (r) Under 9 & 10 Vict. c. 101, =. 16. 
 
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CHAP, v.] Of the Drainage Acts. 273 
 
 buildings, not less than fifteen, nor more than twenty-five, in 
 number. 
 
 By 8 & 9 Vict. c. 56, s. 10, it was enacted, that any person 
 on whose petition the charge on the estate should be made, and 
 every succeeding tenant for life, or other person having only 
 a limited interest in the land charged, should pay the interest 
 and instalments due from time to time during the continuance 
 of his title, and that on the termination of his title, by death or 
 otherwise, the inheritance should remain chargeable with no 
 more than six months' arrear of interest then due and one-half 
 of the last instalment then due, and the interest and instalments 
 thereafter to become due. 
 
 But the more material statute upon this subject is the 9 & 10 
 Vict. c. 101, whose provisions we now revert to again, remem- 
 bering that the mode of repaying the loans and advances under 
 it is now to be set forth. 
 
 Thus, by 9 & 10 Vict. c. 101, s. 34, the charge upon the land 
 is to be 61. 10s. per cent., and so in proportion for any lesser 
 amount, and to be payable for twenty-two years, to be com- 
 puted from the 6th of April or 10th of October which shall 
 next happen after the issue of such advance. The rent-charge 
 is to be paid by equal payments on the 6th of April and 10th 
 of October, the first payment to be made on the second of such 
 da3's next after the issue of the advance. Then follows the 
 method of recovering it. In England, it shall be recoverable 
 by the Commissioners of Stamps and Taxes, in like manner as a 
 rent-charge is recoverable under the Tithe Commutation Act, 
 6 & 7 Will. 4, c. 71, i. e. by distress, &c.(s). 
 
 In Ireland, the same is recoverable as a rent-charge in lieu 
 of tithe would be under the statute 1 & 2 Vict. c. 109, and the 
 several acts passed for amending the same. Still, whether in 
 England or Ireland, these charges shall not take priority before 
 tithe rent-charges, nor before any quit rent or chief rent incident 
 to tenure, but before all other charges on the same land. In 
 
 (s) See 6 & 7 Will. 4, c. 71, s. 81, &c. 
 W. T 
 
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274 Of the Drainage A cts. [chap. v. 
 
 Scotland, the charge shall be recoverable like any feu duty or 
 rent, or annual rent, or other rent payable to her Majesty, and 
 shall have priority over all charges except feu duty. But 
 should no proceedings be taken for three years to recover such 
 rent-charge when due, such preference as aforesaid shall not 
 take place («). 
 
 Collection. The collection of the rent-charge is settled thus. In Great 
 
 Britain, the collectors of the land-tax and assessed taxes are to 
 be the collectors of the charge, under the directions of the Com- 
 missioners of Stamps and Taxes, who shall have the manage- 
 ment of the monies, and make allowance to the collectors as 
 the Treasury may direct. The monies are to be notified to 
 the Commissioners of Stamps and Taxes and paid to their 
 Receiver-General, who shall keep a separate account, and, after 
 paying the expenses of collection, shall pay the balance into the 
 Bank, to the account of " Drainage Advances and Repayments," 
 and the Bank shall transfer such monies to such account 
 accordingly, in order that the same may form part of the Con- 
 solidated Fund (m). 
 
 In Ireland, the collectors of excise shall collect the charge in 
 the same manner as quit and Crown rents, and the money shall 
 be paid into the Bank of Ireland, to the credit of the Paymaster 
 of Civil Services (ac). 
 
 The following sections deal with any objections which might 
 be made to the title or legal condition of the land so charged in 
 respect of trusts, mortgages, or incidents of tenure. Thus, in 
 Scotland, no proprietor of an entailed estate availing himself of 
 the provisions of the act shall be deemed to have contravened 
 the conditions of entail, and so be liable to be evicted (3/). 
 
 And this rent-charge shall not be deemed such an incum- 
 brance as shall preclude a trustee of money held in trust to he 
 invested in the purchase of land, or to be invested on mortgage, 
 
 (0 9 & 10 Vict. I.. 101, =. 35. 
 (u) Sect. 42. 
 (x) Sect. 4.3. 
 ly) Sect. 36. 
 
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CHAP, v.] Of the Drainage Acts. 275 
 
 from investing such money in a purchase or upon a mortgage 
 of land subject to a rent-charge, unless there be a prohibition in 
 the trust deed that the land so to be purchased or taken in 
 mortgage shall not be subject to any rent-charge under the 
 act (2). Then, by sect. 38, every owner of land, on whose 
 application a rent-charge shall have been thus created, and 
 every succeeding heir of entail, tenant for life, or life renter, or 
 other person having a limited interest in the land charged, 
 shall, as between such person and the persons in remainder or 
 reversion, be bound to pay over the half-yearly payment of the 
 rent-charge due during the continuance of his interest, and, in 
 case he shall be in the actual occupation of or entitled to an 
 apportioned part of the rents and profits of such land up to the 
 time of the termination of his interest, shall also be bound to pay 
 an apportioned part of the half-yearly payment of such rent- 
 charge which shall become due next after the termination of his 
 interest, proportioned to the time which shall have elapsed 
 between the day of the previous half-yearly payment, and the 
 day of such termination. 
 
 With reference to the apportionment, it is enacted, by sect. 44, Apportion- 
 that if it shall be represented to the commissioners, that the ""'" ' 
 land charged is in separate farms, or shall have become the 
 property of separate owners, or that there are separate titles in 
 the same owner, or distinct and separate interests, or that the 
 owner is desirous to sell part of the land, or {hat an apportion- 
 ment is on any other account desirable, the commissioners, with 
 the consent of th^ owner or owners, may, by order under their 
 seal, apportion the rent-charge, so that a separate and distinct 
 rent-charge may become charged on each sepai'ate farm, or on 
 the land of each owner, or on the land held under each sepa- 
 rate title, or for each distinct and separate interest, or on the 
 part or each part which the owner is desirous to sell, and the 
 part intended to be retained by him, or on other separate parts 
 of the said lands, but so that no rent-charge charged under 
 such apportionment shall be less than twenty shillings. Every 
 such order of apportionment shall be transmitted by the com- 
 missioners to the commissioners of stamps and taxes, or col- 
 
 (2) Sect. .37. 
 
 t2 
 
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276 
 
 Of the Drainage Acts. 
 
 [chap. v. 
 
 lectors of excise respectively, and they shall collect the appor- 
 tionment instead of the oi'lginal rent-charge, in like manner as 
 if there had been a separate rent-charge in the first instance. 
 Where a part only of the land charged under the Lands Im- 
 provement Companies Acts, 1853 and 1855, is subject to a 
 mortgage or other incumbrance, the charge under these acts 
 has priority in respect of the whole amount of such charge over 
 the mortgage or other incumbrance until apportionment be 
 made by the inclosure commissioners under the 70th section of 
 the Act of 1853. So that the person entitled to such charge may 
 exercise his remedies under these acts as if no such mortgage or 
 incumbrance existed (a). 
 
 Redemption 
 of rent- 
 charge. 
 
 By sect. 45, the owner of land charged may, at any time 
 before the end of twenty years after the charge, redeem the 
 same or any part, not being less than \0l. annual charge, on 
 payment, however, of all arrears to the Commissioners of 
 Stamps and Taxes in Great Britain, or to the Paymaster of 
 Civil Services in Ireland, respectively, and likewise on pay- 
 ment of such sum as shall be equal to the aggregate amount of 
 the half-yearly payments not then accrued due, after deducting 
 or allowing discount at 3Z. 10*. per cent, in respect of such 
 several future payments. The commissionei's shall then deliver 
 to the owner a certificate of redemption (which is free from 
 stamp duty), (sect. 47), and they shall ])ay over all such monies 
 to their Receiver-General, who shall deal with such monies as 
 in the case of monies I'eceived by him for rent-charges (h). The 
 Treasury also shall cause tables to be framed showing the rate 
 at which the rent-charges may be so redeemed in the several 
 years during which they are made redeemable, and may make 
 regulations limiting the times of the year in which they may be 
 redeemed. 
 
 Tenant 
 occupier. 
 
 As yet nothing has been said concerning an occupying tenant : 
 his rights, liabilities, and duties, have not yet been entered 
 upon. First, under the 8 & 9 Vict. c. 56, his assent was deemed 
 necessary before lands held by him could be improved. Thus, 
 
 (a) Lands Improvement Company v. Richmond, 17 C. B. 145 j 25 L. J., 
 C. P. 73. 
 
 (h) See sect. 42. 
 
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CHAP, v.] Of the Drainage Acts. 211 
 
 by sect. 13 of the act, the consent in writing of the actual occu- 
 pier was required in order to give validity to the application 
 of the proprietor of the land to be drained. 
 
 By 9 & 10 Vict. c. 101, s. 40, if any tenant or occupier at a 
 rent in Great Britain shall join in the application for an advance 
 under the act, or shall, by writing, signify to the commissioners, 
 &c., his consent to become charged with the rent-charge, or 
 apportionment, he shall be liable to the payment of the same. 
 And if the application shall relate to other land as well as the 
 land included in the tenancy, the commissioners may, with the 
 consent of such tenant, apportion the charge either in their 
 provisional certificate, or by a separate order of apportionment. 
 Except as aforesaid, the tenant may deduct the rent-charge 
 from the rent, and shall be allowed the same in account. In 
 Ireland, if there be a landlord having intermediate estates or 
 interests between the tenant or occupier and the owner, then 
 such tenant may deduct the amount from the rent payable to 
 his next intermediate landlord. And the last-mentioned land- 
 lord, unless he should have joined in the application for the 
 advance, or have consented to be charged, may deduct from the 
 rent due to his next intermediate landlord, and so on, until the 
 amount shall be deducted from the owner of the land, or from 
 some landlord who shall have joined in the application, or who 
 shall have signified his consent as aforesaid. The 41st section 
 settles the arrangement which the commissioners may make 
 when tenants in Ireland are desirous to concur in an application 
 for an advance, or to become charged with the rent-charge. 
 
 Then, lastly, as to repair, by 8 & 9 Vict. c. 56, s. 11, every Repair, 
 tenant for life, or other person having a limited interest, shall 
 be bound to keep in repair any buildings, or embankments, or 
 works for irrigation, constructed under the act, as if he were 
 tenant for life subject to impeachment for waste. 
 
 And by 9 & 10 Vict. c. 101, s. 39, so long as any land shall 
 continue charged with any rent-charge under the act, the person 
 for the time being who is bound to the payment of the half- 
 yearly payments thereof shall be bound to uphold the drains on 
 account of which the lands shall have been charged, and to 
 
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278 Of the Drainage Acts. [chap. v. 
 
 keep clear and open the outfalls of all such drains, and once in 
 every year shall certify to the commissioners the state of the 
 drains and outfalls : and, in default of so doing, shall be liable to 
 an action on the case in the nature of an action of waste for the 
 damage occasioned, at the suit of the person then entitled to the 
 next estate in remainder or reversion in the said lands, rendering 
 him liable to the payment of such rent-charge on the determina- 
 tion of the estate in possession. 
 
 Thus far concerning the advances of money to drain the lands 
 of those owners who have made application to Government for 
 aid. But it will be observed, that the statutes already set forth 
 have little connection with the lands of others. Still less do 
 they enable persons who may be anxious to carry out improve- 
 ments to meddle for that purpose with the lands of others. It 
 has, however, been deemed expedient by the Legislature to 
 empower the owners of property, under certain conditions and 
 restrictions, to enter upon lands not their own, in order that 
 improvements in drainage, which cannot be effected upon their 
 own demesnes unless they interfere with those belonging to 
 strangers, may be effected. 
 
 The Stat. 10 & 11 Vict. c. 38, was passed to facilitate this 
 object, and it may be read conjointly with the other acts relating 
 to drainage. By sect. 4,* where any land shall be capable of 
 being drained or improved by drainage or warping, by means of 
 works to be executed on the same and other lands, for obtarnins: 
 
 • The Interpretation Clause (sect. 20) of tliis Act is as follows (except 
 where the nature of the provision or the contract is repugfoant to such con- 
 struction): — 
 
 " Agent." Any person employed to receive rents. 
 
 " Churchwarden." Also any chapelwarden or other officer executing 
 any similar duties. 
 
 " Commissioner." The Inclosure Commissioners for England and 
 Wales. 
 
 " Justice." Justice of the peace acting for the county, riding, city, 
 division, liberty, or other place were the matter requiring the cognizance of 
 any such justice shall arise, and who shall not be interested in the matter. 
 
 " Justices." " Two Justices." Two or more justices assembled and acting 
 together in petty sessions. 
 
 " MascuUne Gender" shall apply to a female as well as a male. 
 
 " Parish." Also any township or other division or extra-parochial place. 
 
 "Person." See " Proprietor." 
 
 " Persons interested in the Land." Such persons as would be deemed to 
 be so interested under 8 & 9 Vict. t. 118. 
 
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CHAP. V.J Of tlLe Drainage Acts. 279 
 
 and improving the outfall or otherwise, any person interested (c) 
 in the land so capable of drainage, but who is not able to exe- 
 cute the desired works, by reason of the objection or disability of 
 any person whose land would be entered upon, cut through, or 
 interfered with by such works, may apply to the commissioners 
 by memorial. This memorial must show the means by which 
 it is proposed to effect the improvements, and must pray the 
 authority of the act in aid of the same. To this must be an- 
 nexed a map or plan showing, first, the land to be improved ; 
 and, secondly, the land to be entered upon, &c., or likely to be 
 affected: and also the rivers, watercourses, ditches, and drains 
 intended to be cleared, scoured, deepened, or embanked, and 
 the proposed variations, diversions, abridgments or enlarge- 
 ments of the same, and the new cuts, embankments, drains, 
 watercourses, and other works proposed to be made, and the 
 engines and machinery proposed to be erected for the purposes 
 aforesaid. 
 
 Schedules must likewise be produced, showing the reputed 
 proprietors, lessees, and occupiers of the lands in question, and 
 the lands and property to be entered upon, &c. ; and also an 
 estimate of the proposed works, engines, &c., including the 
 probable amount of money payable as purchase and compen- 
 sation money in respect of the land to be entered upon, &c. 
 Likewise a statement of the actual condition of the land to be 
 drained, and of the probable increased value thereof by reason 
 of the works {d). 
 
 Still, if a judgment can be formed by the commissioners 
 without such map, plan, and estimates, including the whole of 
 
 " Plan." Also drawings and sections. 
 
 " Plural Number" shall extend to one person or thing as well as several 
 persons or things. 
 
 " Proprietor." The Queen's Majesty; all bodies politic, corporate, and 
 collegiate ; all bishops, parsons, and other ecclesiastical persons. 
 
 " River." Also all rivulets, lakes, canals, streams, and estuaries. 
 
 " Singular Number" shall extend to several persons or things as well as 
 to one person or thing. 
 
 By sect. 21, the act might be amended or repealed during that session of 
 Parliament. 
 
 (c) In enclosure, the valuer is to be deemed the person interested, 
 1S& 16 Vict. c. 79, s. 2. 
 
 (d) Sect. 4, ubi supra. 
 
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280 Of the Brainage Acts. [chap. v. 
 
 the land to which such memorial shall relate, then a map or 
 plan showing only the proposed works, or such other map or plan 
 as the commissioners shall think necessary, need be produced. 
 Moreover, the memorial, or some schedule thereto, shall show 
 the persons by whom the works are proposed to be executed, 
 and the persons by whom such application shall be made shall, 
 upon the request of the commissioners, furnish such further 
 details in respect of the said map, &c., as the commissioners 
 may think fit. Copies of the memorial, map, &c., are to be 
 deposited by the person applying in a convenient place at hand, 
 and approved by the commissioners, for public inspection during 
 one month. And the deposit thereof shall be certified to the 
 commissioners, and all persons may inspect and make copies or 
 extracts from the same, and copies may likewise be made by 
 the commissioners' direction for any person requiring the same, 
 upon payment of the costs of making them (e). 
 
 Then, by sect. 5, the commissioners shall require notice to 
 be given by advertisement twice in one or more newspapers 
 circulated in the county where the works are to be executed of 
 the memorial having been presented, of the parishes where the 
 works are to be made, and of the places where copies of such 
 memorial, map, &c., are deposited. A like notice is to be 
 served on all persons not parties to the application, whose lands 
 are to be entered upon, &c. The service may be personally on 
 the lessee or occupier, or by leaving it at his usual or last known 
 place of abode. Again, a like notice is to be served on the 
 proprietor, or reputed proprietoi", of such land, or his agent, 
 either personally or by leaving the same at his usual or last 
 known place of abode. 
 
 By such notice, all parties interested, or in anywise affected 
 by the proposed works shall be required, on or before a day to 
 be therein named, not sooner however than six weeks from such 
 publication and service of the notice, to transmit in writing to 
 the commissioners all objections which they may entertain to 
 the proceedings contemplated by the memorial. 
 
 (e) Sect. 4, uhi supra. 
 
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CHAP, v.] Of the Drainage Acts. 281 
 
 The 6th section provides that provision or security be given 
 for the costs incident to the application, by the parties applying, 
 i. e. the. costs occasioned by the inquiries and proceedings in 
 relation thereto. This section is confined to the commissioners' 
 costs. It does not include the costs of persons opposing the 
 application (_/). 
 
 By sect. 7, where objections are transmitted to the com- 
 missioners, an assistant commissioner is to be appointed to 
 inspect the lands proposed to be drained or improved, as well as 
 the lands intended to be entered upon, cut through, interfered 
 with, or affected. The commissioners shall then, if they think 
 fit, call one or more public meetings, with twenty-one days' 
 notice at the least to the persons so objecting, and by advertise- 
 ment in one or more newspapers circulated in the county where 
 the works are to be made. The meeting is to include all persons 
 likely to be affected by the works, and it is to be held on such 
 day or days subsequent to the expiration of the above period of 
 six weeks {g), and at such convenient place or places within the 
 parish, or one of the parishes wherein the land so to be drained 
 or improved shall be situate, or in the vicinity thereof, as the 
 commissioners shall specify in such notice, and the assistant 
 commissioner shall attend at the time and place named, and 
 shall have power to adjourn any meeting from time to time, or 
 hold any new meeting as he may find necessary, and he shall 
 inquire into the correctness of the schedules containing the 
 names of such reputed proprietors, lessees, and occupiers as 
 aforesaid (A), and also whether the notices have been duly given 
 and served, and likewise hear and inquire into all objections 
 before another made, and receive evidence offered in relation to 
 the matters at issue. 
 
 By sect. 8, the assistant commissioner is to report his opinion 
 upon the matters, and upon the objections, with the evidence 
 taken at the meetings (if any such shall be held), or otherwise, 
 to the commissioners. The commissioners shall then consider 
 the proposed drainage or improvement, and such objections; 
 
 (/) Re Inclosure Commissioners, 33 L. J., M. C. 171. 
 (g) See sect. 5. 
 (Ji) See sect. 1. 
 
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282 Of the Drainage Acts. [chap. v. 
 
 and they make further inquiries, and take further evidence 
 if they shall see fit ; and if they shall be of opinion that the 
 works may be done without material detriment to the lands pro- 
 posed to be cut through, &c., or that the damage may be well 
 compensated under the provisions of the act, they may allow 
 such works according to the proposal in the memorial, or with 
 such alterations as they may think fit. And, by an order under 
 their seal, they may authorize the persons applying, or any of 
 them, or any other person to be named or described by them in 
 such order, to execute the works as the same shall have been al- 
 lowed, within a time to be limited in the order. And such order, 
 or some plan thereunto annexed, shall specify the works to be 
 done, and the persons authorized by such or by any supplemen- 
 tary order of the commissioners shall have full power to execute 
 the works according to the order, and to maintain them for ever 
 thereafter, subject, nevertheless, to the provisions subsequently 
 contained in the act, and to the compensation to be ascertained 
 under the act in favour of persons damaged by the execution of 
 the powers granted by such order. 
 
 The power being given to execute the works, the 9th section 
 authorizes the entry upon lands in order to carry out the act. 
 Any land in the order of the commissioners, or in the plan 
 thereunto annexed, may thus be entered upon; and, in con- 
 formity with the terms of the order, but not otherwise, any 
 river, stream, ditch, or drain, brook, pool, or watercourse 
 may be widened, straightened, deepened, diverted, scoured, 
 or cleansed. And any new watercourse, side cut, ditch, or 
 drain, may be made, opened, and cut ; and any bank, sluice, 
 floodgate, clough, hatch, weir, dam, or other obstruction 
 may be altered or removed ; and any bank, sluice, floodgate, 
 hatch, ditch, drain, tunnel, or other works necessary or con- 
 venient for drainage or for warping may be made or erected ; 
 and any river or watercourse may be dammed, barred, and 
 stopped up with any weir or dam, and such persons so autho- 
 rized as aforesaid may erect and maintain on such land steam and 
 other engines and machinery. But no such entry shall be made, 
 except with the consent of the proprietors of the same, till the 
 amount of compensation for damage occasioned by the entry, 
 and by the execution and maintenance of the works, shall have 
 
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CHAP. V.J Of the Drainage Acts. 283 
 
 been agreed upon and ascertained, as the case may be, and paid 
 under the provisions of the act. 
 
 However, by sect. 12, the streams, reservoirs, or feeders of 
 ornamental waters are expressly saved to their owners, unless 
 such owners shall consent or agree that the same may be 
 meddled with. 
 
 The mode of providing sites for engine-houses, and the com- 
 pensation above alluded to, are settled by the 10th and 11th 
 sections. By the 10th section, the commissioners may, by any 
 such order as aforesaid, authorize any person therein mentioned 
 to purchase and take as the site of any engine-house, or for any 
 other purpose necessary for the works thereby authorized, any 
 land not being in any park or pleasure ground in such order 
 to be described. Yet, otherwise than by agreement, not more 
 than three acres may be so taken. The clause goes on to award 
 the powers of " The Lands Clauses Consolidation Act, 1845," as 
 far as those powers apply to the purchase of land otherwise than 
 by agreement (A), and provided no more than the three acres 
 specified in the order be taken. And if there be an agreement, 
 then the same powers of that Act of 1845 (i) are still applicable 
 to land authorized to be purchased by the order, except as 
 aforesaid, i. e. excepting the purchase of any park or pleasure 
 ground; and all lands purchased or taken as above shall be 
 conveyed to and held by such persons, and upon such trusts, as 
 the commissioners shall, by such order, direct. 
 
 Next, with reference to the compensation, the same powers 
 of the Lands Clauses Act, which are thereby given in the case 
 of lands purchased otherwise than by agreement (A), are by 
 sect. 11 of this act (10 & 11 Vict. c. 38) made applicable to 
 such compensation. The persons who are authorized to execute 
 the works shall for the purposes of the Lands Clauses Act, and 
 this act, be deemed the " promoters of the undertaking" (l), 
 
 (h) See 8 & 9 Vict. c. 18 (The Lands Clauses Consolidation Act), sect. 
 16, &c. 
 
 (j) See. 8 & 9 Vict. c. 18, s. 6, &c. 
 
 (/() 8 & 9 Vict. c. 18, s. 16, &c. 
 
 {I) "Promoters," &c., see 8 & 9 Vict. c. 18, ss. 6 and 16. 
 
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284 Of the Drainage Acts. [chap, v, 
 
 and the other clauses of the above Act of 1845 shall be incor- 
 porated with this act, and shall apply thereto, and to the works 
 and purchases to be authorized by the commissioners, as though 
 the works and purchases which shall be authorized by the com- 
 missioners had been set forth and authorized to be executed and 
 made by this act. 
 
 The 13th section speaks of a depositary for the orders of com- 
 missioners. Two copies of every order for the execution of works 
 shall be made, and sealed with the seal of the commissioners. 
 One shall be deposited with the clerk of the peace of tlie county 
 where the land authorized to be drained, or the greater part 
 thereof, shall be situate, and the other with the church or 
 chapelwardens for the time being of the parish where such land, 
 Or the greater part, is situate, to be left by them and their suc- 
 cessors in office with the public books, writings, and papers of 
 the parish — or such second copy shall be deposited with such 
 other lit persons as the commissioners may approve. The clerk 
 of the peace is to keep his copy among the records of the 
 county, so that recourse may be had thereto by any person inte- 
 rested in the premises; and all persons interested may have 
 access to, and be furnished with copies of or extracts from any 
 such copy, on giving reasonable notice to the party having cus- 
 tody of the same, and on payment of 2s. 6d. for such inspection, 
 and after the rate of Qd. for every seventy-two words contained 
 therein ; and all such copies, &c., furnished by the clerk of the 
 peace shall be signed by him or his deputy, purporting the same 
 to be a true copy or extract, and every such copy so signed shall 
 be received as evidence without further proof. 
 
 We have now finished the main subject of drainage. The 
 residue of the act, as yet unnoticed, relates to the novel remedy 
 of enabling occupiers to scour neighbouring channels upon 
 other lands. The preamble of the 14th section explains the 
 difficulty, and proposes a remedy. " Whereas by reason of the 
 neglect or want of co-operation among the occupiers of lands to 
 maintain the banks and clean and scour the channels of existing 
 drains, streams, and watercourses, lying in or forming the boun- 
 daries of such lands, and being or leading to the outfall from 
 such lands, and from other lands, much injury is occasioned 
 
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CHAP, v.] Of the Drainage Acts. 285 
 
 and improvement prevented, but .sufficient powers do not at 
 present exist to remedy the evil aforesaid :" it is therefore 
 enacted, That in all cases where by the neglect of such occupier 
 to maintain or join in maintaining the banks, or to cleanse and 
 scour, or join in cleansing and scouring the channels of existing 
 drains, streams, or watercourses lying in or bounding the lands 
 of such occupier, injury shall be caused to any other land, the 
 proprietor or occupier of any other land so injured may require 
 the proprietor or occupier so neglecting, by a notice in writing, 
 delivered to him, or left at his usual place of abode, effectually 
 to maintain such banks, or cleanse or scour such channels of 
 such drains, streams, and watercourses, or effectually to join in 
 the same. Then, in case of neglect, the occupier of the land 
 receiving injury may immediately after the expiration of one 
 calendar month from the period of such notice, execute or cause, 
 &c., or may join with any other person in executing, &c., all 
 necessary works for maintaining or repairing such banks, or 
 cleansing or scouring such channels : and in case the expenses 
 paid or incurred in such works, or the just proportion thereof, 
 ■which should have been paid or borne by the occupier so 
 neglecting as aforesaid, shall not be paid to the person by whom 
 the same shall have been paid or incurred by the occupier so 
 neglecting, within one calendar month after demand, any jus- 
 tice may, upon application by the person who has paid the 
 money, summon the defaulter to appear before two justices, at 
 a time and place therein mentioned. Upon his appearance, or 
 in his absence upon due proof of the serving of the summons, 
 such two justices, upon proof likewise of the neglect and injury, 
 and of the expenses incurred, may make an order for payment 
 upon the occupier so making default, or of such just proportion 
 as the justices may think he ought to pay, and they may award 
 costs to be paid in such manner as they may think reasonable, 
 and the amount both of the expenses and costs may be recovered 
 by distress. This warrant of distress shall accordingly be issued, 
 and distress and sale made of the defaulter's goods, and the 
 surplus returned, on demand, to such defaulter after satisfying 
 the sum distrained for, and the expenses of the distress and 
 sale (to). And no such distress is to be deemed unlawful, nor 
 
 (m) 10& 11 Vict. c. 38, s. 16. 
 
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286 Of the Drainage Acts. [chap. v. 
 
 any party to be deemed a trespasser on account of any defect or 
 want of form in the summons, adjudication, warrant of distress, 
 or other proceeding relating thereto, nor shall any party be 
 deemed a trespasser ab initio on account of any irregularity 
 afterwards committed by him ; but all persons aggrieved by 
 such defect or irregularity may recover full satisfaction for the 
 special damage in an action upon the case(w). 
 
 The 15th section imposes in certain cases a guard upon the 
 entry of occupiers by requiring a warrant of justices for such 
 their entry. Thus, unless the drain, stream, or watercourse, 
 shall be a boundary of or immediately adjoining to the land of 
 the occupier whose land shall have been injured by such 
 neglect as aforesaid, the occupier so injured may not enter to 
 execute his works without a warrant or authority in writing 
 from two justices, which warrant, &c., they shall grant upon 
 inquiry made before them, after a summons served upon the 
 occupier of the land to be entered upon, i. e. if they shall be 
 satisfied of his neglect and of the consequent injury. How- 
 ever, the justices may adjourn the hearing or further hearing of 
 any application for any order, or for any warrant or authority 
 under the act, to a subsequent day, and may appoint a com- 
 petent person to view in the meantime the drain, stream, or 
 watercourse, and to report thereon to the justices on the day to 
 which such hearing shall have been adjourned; or the said 
 justices, or any of them, may in the meantime attend and view 
 the said drain, &c. 
 
 The saving clauses (sects. 18 and 19) relate to the commis- 
 sioners of sewers and to the Board of Admiralty. By the 18th, 
 nothing shall affect the rights, duties, privileges, &c. of the 
 commissioners of sewers, or commissioners appointed under any 
 local sewers or drainage act, or shall affect the laws of Romney 
 Marsh or of the Bedford Level. Nevertheless, if the persons 
 interested in any lands to be drained under such a local or 
 private act, or if any portion, not being less than two-thirds in 
 number and value of them, shall be desirous of having their 
 lands drained under this act, and shall notify such their desire 
 
 (n) 10 & 11 Vict. i;. 38, s. ir. 
 
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CHAP, v.] Of the Drainage Acts. 287 
 
 in ■writing to the commissioners under this act, the commis- 
 sioners and assistant commissioners may then exercise all the 
 powers of this act in like manner as if the local act were re- 
 pealed. 
 
 Otherwise, no local act can be interfered with. Where a 
 surveyor, notwithstanding the provisions of a local act, which 
 forbade persons from arching over any ditch, &c. without the 
 consent of the trustees under the act, persisted in continuing a 
 sewer, he was held liable to the penalty of 50/., prescribed by 
 the statute in an action of debt. It was urged for the surveyor, 
 that the sewer had been begun before he took any part in it, 
 that he was, in fact, the servant of those for whom the work 
 was done, and that the mere direction to proceed could not 
 render him liable to the penalty. But the Court did not enter- 
 tain a doubt of his liability, and the rule for entering a nonsuit 
 was discharged (o). 
 
 Then, by sect. 19, no person acting or pretending to act under 
 this act may make or construct, alter or extend, on the shore of 
 the sea, or of any creek, bay, or arm of the sea, or any navig- 
 able river communicating therewith, where and so far up as the 
 tide flows, any work which might not have been lawfully made 
 in case this act had not been passed, without the consent of the 
 Lord High Admiral, or of the Lords of the Admiralty, to be 
 signified in writing under the hand of the secretary of the Ad- 
 miralty ; and then only according to the plan, restrictions, and 
 regulations approved of by such Lord High Admiral, &c., such 
 approval being signified as last aforesaid. If any such work 
 shall be commenced or completed contrary to the act, the Lord 
 High Admiral, &c. may abate and remove the same, and restore 
 the site to its former condition, at the cost of the persons or of 
 any one or more of the persons by whom the same shall have 
 been commenced and completed. Moreover, nothing contained ♦ 
 in the act shall authorize any person acting or pretending, &c., 
 to make any work injurious to the navigation of any navigable 
 river, or land, or to use or occupy land between high and low 
 
 (o) Woodward v. Cotton, 1 Cr., M. fit R, 44, ante, p. 245. 
 
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28S Of the Drainage Acts. [chap. v. 
 
 "water mark, without the consent of her Majesty's Commis- 
 sioners of Woods and Forests.* 
 
 Another act upon this subject was passed in 1849(7>), and 
 another in 1850, both to be construed with 9 & 10 Vict, 
 c. 101 (g). Upon a question whether bricks used for drainage 
 were liable to the duties of excise, Parke, Alderson and Rolfe, 
 Barons, held that bricks used for all purposes necessary, 
 physically or legally, for maintaining drainage were exciseable. 
 Pollock, C. B., was of opinion that bricks physically necessary 
 to the construction of drains were exempt, not otherwise (?■). 
 
 Electoral We will in this place briefly refer to the electoral drainage 
 
 drainage. boErds Under 24 & 25 Vict. c. 133. 
 
 The 63rd section provides for their constitution, and sect. 64 
 arranges the mode of creating the district. Sect. 65 makes the 
 provisional order conclusive evidence that the requirements of 
 the act have been complied with. 
 
 The drainage board and its powers and regulations are 
 ordained by the ensuing sections («). The Commissioners 
 Clauses Act (10 & 11 Vict. c. 16) is incorporated by sect. 71. 
 
 The same statute 24 & 25 Vict. c. 133, gives power to private 
 owners to procure outfalls from adjoining owners. Thus, by 
 sect. 72, any person interested in land, and desirous of draining 
 it with a new drain through other lands, or that existing drains 
 belonging to other lands should be cleansed, widened, &c., may 
 apply to the owner of the other lands, called the adjoining 
 owner, for leave to make the improvement. By sect. 73, the 
 application shall be by notice in writing under the hand of the 
 applicant, and served upon the owner, or the occupier, if the 
 
 » With reference to draining ditches, &c., under the Highway Act, see 
 5 & 6 Will. 4, c. 50, ss. 67, 68 j under the Inclosure Acts, see 41 Geo. 3, 
 c. 109, s. 10| 6 & 7 Will. 4, c. 115, ss. 38, 39; 8 & 9 Vict. c. 118, s. 61. 
 These acts are interfered with and some of their provisions repealed, and 
 others substituted by 19 Vict. c. 9. 
 
 {p) 12 & 13 Vict. c. 100. 
 
 Iq) 13 & 14 Vict. c. 31. 
 
 \r) Attorney-General v. Walker, 3 Ex. 292 ; 18 L, J., Ex. 179. 
 
 (s) Sects. 66 — 70, and see the Schedules. 
 
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CHAP, v.] Of the Drainage Acts. 289 
 
 owner do not occupy (if). The nature of the drains and im- 
 provements must be stated, with a map, and the compensation 
 ■which the applicant is willing to pay. Then, by sect. 74, the 
 adjoining owner may by deed, under his hand and seal, assent 
 upon such terms and compensation as he may think fit, and 
 such assent shall bind all parties, subject, nevertheless, to these 
 rules. 1. If the adjoining owner be under any disability or in- 
 capacity, or have no power to assent, except under the act, two 
 surveyors, one to be named by the applicant, the other by the 
 adjoining owner, must sign a declaration of their approval, and 
 annex it to the document. , 2. The compensation shall, in such 
 a case, be applied as under the Lands Clauses Act, in the case 
 of persons having limited interests, &c. 3. The occupier, not 
 being owner, may claim compensation for damage, but within 
 twelve months after the completion of the drains or improve- 
 ments, and if any dispute arise concerning the compensation, 
 the Lands Clauses Act shall be called in aid. By sect. 75, the 
 applicant shall forward the deed to the clerk of the peace, to 
 be by him kept as a record (u). But the adjoining owner may 
 dissent, this he shall be deemed to have done if he do not 
 express his assent within one month after service of notice. In 
 that case, unless the adjoining owner require an arbitration 
 ■within the month, two justices in petty sessions shall decide. 
 
 1. Whether the improvements will cause any injury to the 
 adjoining owner, the occupier, or other person interested. 
 
 2. Whether such injury can be compensated by money. The 
 provisions of the first part of the act shall apply (a;). If the 
 first question be answered in the negative, the drains, &c., 
 may be made. If the justices find for a compensation, 
 they may assess and apportion it, and, upon payment, the 
 applicant may then proceed. If both questions should be 
 answered in the negative, the applicant shall not be entitled to 
 
 make the improvements The 77th section 
 
 deals with the payment of compensation awarded by justices or 
 arbitrators to persons under disability, and adopts the Lands 
 Clauses Act as the rule in such a case (3/). However, the 
 
 (i) After the manner ordained in Part I. of the Acts. 
 
 (u) Sect. 76. 
 
 (x) Sect. 18. 
 
 {y) Seeante, sect. 74. 
 
 •W. U 
 
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290 Of the Drainage Acts. [chap. v_ 
 
 justices or arbitrators will take care to approve the scheme of 
 drainage, either as proposed or as modified by themselves. 
 They must also have a map prepared, and certify its correct- 
 ness. The map must then be sent to the clerk of the peace as a 
 record {x). The drains so being made, power is given by sect. 
 79 to the applicant, his heirs and assigns, to enter upon the 
 adjoining lands to clear out and maintain the drains. If that 
 be neglected, the owner or occupier of such adjoining lands 
 may do the work and recover the expenses in a summary 
 manner from the applicant, his heirs or assigns. Yet, the 
 adjoining owner may fill up, divert or deal with these drains, 
 provided that he make others as efficient, and any dispute as to 
 the efficiency shall be settled in petty sessions (3/). A penalty 
 not exceeding lOL, to be recovered in a summary manner, is 
 awarded against any person obstructing another in making the 
 drains, &c., or damming up or obstructing, or in any way 
 injuring them («). All reasonable costs and expenses incurred 
 by the adjoining owner shall be defrayed by the applicant (a). 
 
 Lastly, by sect. 83, where any person is desirous of con- 
 structing under this act any drain by means of which any 
 brook, river or other natural watercourse will be diverted from 
 its ordinary channel into any other brook, &c., he may cause a 
 copy of the notice hereby required to be served on the adjoining 
 owner to be advertised for three successive weeks and to be served 
 as under Part I. of the act (where no special mode of service is 
 prescribed) on all owners of land abutting upon the brooks, &c., 
 into which the diversion is made and situate within four miles 
 of the point of junction. Also he shall deposit a copy of the 
 map hereby required to accompany the notice served with the 
 clerk of the peace of the county, &c., where the drain is 
 situate. Then if any owner of land capable of being injured by 
 the proposed drain, shall within eight weeks after the first 
 notice in the newspaper, serve notice on the person proposing to 
 make the drain that he apprehends injury, such owner shall be 
 deemed to have dissented, and shall be entitled to the same 
 rights under this part of the act, as if he were the adjoining 
 owner. 
 
 (a:) Sect. 78. (j/) Sect. 80. (z) Sect. 81. 
 
 (a) Sect. 82. See Re Inclosure Commissioners, App, p. 281. 
 
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CHAP, v.] Oj' the Drainar/e Ads. 2D1 
 
 Lastly, we must call attention to the " Towns' Improvement 
 Clauses Act, 1847," by which name the act is legislatively 
 known (e). However, the provisions of this statute are in a 
 great measure rendered unnecessary by the Health of Towns' 
 Acts, and, therefore, we must refer very briefly to those parts of 
 the " Towns' Improvement Act" which relate to sewerage and 
 drainage. This statute is declared to be incorporated in any 
 act to be passed after the 21st of June, 1847, which shall declare 
 that it shall be so incorporated, and its object is to comprise in 
 one act the provisions usually ordained for paving, draining, 
 cleansing, lighting and improving towns and populous dis- 
 tricts (/). 
 
 By sect. 7, a local surveyor of drainage is to be appointed, 
 with a salary subject to approval, as therein mentioned. The 
 local commissioners may fill up any vacancy, or remove this 
 surveyor ((/). 
 
 The Sth section prescribes a form of declaration by the 
 surveyor. 
 
 The 9th section enables the local commissioners to appoint 
 an " Inspector of Nuisances" (h), with powers to promote 
 cleanliness and suppress nuisances. 
 
 By sect. 10, the surveyor and inspector may be the same 
 person (i). 
 
 By sect. 12, the commissioners may appoint, subject to the 
 approval of a secretary of state, an officer of health. His 
 duty is to ascertain the existence of diseases, especially con- 
 tagious diseases, and to provide means for checking them ; he 
 is likewise to attend to the ventilation of churches and other 
 public buildings, and lodging-houses, and is to be entirely 
 under the control of the commissioners {k), 
 
 (e) 10& 11 Vict. u. 34.,=. 4. 
 
 (/) Id. s. 1. 
 
 (g) See 11 & 12 Vict. c. 63, s. 37 (Health of Towns' Act). 
 
 (h) See Ibid. 
 
 (i) See Ibid. 
 
 t/f) Id. s. 40. 
 
 V2 
 
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292 Of the Drainage Acts. [chap, v. 
 
 The 13th and following sections (/) 'relate to the making of 
 surveys and maps, which, amongst other things, are to contain 
 the " existing sewers and drains." 
 
 The 17th and 18th sections speak of plans for any new works, 
 especially relating to sewers and outfalls. 
 
 The next class of sections (m) has reference to the taking of 
 lands ; and the Lands Clauses Consolidation Act («) is to be 
 adopted as a guide in carrying out that object. 
 
 The management of sewerage and drainage is next provided 
 for. The sewers are to be vested in the local commissioners, 
 and the drainage to be distributed into districts (o). 
 
 The 35th and ensuing clauses provide for house drains {p). 
 
 Objections to new sewers, and proceedings thereupon, are dealt 
 with by the 84th and subsequent sections of this act {q). 
 
 Nuisances through stagnant water are provided against by 
 the 99th and other sections of the same statute. 
 
 The 132nd and 133rd sections relate to special orders under 
 the act. 
 
 The power to enter into lands is given by the 144th and sub- 
 sequent sections (?•). 
 
 The next class of clauses deals with the subject of rates, — 
 private improvement rates ; sewers' rates ; drainage rates ; — 
 together with the mode of assessing and recovering them (s). 
 
 (i) See sects. 13—16 inclusive, and 11 & 12 Vict. c. 63, ss. 41, 42. 
 
 (m) Sects. 19, 20, 21. 
 
 (n) 9 & 10 Vict. c. 18. 
 
 (o) See the sections, 10 & 11 Vict. u. 34, s. 22—34 inclusive, and 11 & 12 
 Vict. c. 63, s. 43 (Tlie Health of Towns' Act). 
 
 (p) 10 & 11 Vict. c. 34, s. 35—37 inclusive, and 42 — 46 inclusive. See 
 11 & 12 Vict. c. 63, =,. 49, &c. 
 
 iq) 10 & 11 Vict. c. 34. 
 
 (r) That is to say, under 10 & 11 Vict. u. 34, b. 144—153 inclusive. See 
 11 & 12 Vict. c. 63, s. 143. 
 
 (s) 10 & 11 Vict, c. 34, s, 156-199 inclusive. See 11 & 12 Vict. c. 63. 
 
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CHAP, v.] ' Of the Drainage Acts. 293 
 
 Next come the sections relating to the making of bye-laws (i). 
 And the few remaining clauses have reference to procedure, 
 and to other matters incident to the working of the act (m). 
 
 By 19 & 20 Vict. c. 120, s. 14, the Courts of Chancery in 
 England and Ireland may ordain, that parts of settled estates 
 may be laid out, (inter alia,) for sewers, drains or watercourses, 
 either to be dedicated to the public or not. 
 
 (0 10 & 11 Vict. c. 34, s. 200—208 inclusive. See 11 & 12 Vict. u. 63, 
 ss. 34, 115, 116. 
 
 (m) 10 & 11 Vict. c. 34, s. 208—216 inclusive. The Waterworks' Clauses 
 Consolidation Act, 10 & 11 Vict, c. 47, may also be referred to. 
 
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( 295 ) 
 
 PRECEDENTS OP ORDERS OF SEWERS. 
 
 FORMS AND PLEADINGS. 
 
 THESE PRECEDENTS ARE TAKEN FROM THE APPENDIX TO CALLIS ON 
 
 SEWERS. 
 
 I. 
 
 ^n Order to repair a Wall or Bank, 
 
 AVherbas the wall or sea-bank called, &c., leading from and to, &c., 
 is bj' means of the great violence of the sea of late become very 
 ruinous, defective, and out of repair, and not fit to resist the rage of 
 the waters, but oftentimes letting in the same on the marsh and low 
 grounds and lands thereto adjoining, in the parish of, &c. aforesaid, to 
 the very great detriment and loss of all and every the owners thereof, 
 in the grass there grown and cattle therein depastured, which are 
 frequently destroyed : We, his Majesty's commissioners of sewers 
 within the county, of, &.C. aforesaid, whose names and seals are 
 hereto put and affixed, being willing and desirous to redress so great 
 a grievance, by virtue of the authority to us given, do order, direct, 
 and appoint that G. H., of, &c., and J. K., of, &c., or some or one of 
 them to whom the same appertains, do, on or before, &c., next coming, 
 cause the wall or bank above mentioned to be well and suificiently 
 repaired, amended, and re-edified, with good and substantial materials, 
 in all parts thereof where it shall appear that the same is in any ways 
 defective, that the lands and low grounds in the said parish of, &c., 
 may be thereby secured from all inundations for the future ; and this 
 the said G. H., J. K., &c., are to do at their perils. Given under our 
 hands and seals, &c. 
 
 II. 
 
 Order to remove Stakes and Piles set up in a River. 
 
 It being presented by the jury returned to inquire of defaults in 
 reparations of sewers, &c., in the county of, &c., at a Court of Sewers 
 held, &c., that T. M. had in the month of, &c., then past, set up and 
 erected several stakes and piles in the river of, &c., in the said county, 
 to the great nuisance and annojrance thereof, which said T. M. is not 
 to be found : We do therefore hereby order and empower L. B., who 
 
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 is likely to receive tlie most damage and injury by reason thereof, to 
 remove and abate the said nuisance on or before, &c. next, as to him 
 the said L. B. shall be thought fit. Given, &c. 
 
 III. 
 
 Assignment of a Surveyor of Servers. 
 
 We, A. B., C. D., E. F., &c., esquires, his Majesty's commissioners 
 of sewers for the county of, &c., do by virtue of the statutes of sewers, 
 and of the power to us thereby given, by this our order under our 
 hands and seals, assign and appoint L. A., of, &c., surveyor of the 
 walls, banks, and sewers, within the level of, &c., in the said county, 
 to oversee, survey, inspect into, and take care of the reparations of the 
 same from time to time, according to the orders and directions of us, 
 or any of us, or any other commissioners of sewers for the said county ; 
 and also to present the defects and decays thereof, during our will and 
 pleasure, or for and daring the space of, &c. Given, &c. 
 
 IV. 
 
 An Order on a particular person to pay a Tax. 
 
 Whereas on making a rate and assessment upon the owners of lands 
 in the parish and limits of, &c., for the repairing, amending, and 
 maintaining the sea-banks, walls, and sewers therein, for the year, 
 &c., it appeared to us by the information of, &c., on oath, that one 
 A. B. holdeth a certain messuage and twenty acres of land in the said 
 parish and limits, &c., by the tenure and payment of, &c., towards the 
 repairs and maintenance of the said banks and sewers, and the said 
 A. B. having neglected to pay the said sum to our collector appointed 
 to receive the same : We do therefore hereby order the said A. B. 
 wiihin, &o. days next after the date hereof, to pay unto, &c., our 
 collector aforesaid, the aforesaid sura of, &c., to be applied in repairing, 
 amending, and maintaining the walls, banks, and sewers above men- 
 tioned ; or on the said A. B.'s default therein, we shall decree the said 
 messuage and lands to be sold to satisfy the same ; of which the said 
 A. B. is to take notice. Given, &c. 
 
 V. 
 
 A Warrant to take a Distress for a Tax, and sell Goods. 
 To T. D., Sewer- Bailiff, or Collector of the Level of, &c. 
 
 Whereas complaint hath been made unto us, that C. D. and E. F., 
 of, &c., aforesaid, who are severally rated and assessed in the several 
 sums of, &c., for and towards the necessary reparations and amend- 
 ments of the banks, walls and sewers within the said level, have 
 refused to pay the same when demanded, contrary to the laws in that 
 case made : These are therefore to authorize and command you to 
 levy the said respective sums of, &c., on the goods and chattels of the 
 said C. D. and E. F. respectively, by distress and sale thereof; And 
 that you do employ the said money, when levied, towards the repairs 
 above mentioned; for which this shall be your warrant. Given, &c. 
 
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Appendix. 297 
 
 VI. 
 
 A Decree and Sale of Lands hy Commissioners, for Payment 
 of Lots and Charges. 
 
 This indenture made, &o., between A. B., C. D., E. F., &c., 
 esquires, (six) commissioners of sewers for tlie county of, &c., of the 
 one part, and G. H., &c., of the other part. Whereas the said commis- 
 sioners, parties to these presents, liaving the execution of the laws of 
 sewers, on, &c., last past, made and ordered an equal rate, charge, and 
 assessment, upon all and every the owners and occupiers of lands in 
 the parish and limits of, &c., in the county aforesaid, according to the 
 quantities and qualities of the said lands, for and towards the repara- 
 tion and amendment of the banks, walls, and sewers within the said 
 limits, pursuant to the laws and statutes in that case made and pro- 
 vided ; And whereas in and by the said rate and assessment, L. M., 
 of, &c., aforesaid, was legally charged and assessed in the sum of, &c., 
 as his proportionate lot and charge, towards the said reparations and 
 amendments, for his messuage, tenement, and lauds, called, &c., held 
 by lease and grant from, &o., for the term of, &c., who on demand 
 thereof, by, &c., the commissioners' collector lawfully authorized, hath 
 absolutely and contemptuously denied and refused to pay the same ; 
 And whereas the said commissioners, or -some of them, are credibly 
 informed that the said L. M. hath no goods or chattels whereout the 
 siiid sum of, &c., may be anyways levied for the purposes aforesaid : 
 Now, to the end of the said sum of, &c., may be paid and applied to 
 the uses above mentioned, in repairing the said sewers. This indenture 
 witnesseth, that the said commissioners parties to these presents, by 
 force and virtue of the statutes of sewers, and the power to them 
 thereby given, and for and in consideration of the covenants and 
 conditions hereinafter on the part and behalf of the said G. H., his 
 executors and administrators, to be performed and done, and also of 
 five shillings of lawful British money to them the said commissioners 
 in hand paid by the said G. H., the receipt whereof is hereby acknow- 
 ledged. Have ordered, bargained, sold, and assigned, and by these 
 presents do, as much as in them the said commissioners, parties to 
 these presents, lieth, order, decree, bargain, sell, and assign, from the 
 said L. BI., his executors, administrators, and assigns, unto the said 
 G. H., his executors and administrators. All and singular the said 
 messuage or tenement, lands and premises above mentioned, and all 
 ways, waters, easements, profits, privileges, advantages, and appur- 
 tenances to the said messuage or tenement and lands belonging or 
 appertaining. To have and to hold the said messuage or tenement, 
 lands and premises to the said G. H., his executors and administrators, 
 for and during all the rest and residue of the said term of, &c., which 
 he the said L. M. had, oi' ought to have, of or in the same. Upon 
 condition nevertheless, that he the said G. H., his executors and 
 administrators, do and shall yearly and every year, during the said 
 term of, &c., pay or cause to be paid, unto the collector or collectors 
 appointed, all such rates, lots, charges, and assessments, as shall be 
 rated, assessed, or imposed by the commissioners of sewers for the 
 county of, &c., aforesaid, for the time being, on the messuage or 
 tenement and lands above mentioned, upon demanding the same, and 
 on no other condition or trust whatsoever. And the said G. H. for 
 himself, his executors and administrators, doth covenant and grant, to 
 
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298 Appendix. 
 
 and with the said commissioners parties to these present, and to and 
 with every of them, tlieir executors, &c.. That he the said G. H., his 
 executors and administrators, shall and will from time to time, and at 
 all times during the said term of, &c., aforesaid, well and truly pay or 
 cause to be paid unto the collector or collectors appointed to receive 
 the same, all and all manner of rates, cesses, lots, charges, assessments, 
 and payments, which shall be rated, assessed, charged, or imposed by 
 the commissioners of sewers for the said county of, &c., for the time 
 being, on the messuage, tenement, lauds, and premises above men- 
 tioned, or any part thereof, towards the reparation of the said sewers, 
 on demand thereof, including the assessment of, &c., aforesaid, without 
 any default, denial, or neglect, by him the said G. H., his executors, 
 &c., according to the true intent and meaning of this present decree 
 and assignment. In vpitness whereof the said commissioners and 
 parties have hereunto put their hands and seals, the day and year, 
 &.C. (a). 
 
 VII. 
 
 The Certificate thereof into Chancer^/. 
 Memorandum this day, &c. The within written decree and assign- 
 ment of the lands and premises therein mentioned was certified into 
 the High Court of Chancery, by the commissioners within named, 
 under their seals, according to the form and directions of the Acts of 
 Parliament. T. D., Gler. Cora. 
 
 VIII. 
 
 Appointment of a Bailiff of Sewers. 
 We, A. B., C. D., E. F., &c., esquires, (six) commissioners of sewers 
 within the county of, &c. aforesaid, do hereby depute, assign, and 
 appoint T. D., of, &c., to be our bailiff of sewers for the level or 
 limits of, &c., to execute all warrants, precepts, and summonses to 
 him directed by us, or any of us, or auy other his Majesty's commis- 
 sioners of sewers for the said county, relating to the reparation, 
 amendment, and reformation of the walls, banks, and sewers there ; 
 pursuant to the laws and statutes in that case made. Given, &c. 
 
 IX. 
 
 Appointment of a Collector of Sewers. 
 We, A. B., C. D., E. F., &c., esquires, comnn'ssioners of sewers, &c., 
 do hereby assign aud appoint A. T., of, &c., our collector and re- 
 ceiver, during our will and pleasure, to collect and receive all money, 
 by us or by any other of his Majesty's commissioners of sewers for 
 the said county, from time to time ordei'ed and directed to be levied, 
 by rate and assessment, or otherwise, on all owners and occupiers of 
 lands, within the level of, &c., and to pay over the same to B. M., &c., 
 our expenditor appointed ; he the said A. T. rendering to us, or some 
 of us, a just, true, and perfect account of all such money by him 
 collected and received within the said level, when thereunto required 
 by us, or any of us, or yearly, &c. Given, &c. 
 
 (a) The Metropolitan Sewers Act, 11 & 12 Vict. c. 112, s. 145, excepts 
 the power of decreeing lands from their owners out of the commission. 
 But this is confined to the metropolitan district as defined by that act. 
 
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Appendix. 299 
 
 X. 
 
 Assignment, of an Expenditor, 
 
 We, A. B., C. D., E. F., esquires, commissioners, &c., do, by virtue 
 
 of the authority to us given by the laws of sewers, nominate, assign 
 and appoint B. M., of, &c., gent, expenditor, to pay, disburse, and 
 expend all money raised and levied by our rate and assessment, within 
 the level, of, &c., on all owners and occupiers of lands, &c., charge- 
 able towards the reparations and amendments of sewers, and by him 
 had and received of and from our collector appointed; so as he the 
 said B. M. do and shall from time to time, wlien thereunto required, 
 yield, render and deliver unto us, a true and perfect account and ac- 
 counts of all money by him thus paid, for and towards the reparations 
 above mentioned. Given, &c. 
 
 XI. 
 
 A Warrant or Order for a Collector to Account. 
 To T. D., Bailiff of Sewers, for the Level, of, &e. 
 
 Whereas we have appointed A. T., of, &c., our collector of sewers, 
 within the level of, &c., to collect and receive all money rated and to 
 be levied on the owners of lands, &o., towards the repairs of the banks, 
 walls, and sewers therein, he the said A. T. from time to time account- 
 ing with us for the same, when thereunto required : These are there- 
 fore to command you forthwith to give notice to the said A. T. per- 
 sonally to be and appear before us, at, &o , on, &o. next, to give and 
 render unto us a true and perfect account in writing of all money by 
 him received, of all and every person and persons, for and towards the 
 reparations aforesaid, and of all other things relating to his office of 
 collector; which he the said A. T. is hereby ordered to do at his peril. 
 Given, &e. 
 
 XII. 
 
 An Order to provide Carts and Carriages for Repairs of 
 
 Sewers. 
 
 We, A. B., C. D., E. F., &c., esquires, his Majesty's commissioners 
 of sewers within the county of, &c., do hereby order and require 
 T. B., D. W., L. M., &c., who keep horse teams in the parish of, &c. 
 that they and every of them send or cause to be sent out of the said 
 parish, unto, &e., in the aforesaid county, six carts or carriages, on, 
 &c., next ensuing, furnished with a sufficient number of able horses or 
 oxen and workmen, to work on the reparations of the walls, banks and 
 sewers, within the parish and level aforesaid, according to the Acts of 
 Parliament in that case made ; being allowed, &c., per day for the 
 same. Given, &c. 
 
 XIII. 
 
 A Warrant or Order for Labourers to morli on the Repairs. 
 
 To W. L., N. P., T. A., &c. 
 
 These are to command you and every of you, that on notice of this 
 our order, you forthwith go and repair to, &c., in the county of, &c., 
 
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300 Appendix. 
 
 and tlien and there, as many days, and so long time as shall be ad- 
 judged necessary by our surveyor of sewers, do diligently work and 
 labour in the reparations and amendments of the walls, banks, and 
 sewers in the said county ; and that you or either of you do not thence 
 depart, without leave of our said surveyor first obtained for the same ; 
 all which you are to observe at your peril. Given, &c. 
 
 xrv. 
 
 An Order to take Timber Trees for Reparation of Sewers. 
 To T. A., Gent., Surveyor of Sewers in, &c. 
 
 Whereas we A. B., C. D., E. F., &c., esquires, commissioners of 
 sewers for the county of, &c., on view do find that the walls, banks, 
 and sewers within the level of, &c., in the county aforesaid, are very 
 ruinous and defective, and require much timber work to put the same 
 in repair. And we being credibly informed that T. D., living within 
 the limits of the said level, hath six large timber-trees standing and 
 growing on his land, called, &c., fit and proper to be cut and employed 
 in the said reparations : These are therefore to authorize and empower 
 you, with workmen, &c., to enter into and upon the land of the said 
 T. D., and cut, take and carry away from the same the said six timber- 
 ti-ees, at seasonable times, without doing any damage to the said land, 
 for and towards the reparations of the walls, banks, and sewers afore- 
 said, and not otherwise ; giving to the said T. D. notice thereof, and 
 tendering and paying to him the sum of, &c., which we adjudge a 
 reasonable price for the same. And this shall be your sufficient war- 
 rant in the premises. Given, &o. 
 
 XV. 
 
 Oath of the Jury summoned to a Court of Sewers. 
 
 You shall inquire and make true presentments and judgments of 
 all such things as shall be given you in charge, and which are in- 
 quirable and punishable within this level relating to the repairs of the 
 walls, banks, and sewers. You shall do nothing out of malice or 
 hatred, nor conceal anything through fear, favour, or affection ; but 
 in all things shall impartially do your duty herein according to the best 
 of your knowledge. So help you God. 
 
 XVI. 
 
 Pleahy Commissioners of Sewers, 
 3 Car. & Payne, 63. 
 
 And for a further plea in this behalf, as to breaking and entering 
 the said dwelling-house, and as to the seizing and taking the goods 
 and chattels (to wit), one set of cruets and frame, one hearth-rug, 
 one fender, and one set of fire-irons there found, and carrying away 
 the same, and converting and disposing thereof to his own use, as in 
 the first count of the above declaration is mentioned, he the said 
 defendant, by leave of the Court here for that purpose had and 
 
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Appendix, 301 
 
 obtained, according to the form of the statute in such case made and 
 provided, says, that the said plaintiff ought not to have or maintain 
 his aforesaid action against him, because he says, that the said supposed 
 trespasses were committed by him, the said defendant, by the autho- 
 rity of a certain commission of sewers for tlie Tower Hamlets (excluding 
 St. Catherine's and Blackwall Marsh), for a lot or tax assessed upon 
 the said plaintiff by the said commission, according to the purport, 
 tenor and effect of a certain Act of Parliament made in the twenty- 
 third year of the reign of our late sovereign lord King Henry the 
 Eighth ; and this he the said defendant is ready to verify ; and therefore 
 he prays judgment, if the said plaintiff ought to have or maintain his 
 aforesaid action thereof against him. 
 
 XVII. 
 
 Oath to be taken ly Commissioners of Semers, under 3 i^- 4 
 Will. 4, c. 22, s.'3. 
 
 I do swear, \or, being one of the people called Quakers, do 
 
 solemnly affirm], that I trulj' and bona fide am in my own right [or 
 in the right of my wife] in the actual possession and enjoyment of [or 
 in the receipt for life, or for a larger estate, of the rents and profits 
 issuing out of] lands, tenements, or hereditaments, situate in the 
 county of , of freehold or copyhold tenure, or held for a term 
 
 of not less than sixty years absolute, or determinable with a life or 
 lives, of the clear yearly value of one hundred pounds above reprizes; 
 or held for the unexpired term of years, originally granted 
 
 for years, of the clear yearly value of two hundred pounds 
 
 above reprizes; [or am heir apparent of , who, to the best of 
 
 my knowledge, is seised of freehold or copyhold lands, tenements, or 
 hereditaments, situate in the county of , of the clear yearly 
 
 value of two hundred pounds above reprizes] ; [or am agent of , 
 
 who, [or which], to the best of my knowledge, is seised or possessed 
 in his or their own right] [or in the right of his wife] of freehold or 
 copyhold lands, tenements, or hereditaments, situate in the county of 
 , of the clear yearly value of three hundi'ed pounds above 
 repi'izes. So help me God. 
 
 [Or, being a Quaker, omit the words. So help me God.] 
 
 XVIII. 
 
 Form of Conveyance of Lands, Sfc. to Commissioners, under 
 3^4 Will. 4, c. 22, s. 25. 
 
 1 of , in consideration of the sum of to me 
 
 paid by six or more of the commissioners of sewers acting in and for 
 several limits [here describe the limits as set forth in the commission of 
 sewers], do hereby grant and release to the comniissicners of sewers 
 acting in and for the said limits all [describing the premises to be con- 
 vet/ed], and all my right, title, and interest in and to the same and 
 every part thereof, to hold to the said commissioners, their successors 
 and assigns for ever, by virtue of the several acts and laws now in 
 force concerning sewers. In witness whei'eof I have hereto set my 
 hand and seal this day of in the year of our Lord 
 
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302 Appendix. 
 
 XIX. 
 
 Form of Conveyance of Lands, cj'c. from Commissioners, under 
 3 # 4 Will. 4, c. 22, it. 40. 
 
 We, , six of the commissioners of sewers acting in 
 
 and for several limits [here describe the limits as set forth in the com- 
 mission of sewers'], in consideration of the snm of to us paid 
 hy of do hereby grant and release to the said 
 all [describing the premises to be conveyed'], and all right, title, and 
 interest of the commissioners of sewers in and to the same and every 
 part thereof, to hold unto the said his heirs, executors, ad- 
 ministrators, and assigns for ever. In witness whereof we have 
 hereto set our hands and seals this day of in the year 
 of our Lord 
 
 XX. 
 
 Form of Mortgage Security, under 3^4 'Will. 4, c. 22, s. 42. 
 
 By virtue of an act passed in the third year of the reign of his 
 Majesty King William the Fourth, intituled [here insert the title of 
 this act,'] we the undersigned, being six of the commissioners [here 
 insert the general description of the commission under ichich they act], 
 in consideration of the sum of of lawful money of Great 
 
 Britain to [here insert the name of the receiver of the district] lent and 
 paid by do hereby certify, that [here describe the particular 
 
 lands, or, ifhy assessment, the valley, level, or limit in which the lands 
 are situate, which are to be charged], are become charged with the re- 
 payment of the said sum, in instalments of one part on the 
 day of in every year, together with interest on such 
 part of the said principal money as shall remain unpaid from time to 
 time at and after the rate of pounds per centum per annum, 
 until the whole thereof shall be repaid ; which sum so lent and ad- 
 vanced by the said is part of a capital sum of which, 
 at a Court of Sewers holden at on the day of 
 last, was decreed and ordered to be taken up and borrowed for the 
 - purpose of [here briefly state the general cause or object of borrowing 
 the moneyl. In witness whereof we have hereunto set our hands and 
 seals the day of 
 
 xxr. 
 
 Form of Transfer of Mortgage, under 3 tj* 4 'Will. 4, c. 22, s. 43. 
 
 I [or we] A. B., of, &c., in consideration of the sura of 
 to me this day paid by [C. f)., of, &c.], do hereby transfer the within 
 certificate of charge, with all my right and title to the principal 
 money thereby secured and now remaining due thereon, and to all 
 the interest money now due, or hereafter to become due, unto 
 , his [her, or their] executors, administrators, successors, 
 bnd assigns [as the case may be]. Given under my hand and seal this 
 day of 
 
 Witness, 
 
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Appendix. 303 
 
 XXII. 
 
 Form of Warrant/or levying Fines, Amerciaments, ^c, under 
 3^4 Will. 4, c. 22, s. 54. 
 
 To , our Bailiff of Sewers, and to 
 
 and , our Collectors, and to each and every of 
 
 them, atid to all Constables and Peace Officers. 
 Whereas at the Court \or session] of Sewers holden for the limits 
 \h,ere state the name of the commission] on the day of 
 
 last, A. B., of , in the county of , carpenter, was fined 
 
 [amerced, or otherwise, as the case may 5e] in the sura of , 
 
 which sura it hath this day been proved to us, the undersigned, being 
 six or more of the justices and commissioners of sewers for the afore- 
 said liraits, by the oath of duly appointed to receive the same 
 fine, [amerciament, penalty, or forfeiture, as the case may Se], that 
 the said hath neglected or omitted to pay when demanded of 
 hira : These are therefore to authorize and comraand you, any or 
 either of you, to levy the said sum of by distress and sale of 
 the goods and chattels of the said , together with the costs 
 and charges of such distress and sale, rendering the overplus, if any, 
 to the said . Given under our hands and seals the 
 day of in the year of our Lord one thousand eight hundred 
 and 
 
 XXIII. 
 
 Form of Mortgage Security for Money borrowed for General 
 Purposes, under 4^5 Vict. c. 45, s. 5. 
 
 By vii'tue of an act passed in the year of the reign of her 
 
 Majesty Queen Victoria, intituled [^here insert the title of this act], we, 
 the undersigned, being six of the commissioners [Aere insert the general 
 description of the commission tender which they act\ in consideration 
 of the sum of of lawful money of Great Britain to [here insert 
 
 the name of the treasurer] lent and paid by do hereby 
 
 certify, that the several general sewers rates to be made and levied 
 within \here insert the name of the district or level] under and by 
 virtue of the said act are become charged with the repayment of the 
 said sum, in instalments of one part on the day of 
 
 in every year, together with interest on such part of the 
 said principal money as shall remain unpaid from time to time, at and 
 after the rate of pounds per centum per annum, until the whole 
 
 thereof shall be repaid ; which sum so lent and advanced by the said 
 is part of a capital sum of which, at a Court of 
 
 Sewers holden at on the day of last, 
 
 was decreed and ordered to be taken up and borrowed. In witness 
 whereof we have hereunto set our hands and seals the 
 day of 
 
 XXIV, 
 
 Form of Transfer of the above Mortgage, under 4^5 Vict, 
 c. 45, s. 6. 
 
 I [or we] A. B., of, &c., in consideration of the sum of to 
 
 me this day paid by C. D., of, &c., do hereby transfer the within 
 
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304 Appendix. 
 
 certificate of charge, with all my right and title to the principal money 
 thereby secured, and now remaining due thereon, and to all the in- 
 terest money now due or hereafter to become due, unto [his, 
 her, or their] executors, administrators, successors, and assigns [as the 
 case may be]. Given under my hand and seal this day 
 of 
 
 Witness, 
 
 XXV. 
 
 Form of Security, 4 (^ 5 Vict. c. 45, s. 5. 
 
 By virtue of an act passed in the year of the reign of her 
 
 Majesty Queen Victoria, intituled [here insert the title of this acf], 
 we, the undersigned, being six of the commissioners [here insert the 
 general description of the commission under which they act\ in con- 
 sideration of the sum of of lawful money of Great Britain to 
 [here insert the name of the treasurer] lent and paid by do 
 hereby certify, that the several general sewers rates to be made and 
 levied within [here insert the name of the district or level] under and by 
 virtue of the said act are become charged with the repayment of the 
 said sum, in instalments of one part on the day of 
 in every year, together with interest on such part of the said 
 principal money as shall remain unpaid from time to time, at and after 
 the rate of pounds per centum per annum, until the whole 
 thereof shall be repaid ; which sum so lent and advanced by the said 
 is part of a capital sum of which, at a court of sewers 
 holden at on the day of last, was decreed 
 and ordered to be taken up and borrowed. In witness whereof we 
 have hereunto set our hands and seals the day of 
 
 XXVI. 
 
 Form of Transfer, under A Sf b Vict. c. 45, s. 6. 
 
 I [w we] A. B., of,&c., in consideration of the sum of . to 
 
 me this day paid by C. D., of, &c., do hereby transfer the within 
 certificate of charge, with all my right and title to the principal money 
 thereby secured, and now remaining due thereon, and to all the interest 
 money now due or hereafter to become due, unto [his, her, or 
 
 their] executors, administrators, successors, and assigns [as the case 
 may be]. Given under my hand and seal this day of 
 
 Witness, 
 
 XXVII. 
 
 Form of Assignment of Provisional Certificate, under 
 10 # 11 Vict. c. 11. 
 
 I, A. B., of in consideration of the sum of pounds 
 
 paid to me [or of the advances which may be made to me] by C. D., 
 do hereby assign to the said 0. D., the within written provisional cer- 
 tificate, and all my right and interest in and to the advances which 
 may be made in virtue thereof, to the intent that the said C. D., hia 
 
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Appendix. 305 
 
 executors, administrators or assigns, may claim and receive such 
 advances, and may thereout retain the said sum of with 
 
 interest for the same at per centum per annum [or such sums 
 
 as may be advanced to me by the said C. D. as aforesaid, with interest 
 at per centum per annum from the time of the respective 
 
 advances thereof]. 
 
 In witness whereof I have hereunto set my hand, this day 
 
 of 18 . 
 
 XXVIII. 
 
 Form of Mortgage of Sates, under 18 ^ 19 Viet. c. 120. 
 
 Mortgage Number ( ). 
 
 By virtue of an act passed in the year of the reign of 
 
 Queen Victoria, intituled [^here insert the title of this act\ the Metro- 
 politan Board of Works, or the Board of Works for the district 
 of , or the vestry of the parish of {as the case may 
 
 he), in consideration of the sum of paid to by A. B., 
 
 of , for the purposes of the said act, do grant and assign unto 
 
 the said A. B., his executors, administi-ators and assigns, all [here de- 
 scribe the monies or rates to be mortgaged], to hold to the said A. B., 
 his executors, administrators and assigns, from the day of the date 
 hereof until the said sum of , with interest at the rate of 
 
 per centum per annum for the same, shall be fully paid and satis- 
 fied ; and it is hereby declared that the said principal sum shall be 
 repaid on the day of , and that in the meantime the 
 
 interest thereof shall be paid on the day of and the 
 
 day of in every year. 
 
 In witness whereof the Metropolitan Board of Works [or the said 
 district board, or the said vestry, as the case may 5e], have hereunto 
 set their seal this day of , one thousand eight hundred 
 
 and 
 
 XXIX. 
 
 Form of Transfer of Mortgage, under 18 8f 19 Vict. c. 120. 
 
 I, A. B. of , in consideration of the sum of pounds, 
 
 paid to me by C. D. of , do hereby transfer to the said C. D., 
 
 his executors, administrators and assigns, a certain mortgage number 
 , bearing date the day of , and made by the 
 
 Metropolitan Board of Works, or the Board of Works for the district 
 of , or the vestry of the parish of , for securing the 
 
 sum of , and interest [o?-, if such transfer he hy indorsement 
 
 on the mortgage, insert, instead of the words after " assigns," the 
 within security], and all my property, right and interest in and to the 
 money thereby secured, and in and to the monies thereby assigned. 
 
 In witness whereof I have hereunto set my hand and seal this 
 day of , one thousand eight hundred and 
 
 XXX, 
 
 Schedule, Form B., under 21 ^ 22 Vict. c. 98. 
 
 By virtue of " The Public Health Act, 1848," the local board 
 of health for the district of , do hereby declare and absolutely 
 
 W. X 
 
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306 Appendix. 
 
 order that the inheritance of the [dwelling house, shop, lands and 
 premises, as the case may be], situate in street, in the parish 
 
 of , within the said district, and now in the occupation of 
 
 , shall be absolutely charged with the sum of pounds, 
 
 paid by of for the improvement by drainage and 
 
 water supply [as the case may be] of the same dwelling house, shop, 
 lands and premises [as the case may be], together with interest for the 
 same from the date hereof at pounds per centum per annum, 
 
 until full payment thereof ; and also all costs incurred by the said 
 
 , his executors, administrators or assigns, under this security, 
 shall be fully paid and satisfied : and we hereby further declare that 
 the said principal and interest monies shall be paid and payable by the 
 owner or occupier of the said premises to the said , his exe- 
 
 cutors, administrators and assigns, in manner following; (that is to 
 say,) the interest on such principal sum of pounds, or on so 
 
 much thereof as shall from time to time remain due and payable under 
 this order, shall be paid and payable by equal half-yearly payments 
 whilst payable on the day of and the day 
 
 of in every year, the first payment thereof to be made on 
 
 the day of next, and such principal sum of 
 
 pounds shall be paid and payable by equal annual instalments 
 
 on the day of in each of the next succeeding 
 
 years, towards the discharge of the same principal sum, until the whole 
 shall be fully satisfied and discharged. 
 
 XXXI. 
 
 Sewers and Drainage, under 24 ^ 25 Vict. c. 133. 
 
 Schedule, Parts 1 and 2 contain the Rules as to the Election of 
 Members of Drainage Boards and the Rules as to Proceedings of 
 Drainage Boards. 
 
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AN INDEX 
 
 TO 
 
 THE PRINCIPAL MATTERS. 
 
 ACTIONS against commissioners of sewers, 223, 242. 
 notice of action, 224, 242. 
 
 ADMIRALTY, approval of works under Main Drainage Act, 15. 
 
 ADVANCES OF MONEY, under Drainage Acts, 260, 271. 
 repayment of, 271. 
 
 ALLOWANCES to commissioners of sewers, 42. 
 AMENDMENT of sewers' rate, how made, 175. 
 AMERCIAMENTS by a jury of sewers, 204. 
 ANNOYANCES under the laws of sewers, 79, 126. 
 ANNUITANTS, when liable to the sewers' rate, 110. 
 APPEAL from decisions of local board to the general board, 26. 
 
 against rates, &c., 181. 
 APPORTIONMENT under Drainage Acts, 278. 
 ARBITRATION [sewers], 251. 
 
 ASSESSMENT of sewers' rates, how made, and in respect of what, 
 170. 
 upon each person, &c., 172. 
 in respect of the lands, &c., 173. 
 
 AVOWRY, 216. 
 
 B. 
 
 BANKS, what within the laws of sewers, 71. 
 
 BARRISTERS, when qualified to be commissioners of sewers, 32, 36. 
 
 BEDFORD LEVEL ACT, rights under, saved, 50, 51 . 
 
 BENEFIT, there must be some, to warrant an assessment to sewers, 
 
 85. 
 BOND from officers of sewers, 152. 
 BOUNDARY LINES, 33. 
 BRIDGES, what within the laws of sewers, 78. 
 BRIGHTON IMPROVEMENT ACT, 29, 53. 
 
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308 Index. 
 
 BURIAL BOARD, City commissioners the board in the city, 12. 
 BYE-LAWS may be made by the Metropolitan Board, 17. 
 
 CALCIES, what within the laws of sewers, 77. 
 
 CAMBRIDGE commissioners of sewers, their jurisdiction saved, 25. 
 
 CAUSEWAYS or caldies, 77. 
 
 CERTIORARI [sewers], 48. 
 
 when granted to remove orders of sewers, 229. 
 on the removal of the clerk, 233. 
 what follows upon issuing the writ, 235. 
 disobedience to the writ, how punished, 237. 
 what done upon the return, 239. 
 procedendo, ib. 
 costs, ib. 
 
 CHAIRMAN of Court of Sewers, 147. 
 
 CLERK of sewers, not to be treasurer, 157. 
 commissioners may sue in his name, 223. 
 may be a witness, 224. 
 
 Local Board of Health may sue in his name, 227. 
 cannot be removed without certiorari, 233. 
 
 COMMISSION OF SEWERS, the first, 6. 
 23 Hen. 8, c. 5 . . 8. 
 
 may be issued under the Drainage Act of 1861 . . 26. 
 continues under 24 & 25 Vict. c. 133, until superseded by the 
 Crown, 46. 
 
 COMMISSIONERS must not meddle with other drainages, 70. 
 
 CONSERVATORS, Thames, rights of, saved, 15. 
 
 CONSTABLES to obey commissioners of sewers, 155. 
 
 COPYHOLDERS, when liable to the sewers' rate, 107. 
 
 CORNWALL, Duchy of, rights of, saved, 17. 
 
 CORPORATION, when privileged from the operation of the Public 
 Health Act, 21. 
 when liable to repair sewers, 89, 94. 
 
 COSTS may be decreed by commissioners of sewers, 200. 
 on writ of certiorari to remove orders of sewers, 239. 
 COVENANT to repair sewers, 90. 
 
 CUSTOM as to the repair of sewers, 89. 
 repair by, may be commuted, 90. 
 
 D. 
 
 DECREE of lands from their owners, 217. 
 
 what lands may be sold, 220. 
 
 who bound by such decrees, 221. 
 
 to whom lands may be decreed, 222. 
 " DEODORIZE" defined, 16. 
 
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Index. 309 
 
 DISTRESS for arrearages of sewers, 56, 107, 209. 
 
 commissioners could not levy a fine by, till 3 & 4 WUl. 4, c. 22, 
 
 s. 53.. 208. 
 distress concerning sewers, 209. 
 warrant, 210. 
 
 where, and on whose goods, 210, 211. 
 sale of, 212. 
 replevin, 214. 
 
 DISTRICT BOARD, sewers vested in, 13. 
 
 works beyond their district must be approved by Metropolitan 
 Board, 16. 
 
 DITCHES, what within the laws of sewers, 70. 
 
 DOCK COMPANY, when bound to repair a channel, 71. 
 
 DRAINAGE, under the Public Health Act, 133, 175. 
 commissioners of sewers sometimes elected under, 51. 
 
 DRAINAGE ACT OF 1861, commissioners of sewers may be sued 
 under, 26. 
 
 DRAINAGE ACTS, 
 
 the acts on that subject, 254. 
 advances of money, 260 — 271. 
 apportionment, 278. 
 
 DRAINAGE ELECTORAL BOARDS, 288. 
 
 E. 
 
 EAU BRINK DRAINAGE, rights under, saved, 52. 
 not a public drain, 71. 
 
 ECCLESIASTICAL PERSONS, when liable to the sewers' rate, 
 
 107. 
 ELECTORAL DRAINAGE BOARDS, under 24 & 25 Vict. c. 
 
 133.. 288. 
 
 ENTRY upon lands, under the Public Health Act, 26. 
 
 ESTATE, qualification by, 30. 
 
 EXECUTOR, when liable for the covenant of his testator in cases of 
 sewers, 92. 
 
 EXTINGUISHMENT by act of parliament, 53. 
 
 F. 
 
 FERRY, owner of, when liable to the sewers' rate, 108. 
 
 FINES, saving of, to the Crown, and estreating, 11. 
 by commissioners, 202, 203. 
 must be reasonable, 203. 
 whether traversable, ib. 
 
 by 3 & 4 Will. 4, c. 22, s. 53, are to be received by commissioners 
 of sewers, and not returned into the Exchequer, 208. 
 
 FRONTAGE, liability to repair, 87. 
 
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310 Index. 
 
 G. 
 
 GAS, when a nuisance to waterworks, 142. 
 
 GENERAL BOARD OF HEALTH, 18. 
 
 how they are to proceed in order to form districts, 19. 
 their provisional order, 20. 
 
 GENERAL SEWERS' TAX, 96. 
 
 GOODS, when liable to the sewers' rate, 114. 
 
 GOTES, what within the laws of sewers, 77, 80. 
 what, annoyances within the same, 80. 
 
 GRANT, obligation to repair sewers by reason of, 92. 
 
 GUTTERS, 
 
 what within the law of sewers, 72. 
 difference between gutter and sewer, ib. 
 
 IMPRISONMENT, by order of commissioners of sewers, 205. 
 
 INCLOSURE COMMISSIONERS, 
 
 their recommendation necessary for new commissions of sewers, 
 
 27. 
 commutation of liabilities by their sanction, 90. 
 
 INDICTMENTS, by commissioners of sewers, 223. 
 
 INJUNCTION, 
 
 when refused against commissioners of sewers, 250. 
 
 when granted, 251. 
 
 INSPECTOR OF NUISANCES, under Local Board of Health, 
 157. 
 
 JURY, 
 
 of sewers, 161. 
 
 whence summoned, 163. 
 
 may be compensated, 168. 
 
 may be dispensed with, ib. 
 
 in cases of purchase of land by commissioners of sewers, 190. 
 
 K. 
 
 KENSINGTON PALACE, not liable to sewers' rate, 107. 
 
 L. 
 LANCASTER, duchy of, 
 
 commissioners of sewers, 10. 
 rights of, saved, 17. 
 
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Index. 311 
 
 LAW OF SEWERS, liability to repair under, 93. . 
 
 LEA RIVER, works not to be erected on, unless under conditions; 
 15. 
 
 LESSEES for years, when qualified to be commissioners of sewers, 32. 
 
 LEVEL, when liable to repair sewers, 98, 105. 
 
 LOCAL ACTS sa^ed, 50. 
 
 LOCAL BOARD OF HEALTH, 
 how composed, 18. 
 sewers placed under their control, 25. 
 their jurisdiction, 23, 157. 
 
 LOCAL MANAGEMENT ACT, 
 as to sewers, 12, 13. 
 under 21 & 22 Vict. c. 104. . 13. 
 
 LONDON, City, Sewers' Act, 29. 
 
 LONDON COMMISSIONERS, rights of, saved, 50, 51. 
 
 LORD OF MANOR, when liable to the sewers' rate, 107. 
 
 M. 
 
 MAGNA CHARTA, provisions of, concerning bridges and banks, 5. 
 
 MAIN DRAINAGE, 13, 14. 
 25 & 26 Vict. c. 102. .15. 
 
 a private person must not touch it without notice to the Board, 
 16. 
 
 MANDAMUS, when granted against commissioners of sewers, 222, 
 241. 
 
 MANORS, Lords of, 107. 
 
 MAP of sewerage district, 140. 
 
 MAYOR, &c., needs not take an oath of qualification, 41. 
 
 MEETINGS of Court of Sewers, 141. 
 special, 148. 
 
 METROPOLIS IMPROVEMENT ACTS, rights saved, .50. 
 
 METROPOLIS SEWERS, now vested in vestry or district boards, 
 except main sewers, 12. 
 
 METROPOLIS SEWERS' COMMISSION, now abrogated, 11. 
 what were disqualifications as to commissioners, 33, &c. 
 
 METROPOLITAN BOARD OF WORKS, 
 
 may declare what sewers shall be main sewers, 13. 
 
 their powers, ih. 
 
 under the Main Drainage Act, ib. 
 
 how restricted, 15. 
 MILL DAMS, powers to meddle with, under 24 & 25 Vict. c. 133 . . 
 
 60. 
 MILL PONDS, what annoyances within the Statute of Sewers, 80. 
 MORTGAGES, by commissioners of sewers, 184, 187. 
 MORTGAGOR, when liable to the sewers' rate, 109. 
 
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312 Index. 
 
 " N. 
 
 NEW SEWERS, 16, 74. 
 
 under 24 & 25 Vict. c. 133 . . 59. 
 
 NEW WORKS, 
 
 under 3 & 4 Will. 4, c. 22 . . 117, 122. 
 under 24 & 25 Vict. c. 133 . . 124. 
 
 NOTICE of action, to the clerk of sewers, 224, 242. 
 
 NUISANCES REMOVAL ACT, rights under, saved, 50. 
 
 NUISANCES, private, 131. 
 
 O. 
 
 OATH, -what to be taken by commissioners of sewers, 39. 
 OCCUPIER, 
 
 to take away gravel, &c., and weeds from his banks, 83. 
 
 he is to drain and cleanse, ib. 
 
 OFFICE, qualification by, 35. 
 
 what offices do not give competency, 36. 
 
 OFFICERS of sewers, appointment of, 56, 148. 
 punishable for misbehaviour, 149. 
 removal of, 150. 
 remuneration of, 151. 
 must account, 152. 
 under Public Health Act, 154, 157. 
 
 OFFICES, when liable to the sewers' rate, 110. 
 
 ORDER IN COUNCIL, under the Public Health Act, 20. 
 
 ORDERS of Comniissioners indefeasible till set aside by subsequent 
 Courts, 46. 
 
 OWNERS of lands, who under Drainage Acts, 258. 
 
 may construct drainage works at their own expense, 16. 
 but with notice, ib. 
 
 but must not meddle with the main sewer without leave from the 
 Board, ib. 
 
 OWNERSHIP of banks, walls, &c., 71. 
 
 OXFORD commissioners of sewers, their jurisdiction saved, 25. 
 
 P. 
 
 PARISH, when liable to the repairs of sewers, 94. 
 
 PENALTIES concerning sewers, 11, 158. 
 
 PER.JURY, punishable under Public Health Act, 228. 
 
 POLICE ACT, rights under, saved, 50. 
 
 PONDS, when annoyances within the Statute of Sewers, 80. 
 
 POOLS, when within the Statute of Sewers, 81. 
 
 FR^MUNIRE, an old way of proceeding against commissioners of 
 sewers, 240. 
 
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Index. 313 
 
 PRESCRIPTION, when it induces a liability to repair sewers, 89. 
 may be commuted, 90. 
 
 PRESENTMENT of jury, need not be made upon every occasion of 
 repair, 167. 
 of surveyors of sewers, when traversable, 169. 
 
 PROPRIETORS under the Drainage Act of 1861 . . 28. 
 
 PROVISIONAL CERTIFICATE, under Drainage Act, 262. 
 
 PROVISIONAL ORDER, under Public Health Act, 20. 
 
 PUBLIC HEALTH ACT, 18. 
 rights under, saved, 50, 52, 90. 
 does not affect commissioners of sewers, 76. 
 as to drainage, &c., 135. 
 as to officers, 156. 
 as to mortgages, 184. 
 as to purchases of land, 189. 
 as to punishments, 226. 
 
 PURCHASE of lands by commissioners of sewers, 189, 193. 
 under Bedford Level Act, 194. 
 
 Q. 
 
 QUAKER relieved from oath of qualification, 89, 40. 
 QUALIFICATION of members of Local Board of Health, 24, 32. 
 
 of commissioners of sewers, 30. 
 
 R. 
 
 RATE for drainage, 175. 
 general district, 176. 
 for private improvements, ib. 
 for water, 177. 
 
 may be remitted in cases of poverty, 180. 
 amendment of, 175. 
 appeal against, 181. 
 
 REGISTRAR-GENERAL, return of, as to deaths, how it operates to 
 give jurisdiction to the General Board of Health, 19. 
 
 RENT-CHARGE, in lieu of tithes, when liable to the sewers' rate, 
 
 111. 
 REPAIRS of sewers, 71, 82, 94, 98, 170. See Sewers. 
 
 REPLEVIN, 214. 
 
 avowry, 216. 
 REVERSIONER, when liable to the sewers' rate, 108. 
 
 RIVERS within the laws of sewers, 67. 
 
 not so, if not navigable, 69. 
 ROMNEY MARSH, saved out of 3 & 4 Will. 4, c. 23 . . 50. 
 
 and 10 & 11 Vict. c. 38 . . 51. 
 
 law of sewers, when to be followed, 62. 
 
 W- 
 
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314 Index. 
 
 SAVING CLAUSES, 50, 51. 
 
 SEWER, derivation of this word, 1. 
 
 distinction between a sewer and a gutter, 2, 72. 
 
 SEWERS, commission of, its origin, 1, 2. 
 commissions by statute, 4. 
 settled estates, Court of Chancery ; sewers, 293. 
 the statute of sewers, 23 Hen. 8, c. 5 . . 8. 
 counties palatine, 10. 
 saving of fines, 11. 
 expenses of commissioners, ih. 
 Metropolis Sewers' Act, ib. 
 when vested in local board, 18. 
 qualification of commissioners, 30. 
 exceptions, 36. 
 oath, 39. 
 allowances, 42. 
 
 continuance of commissions and laws of sewers, 43. 
 under 24 & 25 Vict. c. 133, until superseded by the Crown, 46. 
 supersedeas, 47. 
 certiorari, 48. 
 
 commissioners by Act of Parliament, 49. 
 elected sometimes under Drainage Acts, 51. 
 the commission, 55, 61. 
 
 power of commissioners under 24 & 25 Vict. c. 133, s. 16 . . 59. 
 laws of Homney Marsh, 62. 
 survey, 64. 
 walls, 65. 
 
 streams and watercourses, 67. 
 rivers, ib. 
 
 ditches, banks, gutters and sewers, 70, 71, 72 
 new sewers, 74. 
 gotes and calcies, 77. 
 bridges, 78. 
 trenches, 79. 
 
 annoyances, as springs, 79. 
 mills and mill dams, 80. 
 wears, gotes, &c., 86. 
 ponds, ib. 
 pools, 81. 
 
 inquiry into defaults, ib. 
 who to repair, 82. 
 
 the person must receive a benefit, 85. 
 frontage, 87. 
 use, ib. 
 tenure, 88. 
 
 prescription and custom, 89. 
 
 liability to repair by prescription, &c., to continue notwithstand- 
 ing Public Health Act, 90. 
 covenant, ib. 
 grant, 92. 
 laws of sewers, 93. 
 
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Index. 315 
 
 SEWETiS— (continued). 
 corporation, 94. 
 parish, townships, &c., 95. 
 repairs, when made by the level, 98, 105. 
 new walls, &c., 105. 
 ecclesiastical persons, 107. 
 lords of manors, ib. 
 copyholders, ib. 
 ferry owners, 108. 
 exemption by custom, ib. 
 reversioners, ib. 
 mortgagors, 109. 
 owners of officers, 110. 
 annuitants, ib. 
 ■what lands chargeable, ib. 
 tithes. 111. 
 goods, 112. 
 
 perpetual charges, 113. 
 new walls, &o., 117. 
 
 new works, under 3 & 4 Will. 4, c. 22. . 122. 
 ^ under the Public Health Act, 124. 
 destruction of annoyances, 126. 
 of private nuisances, 131. 
 sewers under the Public Health Act, 132. 
 map, 141. 
 public walks, ib. 
 
 commissioners of, have a Court of Record, 145. 
 what constitutes a Court, 147. 
 chairman of Court, ib. 
 meetings, ib. 
 special meetings, 148. 
 appointment of officers, ib. 
 officers punishable for misbehaviour, 149. 
 removal of officers, 150. 
 bond, 152. 
 
 security under Public Health Act, 154. 
 commissioners to make laws and decrees, 160. 
 to summon a jury, 161. See Jury. 
 surveyor's presentment, 168. 
 when traversable, 169. 
 repairs, 93, 170. 
 assessment, how made, ib. 
 amendment of rate, 175. 
 rate under 11 & 12 Vict. c. 63, ib. 
 appeal, 181. 
 borrowing, 184. 
 mortgage, ib. 
 
 purchase of lands, 189, 193. 
 costs, 200. 
 punishments, 202. 
 fines, ib. 
 
 amerciaments, 203. 
 imprisonment, 205. 
 distress, 209. 
 
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316 Index. 
 
 SEWERS— (continued). 
 
 how taken, 211, 212. 
 
 sale, 212. 
 
 replevin, 214. 
 
 avowry, 216. 
 
 decrees of lands, 217. 
 
 what lands to be sold, 220. 
 
 to whom they should be decreed, 222. 
 
 writ of mandamus, ib. 
 
 indictments, 223. 
 
 actions, ib. 
 
 proceedings under 11 & 12 Vict. c. 63. .226. 
 
 of the certiorari, 229. 
 
 disobedience to that writ, 237. 
 
 procedendo, 239. 
 
 costs, ib. 
 
 prcEmunire, 24.0. 
 
 Smithfield Improvement Act, right under, saved, 50. 
 
 actions, 242. 
 
 notice of action, 248. 
 
 injunction, 250. 
 
 arbitration, 251. ■* 
 
 trial, 252. 
 
 SOMERSET HOUSE, apartments in, liable to sewers' rate, 107. 
 
 SPRINGS, what annoyances within the Statute of Sewers, 79. 
 
 STREAMS, within the laws of sewers, 67. 
 
 SUPERINTENDING INSPECTOR, his powers, 26. 
 
 SUPERSEDEAS of commissions of sewers, 46, 47. 
 
 SURVEY by commissioners of sewers, 57, 64. 
 
 SURVEYOR of sewers, presentment of, 168. 
 when traversable, 169. 
 
 T. 
 
 TAX, general sewers', 96. 
 
 TENDER of amends, 240. 
 
 TENURE, in the law of sewers, when it induces a liability to re- 
 pair, 88. 
 repair by, may be commuted, 90. 
 
 THAMES EMBANKMENT ACT, rights under, saved, 50, 52. 
 
 TITHES, when liable to the sewers' rate. 111. 
 rent-charge in lieu of, ib. 
 
 TOWNSHIPS, when liable to repair sewers, 94. 
 TOWNS' IMPROVEMENT CLAUSES ACT, 291. 
 TREASURER of sewers must not be clerk, 157. 
 TRENCHES, what within the Statute of Sewers, 79. 
 TRESPASS, when maintainable by commissioners of sewers, 225. 
 TRIAL, 242. 
 
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Index. 317 
 
 U. 
 
 UNDER-LESSEE, when liable to drainage works, 17. 
 USUS REI, 87. 
 
 V. 
 
 VESTRY BOARD, sewers vested in, 13. 
 
 when they execute works beyond the sewerage district, must have 
 leave of the Metropolitan Board, 16. 
 
 W. 
 
 WALLS, what within the laws of Sewers, 65, 66, 104. 
 
 WATER, supply of, under Public Health Act, 141. 
 
 WATERCOURSE, what within the laws of Sewers, 67. . 
 
 WATER RATE, under the Public Health Act, 177. 
 
 WATERWORKS COMPANIES, their consents when required, 
 under the Public Health Act, 21. 
 
 WEARS, all to be put down, 5. 
 
 what annoyances within the Statute of Sewers, 83. 
 
 WEEDS to be taken away by occupiers of banks, ih. 
 
 WESTMINSTER COMMISSIONERS, rights of, saved, 51. 
 
 WITNESS, no person incompetent by reason of his being rated, 225. 
 
 W. 
 
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 BEH YARD, TEMPli: BAB. 
 
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