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THE ^^/t^fa 7 ^ \ 
 
 READING 
 
 O F 
 The Famous and Learned 
 
 Robert Callis, Efq; 
 
 Upon the Statute of 23 H. 8. cap. 5. 
 
 SEWERS: 
 
 As it was delivered by him at Grafs Inn, 
 
 in Angufl, 1621. 
 
 The Second Edition, inlargcd with the feveral Judg- 
 ments and Refolutions of the Reverend JUDGES upon the 
 Laws of Sewers, and other Remarks not before publiihed. 
 
 With a New and Exad Table to the Whole. 
 
 Qui omnes tangit ab omnibus fuppor tar i debet. 
 
 LONDON, 
 
 Printed by M. Fkfher, for Thomas Bafet, at the 
 
 George, near Clifford's Inn, in Fleet- flreet. 1685. 
 
TO THE 
 
 READER. 
 
 THl S learned piece is fo Well known, and hath 
 already found fo kind entertainment , that 
 there will be little need to recommend it : The Laws 
 of Sewers whereof it treats are of general ^concern- 
 ment, as well to inland Counties through which Ri- 
 vers run, as to maritime-, and their uje and impor- 
 tance is {uch, as without the due execution of them, 
 we Jhould be expofed to the rage and violence of that 
 mercilefs Element which furrounds us, Rivers would 
 by Impediments and Annoyances be obftrufted in their 
 courfes j. Bridges, C a keys, Havens and Ports would 
 fall to decay ; in a word, the Gates which now open 
 and let in commerce, and the Ways that convey and 
 lead it through the Kingdom would jail us. 
 
 The Authour was a Gentleman of excellent parts, 
 both natural and acquired, and had attained to great 
 knowledge in the Laws of this Realm, which were 
 his Profejfion ; And being for many years a Commif- 
 fioner of Sewers in his native Countrey of Lincola- 
 fhire, which abounds in vaft Fens and Marijhes, he 
 particularly applied himjelf to the ftudy of thefe 
 
 A z Laws, 
 
 409026 
 
To the Reader 
 
 Laws of Sewers, and made choke to read upon the 
 Statute of 23 H. 8. cap. 5. whereon that Commiffi- 
 on it principally grounded. 
 
 Wherein how far he hath outgone all others who 
 have written of that fubjecl, with what judgment 
 and politenefs he hath handled as w&H fever al points 
 at the Common- law, as the fever al branches of this 
 Statute, and how he hath rendred the moft dark , 
 difficult and knotty parts thereof plain and in- 
 telligible , will eafily appear to the difcerning 
 Reader. 
 
 That which is added in a larger letter, will ifs 
 hoped prove not unacceptable-, Here and there is a 
 touch upon fome points controverted by our Authour ; 
 and the reft gives you the Judgments and Resolutions 
 of the Reverend Judges upon the Laws of Sewers, 
 fome of them before his time, but not then made 
 public k , and others fince wherein care hath been 
 taken that nothing Should be omitted that^ould be 
 found -pertinent to this fubjeft. 
 
 However our Authour hath this right done him, that 
 ?iothing is impofed on him but what was his own, the 
 Additions being fufficiently diftinguijhed by the Cha- 
 ratler. 
 
 ERRATA. 
 
 pAge if. 1. 9. for H. 8. reade H. 4. Margent ibid. p. 1 6. I. 24 . for Ports, 
 
 tJ'J.ZZ*' J" n ' ' "• r° r rlpari *' r ' tiparid - P' ?«• I- 30. for contagiom, 
 '•«*'%«*. P. 104. L m. for c. 14. c. 18. 1. 21. for C/k, r.C/fr. p. no! 
 1. a 3 . lor u, t^f. f.uS. 1. 14. r. ought to be. p.i 72 . !. 7. for decreed, v. denied. 
 
 The 
 
(O 
 
 If A general Aft concerning Commijfions of Sewers 
 to be directed in all parts within this Realm. 
 
 OUR Sovereign Lord the King , like a vertuous and 23 h. 3. c.j. 
 mod gracious Prince, nothing Earthly fo highly wey- 
 ing as the advancing of the common profit , wealth 
 and commodity of this his Realm, confidering the daily 
 great damages and lodes which have happened in many and 
 divers parts of this his faid Realm, as well by the reafon of 
 the outragious flowing furges and courfe of the Sea, in and 
 upon mar(h grounds and other low places heretofore through 
 politick wifedom won and made profitable for the great 
 Common-wealth of this Realm, as alfo by occafion of Land- 
 waters and other outragious Springs, in and upon Meadows, 
 Pafturesand other low Grounds adjoyning to Rivers, Flouds, 
 and other Water- courfes. And^over that, by and through 
 Mills, Mill-dams, Weres, Filhgarths, Kedels, Gores, Gotes, 
 Floudgates, Locks and other impediments, in and upon 
 the fame Rivers and other Water-courfes, to the ineftimable 
 damages of the Common-wealth of this Realm, which daily 
 is likely more and more to encreafe, unlefs fpeedy redrefsand 
 remedy be in this behalf fhortly provided : wherein albeit 
 that divers and many provifions have been before this time 
 made and ordained , yet none of them are fufficient re- 
 medy for reformation of the Premifles : ty&\\) tf)crcfu?e 
 
 bp Deliberate aobire anb affent of bi# Lo?b# ©pin* 
 tual ant) '<3;empo?al, anb alfo bi# lofting Conv 
 mons in ttjfa p?efent Parliament affembleb, o?oat» 
 net), eftablifljeD ano enacteo, tbat dommiffions of 
 @etoer0, ant) otber tbe p?cmivTe<3 [rjall be bitecteD in 
 all partis toitbin tbis Realm from time to time, tubere 
 anb toben neeti fyall require aceo?Dtng to tbe manner, 
 fo?m } teno? anb effect bereaftcr enfuing, to fucb fub- 
 
 B ftantial 
 
 403026 
 
(2) 
 
 ftanttal ant) inDtffcrent perform a* fijall ht namet) op t&e 
 Lo?d etmrtrello? anD ln?D Creafum of englanD, anD 
 tUt ttoo c&t'ef 3fuflice-s fo? t&e time betng 3 n? tip tb2ce of 
 t&cm, toDcreof tl;e S.o?D d&atwllo? to tie one* 
 
 Se com-° f Henr y the Ei S hth ' ® c - Know ye, that forafmuch as the 
 miffionof WalJs » Ditches, Banks, Gutters, Sewers, Gotes, Calcies, 
 Sewers. Bridges , Streams , and other defences by the coafts of the 
 Sea, and marlh ground being and lying within the li- 
 mits of A, B or C. in the County or Counties of or 
 in the borders or confines of the fame, by rage of the Sea 
 flowing and reflowing, and by mean of the trenches of freih 
 waters defcending and having courfe by divers ways to the 
 Sea, be fo dirupt, lacerate and broken, and alfo the com- 
 mon paflages of Ships, Balengers and Boats in the Rivers 
 Sufefofa- Streams » and other Flouds w ^hin the limits of A , B or 
 warding the c . in the County or Counties of or in the bor- 
 commiflion ders or confines of the fame by mean of fetting up, erecling 
 of sewers. and ma fc ing of Streams, Mills, Bridges, Ponds, Fifiigarths, 
 Mill-dams, Locks, Hebbing- wears, Hecks and Floudgates, or 
 other like lets, impediments, or annoyances, be letted' or 
 interrupted, fo that great and ineftimable damage for de- 
 fault of reparation of the faid Walls , Ditches , Banks , 
 Fences, Sewers, Gotes, Gutters, Calcies, Bridges and Streams! 
 And alfo by mean of fetting up , erecting , making and in- 
 larging of the faid Fifiigarths , Mill-dams, Locks , Heb- 
 bing-wears, Hecks, Floudgates and other like annoyances 
 in time part , hath happened, and yet is to be feared, that 
 far greater hurt, lofs and damage is like to infue, unlefs 
 that fpeedy remedy be provided in that behalf. 
 what things We therefore for that by reafon of our dignity and pre- 
 fiMc™™" ro g ative r °y al we be bound to provide for the fafety 
 sewers are and prefervation of our Realm of England , willing that 
 
 authored K> fpeedy remedy be had in the p remi/res> have a | ed 
 
 you and fix of you, of the which we will that A, B.and C 
 ihall be three to be our Tuftices to furvey the faid Walls , 
 Streams, Ditches, Banks, Gutters, Sewers, Gotes, Cafe 
 cies, Bridges, Trenches, Mills, Mill-dams, Floudgates, 
 
 Ponds, 
 
(3) 
 Ponds, Locks, Hebbing wears , and other impediments, 
 lets and annoyances aforelaid, and the fame caufe to be made, 
 corrected , repaired , amended, put down or reformed, as 
 cafe (hall require after your wifedoms and difcretions, and 
 therein as welJ ordain and doe after the form, tenor and ef- 
 fect of all and Angular the Statutes and Ordinances made 
 before the firft day of March, in the three and twentieth 
 year of our Reign , touching the premiiles , or any of 
 them, as alfo to enquire by the oaths of the honeft and incpiiry by 
 lawfull men of the faid. Shire or Shires , place or places , ^^1^. 
 where fuch defaults or annoyances be, as well within the Li- noyances 
 berties as without (by whom the truth may the rather come - 
 be known) through whofe default the faid hurts and da- 
 mages have happened, and who hath or holdeth, any Lands 
 or Tenements, or common of pafture, or profit offllhing, 
 or hath or may have any hurt, lofs or difadvantage, by any 
 manner of means in the faid places, as well near to the faid 
 dangers, lets and impediments, as inhabiting or dwelling 
 thereabouts by the faid Walls, Ditches, Banks, Gutters, 
 Gotes, Sewers, Trenches and other the faid Impediments 
 and Annoyances. And all thofeperfons, and every of them Afleffing the 
 to tax, aflefs, charge, diftrain and punifh, as well within [^"buto- 6 
 the metes, limits and bounds of old time accuftomed or r y to the 
 otherwife, as elfewhere within our Realm of England, af- charge. 
 ter the quantity of their Lands , Tenements and Rents , by 
 the number of Acres and Pearches , after the rate of every 
 Perfons Portion, Tenure or Profit, or after the quantity of 
 their common of pafture, or profit of filhing, or other com- 
 modities there, by fuch ways and means, and in fuch man- 
 ner and form, as to you or fix of you, whereof the faid A, 
 B and C to be three, (hall feem mod convenient tobeordai- 
 ned and done for redrefs and reformation to be had in the 
 premifies : and alfo to reform, repair and amend the faid 
 Walls, Ditches, Banks, Gutters, Sewers, Gotes, Calcies, 
 Bridges, Streams, and other the premifies, in all places need- 
 full : and the fame as often, and where need fhall be to 
 make new, and to cleanfe and purge the Trenches, Sewers 
 
 B 2, and 
 
Appointing 
 of Bailiffs, 
 CoIIeftors, 
 Surveyors, 
 and other in- 
 ferior Offi- 
 cers. 
 
 Diftraining 
 for the ar- 
 rearages of 
 the money 
 affefled. 
 
 Taking of 
 
 Labourers, 
 
 Workmen, 
 
 Carriages, 
 
 Timber, and 
 
 other necef- 
 
 (iirits. 
 
 To make 
 Statutes and 
 Ordinances. 
 
 U) 
 
 and ditches in all places neceflary. And farther, to reform, 
 amend, proftrate and overthrow all fuch Mills, Streams, 
 Ponds, Locks, Fiihgarths, Hebbing-wears, and other impe- 
 diments and annoyances aforefaid , as fhall be found by in- 
 quifition , or by your furveying and difcretions to be ex- 
 ceffive or hurtfull. And alfo to depute and affign diligent , 
 faithfull and true Keepers, Bailiffs, Surveyers , Collectors , 
 Expenditors, and other Miniflers, and Officers for the fafety, 
 confervation, reparation, reformation and making of the pre- 
 mises, and every of them, and to hear the account of the 
 Colle&ors and other Minifters, of, and for the receit and 
 laying out of the money that fhall be levied and paid, in 
 and about the making, repairing, reforming and amending 
 of the faid Walls, Ditches, Banks, Gutter's, Gotes, Sewers, 
 Calcies, Bridges, Streams, Trenches, Mills, Ponds, Locks, 
 Fifhgarthes, Floudgates, and other impediments and annoy- 
 ances aforefaid. And to diftrain for the arrearages of every 
 fuch collection, tax or aflefs, as often as (hall be expedient, 
 or otherwife to punifh the debtors and deteinors of the fame, 
 by fines, amerciaments, pains, or other like means after 
 your good difcretions. And alfo to arreft and take as ma- 
 ny Carts, Horfes, Oxen, Beafts, and other instruments ne- 
 ceflary, and as many Workmen and Labourers, as for the 
 faid works and reparation fliall fuffice, paying for the fame 
 competent wages, falary and (Upend in that behalf ? and 
 alfo to take fuch and as many Trees, Woods, Under-woods 
 and Timber, and other neceflaries , as for the fame works 
 and reparations fhall be fufficient at a reafonable price by 
 you or fix of you, of the which we will that A, B and C 
 fhall be three to be aflefled or limited as well within the 
 limits and bounds aforefaid, as in any other place within 
 the faid County or Counties near unto the faid places: and 
 to make and ordain Statutes, Ordinances, and provifions 
 from time to time, as the cafe fliall require, for the fafeguard, 
 confervation , redrefs , correction and reformation of the 
 premifles, and of every of them, and the parts lying to the 
 lame necefTary and behoovefull, after the laws and cufloms 
 
 of 
 

 (5) 
 of Romney-marffi, in the County of Kent, orothewife, by 
 any ways or means after your own wifedoms and difcre- 
 tions. And to hear and determine all and Angular the pre- 
 mises, as well at our fute, as at the fute of any other what- 
 foever, complaining before you or fix of you, whereof A, B 
 and C (hall be three after the laws and cuftoms aforefaid, or 
 otherwife by any other ways and means after your difcreti- 
 ons And alfo to make and duett all writs, precepts, war- Awarding of 
 rants, or other commandments by virtue of thefe prefents £™y s n t0 
 to all Sheriffs, Bailiffs, and all other Miniflers, officers, and sheriffs, Br- 
 other perfons, as well within liberties as without, before ] ^™ d0 ' 
 you or fix of you, whereof the Jid A, B and C to be three, 
 at certain days, terms, and places to be prefixed, to be retur- 
 ned and received. And farther to continue the procefs of 
 the fame, and finally to doe all and every thing and things, 
 as (hall be requifite for the due execution of the premiffes , 
 by all ways and means after your difcretions. And there- 
 fore we command you that at certain days and places , , 
 when and where you, or fix of you, whereof the faid A, B . Jf*& 
 
 and C to be three, mall think expedient, ye do furvey the ^rrL ' 
 faid walls, fences, ditches, banks, gutters, gotes, fewers, cal-feMrtar f 0°*i 
 cies, ponds, bridges, rivers, flreams, water-cour fes, mills, £«*fa%^^ 
 locks, trenches, fiihgarths, floudgates, and other the lets, im^rW^^ g 
 pediments, and annoyances aforefaid, and accomplifh, wlfill*£u^x^ w&i^e 
 hear and determine all and fingular the premiffes in due ^/kora^? -^ 
 form, and to the effect aforefaid, after your good difcretions: 
 and all fuch as ye (hall find negligent, gainfaying, or rebel- To compdi 
 ling in the faid works, reparations or reformation of the ^^ 
 premiffes, or negligent in the due execution of this our com- ders . 
 miffion, that ye do compell them by diftrefs, fines and a- 
 merciaments, or by other punilhments, ways or means , 
 which to you or fix of you, whereof the faid A, B and C 
 ftiall be three, fhall feem moll expedient for the fpeedy re- 
 medy , redrefs and reformation of the premiffes, and due exe- 
 cution of the fame. And all fuch things as by you (hall be 
 made and ordained in this behalf, as well within liberties as 
 without, that ye do caufe the fame firmly to be obferved>, 
 
 doing 
 
CO 
 
 doing therein as to our Juftices appertaineth, after the Laws 
 and Statutes of this our Realm,and according to your wife- 
 doms and difcretions. Saved always to us fuch fines and 
 
 iSTS SSS^ a V° V hcr !°J fl ^ 1! belong - And we all ° 
 
 sheriffs to command our Sheriff or Sheriffs of our faid County or 
 r« U n, before Counties of that they fhall caufe to come be- 
 
 %£%& f «« y«> or fix of you,of the which A, B andC fhall be three, 
 jurors as at fuch days and places as ye fhall appoint to them, fuch 
 £1™ for and , as ?»any lwneft men of his or their Bayliwick, as well 
 inquiry. within the hoerties as without, by whom the truth may 
 belt be known, to inquire of the premiffes; Commanding 
 ££&£ al 0ther ^ inifters and ^ ffi cers, as well within Liberties 
 attendant as without, that they and every of them fhall be attendant 
 unto the to you in and about the due execution of this our Com- 
 comn .0- million. In witnefs whereof we have caufed thefe our Let- 
 ters patents to be made. Witnefs our felf at Weftminfter 
 the day of in the year of our Reign 
 
 anutt tealfo enatteb, tbat eberpfucb perfon as Ml 
 be nameb Commtffioner in tbeftu'D Commiffion, after 
 bebatb fenotolebge thereof, Iball effectually put m bt= 
 ligence anb attendance tn artb about the execution of tbe 
 latD Commtfftom $nb tefo^ be (ball tafee upon bim tbe 
 
 S take an W?«l °«& ™W tbeLo?D£banccllour, o? before fucb to 
 oath. tobom tbe fat'D Lo?D €bancellout fyall Direct tbe King* 
 WtofDedimuspoteftatem, to tafee tbe fame, o?befo?e 
 tbe auttice* of tbe Peace tn tbe quarter ©eifion* bol- 
 ben tn tbe ©btretoberefucb€mmiffionu;aUberjirecteb: 
 tpe teno? of tubicb oatb bcreafter enfuctb* 
 
 the oath % Ye fhall fwear that you to your cunning, wit and 
 mffionen P ower flia11 tru, y a °d indifferently execute the authority to 
 for Sewers, you given by this Commiffion ot' Sewers, without any fa- 
 vour, affection, corruption, dread or malice to be born to 
 any manner of perfon or perfons : and as the cafe fliall re- 
 quire, ye fhall confent and endevor your felf for your part 
 to the befl of your knowledge and power to the making 
 of fuch wholfome, juft, equal and indifferent laws and or- 
 dinances, 
 
(7) 
 
 (finances, as fhall be made and devifed by the moil difcree 
 and indifferent number of your fellows being in Commif- 
 fion with you for the due redrefs, reformation, and amend- 
 ment of all and every fuch things, as are contained and fpo 
 cified in the faid Commiffion : and the fame laws and ordt- 
 nances to your cunning, wit and power caufe to be put in 
 due execution, without favour, meed, dread, malice or affec- 
 tion, as God you help and all Saints. 
 
 8nD it t'0 alfo enactet) bp tbe autbojitp afo?efaib, tDat a confirms 
 all anD cberp Statute, Set anD ©finance t)cretofo?eg onofotler 
 maDe concerning tbe p?emiffe#, o? anp of tbem, a* tt>cll " tuc "' 
 in tbe time of our ©obcretgn Lo?D tbe Cling, tbat not*) 
 t>, a* in tbe time of anp of bte progenitors King* of tbts 
 ELcalm of England, not being contrary to tbts pjefent 
 8ct, no? beretofo?e rcpclleb, from benccfo?tb fyall flanb 
 anD be gooD anD effectual fo? eber, anD to be put in Due 
 erecution accoutring to tbe true meaning ant) purport of 
 tbe fame. 
 
 £nDobcr tbat be it enactet), tbat tbe ComnuvTioncrs The author^ 
 hereafter to be namcD in anp of tbe fat'D Commiffiens ^° f Jj[ 
 accoutring to tbe purport anD effect of tbe fame Commtfft* 
 ons, babe full potxier anDautbontp to mafee, conftitute, 
 anD o?Dain iaU)£,o?Dtnanccs anD Decrees, anD fartber to 
 Doe all anD eberp tfring mentioneD in tbe faiD Commit* 
 Con acco?Ding to rbc purport, effect, too?bs anD true rnea* 
 ning of tbe fame : anD tbe fame laws anDCrDtnances fo 
 maDe, to reform, repell anD amcnD, anD mafee net» from 
 time to time, as tbe cafes neceffarp fljall require in tbat 
 
 wax* 
 
 Provided always, anD it igenactet), tfjat tfanp peifon The power 
 o? perfons being affeffeD or tartD to anp Bot or cbarge, «£ Jp c « m - 
 fo? anp ILanDS, Cenements or ^ereDitamcnts, lxritbm SftFK 
 tbe limits of anp Commiffion bereaftet to be DtWaitopay. 
 recteD, Do not pap tbe faiD lot anD cbarge aecorDtng to 
 tbe ©finance anD affignment of tbe Commitfioners, 
 baking potter of tbe erecution of tbe faiDCommtffion : bp 
 reafontubereofittyaUbappen tbe faiD CommifftGners 
 
 babtnp: 
 
 tiers. 
 
 5 
 
(8) 
 
 baking potort of ejcectuion of Cut!) Commt'ffton, to? latfe 
 
 of payment of futb lot anD cpargc to Uccrcc anD o?Dam 
 
 tbe fame LanD0, Cenement0 ans 5)ereDitamcnt0 from 
 
 tl)e mmv o? otoner0 thereof, anti tbetr ^>ett^ 5 ant) tbe 
 
 Decree. |jjefr* of cbrrp of tbem, to an? petCoit o? perfon0 fo? 
 
 term of pears, term of life, tn fee fi'mple o? in taile fo? 
 
 payment of tbe fame lot anb charge, tbat tben eberp fucb 
 
 iDecree anD £>?Dinance fo bp tbem mabe ant) ingrofleD 
 
 in parchment, anDtertifieD untjer tfceir @>eal0 into tbe 
 
 ESing'0 Court of Cbanceyp, toitb tbe lfctng'0 ropal af* 
 
 f ent bab to tbe fame, fijall binD all anD eberp perfon anD 
 
 perfon*, tbat at tl)e making of tbe fame decree bab a* 
 
 np intercom fucb LanD0, €enement0 o? 8>ereDitament0 
 
 in ufe, poffeffion, reberfion o? remainDcr, tbeir tymz 
 
 anD IFeoffee*, anDeberp of tbem, anD not to be in anp 
 
 U)tfe rcfo?meD, unlefs it be bp autbo?itp of Parliament 
 
 hereafter to be fummoneb anD bolDen tmtbin tbt0 Eealm. 
 
 me com- g n ti alfo it is piom'DeD bp autbo?itp afo?efatD, tbat 
 
 'DeSceMi tl)e fame Lab)0 , 4D?binancc0 anD Decrees to be maDe 
 
 bind the anD o?DatncD bp tbe fafD dommuToner* o? fir of tbem bp 
 
 K ,! ng > and autbc?ttp of tbe faiD Commiffion fljall binD a0 twell tbe 
 
 SenTunds. lanD0,tenement0 anD fcereWtament* of tbe King our £>o* 
 
 beretgn Lo?D, as all anD eberp otber perfon anD perfon* 
 
 anD tbeir beir* fo? fucU tbetr tntereft a0 tbep fijall fortune 
 
 to babe, o? map babe in anp ILanD0, €enement0 o? 5>ere* 
 
 Ditament0, o? otber cafual p?ofit, aDbantage o? commo« 
 
 Dttpttbatfoebcr tbep be, ttibeteimtotbe fatD LatD0,£)?Di* 
 
 nancc0 anD Decree* ftjall in anp Wife ertenD, acco?Ding 
 
 to ttie true purpot?, meaning anD intent of t&e fame 
 
 Labo** 
 no man may gnb it t* futtbermo?c bp tbe autbo?itp afo?cfaiD cfla< 
 fo being un- bitftjeD anD enattcD, tbat if anp manner of perfon o?per« 
 fon0 of tobat eftate o? Degree foeber be o? tbep be of, 
 tbat from bencefo?tb Dotb tafee upon &tm o? tbem to fit 
 h^ tnrtue of anp of tbe fatD €ommtffton* 3 not being be* 
 fo?e ftwom in fo?m a* i* afo?efaiD , aub acco?Dtng to tbe 
 teno? of tbe oatb tofo?e fpeeifieb* © c ff anp perfon fo 
 
 nameD 
 
(?) 
 
 nameb anb ftaorn bo fit, as <# afo?efatb, not fairing what land 
 lanbs anb Ccncments, or otber beccbitamcnts in fee "JJS 1 * 
 fimple, fee tail or for term of life, to tfre clear pcatlp nj£i havj. ^ 
 
 balue of fo;r p marks abobe all cbarges to \)i$ oton ufe, £'£r f3rzL .* 
 
 ereept be be refiant anb free of anp £itp, 'Bcrougb ^XiL^thAoTauB^^ 
 Cobm Corporat, anb babe mobcable fubftance of t\)t2^ w 'ik^iS^S^h^H 
 clear baluc of one Ijun0?e0 pounbs, or elfe be learned ^^u^? _- — 
 in tbe laws of tbt'g Eealm in anb concerning tbe fame, L 
 tbat is to fap, aomitteb in one of tbe four principal ucterbarreft. 
 3Inn0 of Court for an utter barretter, Irjall forfeit fortp 
 pounbs for cberp time tbat be fljall attempt fo to boe> 
 ibe one balf thereof to be to our S>obercign JLorb t\)e 
 Bung, anb tt)e otber balf tbereof to tl)t ufe of bim or 
 tbem tbat tm'll fue tbereforc, bp action of beut, bill, 
 plaint o? information in anp of tbe King's Courts : in 
 twbicb action o? Cute no boager of labo fball beabmitteb, 
 no? anp effoin or protection fijall be allotted Snb if 
 anp action of trefpafs or otber fttit Iball bappen to be at- 
 tempteb againft anp perfon or perfons for taking of anp 
 Dtftrefs , or anp otber Set boing bp autboritp of tbe 
 commotion, or 6p autboritp of anp Latos or ©roinan-- 
 cejs maoe bp bertue of tbe CatD commiffion, tbe befen- 
 bant or Defenbante in anp fucb action fljall anb map make 
 abottr^ cognisance or juftfication for tbe taking of tbe Avowry, or 
 fame bitt refs or otber %ct botng, touebmg t\)z premt'tles, |>f a ,fi d Xrs 
 or anp of tbem, allefcging in fucb abbottrp, cognisance taken by rea- 
 or juftifiration, tbat tbe fain biftrefs, trefpafs or otber £ ' m of J 6 
 %a, bJbercof tbe plaintiff complainctb, boas bonebp au- oKe™ 
 tboritp of tbe commtCfion of fetnerSfor lot or tajc atM-- 
 febbp tbe faib rominiffion, or for fucb otber actor caufc, 
 as tbe Caib befenbant bin bp autboritp of tbe fame com* 
 miffion, anb accorbing to tbe tenor, purport anb t^ct 
 of tbts p?cfent 9ct mabe tbe jcjrttf* pear of tbe reign of 
 our ©obereign lorb King Henry tbe cigbtb, bJitbout a* 
 np erpreffing or rebearfal of anp otber matter or ctrcum* 
 fiance conteineb in tbtsprefent&t, or anp£ommiuton, 
 laws, Statutes, or finances thereupon to be mabe, 
 
 c toberc-- 
 
Cio) 
 
 thereupon tfee plaintiff Iballbe abmitteb to replp, t&at 
 
 tbe Defenbant HtD take tbefaibbiflrcfs ojDoeanp otber act 
 
 o? trefpafs f uppofeD in bis Declaration of piss oton m?ong, 
 
 toitbout anp fucb caufe alleDgeD bp tbe faiD DefenDant, 
 
 Hw, tobereupon tbe iffue in eberp fucb action fljall be jopneD 
 
 to be trpeD bp berDict of ttoelDe men, anD not otbertm'fe, 
 
 as 133 aceuftomeD in otber perfonal actions* 9nD upon 
 
 tbe trial of tbat iffue tbe fobole matter to be gtbcn on 
 
 botb patties in ebtbenre accojDing to tbe bcrp trutb of 
 
 tbe fame* 9nD after fucb iffue tricD fo? tbe iDcfenDant 
 
 o? nonfuit of tbe plaintiff after appearance, tbe fame 
 
 where the IDefenDant to recober treble Damages bp reafon of bis 
 
 Defendant ^ongfull bcration in tbat bebalf, tm'tb \)iz cofts alfo 
 
 damagesT" in tbat part fuftaincb, anD tbat to be affeffeDbptbe fame 
 
 with his ;jurp o? CDartt to inquire of Damages, as tbe caufe fljall 
 
 cofts of fair. tm ^ 
 
 wages for 8nD ic is alfo enacteD, tbat eberp of tbe faiD £ommff- 
 
 commiffio- g oner fyall i;abc anb perccibe fout fljillings foj eberp 
 
 coiieaon, 5 ' Dap tbat tbepiball tafce pains in tbe erecution of tbis 
 
 tfc. (Eommiffion of ©etuers, anD one £lcrfe bp tbem to be 
 
 affigneDttnou)illings fo? eberp Dap, of tbe rates, tares, 
 
 lots anD toatnes tbat fljall be affeffeb o? loft bp atttbo?ttp 
 
 of tbe faiD dommiffion, anD to be iebieD anb paiD bp 
 
 tbeir Difcretions. 8nD tbat tbe faiD Commtfttoners, 
 
 o? fir of tbem (ball babe potter anD autbo?itp to limit 
 
 anD affign of rbe fame rates, tares, lots anD toaines 
 
 bp tbeir Difcretions fucb reafonablefums of moncp to tbe 
 
 faiD Clerk fo? siting of books anD p?ocefs concerning 
 
 tbe p?em iffes, anD to tbe collectors, erpenbitojs, anb 
 
 fucb otber as ttjall take pains in Due erecution of tbe faiD 
 
 €ommiffton , as bp tbe Difcretions of tbe faiD dom« 
 
 miffioncrs, o? Gr of tbem? fyall be tbougbt reafoua* 
 
 tie. 
 
 commiffions Provided always, tbat iwbcnfocber, anb as often as 
 
 hben" Th ^ ut ^ ^ommirTion, as ifs afo?e limireD, (ball be maDe 
 
 S y ° c e anb DircctcD to anp perfono? perfons fo? tbe reformation 
 
 anD amenbment, of o? in anp of tbe p^cmiur* fpecifieb 
 
 in 
 
(i'l) 
 
 fn tbe faib Commiffion, toitbm tbe fee* , liberty o? 
 poffeffion of tbebucbp of Lancafter, tbat tben fuel) Com* leaner. 
 mifffoner* a* fyall crerutc anp fucb Comtmffton fljall 
 be altoapa nameD anD appoints, bp tbe bifcretion of 
 tbe Lo?b Cbancellour anD ILo?D Creafurcr of GEnglanD, 
 anD tbe faiD tt»o ctuef 3[uflicc0 of eit^et 15? neb •> anD tbe 
 (Ibancellouroftbe faib Ducbpfo? tbe time being, o?tb?ee 
 of tbem, tobereof tbe faiD Lo?D €bancellour anD t\)t 
 Cbantellour of tbe Ducbp to be n»o» 8nDtbat in eberp 
 fueb cafe ttoo Commiffion* fljall be atoarDeD, anD maDe 
 atcojDing to tbe teno? of tbe Com million abobe ejcp?eff cD, 
 one tbereof unDer tbe great ®eal of <£ngl«nD, anD tbe 
 otber unDer tbe ©eal of t\)t fame Ducbp, a# before time 
 batb been aecuftomeD, anp tbfng afo?e rebearfeD in 
 tbia p?efcnt 9(t to tbe tontrarp bereof notbmbftanbing* 
 
 9ttD it is furtbft cnacteD, tbat tbe faiD Commiffi< ciwgcofrhe 
 on* from time to time, a* tbe cafe fliall require, fyaU Comralflion - 
 be baD anD obratneD toitbout anp money o? otber cbarge 
 to be papeD fo? tbe ®eal# 0| Uniting of tbe fame, un- 
 let* it be to tbe Ring n»o fijilling0 fir pence fo? tbe 
 ©eal of eberp dommiffton, a# batb been aecuftomeD, 
 .anD fo? tbe t»?iting anD inrolling of anp one Com* 
 million b, 0. anD not abobe. 
 
 3nD it is furtber enatfeD, tljat eberp Commtffion to a commiffi- 
 bemaDebpautbo?itp of tbi0 Set, fljallinDttre anD conti-- £\? fS '; wers 
 nucfo? tbe term of tb?ce pear0 ncrt after tbe Tefte of tbe threes! 
 Commifftott. JSebertbelete, after anp Commtffion 
 maDe anD DelibereD out of tbe fting'a Court of Cbance* 
 "rp, t\)t king's btgbnef0 fyall altt)ap0 at bte plcafure, 
 
 bp US tD?tt Of Superledeas, OUt Of bt0 faiD Court Of €ban< Supcrfcdeu. 
 
 cerp, at anp time Difcbarge as well eberp fucb Com« 
 mimon as eberp Commifftoner tbat fljallbemabe 0? na« 
 meD bp autbo?itp of tbi* 8tf. 
 
 after tobtcb Difcbarge t\)z Caio CommilTioner* fijall 
 babe no potter no? autbo?itp to p?oceeD in tbe execution 
 of tbetr Commiffion, no? in anp tbing ^ autbo?ltp of 
 tbis 8<r, 
 
 C 2 Pro- 
 
(12) 
 how long Provided always, tbat fllCfc LailJS, Sets, iDetreeS, 
 
 wnT anl) ©?Dmantes, as fball happen to be maDe bp tbe faiD 
 
 wets ton Commiffioners acco?Ding to tbe teno? of tbctr Com* 
 
 ir^dgood. miffton, o?bpautbo?itpoftbis$ta, flfjall ftanD gooD anD 
 
 effectual , ano be put m Due execution Co longtime as 
 
 tbctr €ommt'fftott enDuretb ant no longer : crcept tbe 
 
 faiD Lavas ant) SDjDtnances be maDe anD ingroflcD in 
 
 Parcbmcnt, anD certifies unDer tbe ^cals of tbe fatti 
 
 CommiffionersintotbeKing <sCourt of Cbanccrp, anD 
 
 tbcn tbe Kings ropal affcnt be baD to tbe fame: an? 
 
 tbmg coittaineD in tbts pjefent Sit to tbe contrarp bere* 
 
 ofnottottbftanDing* 
 
 commiffions Provided alio, t^at tol)enfoetier, anD as often asfucb 
 
 "/a Sumy &ommiffion, as is afo?c limiteD, fball be maoe anD 
 
 palatine. DiretfeD to an? perfon o? perfons fo? tbe reformation anD 
 
 amcnbment of o? in anp of tbe p?emiffes fpeeifieD in 
 
 tbe fain Commiffion , ttttbin tbe fees , liberties anD 
 
 waies. poffeffions of tbe p^ineipalitp of ©Hales, tbe €ountp 
 
 chefler. palatine of (Jbeftcr, o? txiitbin tbe fees, liberties anD 
 
 poffeffions of anp otber plate, tnbere tbere is libertp 
 
 anD jurisDiction of €ountp palatine, tbat in eberp fucb 
 
 tafc ttoo Commiffions fijall be atoarDcD, anD maoe ac- 
 
 cojDing to tbe teno? of tbe Commtffion abobcerpjeffeD, 
 
 one thereof unDer tbe great ©eal of (England, anD tbe 
 
 otber unDer tbe ufual ©eal of tbe €ountp palatine, 
 
 in manner anD fo?m,as is aboDe p?obiDeD fo? tbe Duc&p 
 
 of Lancalter, anp tbtng afoje rebcarfcD in tbis p?e-- 
 
 fent Set to tbe tontrarp notttiitbffanDing* 
 
 The Kings And it is provided and alfo enatted, tbat tbe ropal af* 
 
 ISkw C fent ll ' mirel3 10 ** e & at) unt0 ^ e iLato0 ant) ©finances 
 tified imo r " tobemaDebptbefaiDCommiffioners, asisabobefatD, 
 the chance- fy a ii fa certifteD into tbe faiD Court of Cbanterp unDer 
 tit Kings vnty ©eal t anD tbat tbere ftjall not anp fum 
 of monep be paio fo? tbe faiD p?ibp ©eal, but fo? tbe tjo^it- 
 ing of tbe fame Certificate unDer tbe faiD p?ibp ©cat 
 ftjall be paiD to tbe t»?iter tbereof it s* anD not abobe, 
 no? no otber, no? greater fum fo? anp tbing toutbing 
 
o? concerning tbe fame certificate unDer tbe fame p^ibr) 
 ©eal* 
 
 Provided always, tbattbe £bancellour$, anDfuc&o- 
 tbcr a0 fball Babe tbe cuffoDp of tbe ©ealg of tbe fat'D 
 principality of Wales, o? tbe (Eountp Palatine of Che- 
 fter, o? ttiitbin tbe fec0, Itticrtie^anDpoffefltondof attp 
 otber place, tobere tbere t'0 liberty ano juri0Dirtt'on of 
 (Eouutp palatine, upon reafonablc requeft, ano uporr 
 tbe ftgtit of tbe dommiffton unDer tbe fttt'ng'0 great ©eal 
 of 1)10 dbancerp, fljall toitbout Delay mafee out another 
 €ommmiffion unDer tbe @cal of tbe fat'D dottntp Pa* 
 latinc acco?Ding to tbe tenoj of tbe fitfng*0 Committiott 
 to tbcm fijetoeD unDer H& great <©eal. 8nD to tbofe 
 €ommiffiouer0 a0 fljall be nameD by tbe Lo?D GTbaneel-- 
 lour, Lo?D Creafurer, anD tbe tt»o cbief 3fu(ttce0, oj 
 by tbjee of tpem, tobereof tbe JLo?D €banrellour, to be 
 one, erecpt it be toitbin tbe fees anD libertie0 of tlje 
 jDucby of Hancafter, tm'tbtn ttbicb fee0 anD liberties* 
 tbe £ommiffioner0 fljall be name*, anD GTommiffiong 
 maDe, ag t0 afo?e o?DaineDbptbt'0 9ct : anp tbing con-- 
 taineD in tbe faiD %a, o? in anp p?obifo tbereunto aD- 
 DeD anD annereD to tlje contrary tbereof nottxutbffan* 
 Ding* Clji0 Sit to cnDurc fo? twenty pear0» Stat. 3 E. 6 k 
 8. maDe perpetual* 
 
 
 f M 
 
(14) 
 
 f An Acl concerning the Oath of Commiffioners of 
 Sewers. 
 
 25H.8.C.10. T)E it enabled by the authority of this preient Parliament: 
 
 £> ^tjat tbe 8ct late maDe fo? fetters, anD tbe €onv 
 
 miffton tbcrein rccireD, fljall be ejctenDeD, ufcD, anD 
 
 put in execution in ttje t£ot»n anD the SBarcbe* of Cal- 
 
 caifis. lis, acceding to tbe tenout of tbe Came CommuTion in 
 
 lifee effect a* it in enacteb to be put in execution toitb' 
 
 tn tbis Ecalm, anD tbat no perfon fljall be compel* 
 
 leD to be floo?n 0? ot^ertotfc bounD to fit 0? travel tn 
 
 execution of anp Commiffion of ©etucra toitbtn tbte 
 
 commiflio- Realm, unlcfss that be be Dwelling toitbtn tbe £oun« 
 
 mr dwcSi" f ? Wbeteof be i» 0? flyall be atttgneD to be a €ommif« 
 
 ^ 5 the fame fioner , anD fo? Cailis anD tbe CaiD $9arcbej3 tbereof, 
 
 co»nty. unlete tbat be be Duelling tuttbin tbe fame Cown of 
 
 Cailis, 0? $5arcbe$. 
 
 •$ And becaufe that divers perfons heretofore affigned to 
 be Commiffioners have refufed to be fworn, according to 
 the faid former Aft, whereby divers Commiffions here- 
 tofore made, remain hitherto without effectual execution : 
 
 Xe it therefore cnactcD, tbattf anp perfon afftgneD 0? to 
 be affigneD, to be fucb Commtttioner of ©ewers, be- 
 ing reqttireD bereafter bp fucb perfon 0? perfons as 
 babe 0? ftjall babe atttbo?itp bp tbe king's t»?it, 0? o« 
 tbertotfe, to reeeibc 0? accept tbe oatb comp?ifeo tn tbe 
 The forfei- fatD fo?mfr Set, cberp perfon tbat fo refufetb to tafce 
 commiffio- tbe fame oa;b, 0? upon tbat requettmabe, Do not reccibe 
 nerofsew- tbe fame oatb, anD tbat rcfufal 03 contempt Done in 
 ersvvhore- tbe (Ebancerp, o?retutneD into tbe elbancerp boitb tbe 
 t ak e e n the faiD to?it , (ball loofc anD fo?feit fo? tbe fame contempt 
 oathappoin- to tbe King our foberetgn Lo?D, fibe marts*, anD fo to 
 s«tu b te of e took fro™ rtmc to time fibe marks fo? ebcrp fucb 
 33 h. 8. 5. contempt ,a*fyaU be Done o?returneD into tbe faiD€ban* 
 cccp againft anp fucb perfons, unlefs tbat be in tbe 
 
 fame 
 
C»s) 
 
 fame tfbancerp t)0 fljeto anD alteDge, m tbe fat'D term, 
 therein fuel) return mall be maDe agatnft bt'm, fnffici* 
 ent anD reafonable matter anD caufe to be allotteD bp 
 tbe Lo?D Cbancellour fo? fy'# ercufe ant) bifebarge In 
 tbat bebalf* 
 
 f i4« /f<5? /or tbe continuance of tbe Statute of 
 Sewers. 
 
 WHere in the Parliament holden at Weftminfter, by 3( &. 4 Ed.<5. 
 prorogation the fifteenth day of Jannary, in the cap. 8. 
 three and twentieth year of the rnoft viftorious reign of J/ 1 *^™' 6 
 our late Sovereign Lord King Henry the VIII. among o- touching the 
 ther things, one general Aft concerning Commiffions of c °'5 mlffion 
 Sewers, to be directed into all parts within this Realm, ma de perpe- 
 was enaded and made to continue and endure for twenty tual. 
 years then next following, as by the fame Aft more at 
 large it doth and may appear : and for as much as the fame 
 Aft is thought good and beneficial for the Commonwealth 
 
 of this Realm , %t it tberefo?c enatteD ant) pjDafneD bp 
 tbe fttng cur ^ofoeretgn Lo?t) ; ttiitb tbe atfent oftbe 
 Lo?D# fpt'titual ant) temporal , anD tbe Common* tn 
 tbte p?efent Parliament affcmbUD, anD bp tbe autbo?t* 
 tp of tbe fame, tbat tbe fatD Set, anD allclaufeg, artt* 
 tle#, anD p?obtfion#, tn tbe fame contained ftrall ron« 
 tinue anD tnbure in fbn'r fo?ce anD ttrengtb? anD to be 
 obferbcD anD fcept fo? eber, m futb manner anD fo?m, r- 
 as fijall anD map ffanD toitb tbe fequete anD abDtttona 
 fccrcattet mentioneD* 
 
 8nD be it furtber enacteD anD effabltttjeD bp tbe au» A11 fums of 
 tbo?itp afo?efatD, tfjat all fcot*, lots, anD fumjs tfi£E£* 
 monep bcreaftcr to be rateD, anD tajceb, bp bertue of *ecommif- 
 fuch Comnu'ffion of <g>etoer* , upon anp tbe JLanba, JSJJS! 
 Cenement*, o? S)erebttament# of ouc Sovereign JLojD of the Kings 
 
 tbe 
 
lands (haii tbe Ring, bf* fceir* o? ©ucceffo?*, fo? anp manner of 
 be leviable tbmg 0? tbing*, concerning tbe article* of ttie faiD 
 €ommitTton of ©emer*, ttjall be gatbereD anD lebieD 
 lip Dtfttef*, o? otDcrtotfe, in like manner anD fo?m as 
 fijall o? map be Done in tbe Hants, Cenement* anD 
 ^ercDttamcnt* of anp otber perfon o? perfon*, anD tbat 
 all Ml* of acquittance, figneD toi-b tDe banD o? banb* 
 of fucD Collccto? o? &cceiber, a* fljall Dabe tbe collection 
 tDcreof Dp tbe appointment of tbe faiD Commiffioner*, 
 o? fir of tbem, fljall be a* bjell a fuffictent Dtfcbarge, 
 to tDe Ccnant*, farmer*, anD Occupier* of tDe fame 
 C5?ounD*, fo to be cDargeb fo? tDe faiD fum, wDeretrntb 
 tbeir ©?ounD« fljall be fo cljatgeD, a* alfo a fufficicnt 
 tuarrant to all anD eberp tbe receivers, auDito?*, anD o« 
 tber tnDatfoeber officer o? officer* of our fat'DSobcreign 
 Lo?D tDe lining, fii* Jljcir* anD ^uceeffo?*, fo? tDe ailob> 
 ance to fucD Ctnant, farmer, o? Occupier fo? tDe fame : 
 w^t fees aoDing mo?eoDer unto tDi* Set, Dp tDe autfio?itp of tbi* 
 SrtecSm P? e ^ ent Parliament, tbat fucD? anD like fee*, anD none 
 miffion of * otber, no? mo?e, fijall be at anp cime paiD o? DemanDeD, 
 sewers rued f 0? an p commiffion,o? commiffion*, o? tt>?tt* of Dedimus 
 SttsSrf poteftatem, beteafter to be fueD out, o? obtaineD ttnDer 
 the Duchy. tDe feal of tDe 3DucDp, but onelp fucD, anD lifee fee* a* 
 be mcntioneD in tDe faiD fo?mer 3et, to be paiD in tbe 
 CDancerp, fo? Commiffion* anD tErit* of Dedimus po- 
 teftatem, to be obtaineD from tDe fame Court of Cbanee* 
 how long rp. SDbtng mo?eober tDereunto Dp tDe autDo?ttp a* 
 the coramif- bobefaiD tDat ebcrp Commiffion anD Commiffion*, 
 en n £n en" ftewaftcr to be atoarDeD fo?©emet*, fyall continue 
 ■Awe. anD enDure fo? term of fibe pear*, nert after tDe Tefte 
 of fucD Commiffion, unlef* tDe fame Commiffion anD 
 Commiffion*, fljall be otbertmTe DifcDargeD, tot'tDm 
 tDe fame Dp Superfedeas, anp tDtng o? tDing* mentioned 
 o? contained in tDe faiD fo?mer 3ft, contrarp to tDe ad- 
 Dt'tton* befo?e mentioneD, o? anp of t&em, in anp tuife 
 rtOttoitJjffanDtng* 
 
 % An 
 
% An AR for the Commiffion of Severs. 
 
 FOrafmuch as no Commiffion of Sewers, by the Sta- i 3 Eiiz. c.?. 
 tutes heretofore made, may have continuance above 
 the fpace of five years : %£ it tbctefo?e enatteD bp tbe 
 
 fiXukri $ moff excellent a9ajcftp, tottb tbe affent of tbe 
 Lo?D0 fptritual anD tempo?al, anD tbe Commons in 
 tbi# pjefent parliament afTembleD, ant) bp tbe autbo» 
 ritp of tbe fame , tbat from benccfo?tb all ano cberp 
 Commiffion anD Commt'tfion* of ©etoerg, nom ftan= 
 Bxng tn fo?ce, o? tbat bereaftcr ftjall be granted anD 
 maDe, fljall ftanb anD continue in fo?ce fo? tbe term of a commif- 
 tcn pear*, nert infuing tbe Date of eberp fucb Commif- Jjni£ 
 Cton, unlefs tbe fame CcmmivTicn ojCommittions bc,o? tinue tea 
 bercafter ftjall be rcpealeD,o? Determin cD,bp rcafon of anp )' ears - 
 neti) Commiffion in tbat bcbalfmaDe, o? bp fuperfedeas: 
 anD tbat all fucb Law*, ©finances anD Conttitutions 
 a* be, o? ftjall be Dulp maDe bp fo?ce of anp fucb Com- 
 mifiion, aceo?Ding to tbe tenour anD effect ItmiteD in 
 anp fomier Statute beretofrue maDe, touebing Com« The orders 
 miffion o? CommttTicng of ©emcr*, anD being to?it« ^ e "J f " 
 ten in Parcbment tnbentcD, anD unDer tbe %cai<s of iewm fl»ii 
 tbe faio CommivTionci-jS, oj fir oftbem, tobcreof tbe be . ? f [or f 
 one part mall remain txjitb tbe Cierfc appointeD, anD ccSteof 
 to be appointeD fo? tbe Commiffion of <Seu>er# fo? tbe them, or the 
 time being, anD tbe otbec pact in fucb place as tbe fame ^ al Af " 
 Commiffioner*, o? fir of tbem , ftjall o?ber anD ap-- 
 point : ftjall tuitbeut anp Certificate tbereof to be maDe 
 into tbe Court of Cbanccrp, anD witbout tbe &opal af« 
 fent to tbe fame bab, flanD anD continue in full fo?ce 
 anD effect, nottxritbftanDing anp Determination of anp 
 fucb commivlion bp fupeckdeas, untill fucb time a# tbe 
 fame Lato*, Conftitution<* anD ©finances ftjall be al« 
 tereD, repealeD, oj maDe bot'D, bp tl;e Commiffioners 
 after to be affigneD anD appointeD foj ©etxier*, in tbofc 
 
 d part* 
 
(i8) 
 
 part*;, tobere tt»e fame Lato0, dD;tn'nanre# anlj €onfft- 
 tutton0 txiere maDe, o?DatneD anD conftttuteD, o? bp ftp 
 of tbem* 
 The com- 8nD be it fcrtber enactcD bp tbe autbo?itp afo?efaiD, 
 
 Sewm'or^ *& at 9t 9lt tUT1Ci3 fr0m 8nl3 aftet ^ ent) 9nD TO* attOn 
 
 ders fl»u of tbe term of ten pear0, nert infutng tbe Date oj tefte 
 
 continue , f anj) commiffion of S>etx>er0 bereafter to be maDe, all 
 
 commiffion futft LatB0, ©finances ant) donfiitutions , as ttretc 
 
 do expire. maDe bp birtue of anp fucb Commiffion, anD to?itten 
 
 tn parchment, inDenteD ano fcaleD, as ts abobe-men* 
 
 ttoneD, tnitbout certificate tbereof, o^ tbe affent ropal 
 
 to tbe fame baD as 10 afo?efatD, (ball nottMtbftanbmg 
 
 tbe Determination of anp futb Coinmiffton bp tt>e erpt* 
 
 ration of tbe term of ten pears nert infutng tbe bate of 
 
 anp fucb Commtffton of ©et»er0, lifcetxitfe continue tn 
 
 fojee, fo? anD bp tbe fpace of one tobole pear tbf n nert in* 
 
 The juices fuing : anb tbat tbe 3Iuftice0 of }3eace of tbe ©bire anD 
 
 f f r P one en Sr®^ rt0 **>&*** l & e fame ^^ flD?Wtianccj8f anD Con= 
 
 ooMttthc ftituttons are to be erecuteD tmtbm tbeir feberal com-- 
 
 commiflion tmfftong anD limits, o?fi,roftbem, tobereof ttoo to be 
 
 uniefsTnew of ttie Quorum, frail babe pother ano autbo?itp, bp tbe 
 
 commiffion fpate of one tobole pear nert after t1)z crpt'ration of ebe» 
 
 be granted. x ^ fa^ Commiffion, to erecute tbe fame SLatt>0, £)?Dv 
 
 nance0 anD Conftttutions, anD eberp of tban, as ful- 
 
 Ip, anD in a0 ample manner anD fo?m, a0 tbe Commit 
 
 ftoner0 0? anp of tbmt nameD anD appotnteD in eberp 
 
 0? anp Commiffion fo erptreD migbt 0? ftjoulD babe 
 
 Done, to all tntent0 anD putpofe0, 30 if tbe faiD Com* 
 
 mtffion 0? Commiffton0 baD continueD in fo?ce* 
 
 Provided always, anD be it net>et:tbelef0 enacteD, tbat 
 if anp neto Commiffton of ©ctoer0 (ball be maDe toitb* 
 in tbe faiD pear, tbat tben immebiatelp from anD af* 
 ter fucb Commiffion nettilp maDe anD publilheD, t^t 
 potoer of tbe faiD 3!ufttce0 of tbe Peace, anD eberp of 
 tbem, tn anp-tmfc concerning tbe erecution of anp fucb 
 JLato0, ^Dinance0, anD Conffitutions of S>ct»er0, 
 ftjall uttetlp ceafe ; 3np tbing 0? tbing0 in tbi0 3d to 
 
 tbe 
 
d?5 
 
 tbe conttatp erp?effeb in anp totfe nottoftbQanbmg* 
 
 3nb be it farther enacteb, tbat no farmer o? far- a Farmer 
 mer0, ft? term of pear0, of anp 89ano?0, Lanb0, o? ° h f a S !e 
 CcncmctttjB, Iping o? being tottbtn tbe p?ecinct0 o? It-- n»ii nor be 
 mtt0 of anp fucb Commiffion of ©et»er0, tobicb be, o? commiffio- 
 bereaftetmaj be o?Dereb anb cbargcablc bp anp Law0, tteSpre. 
 2D?Dinance0, o? <£onftitution0, mabe o? to be mabe bp cina. 
 toittue of anp fucb Commtffion , ttfterctn be o? tbcp 
 fljall be nameb o? sppointeb (Eommifftonet o? Com- 
 mtffioner0, not bating <£ftate of f retbolb toitbin tbe 
 Eealm of England, of, o? in $f*8no?0, JLanb0, 02 t3Tenc» 
 mentis, of tbe pcarlp balue of fo?tp pounb0, fball at anp 
 time bcreaftcr, babe potter to fit, 0? in snp tnife inter* 
 mebble txutb tbe erceution of fucb Commiffton 0? Com 
 miffton^, During tbe time be 0? tbcp fljall continue, 0? 
 be fucb farmer 0? farmer* of anp fucb 8£ano?0, S.anb0 
 o^ Cenement0 , anb frail not bibe €flate of frit* 
 bolb, a* i$ afo?cfatD : but tbat ebcrp fucb Commiffion, 
 a* babingreCpetf cnelpto cberpfucb perfon 0? perfon*, 
 fo? fucb anb fo long time 30 be 0? tbep fljall fo be anb 
 continue farmer 0? farmer of anp fucb pano?0, 
 LanD0 o? Ccncmcnt0, fljall be btrmeb anb abjubgcD in 
 lato to be botD, 3nb of none effect : 3np tbing in tbe 
 Came Commilfion, 0? 3np S>t3tute 0? JLsto beretofo?c 
 mabe to tbe conttarp nottmtbftenbing* 
 
 8nb be it fattber enacteb bp tbe 3utbo?itp afo?efaib, There nnii 
 tbat from bcnrefo?tb tbe faib Commiffioner*, no? anp fj^'; 
 of tbem, fljallnotbe compelleb, no? compellable to turn of the 
 make anp Certificate 0? return of tbe faiD Commit* commffion. 
 fton0, 0? anp of tbcm , 0? of anp tbeit ©?binanc£0, 
 JLatojs 0? botng0, bp tbe autbo?itp of anp tbe faib Coin* 
 miffion0, no? Iball not babe anp fine, pein, 0? amer« 
 ciament fet upon tbem, 0? anp of tbem, 0? anp toap0 to 
 be moleOeb in Xobp, Lanb0, 0? (S5cob0, fo? tbat caufe. 
 
 And yet neverthelefs, to the intent the Queen's Majefty 
 our Sovereign Lady , her Heirs and Succeifours, may be 
 at all times hereafter truly anfwered of all fuch Iffues, 
 
 D 2 Fines, 
 
(20) 
 
 Fines, and Amerciaments, as (hall happen , grow, or be 
 forfeited by virtue of any fiich Commiflion, or by the exe- 
 
 •rhe Fines cution thereof: 'Be ft alfo enacteD, that the (Ilerfe anD 
 
 damms er * £l f r&* appointeD, ano hereafter to be appointed, fo? 
 
 (hau be e- anD in anp fucti dommtdton, o? Commifftona of ©etu« 
 
 2f£? C h nt0 ***5 fijall peatlp trulp efttreat all the fat'D 3Iffue0, 
 
 quer. ' " IFtneg , Penalties , lFo?feiture$ ano 8merctament0 , 
 
 that fljall he Due anu an0toerable to her gjtgtmefe, her 
 
 5>eirs5 anD ©uccefiour*, anD the fame (Eftreat* ft;all 
 
 pearlp Delther into the <£ourt of the (JErcbequer, at 
 
 fuch time anD ttme0, anD in fuch manner anD fo?m, a0 
 
 3fufttce0 afft'gneD to anD fo? the conferhation of the 
 
 Peace in anp thtfe fljoulD o? ought to Doe bp fctrtue of 
 
 their Commtffion, upon pcm to forfeit to outvote* 
 
 reign JLaDp the foukn, her tyeixst anD ©ucceffour0 ; fo? 
 
 eberp Default in that behalf maDe, fibe pounD^ 
 
 m what cafe Provided always, that it ftjall be latofuli fo? anp &om» 
 
 L F nT er miffioner, being alfo a jfarmer, anD not bahing 
 
 chargeable JLanD0 anD tEenemcntief, to the clear pearlp fcaltte of 
 
 comrntffio- fo ?tP pounD0 of IFrerbolD, to fit bp htrtue of the fat'D 
 
 ner. (Jommiffion, anD babe bt0 botce anD full autbo?itp toith 
 
 others to mafee anD eflabltftj £>?Dinance0 fo? ©etoer^ 
 
 acco?Ding to the tenour of the (Jommtffton touching 
 
 anD concerning all LanD0 anD Cenement0 ttiithtn the 
 
 precinct of eherp fuch £ommtffion , other than fuch 
 
 SLanD* anD Cenement0 as; he o? tbep, fo? the time be« 
 
 ing, holD anD injop a0 farmer, 30 he o? thep might 
 
 hahe Done before the mafeing of tbt'0 Statute : %np 
 
 thing therein containeh to the contrarp nottimbffan« 
 
 Ding* 
 
 Leffura 
 
(at) 
 
 Le&ura Prima. 
 
 MY moft worthy Fellows and Companions of 
 this noble and renowned Society , the 
 Hourglafs of my puifne time is run, and I 
 am now come to take poffeffion of your 
 Reader's place ; wherein I muft hazard to 
 your cenfures the fortunes of my inability : Thefe twenty 
 and fix years compleat I have had continuance here, and 
 in that time I have onely taken the mealure and length of 
 your Hall : And herein I acknowledge Grays- Inn to be 
 the Patron of my beft fortunes, and your (elves the beft 
 Companions of my forepart and prefent life. I made a 
 queftion, when it came to my turn to reade, whether f 
 fhould turn therefrom or not, being then troubled about 
 Two things, Charge and Care, both which I put into a 
 pair of Scales, wherein I thought Charge weighed heavy 
 and folid (for ibi ponebantnr filidi) Care not withstanding 
 had his equal weight with the other, and poifed the Scales 
 even : Yet I considered the fmall Subftance I had got came 
 by my Profeffion, I therefore took my felf both in Credit 
 and Confidence bound to undertake this burthenfome 
 place, for the maintenance and prefervation of the honour 
 of this Houfe 3 and with that I pm Charge and Care in one 
 Scale, and Refolution in the other, which (baled them both 
 up. Twenty years likewife of my laft paft time, I have 
 in the praftice of my Profeffion fpent, but, I hope, little 
 confumed thereof; In which time I lanched forth my 
 Ship (In profundum Marts') for a Voyage to the Sea, and 
 now (he is returned to your Shores, furnifh'd and ballift 
 with Merchandize of feveral eftimates : By my Ship I mean 
 my Statute which I reade on , which be the Laws of 
 
 Shewers 3 
 
22 LeHura Prima. 
 
 Sewers ; the Merchandize be the weighty matters therein 
 contained : By the Governours and Rulers of this Ship, I 
 mean the grave and prudent Commiffioners who are put " 
 in charge and truft with the execution of thefe Laws : By 
 the Mariners, I intend the Officers of this Law 5 the Mer- 
 chants place I referve unto my felf : The Wares brought 
 home be of divers forts, fome onely fit for the Imperial 
 Majefty of a King, and thefe be Royal Prerogatives, {hew- 
 ing forth their fplendour like the Flower de Luce in the 
 Crowns others belong to high Nobility, and fotne be 
 ufefull for the homely Commonalty 5 the reft which (hall 
 remain, I have caft under Hatches for my laft days Mart, 
 when I mean to make chaffer on them all. But though I 
 feem to make thefe Markets of my Legal Merchandize, 
 yet I do not mean to let fuch Rates upon them as Mer- 
 chants ufe to do, which be all for (utile duke) for I one- 
 ly fet one price upon all , which is your kind acceptance. 
 Marvell not, I pray you, at thefe my Sea-like falutations % 
 for this day I am become God Neptune's Oratour, and I 
 mean to difplay the power of his Empire $ for my Statute, 
 my Cafes, and my Argument, will all depend upon the 
 Element of Water, over which , as Poets feign, Neptune 
 hath chief predominance. Well, now my Ship is at more, 
 and I have caft Anchor there, and to my great comfort I 
 fee many Chapmen attending the Market, and therefore 
 now prefently I will unlock, and fet open the Clofet of 
 my Store, which be contained in the fair Volumns of the 
 Law, and efpecially in that Law made and ena&ed in the 
 Parliament held in the z%d year of Hen. the 8th\ cap. 5. 
 which is A general AEt concerning the Comrniffioners of 
 Servers for all the Realm of England. 
 
 The caufes wherefore I made choice to reade upon this 
 Law, be five in number j Viz. 
 
 1. JF/r/2, For the Antiquity of thefe Laws of Sewers, 
 
 though this Statute bear date but 23 H. 8. 
 
 Secondly, 
 
Leclura Prima. 23 
 
 Secondly, For the largity and extent thereof, which ap- 2 . 
 pears in the ftyle of this Statute, and there termed, A ge- 
 neral Act for all the Realm 0/ England. 
 
 Thirdly, For the necelTary ufe thereof, which continual 3. 
 practice and daily experience teacheth us. 
 
 Fourthly, I have had a more defire to reade upon thefe 4. 
 Laws, becaufe never any Reader did heretofore undertake 
 the fame •-, and upon perufal of this Statute, and upon due 
 confideration taken of others, I thought I could not make 
 ray choice of a more fitting , and more neceflary Law, 
 nor more profitable for my Native Gountrey of Lincoln- 
 flme, and other Maritime Places of this Kingdom, than 
 this is. 
 
 And Fifthly, His Majefty's general care, which thefe 5. 
 Laws require at his hands, and his fpecial care, by the 
 which his Highnefs of late hath taken thefe Laws into his 
 gracious and provident prote&ion. 
 
 And upon due confideration taken of all thefe Cafes, I 
 refolved to proceed in the expofition of this Statute, being 
 made perpetual by the Statute of 3 Ed. 6. cap. 8. 
 
 And to fpeak fbmething of the three firft caufes, I am Antiquity 0$ 
 of opinion for the Reafons and Authorities enfuing, That tIiefc Laws* 
 the Laws of Sewers have been, and be of great antiquity, 
 and have told over as much time, and as many years as any 
 other Laws of this Realm have done : For as Mr. Cambden cambdeiu 
 in his Britannia faith, Quod infola Britannia avida in mare 
 omni ex parte fe projecit 5 Therefore this Realm adjoining 
 on every fide upon the Sea, could not be fafe without 
 thofe provident Laws made and ufed for the defence 
 thereof. 
 
 And although it is faid in Scripture , That Almighty rn Mimdb* 
 God hath bound the Seas by the word of his Command- Prayer King 
 ment, and had (hut up the Deep, and fealed it with his of ^ udah% 
 terrible and glorious Name $ yet God , who beftowed 
 wifedom on man, it was his pleafure he fhould providently 
 ufe it over the reft of the Creatures, not giving way that 
 
 he 
 
24 Leftura Prima, 
 
 he fhould be remMs or prelumptuous in any thing, which 
 by his forefight or judgment might be prevented, helped 
 and relieved. 
 
 Genefis, c. 7. It is true, that at the Floud, Cum catam&a Cceli fuerint 
 operta, when the Windows of Heaven were by Gods de- 
 terminate will fet open, and that the Seas did Suum exce- 
 dere modum^ no power of man's hand could ftay the fvval- 
 lowing and devouring (urges of the Seas and Waters } yet 
 then notwithftanding had God appointed that his Servant 
 Noah and his Children, and fuch Creatures as he appointed, 
 fhould be preferved by the Ark , which was a work of 
 their own hands 5 Therefore the Laws of God and Nature 
 have appointed man to make provision for the neceilary 
 defence and fafety of himfelf, and of his Countrey j And 
 the Laws of this Realm, moll: of which have received their 
 primam ej/entiam from the Divine Laws of the Almighty, 
 and have fetched their Pedigree from the Law of Nature, 
 have a principio been fo predominant in this Kingdom of 
 England, that they have never been wanting at any time 
 to provide for the fafety thereof 
 
 And if the Regifter be fo ancient a Book as Sir Eward 
 Cook, in one of his Epiftles hath there declared it to be, 
 then it may give fatisfaftion in this kind, that thefe Laws 
 of Sewers were in thofe times of great eminency and au- 
 thority $ For there I find two feveral Writs or Commiffions 
 of that nature, The one authorizing certain Perfons to fur- 
 
 Regifter in vey the defences in the Parts of Holland in the County of 
 
 OjermATer- Lincoln } The other for the viewing and furveying of the 
 furrounded Grounds lying between the two Rivers num- 
 ber and Auckholin in the faid County of Lincoln j And the 
 
 Fhx.- m. firft of the faid Commiffions is fet down verbatim in Fitz. 
 
 ire. /o/. 1 1 3. „ a f, y e , p, 1 1 3, Yet the firft Statute which appears to us 
 in print, wherein the frame of a Commiffion of Sewers is 
 
 6H. 6. c 5. fet down, is the Statute of 6 H. 6. cap. 5. Yet I make no 
 queftion but the laid Commiffions exprefled in the Re- 
 gifter, and Fitz. na. bre. were in their forms long before 
 Henry the Sixth's time 5 and that the Statute of Henry the 
 
 Sixth 
 
LeUuYa Prima. 25 
 
 Sixth adds fome more power and ftrength thereto than 
 was before, having backt them with the power of the Par- 
 liament; and it is lbmething additional in matter, as it 
 was in power, as by both the Commiffions compared to- 
 gether is apparent. 
 
 I do likewift find in the 38/A of Edward the Third, ?8£^.?.iib. 
 Lib. AJf. plac. 15. That a Commiffion was awarded to in- Aff - P |#I * 
 quire of Bridges, and of the repairs thereof, which is a 
 branch of theft Laws : And Sir Edward Cook in his 10th 
 Report in the Cafe of the Ifle of Ely, faith, That the Kings 
 of this Realm, before the making of any Statute of Sewers, 
 might grant Commiffions for the fuiveying and repairing 
 of Walls, Banks and Rivers, and other Defences. And of 
 the fame opinion is the Book of Sir John Davies in his sir John d*. 
 Irijh Reports, in the Cafe of the Royal Pifcary of the Banne. v > s Re 2°™>. 
 And Sir Edward Coo\ hath in his firft Caft ftt the firft Sta- 
 tute of Sewers to be in time the yth of Henry the Third, 9 m. 3. 
 which is in Magna Charta the Firft Volume of Statutes, 
 and the moft ancient that be extant in our Laws. 
 
 By all which is manifeft, that theft Laws have been re- 
 ceived into the Government of this Realm, in time as an- 
 cient as any other were ; And I am the rather herein con- 
 firmed, for that in the ancient Commiffion exprefied in the 
 Regifter aforefaid, there be theft words , That the King 
 Rati one dignitatis fn£ regi<e ad providendum falvationi regni 
 fni circumqudque fait aflri&us. Wherein it is hereby made 
 plain , That the King by the Tenure and Prerogative of 
 His Crown, was bound to fee and forefte the (afety of 
 this Realm , and fo this Law is a Prerogative Law, and 
 feems to be as ancient as any Laws of this Realm, and all 
 Prerogatives be without limitations of time 5 Neither can 
 it be prefumed, that all or any Kings till the time of Henry 
 the Sixth were fo improvident as to want theft Laws, 
 without the which the Realm could not be defended from 
 the violence of that unmercifull Enemy the Sea 5 wherein 
 I do conclude, That theft Laws of Sewers be as ancient as 
 any other Laws of this Kingdom be. 
 
 E The 
 
2 £ JLefiura Prima. 
 
 The extent of this have. 
 For the extent of this Law , the Title of this Statute 
 {hews it, viz. A general Ati for granting CommiJJions of 
 Servers within the Realm, without any word of Reftraint, 
 other than thefe (where need Jhould require.) And although 
 Expounders of the Laws be not tied to make the Title their 
 Text, either for the body or the bounds of it, yet it may 
 ferve to give fome direction in the Expofition thereof: 
 But to make the Title to be the ground in the material Ex- 
 pofition of the Law, may lead the Expofitor many times 
 
 Strutting into errour : For in Stradling and Morgan's Cafe in PIo. 
 
 *nd Morgan. Cgm thg Th]e of ^ #£** was, For the true anfwering 
 
 for the Revenues of the King, and the words in the body 
 did extend the fame to the Receivers of Subjects 3 but 
 there the Judges and Expounders of that Law went with 
 23 Elii. the Title in a Statute made in the 25^ of Elizabeth, the 
 Title of the Statute was For Politick Conjlitutions for the 
 Navji 5 and in that Statute there was a new Fifti-day pro- 
 vided, which no man would have looked for under fuch 
 a Title. 
 
 And Lucian an ancient Greek Poet compiled a Book, 
 and in the Frontifpiece thereof Intituled the fame A Book 
 of True Reports 3 where looking into it, there Was not any 
 thing true therein : So it appears though in Afts and Books 
 the Titles and Styles may give help in the Expofition, and 
 may ferve as an Index or Table to find out the matter, yet 
 it is not fit to relie upon them, but that they may be ufed 
 or refufed as occafion (hall ferve. 
 
 Howfoever there is better concord betwixt the Title and 
 the Body of my Statute, for the Corps of the Aft perform 
 as much as the Title promifed, whereby the Inland Coun- 
 tries of Notingham, Northampton, Huntington, Bedford and 
 the like, may have the ufe of this Statute as well as the 
 Maritime Countries of Lincoln, Torl^, Cambridge, Norfolk^, 
 Suffolk^ Kent, Suffex, Hampjhire, Devon, Cornmzl, Glocefier, 
 Chejier and LancaJIme, if not in all, yet in part, as hereafter 
 I fhall make it appear in my fecond Lecture upon this Law. 
 
 And 
 
Lefiura Prima. 27 
 
 And although both the Statute of 6 H. 8. and the Regi- 
 fter, and Fitz. Nat. Brev. make all of them mention in 
 thofe Commiflions of the County of Lincoln, and of no 
 other County 3 yet doubtlefs the Law-makers and Judges 
 of this Realm, and the Expofitours did intend, then, and 
 did extend them to all the Parts and Counties of the 
 Realm. And yet I take it, that the firft Original and the 
 chief ufe of thefe Laws, was in the faid Maritime Countries, 
 which ftood in moft need thereof, and efpecially Lincoln- 
 shire, where be the huge great and vaft Fens and Marifhes : 
 but yet notwithftanding they may ferve generally for all 
 the Realm of England, as the extent of this Statute I reade 
 on hath bounded them! 
 
 So herein my conclufion is, that the extent of this Sta- 
 tute is as large as the Realm of England. 
 
 The necejjary ufe of it. 
 From the Title I am now come to the Preamble of this 
 Statute, where the words be very folid and weighty > that 
 is, That the King nothing earthly Jo highly weighing as the ad- 
 vancing the common Profit, Wealth and Commodity of this 
 Realm : By the which it may appear, That the making of 
 this Law was of all other thought to be moft neceffary, and 
 of greateft confequence, when the King preferred the fame 
 before any earthly thing : And the King's care herein be- 
 came his Royal Perfon very worthily, becaufe by this Sta- 
 tute Safety was brought to the Realm, and Wealth and 
 Profit to the People thereof 5 greater and better fruits 
 than which, no humane Law can produce : And the chief 
 execution of this Law iwas moft aptly left to the King, Ra- 
 tione regime dignitatis ftiae, whofe Office doth, as the Phi- 
 lofopher truly faith, contain in it great Vertue, high Un- 
 derftanding, and Divine Wifedom, to whofe high Govern- 
 ment, as well our Perfbns as our Laws be committed, and 
 the defence thereof is applied to his grave forefighr. 
 
 And truly I have taken upon me to reade on thofe Laws 
 of Sewers, as Mr. Marrow did in former times take upon 
 
 E 2 him 
 
28 Leftura Prima. 
 
 him to expound in his reading the Laws of the Juftices of 
 Peace, hoping this work of mine may prove as acceptable 
 to the Commiflioners of Sewers, as that of his was bene- 
 ficial to the Juftices of Peace ; the ufe whereof being no 
 lefs commodious to the Commonwealth than that of the 
 Peace, being both general Laws of great ufe and efteem, 
 and my felf being for many years paft a Commiffioner in 
 the County of Lincoln, I found that thefe Laws were dark 
 and intricate, and came not ufually within the reach and 
 understanding of fuch as were not well feen and ftudied in 
 the Laws. 
 
 And becaufe I found the ufe of them to be wondrous 
 neceffary, I did intend, when occafion ferved me, to break 
 the Ice, and enter ferioufly into the expofition of them. 
 And therefore feeing thefe Laws being in time raoft an* 
 cient, in extent moft large, and for the ufe moft neceffary, 
 I have, with your kind favour, made choice of them to 
 frame my Reading upon 5 wherein, if upon your perufal 
 you find any fcapes or errours, which may loon fall from 
 Opinion, hec amice corrige, and fuch of them as you fhall 
 beftow your liking upon, hits utere ntecum 5 and this fhall 
 fuffice touching my choice made of this Statute. 
 
 And as I have forme'rly declared and delivered the cau* 
 fes which ftirred me up, and the reafons which confirmed 
 me to reade upon this Statute 5 Now I do intend to break 
 it up, and I do divide it into thefe feveral branches or 
 parts : 
 
 ,# Firfti To make provifion to refill the overflowing of 
 
 the Sea upon the large Marfh-grounds lying in the Maritime 
 Countries, which commonly be the fureft for foundnefs, the 
 greateft for compafs, and the beft for profit cf all the Sheep- 
 walks and Commons of this Realm^ which take prejudice 
 and lofs onely by the rage of the Sea. 
 
 2i Secondly, To provide alfo that the great frefh Rivers and 
 
 Streams may have their paflages made clear, and that their 
 Walls, Banks, and other Defences be repaired, kept and 
 maintained, whereby the fair, delightfull, pleafant and 
 
 fruitfull 
 
LeHura Prima. 29 
 
 fruitful! Meadows and Pafture- grounds which lie in the 
 greateft abundance upon or near the Rivers, Brooks and 
 Streams may be preferved from the inundation of frefh Wa- 
 ters, which many times annoy them, to the great and in- 
 eftimable damage of His Majefty's Subje&s , which be 
 Owners and Farmers thereof. 
 
 Thirdly , Whereas Navigation, both for the Exporting 3. 
 of our Homebred Commodities, and for the Importing of 
 Foreign Merchandizes is the chief inriching of this Nation, 
 therefore Ports, Havens, Rivers, and other Navigable 
 Streams and their dependencies, be put within the defence 
 of this Law, being Ojlia & jama Regni, for that by the 
 maintenance of thefe the Wealth of this Realm is increafed, 
 and the Inland Cities, Boroughs and Towns are made par- 
 takers with eafe and fmall coft of the Sea's Commodities. 
 
 Fourthly , like wife this Law giveth redrefs and remedy 4. 
 for the removing of fuch lets and impediments as are either 
 hinderances to Navigation, or ftops whereby the abundant 
 Waters cannot have their free paflage to the Sea. 
 
 And Fifthly^ Becaufe in the fiirrounded Grounds there 5.. 
 be moft commonly the greateft u(e of Bridges, Calceys, 
 Paffages and Ways, therefore this Statute hath taken order 
 for them alfo, whereby His Majefty's People may in thofe 
 places for their perfbns and their goods have both Sal-mint. 
 & fecurunt condn&Hm* 
 
 In thefe five parts be all the whole materials of this great 
 and worthy Law contained ; and therefore according to 
 the faid divifion I have framed a Cafe for the firft Lecture 
 upon this Law. 
 
 The firft Cafe. 
 
 ALeafeth to B. a Manor on the Sea Coafts for years, 
 m which hath incrementnm & decrementum Maris by 
 prefcription in the County of Chejier, and the City there, 
 C where a Commiffion of Sewers is ) remainder to C. in 
 Fee, Livery is given and taken by Attornies at full Sea 
 
 within 
 
go Lettura Prima. 
 
 within the view } the Sea then leaves one hundred Acres 
 of Land with the Shore divided in part from the continent 
 by a Navigable Haven •-, The Leafe expired, C. enters, the 
 Prince ejecls him, and the King feizeth this Relinquifhed 
 Ground. 
 
 My Opinion is, That the King hath a part, the Prince 
 a part, and the Subject a part of this Ground '-, and that it 
 is all within this Statute, but no part thereof within this 
 Commiffion. 
 
 Points of the Common-lave, 
 The Points of this Cafe be three at the Common-law, 
 and five by this Statute. 
 
 i. Firft, Whether Livery of Lands may be made within 
 
 the view in another County, or not > 
 
 2. Secondly, Whether Livery by the view may be given or 
 
 taken by Attornies, or not > 
 
 g. Thirdly, Whether in this cafe Livery and Seifin may be 
 
 made by Attornies, or that of neceffity it muft be made to 
 the LeiTee for years, and who muft join in making of the 
 Letter of Attorny to take the Livery ? All which Points 
 I muft maintaia affirmatively , elfe C. tht Subject cannot 
 have any Lands at all. 
 
 Points on this Statute. 
 
 1. Firji, Whether the Englilh Seas be within this Realm 
 of England, and what intereft the King hath there, and 
 what intereft a Subject may have therein by cuftome and 
 prefcription, and what is meant by the faid words, incre- 
 tnentum & decrementum Maris .<? 
 
 2. Secondly, Whofe thefe new Iflands be which arile there, 
 and whether they be faid to be within the Realm, and 
 what Laws govern the fame , for that it appears in my 
 Cafe, that the Ground left between the Sea and the Haven 
 is an Ifland ? 
 
 3. Thirdly, Whether the King (hall have all the Grounds 
 by His Prerogative, or the Subject by the faid Prefcription, 
 or the Prince as participating of both ? or whether every 
 one (hall have a part thereof, according to my Gonclufion ? 
 
 Fourthly^ 
 
Leflura Prima. 31 
 
 Fourthly, Whether the Grounds left by the Sea be with- 4. 
 in this Statute and Gommiflion, both or either of them, or 
 neither of them ? 
 
 Fifthly, What a Haven, a Shore, and the Coafts be in 5. 
 definition, and the feveral properties thereof? 
 
 The Reader's Argument. 
 
 And as it comes to my turn, I intend to maintain the 
 conclusion of my Cafe : And firft of the firft Point. 
 
 Livery and Seijin is one of the moft ancient approved 
 Ceremonies of the Law which hath been ufed for convey- 
 ing of Lands j and the Law hath a more refpect: thereto 
 than to any other: And it cannot be denied, but that it is the 
 moft perfect form of any, by the which the freehold and In- 
 heritance of Lands is transferred from one to another, and all 
 Subjects may give and take Lands by this Ceremony 5 but 
 the King onely is excepted, whole Prerogative, is fuchThat 
 as Lands cannot be taken from him, as King, but by Re- 
 cord j fo Lands cannot be given or granted to him, as King, 
 but by Record: And in the lame degree is a Count Pala- 
 tine in his County, becaufe he hath there Jura Regalia : And 
 this Livery and Seijin may be actually and really done and 
 performed, or elfe'it maybe done within the view of the 
 Lands intended to be conveyed. 
 
 And as touching Livery and Seijin to be actually efTe&ed, 
 if the Feoffment contain Lands in two ieveral Counties, 
 and Livery and Sei(in be made in one County in name of 
 both, this will not paf> the Lands in another county, be- 
 caufe the Land palTeth by the Livery, which is local, and 
 not by the Deed. 
 
 But in an exchange of Land in two feveral Counties by 
 Deed, the fame is good , for there the Land paiTeth by 
 the Deed. 
 
 But if one make a Feoffment of a Manor lying in De- 
 mefn in the County of L. and in fervices in the County of 
 M. thefe fervices, and fo Rents, will pafs by attornment 
 of the Tenant', though they lie in a foreign County 3 and 
 
 fo 
 
.32 LeSlura Prima. 
 
 fo of an Advowfon appendant, and fuchlike, becaufe thole 
 rents and fervices pals not by the local Ceremony of Live' 
 ry and Seifin, but by the Ceremony of Attornment, which 
 isperfonal} and depends upon the perlon which is tranfi- 
 tory 5 wherein 1 take this difference, That if a Feoffment 
 be made of a Manor by Parol, the Advowlbn appendant, 
 Villains Regardant, and Rents and Services by Attorn- 
 ment of Tenants, will not pais to the Feoffee, till the de- 
 mefns and Lands be firft conveyed. 
 
 But if the Feoffment be by Deed, then the Rents and Ser- 
 vices will pals by Attornment of the Tenants, and delive- 
 ry of the Deeds, before Livery and Seifin be made to pali 
 the demefns. 
 
 Then feeing that Land in one County will not pals by 
 Feoffment by exfprefs Livery made in another County $ 
 if then the lame may be palled and conveyed by Livery 
 within the view, is the queftion of our Cafe : And in my 
 opinion they may, becaufe it is a Ceremony performed by 
 the eye, which is a member or inftrument which hath his o- 
 peration by afpecl:, Tarn procul quam prope. 
 
 But exprefs Livery and Seifin, which is done by the hand, 
 cannot in reafon be extended to another place than where 
 the body is : And although the eye be fixed in the head, 
 annexed to the body, yet like the Sun, his beams are car- 
 ried afar off. 
 
 And this Livery by the view, is not a Livery in the 
 County where the body is, but properly in the County 
 where the Land lay , which was the objeft of the eye 5 
 and in this cafe it is faid to be Livery onely, and not Live- 
 ry and Seifin, becaufe the Seifin is properly when the party 
 enters, and the entry of the party is that which perfects the 
 work, which is in proprio comitatu. And for authority in 
 28 £.3. /.n. the point, 28 Ed. 3. fo. 11. there is a Cafe according to 
 my opinion, where the Husband at the Church door, when 
 he was to take one to wife, he made a Deed of Feoffment 
 of Lands lying in another County to the faid woman, and 
 then delivered the Deed to her, and Chewed her the Land, 
 
 then 
 
LeRura Prima. 33 
 
 then they married , and he entred in claiming to her ufe 5 
 and thefe Lands were thereby well conveyed to the faid wo- 
 man by this Livery within the view, in another County. 
 
 And of the fame opinion (that livery may 
 be given of Lands in another County within the 
 view) is Coke, 1 Inft. 48. b. 
 
 Now it is fit to be declared,what view is fufficient,for there 
 be two manner of views, The one general, the other fpecial : 
 In the fpecial view, every particular piece of ground is to 
 befeenj but in the general view itfufficeth to take notice of 
 the grounds by the place they lie in: and m my opinion, 
 The general view in my Cafe will fuffice. For if one make 
 a Feoffment in Fee of a whole Ifland, or of a whole Ma- 
 nor or Town, and make Livery thereof within the view, 
 this is good '-, and yet it is not poffible to view every particu- 
 lar piece of ground at once, for Trees, Houfes and Hills 
 might fo be interpofed, that the view could not be taken 
 offbme part thereof, yet notwithstanding view of the reft 
 will pafs. 
 
 Alfo if Lands be covered with Water, Ice or Snow, thefe 
 will pafs well in a Feoffment or Livery in the view. 
 
 In Brook, Title View flac. 101. the Cafe there may give Bm\io\. 
 the rule to our Cafe ; for there it is faid in a Writ of view, 
 It is not neceflary that all particulars in Specie fhould be put 
 in view, but to fee the fields where the grounds lie promi- 
 fcuoufly it will fuffice, and is a good and perfect view. 
 
 Sed eft un auter diverfitie concemant veiwe Carji un fait 
 Feoffment de B. acre que gift del auter parte dum Mountaine 
 tout hors del veiwe, la littery de ceo neft bone fans expres veiwe 
 tamen tout voile p offer per veiwe de parte & fie in mon cafe 0% 
 pari gift foutb lefloud del mere ceo non obftant paffe ut parcel 
 del mannor. 
 
 Afcuns aver teneus & ceo Knight ley pur un in 28 H. 8. in 2 2 H. 8. 
 JDier que Livery deins le veiwe doit touts foitt eft e fait in cafes 
 de neceffityceo urging in refpeft delchofe ou delperfon, delchofe 
 
 F quia 
 
g^ Leftura Prima. 
 
 quia leterre gift del furder fide dun grand ewe ou in le ewe ou tie 
 puit eft e facile acceffe del per Jon, quia que le Feoffor oh Feoffee 
 foit lame ou infirme y & detraher ceo in queftion Jeo aye mift 
 nton cafe quia le Feoffment d> Liuerey fuit ad plenitudinem 
 mark iamen Jeojue de opinion que Liuerey deins le veiwe pu- 
 it e/ie fait fans afcun matter de neceffity ceo urging & ceo Jeo 
 42 Ed. j. coiled perle liuer de 4z Ed. 3. Fitz. Feoffments 54. when 
 the Son did give back the Lands to his Father as freely as 
 his Father had formerly given the fame to him 5 and this was 
 within the view : and it doth not appear that either this 
 Livery or the other made to the faid woman in 
 28 Edward 3. were made of any neceffity urging the 
 feme. 
 
 And there be fome perfbns which can neither give nor 
 sake by Livery within the view,and that is where the Feoffor 
 or Feoffee is blind : So a Major and Commonalty , Dean 
 and Chapter, or other corporate and politique capacities 
 cannot give or take within the view. Some have held a 
 difference that a Parfbn of a Church might not take by Li- 
 very within the view to him and his Succeffors, becaufe 
 that came to him in his politique capacity, which had no 
 Eyes ; but if he were feized in the right of his Church, 
 that he might infeoff 1. S. thereof by Livery within the 
 a Conceit, view, becaufe this was a wrong to the Church, and there- 
 fore was in the power of his natural capacity, which 
 had Eyes. 
 
 But the main Point in my Cafe is, Whether Livery with- 
 in the view maybe given and taken by Attorneys 5 and 
 whether the view is (b incident to the perfbn, that it cannot 
 be imparted to another. 
 
 It is true,that the perfbnal view cannot be lent to another, 
 or divided from the perfbn, no more can the perfbnal touch 
 or ait of my hand be imparted to another > and yet ex- 
 prefs Livery, which is the Deed and aft of the hand, may 
 be done per auter maine. 
 % Reports, Sir Francis Englefield's Cafe in the feventh Report of Sir 
 r^ elds EdaurdCookjgives us a pretty difference, where the aft to be 
 
 done 
 
LeSiura Prima. 35 
 
 done is infeperably tied to ones perfon, and where not 5 as 
 in the Cafe of TkomasDuke of Norfolk^, where upon con- 
 veyance of divers Manors to Philip Earl of Arrundel his 
 Son, there was a Provifo, That the Duke might revoke 
 the lame upon fignifying of his mind under his own proper 
 hand in writing, &c. This power of Revocation was not 
 transferred to the Queen by the Attainder of the Duke, 
 becaufe it was infeparably tied to his own proper hand : 
 But the principal Cafe there of Englefield, where the Lands Cane, in 
 were fetled upon his Kinfman, with power, That upon Cow * sCafcv 
 tender of a Ring by him he might revoke the ufes, and this 
 was forfeit by his Attainder, and the Queen by a Letter of 
 Attorny maSe to two, did tender the Ring ■> for this was 
 not precifely or literally tied to Englefields perfon, no more 
 than payment of Money, or fuch like. 
 
 And fo in our Cafe, though by the Law I take it that 
 Livery within the view muft be in the view of both the 
 Parties, yet this may be done by Attornies \ for as my 
 own hand is not precifely tied by the Law to an express 
 livery, no more is my own eye exprefly tied to this 
 view. 
 
 And we fee in views in an Affize, the Under- (her iff, or 36 h. 8. 
 the Sheriff's Bailiffs, by his direction, may make the view j^S and 
 and yet the Writ is directed to the Sheriff to doe the fame j Pennington's 
 and in thofe Cafes an intelle&ual view will ferve, as if the Cafc * 
 Jurours know the Land j but fuch an intellectual view 
 will not ferve in a Feoffment, but there the view muft be 
 aftual. 
 
 Yet I take this difference, that if a Letter of Attorny be 
 directed to A. B. to make Livery and Seifitt, he cannot doe 
 the fame within the view, for therein he doth not purfue 
 his Warrant j but if the Letter of Attorny be fpecial, to 
 give or take Livery within the view, I am of opinion, 
 then the Livery may in fuch a cafe be given and taken by 
 Attornies within the view, as well as in Combe's Cafe in 
 Sir Edward Coo%s 9th Report, where it is affirmed that a 
 furrender of a Copihold may be given and taken by Attor- 
 
 F 2 nies, 
 
3^ Lefkura Prima. 
 
 nies, which is as perfonal as this is in the taking part, be' 
 caufe Fealty ought to be made. 
 
 Some things may in this Cafe be farther alledged in this 
 third point, which I now have in hand, that is, Who muft 
 make the Letter of Attorny on the Feoffee's part, whether 
 the Leffee for years, or he in the remainder, or both of 
 them : For Leffee for years, it is to be noted, that his 
 Eftate hath not any perfection thereby, and he feems him- 
 felf but a Deputy, and if ib, then a Deputy cannot make 
 a Deputy 5 but yet he is not merely a Deputy, for if there 
 be two Leffees, the remainder in fee to J. S. one of the 
 Leffees may take the Livery and Seijtn 5 yet if a Letter of 
 Attorny be made to two jointly, one of ther#cannot take 
 it 5 and if in our cafe the LeiTee had died before entry, the 
 Livery might have been made to his Executours, and 
 . powers and authorities cannot be apportioned and come 
 to Executours in fuch manner ; Ergo, It is more than a 
 power of a Letter of Attorny for the reafons aforefaid , 
 and for thefe infuing : For the Leffee for years cannot be 
 prohibited from taking his Livery by the Leflor, but a 
 Letter of Attorny may be countermanded 3 yet the Leffee 
 alone cannot make this Letter of Attorny, neither can he 
 in the remainder make the fame, becaufe he could not hio> 
 felf accept of the prefent Livery, neither can he meddle 
 with the prefent poffeffion which a Livery and Seijtn 
 yields, 
 
 But I am of opinion , That Leffee for years, and he in 
 remainder, muft join in the Letter of Attorny for thefe 
 Realbns : 
 3, Firji, They were both one party to the Deed, fb ought 
 
 they to be to the Letter of Attorny, which is to give life 
 thereunto. 
 2j Secondly, They be but in Law one Tenant, 
 
 1. Thirdly, They fhould join in Advowry. 
 
 And in many Cafes the LeiTee fhall have aid of him ki 
 remainder for the privity between their Eftatesj and al- 
 though the Leffee gets no Eftate by the Livery, yet he af- 
 
 fifts- 
 
LeRura Prima. 37 
 
 ftfts himfelf thereby with the aid and ftrength of him in the 
 remainder, and the Livery goes through his Eftate, and 
 fo pafieth into the remainder. 
 
 Therefore my Conclufion is, that they fhall join in this 
 Letter of Attorny} and hereby I fuppofe I have conveyed 
 a good Eftate in the Manor to J. S. in the remainder, to 
 maintain my pofition for him in the end of my Cafe, and 
 here I end my Three Common- law Points, and now am 
 eome to the Statute, 
 
 Notwithstanding what is here affirmed for 
 Law, it (eems doubtfull whether this Livery 
 within the view was well given : For, 
 
 1. My Lord Coke 1 Inft. 4^. b. puts this very i Inft -4?- 
 Cafe, viZi A man makes a leafe for years to A. 
 die remainder in fee to B. and makes livery 
 within the view ; and he concludes that fuch li- 
 very is void 1 For it mult be prefuppofed (as 
 my Lord Coke doth ) that the livery is made to 
 the LeiTee for years, as by Law it ought to be 5 
 for the livery could not be made to him in re- 
 mainder, becaufe the PoiTefTion belonged to the 
 LefTee for years. And though the livery be not 
 necetTary in this cafe for the LeiTee himfelf, yet 
 'tis for the benefit of him in remainder. Now 
 fuppofing it to be made to A. LefTee for years, 
 fuch livery is void , if made onely within the 
 view, becaufe no man can take by force of a It- 
 very within the view, but he that taketh the 
 Freehold himfelf, which A. doth not, 
 
 And as for the giving of livery in this cafe with- 
 in, the view to B. to whom the remainder in fee 
 
 is 
 
g 8 LeSlura Prima. 
 
 is limited, as well as to the LefTee for years. It 
 is confeffed here that he in the remainder cannot 
 accept of the prefent livery , ( though it fhall 
 enure to his benefit ) fo that the joining him in 
 the Letter of Attorny with the LefTee for years, 
 cannot make the livery within the view good ; 
 feeing he is incapable of taking it, for that he 
 hath not the Pofleflion. 
 
 2. If livery to A. LefTee for years, given to 
 him perfonally within the view were good, yet 
 it feems doubtfufl whether an Attorny can give 
 or take fuch livery within the view, though the 
 Letter of Attorny be fpecial to that purpofe : for 
 if the Law allows not of any fuch livery by an 
 Attorny within the view, as my Lord Coke, 
 i Inft. $2. b. feems to be of opinion, where he 
 faith, that the Warrant is intendable in Law of 
 an actual and exprefs livery, and not of a livery 
 ratbanh, in Law , and cites for it Tarhavh Cafe , 3 Eliz. 
 3 E ' then without queftion the fpecial direction of the 
 Party to give livery within the view, cannot 
 make it good, no more than where a Letter of 
 Attorny is to deliver livery of feifin after the 
 death of the Feoffor ; for no fuch fpecial ap- 
 pointment can controll a rule in Law to the 
 contrary. 
 
 The 
 
Letlura Prima. 3^ 
 
 The Reader's Argument upon the Statute 
 and CommiiTion. 
 
 The Sea vpithi?i the Realm of England. 
 
 FIrft, touching our Mare Anglicum, in whom the inte- 
 reft therein is, and by what Law the Government 
 thereof is, is a fit queftion, and worth the handling. And 
 in my Argument therein, I hope to make it manifeft by 
 many proofs and precedents of great worth and efteem, 
 that the King hath therein thefe powers and properties, 
 videlicet. 
 
 Imperium Regale. 
 Potejiatem legalem. 
 Proprietatem tarn foli quant aqua. 
 Pojfeffionem & Proficuum tarn Reale quam Perfonale. 
 And all thefe he hath by the Common Laws of England: 
 in the 6th of Richard the Second, Fitz. Prot. 46. it is faid, ^ a. 2. 
 That the Sea is within the Legiance of the King , as of his 
 Crown 0/England 5 This proves that on the Seas the King 
 hath Dominationem & Imperium ttt Rex Anglia, and this 
 by the Common- law of England. 
 
 The Charter of the Admiral of England hath thefe words Admiraiv 
 in it, Quod habeat potejiatent in caufis maritimis ac omnia charter - 
 bona waviata F lot fan let fan & Lagan ac omnia bona Merci- 
 monia & cat all a in mare deperdita feu extra mare project a ac 
 omnia & Jingula cafualia tarn in vel fuper mare vel lit tor a 
 crecas vel cojleras maris quam in vel fuper aquas dukes port us 
 flumina rivos aut alios locos fuperinundatos quofcunque inter 
 Fluxum & refluxum maris ceu aqua ad plenitudinem a qui- 
 bufcunque primis pontibus verfus Mare per totum Regnum 
 Angli<e. 
 
 Imprimis, This Charter is under the great Seal of Eng- 1. 
 land, quod eft Lex Anglic 
 
 The 
 
qo Le&ura Prima. 
 
 2. The Ktng grants to the Admiral thereby power in Ma- 
 
 ritime Caufes, which proves the King's legal power and 
 jurifdiftion on the Seas. 
 2. He grants to him bona in mare deperdita fuptr mare emer~ 
 
 gentia £> extra marc projetfa, which be profits arifing on 
 the Sea. 
 a. And all thefe are fiid to be per totum Regnnm Anglic ; 
 
 Ergo, the Seas be infra Regnnm Angli£. 
 Frengatlva In the Eleventh Chapter de Prerogativa Regis, it is de- 
 Regis, c. ii. c ] are( j 5 .Quod Rex habebit tvrecatm Maris per totum Regnnm 
 & Balencts & Sturgiones captos in Mari vel alibi infra Reg- 
 mtm Angli£ : and this was by the Common Laws before 
 ever this Statute was made ; for as the King was and is the 
 moft Excellent Creature within his Realm, Co the moft Ex- 
 cellent things which Land and Sea afford are appropriate 
 unto him. And this Statute alfo proves the Sea to be in- 
 fra Regnnm Anglic, and that the profits therein, and there- 
 on arifing belong to the King by the temporal Laws of 
 England. 
 sir Hem^ In the Cafe of Sir Henry Conjiable in the Fifth Report of 
 
 fables gj r E Q 0()h ^ it is f aidj That pi ot f an ^ J et fi„ a „ d l_ agan are 
 
 goods on or in the Sea, and that they belong to the King, and 
 the King by his Charter granted them to the Admiral. 
 Stat. 18 e.?. The Statute of the 18th of Edward the Third $ Let the 
 28 M. 8. § ea y e p en f a /j Strangers : and the Statute of 28 H. 8. 
 Chap. 15. IfanyTreafen, Mart her, or other Felony be done 
 ■on the Seacoajl, the Offenders fhall be tried in fuck County 
 as the King flitU appoint by Commijfion to be direfted to the 
 Admiral and others, to try the fame per Sacramentum duo- 
 decim , which is by Jury. 
 ,j #. 6 . And the Statute 31 H. 6. Chap. 4. there is a Reftrainr, 
 That no Subject do attach any Stranger in amity within 
 •this Realm on the Sea. 
 
 Here the Statute- laws are in force on the Seas, as ap- 
 pears by the examples; but thefe feem to tie the Perfon 
 onely. 
 
 And 
 
Leftura Prima. 41 
 
 And in the IriJIi Reports of Sir John Davies, in the Cafe Sir /a*« Dj- 
 of the Royal Pifcary of the Banne, it is faid, That the Sea v '"' 
 it the King's proper Inheritance. 
 
 And Mr. BraBon, lib. 2. cap. 12. in his Title de acqui- BraHon. i.z- 
 rendo rerun* dominio, fetteth forth a prescription in thefe ca P- l2 - 
 words, Quod J. S. & antecejfores fuifuerunt quiet' de Theo- 
 lonio & alii* confuetudinibus dandk per totum Regnunt An- 
 glic tarn per terram quamper mare : and many times in that 
 Chapter he reiterates the fame words 5 which is a ftrong 
 proof that the Sea is infra Regnunt Angli<e, and that the 
 King governs there by his Common Laws of England ; for 
 that prefcription is a main and material point of the Com- 
 mon Law : And the like is alledg'd in Sir Henry Conjiable'a 
 Cafe by way of Cuftome in the Citizens, as ofBriftol, to 
 haveFlotfan on the Seas between the high- water and the 
 low-water Marks. 
 
 For the Prerogative and Intereft that the King 
 of England hath in the Seas of England, and the 
 Antiquity of the Court of Admiralty j See the 
 Record in Co. 4 Inft. 142. 
 
 So I take 'it I have proved the King full Lord and 
 Owner of the Seas, and that the Seas be within the Realm 
 of England 5 and that I have alfo proved it by Ancient 
 Books and Authorities of the Laws, and by Charters, Sta- 
 tutes, Cuftoms and Prefcriptions , that the Government 
 therein is by the Common Laws of this Realm. 
 
 One Cafe and one Statute feem to fway to the contrary, uc/% Cafe, 
 and that is Lay's Cafe , where one was ftricken on the 
 Seas, and died on the Land, that the Common Law could 
 not try this Murther : It is true, becaufe that Trial was to 
 be by Jury, which muft come out of a proper County, 
 which could not in this Cafe, becaufe the Sea was not 
 within County-ground, and fb no Jury could be fummo- 
 ned there. 
 
 C And 
 
42 LeRura Trivia. 
 
 And I acknowledge that the King ruleth on the Sea by 
 
 ieRoUde the Laws Imperial, as by the Roll of Oleron and other 5 
 
 oUrm. b ut that j s on ely in the particular Cafe of Shipping, and 
 
 for Merchants and Mariners : But the King hath neither 
 
 the property of the Sea, nor the real and perfonal profits 
 
 there arifing, but by the Common Laws of England, and 
 
 i^&i&M. in proof thereof the Book 15 and 16 Eliz. in Dyer, where 
 
 l) ' er ' the Grounds gained from the Sea pertained to the Queen 5 
 
 And in Sir John Davis his Reports, Pifcar. de 
 Ban. 56. That the King fhall have the Land 
 gained out of the Sea. 
 
 Which mufl: needs be by the Common Law of England $ 
 for no Law gives the King any Soil, but onely the Com- 
 mon Laws of England, fo this is fufficient proof for the 
 real profits, and for the perfonal profit the Charter of the 
 Admiralty and other Cafes aforefaid make it manifeft. 
 i^R.2.Rafl. And there is a Statute made in 13 R. 2. cap. 5. which re- 
 Admiraity. ft ra | ns tne Admiral that he do not meddle with any thing 
 done within the Realm, but on the Seas 5 by which it may 
 be colle&ed , that the Seas be not within the Realm of 
 England : But in my opinion the intent of that Statute did 
 rather limit the Admiral how far he fhould extend his Ju- 
 rifdi&ion, than any way to fet forth the bounds of this 
 Realm : wherein my conclufion herein is, That my Statute 
 hath his extent within all the Realm of England 5 and that 
 Englifh Seas being within the Realm, be within the bounds 
 of my faid Statute of Sewers, and that Statute- law is in full 
 power on the Seas, as by the Cafes and Statutes mentioned 
 formerly doth appear. 
 
 Of IJlands. 
 
 ®e injuiii. T)Exaufe in my Cafe in matter, though not in exprefs 
 JlS words there is an Ifland, therefore it comes now fitly 
 in turn to declare whofe the fame is in ownerfhip, and 
 
 what 
 
LeSlura Prima. 43 
 
 what Laws the fame is to be governed by : And firft, of 
 the definition thereof : Juflinian in Sim Injiitutionibus vefinitio In- 
 faith, that Infula eft locus undique circumdatus aquis, p. 1 5 3. I l<! *- 
 And with this agreeth Britton, in his Title of Purchafe, 
 England of it (elf is not Infula , becaufe it is not undique Anglia. 
 circumdatus aquis. But England and Scotland be one in- Scotia. 
 tire Ffland , and the mod famous in the whole World 5 
 England, take it per fe eji peninfula, that is pene Infula, al- Peninfula. 
 moft an Ifland 5 for on all parts it joins to the Sea, but to- 
 wards fome parts of Scotland. 
 
 Gemfey and Jernfeji be Iflands on the Sea, but it feems Gemfey. 
 by the Pvefolutions in Calvin's Cafe, the yth Report, That l**fch 
 they be not within the Realm, nor governed by thefe 
 Laws, becaufe the King hath them by his Title of France. 
 
 The Ifle of Man was in times paft a petty Kingdom, and Man. 
 had a King, but he was onely as a Viceroy, and under the 
 King of England, as by a Record. 
 
 Where Artold, King of Man, made fuit to the King of 
 England to come into England 5 but whether Man be with- 
 in the Realm or not, feems to be put without queftion in 
 Sir Edward €ool(% Cafe of Calvin, and by ~K.tlvea.ys Reports, 
 1 1 H. 8. that it is not, for there an office found after the it a. 2. 
 death of the Earl of Darby by a Writ out of the Chancery Ktlwa f % R « 
 of England was avoided, becaufe as the faid Books do af- 
 firm Man was not within the Realm of England ; but un- 
 der the favour of thefe Books, that is no neceffary caufe to 
 avoid that Office ; for in my opinion the (aid Office of the 
 Earl of Darby was void, quia in Man breve Domini regit 
 von Currebat, and (b in the County Palatine of Chejier, 
 breve Domini regis non Currit, 161. tamen Comitatus Cejiri<e 
 eji infra Regnum Angli£. Mr. Cambden in his Hiftory de In- Camldtn. 
 fitlis is of opinion, that Man was a Member of the Realm of 
 England : and therein he hath thefe words, That Man is 
 an Ifland fituate in the mid-way between England and Ire- 
 land. Sed de qua utrique ttrrarum applicari de Jure dcbuerat 
 ab antiquis non ambigebatur, demum in hunc modum lis ijia 
 quievit qnoniam adve&os periculi Caufa venenofos h<ec terra, 
 
 G 2 vermes 
 
44 LeSiura Prima. 
 
 vermes admi(it i ergo eamBritannis applicandumCenfura Com- 
 munis di&a'vit , by which it may appear, that the Jfle of 
 Man was within the Realm of England j or at the leaft a 
 Member thereof. 
 
 wight. But I do take the Ifle of Wight originally to be parcel of 
 
 England, and is a part of the County of Hampfoire, and 
 was as it were divorced from the Continent as was Sicily 
 from Italy ; the one, as Poets feign, was parted from the 
 Continent or main Land by an Earthquake ; the other, as 
 
 cambdtn, \% imagined, by the rage and violence of the Sea : Infula 
 Ve&fc inquit Cambdenta infuk injultis Britannicis, fol. 707. 
 eji pars Comitates Hamtonia & a Continente Britannia avul~ 
 fa eji ut coh<efijfe videbatur, for many do imagine that it 
 was torn from the main Land by the violence of Waters, 
 as of late years parcel of the Spurnhead in Torkjhire, which 
 before did adhere to the Continent, was torn therefrom by 
 the Sea, and is now in the nature of an lfland : Yet the 
 lame is within the Realm of England, and remains parcel 
 of Yorkshire 5 and the like is laid of the lfland call'd Silly. 
 Many other ancient Iflands there be, which being in the 
 Englifh Seas be parcel of this Realm , which I will pars 
 over to avoid prolixity. 
 
 mva infula. But in our Cafe a new lfland is rifen up in the Englifli 
 Seas, to whom the fame in point of property and ownerfhip 
 (hall belong , and what Laws the fame (hall, be governed 
 
 Jujihian. by, comes now juftly to be difputed of Jufiinian in his 
 Infiitutes, De rerum Divifione, faith, Quod infula in mart 
 
 Button B6. nata (nt Delos) eft primi occupantk. And Britton, one of 
 our ancient Writers in his Book Titulo Purchafe, fol. 86. 
 faith, That if a new lfland rife up in the Sea, datur primo 
 ocatpanti, and agreeth fully with Jufiinian therein 5 but 
 faith he, If it be taken or divorced from the Continent, 
 then it continueth to the former Owner 5 but clearly our 
 Law of England doth not agree with either of thofe Au- 
 thours in the point of ownerfhip. For, if, as I have for- 
 merly delivered it, the Sea in property, poflefrion and profit, 
 iam in aqua quam in fob, belongs to the Ring in the right 
 
 of 
 
Lettura Prima. 45 
 
 of Pr n *?v?r? of England, 2% I take the Law clearly to be, 
 en it followeth as a conft quent, That the Ground which 
 was the King's when it was covered with waters, is His alio 
 when the waters have left it 5 For our Law admits not any 
 thing, either real or perfonal to go primo occupanti^ but 
 when an Owner cannot be found , the Common Law 
 gives it Domino Regi, as Waifs, Stray?, Wreck of the Sea, 
 Treafare found , Efcheated-lands, and fiich like 5 fo that 
 my opinion is conceived in this, that in point of ownerftiip 
 and property, the faid new Ifland is the King's. 
 
 But yet I am likewife of opinion, That a new Ifland ri- 
 fen from the bottom of the Sea, although it be within the 
 Realm, yet it is neither within County, Parifh nor Town 
 of this Realm, till the King by his Edift or Proclamation 
 have fo declared it. 
 
 There may be Iflands alfo within the Land compaffed 
 about with frefh Rivers, as the Ifle of Ax holm in the Coun- 
 ty of Lincoln, and Sheppey in the County of Kent, and 
 divers others. But Mr. BracJon in his Book de acquirendo Btatlmfib.i, 
 rerum dominio, doth very well deliver the Law concerning ca h 2 * 
 his new Iflands which arife in great Rivers 5 his words be 
 thefe, Habet etiam locum eadem Jpecies acceffionis Infula nata. 
 influmine quod ft quidem medium partem teneat Communis eft 
 eorum qui pro indivifo ab utraque parte fluminis prope ripant 
 pr<edia pojjident pre modo latitudinis cujufcunque fundi que 
 latitudo prope rip am fit que ft alteri parti proximiorJtt t eorum 
 eji tanta qui ab ea parte prope ripim pnedia pojjident : Si an* 
 tern infula in Mart nata fit quod raro accidit occupantis fit 
 Domini Regis non tamen credos proprium alicujus agrum in 
 formam infula redaff' infulam effe ut ecce flumen dividatur in 
 fuperiori parte & circuit agrum alicujus & demum infra in quo 
 cafu ejus erit agzr cujus prius fuerat : Cavendum quoque erit 
 in metienda vicinitate infularum quia pot eji quis in hoc de fa- 
 cili decipi ponatur igiturpunUus quod in medio inter utrumque 
 agrum & fecundum hoc Ji infula citra pun&um fit vet hi jus 
 tant' vel illim tant' erit Ji autem fit & citra puntium & in 
 ipfopuri&o & ultra tunc pro indivifo : Communis erit ut tan* 
 
 tarn 
 
4 6 LeStura Prima. 
 
 tarn m'thi cle zpfo infill* cedat qua continenfur in medietate 
 pttnBi itfque ad agrum meum. Si aiitem infula rotunda inve- 
 niatur hoc obfcrvctur quod omne quod propinqmns eji mihi ce- 
 dat, & it a vicino cedat quod ei vicinius erit. 
 
 But whether the Laws of this Realm be of force in the 
 laid new-fprung-up Sea Iflands, or nor, is a queftion : It 
 appears in Calvin's Cafe, and in the Cafe of the Taniftry 
 in the Irijh Reports, That if the King conquer an Ifland or 
 Nation, the fame is no part of England, nor the Laws of 
 England there in force, till the King fhall fo declare the 
 fame, but the own proper Laws feem to be in force there 5 
 but if the King conquer a Nation from an Infidel, there the 
 ancient Laws of that Nation upon the conqueft are extinft 3 
 catiif. but the Law is not fo of another Chriftian Region, as Cal- 
 Guyen. fo^ Q lf j, e „ } Bulloign and the like. And although Ireland 
 Ireland' wa s under the obeyfance of the King, yet the Laws of 
 England were not there in force, till the King fo declared 
 the fame. 
 Wales. And although Wales before the Reign of E. 1 . was with- 
 
 in the Fee of the King of England, yet was it not parcel 
 thereof, till the Statute of 12 E. 1. fo made it $ and al- 
 though that Statute fo annexed Wales to England, yet be- 
 ing but by the word or figure adjnn£?a, the Laws of Eng- 
 land were not totally in force there till the Statute 27 H 8. 
 ib declared them, as is holden in Rice Thomas's Cafe in Plo. 
 Com. but notwithftanding whether Wales be within my 
 Statute, or not, is queftionable, for thefe Reafbns follow- 
 ing : Firft, it is clear that a general Law unftinted and un- 
 bounded fhall extend to Wales as well as to England j but 
 our Law grants Commiffions within the Realm of England, 
 and fo precifely prefcribes it to bounds } and it may feem 
 that the Parliament took it fb in 1 Mar. cap. 1 1 . where 
 CommifTioners of Sewers were authorized in the County 
 of Glamorgan, which, as may be objected, need not, if 
 Wales had been formerly comprifed : and tome new Sta- 
 tutes, as that of Alehoufes in 1 Jac. cap. 9. and that of 
 Rogues, 1 Jac. cap. 7. extend the fame to the Realm of 
 
 England 
 
Leffura Prima. 47 
 
 England and Dominion cf Wales, as if Wales fhould not be 
 contained in the words, (the Realm of England') yetnot- 
 withftanding in my opinion this Statute of 23 H. 8. extends 
 to Wales j for although the Statute of the firft of Mary gave 
 power to Commiilioners in Glamorganjhire, that was for a 
 fpecial purpofe, which, as was conceived, the Statute of 
 23 H. "8. did not in England extend thereunto, that as for 
 the carrying away of the Sand which was thrown upon 
 their Grounds 5 but in that Statute it may well be per- 
 ceived, that the Statute of 23 H. 8. was of force there 5 
 and inserting the words, Dominion of Wales, in the faid 
 Statute of Poor and Rogues, was rather of fuperabundance 
 to fatisfy fome which might nodum in fcirpo qmrers, make 
 a doubt where none was, than that they were there put 
 for any neceffity requiring the fame : But I am of opinion, 
 that in this new-fprungup Ifland the Laws of England are 
 there in force, becaufe when it was Sea, the fame was un- 
 der the Government of thefe Laws -, and although the na- 
 ture and quality thereof be changed, viz. dry Land for 
 full Sea, yet the fame Laws and Government remain in 
 force ; fb that I hold this new Ifland within the Statute, 
 and that the property thereof is the Ring's. 
 
 Now occafion and time gives me fit opportunity to treat 
 of Grounds which be newly gained from the Seas. If, as 
 I have formerly declared, the Grounds be the Ring's when 
 they be covered with Waters, it muft needs be held an in- 
 fallible ground, that they be alfo the Ring's when the Wa- 
 ters have left them dry ; and when the Waters had their 
 being on the fame, the whole Profit there arifing did ap- 
 pertain to the King } yet I have known in fome Countries 
 where the Frontagers have claimed thofe Grounds fb left, 
 by a pretended Cuftome of Frontagers, and fome probable 
 reafon might be fhewn, wherefore they fhould have the 
 fame 5 for as their Ground was neareft the Sea, and fb 
 next to the charge to repair the Defence, and next to the 
 lofs where any overflow happened , it might therefore 
 feem reafonable, that as they were put to the greateft 
 
 charge, 
 
48 LeRura Prima. 
 
 charge, and in peril of the lofs of their Lands, that Co if 
 Lands were left by the Sea affront them, that thefe Lands 
 might accrew unto them as a reciprocal confideration for 
 their charge and lofs ; but I take it that of late the Law 
 hath in thtfe Cafes been oftentimes ruled for the Ring a- 
 gainft the Subject 5 for at Croft in the County of Lincoln, 
 1600 Acres were gained from the Sea, affront the Manor of 
 Sir Valentine Brown there, yet he was put to obtain a grant 
 from the King thereof : and one Bu/hey of St. Kegneys 
 claimed Grounds left by the Sea, by the faid pretended 
 Cuftome of Frontage, but they were decreed againft him 
 in the Court of Wards, in 12 Jac. R. in which Cafe I was 
 of Counfel : For it were inconvenient that the Subject 
 fhould have Frontage, and yet no bounds prefcribed there- 
 to j fo that ten thoufand Acres might be left affront a 
 Man's Manor, which were not fit a Subject fhould have 
 this large Inheritance by pretence of fuch allowed Cuftome 5 
 and I fuppofe I may herein fay in this Cafe, as Mr. Plowden 
 doth of his Silver Mines, That it is inconvenient a Subject 
 fhould have the Silver Mines in his Grounds, for fb might 
 he become richer than the King. 
 
 So it is not fitting that a Subject fhould have the 
 Grounds left by the Sea, when fo much may happen to be 
 left as the King's own Lands in the Realm come to 5 and fo 
 becaufe nimium fe exaltat in prerogativam Regis, I am of 
 opinion the new gained Grounds from the Sea appertain to 
 the King as a Royal Efcheat, and not to the Subject $ but 
 in my Cafe here is a prefcription where the owner of the 
 Manor hath Incretnentam & decrementum Maris 5 of what 
 force this is , is now to be argued 3 therefore I will now 
 declare what intereft a Subject can or may challenge in the 
 Seas, in Grounds gained therefrom. 
 
 Perfbnal profits arifing on the Sea, Subjects may have and 
 challenge by cuftome and prefcription, as to have free Pis- 
 cary on the Sea ; and a Parfon had Tythes of Fifh gotten 
 in the Sea by the Inhabitants of his Parifh; and yet the Sea, 
 nor any part thereof is not in any Parifh, but it followed 
 the perfbn. j n 
 
Leftura Prima. 49 
 
 In Sir Henry Conjlables Cafe, the Citizens of Brijlol Sir Henry 
 claimed Flotfan ( which be goods floating in the Sea ) c ^ abk ' s 
 by cuftome, in Brafton, cap. 12. one alledged to be dif Brahor.. 
 charged of Toll or Cuftome on the feas by prefcription, in 
 the Cafe of the Swans; in Sir Edward Coo^s 7. Report, 
 one prefcribed to have game of wild Swans at Abbot- Cafe of 
 berry, in a Creek of the Sea, which is a member or arm of Swans * 
 the Sea : and in Sir Henry Conftables aforefaid, it is taken and 
 received for Law, that a SubjedVs Manor may extend to 
 the low- water mark by prefcription.^ 
 
 So it was refolved and adjudged by all the Ba- 
 rons of the Exchequer, 1 6 Car. i . in C a. fcacc. in 
 a caufe by Engliih Bill between the King's Attor- 
 ney, and Sir Samuel Roll and others. That the sksanma 
 Soil whereupon the Sea flowes and reflowes, fcil. 
 between the High-water mark and Low-water 
 mark, may be parcel of a Manor of a Subject. 
 Roll abr. Prerogative Le Roy, 1 70. 
 
 And feeing all thefe a Sub/eel: may have in and on the Seas 
 wherefore then fhould he not have all the grounds left by 
 the Sea by prefcription? To that I anfwer, That he cannot 
 have claim in any thing by prefcription and cuftome, but that 
 which lieth in ufe, which is the life of them both ; but Lands, 
 and Grounds which have alwaies been Sea, could not be nor 
 lie in ufe, and therefore they cannot be claimed, nor the fame 
 can be bounded out by prefcription or cuftome; yet Lands 
 between the high- water mark and low- water mark the 
 bounds thereof may be prefcribed to belong to , or to be 
 parcel of the Manor, becaufe in every 1 2 hour9, or in every 
 day they lie dry, and Co a Subject all that time may have ufe 
 of thera, and fo of all the reft of the faid things, but in that 
 which never lay in ufe, no cuftome or prefcription could 
 take hold on, infbmuch that in my Opinion, no prefcripti- 
 on nor cuftome can fetch Lands farther than the low- water 
 mark. H Grounds 
 
50 LeUura Prima. 
 
 Grounds left. 
 
 E 
 
 \ UT now what grounds (ball be (aid a leaving by the Sea, 
 is a point in my Cafe alfo, for it is certain that at fpring- 
 tides the Sea ufeth to overflow the Marjhes in Lincolnjhire 
 and Norfolk^ and returneth within a fhort (pace again ; thefe 
 being ufual and annual , be not accounted grounds left or 
 gained from the Sea} fo becaufe the Marfhes in Lincolnflrire 
 and the Sands in Lincolnjlme be overflown every 12 hours, 
 and then dry again, they are not accounted grounds left or 
 gained from the Sea, becaufe the Sea hath daily her recourfe 
 is .Eliii.Djer thereon : and therefore in 15 and i6Eliz. in Dyer fo. 326 
 ?2<5, in the Cafe there was a quantity of ground was left by the 
 
 Sea, and whether the King, or he whofe grounds were ad- 
 joining fhould have them, was there made a queftion 5 but 
 in that Cafe there is an excellent prefident fet down, very 
 43 e. 3, apt for the handling of this point , put in 43 J5. 3. Contra. 
 Abb at' de Ram fey de quodam procejjk in Scaccario fa&o verfus 
 di&Abba? ad ofiendendumqnareSexagint' acr£ marifii in ma- 
 nns dom Regis non debent fefiri quasprediff Abbot appropriavit 
 •' Jibi&domHifu<ejine HcenUaRegk fitper quandamprefentatiori 
 virtute cujufdam generates Commijjiov de terris a Rege detenth 
 & concelatk .Abbas refyondit quod ipfe tenet manerde Brat/nceji 
 quod jituatumejl jhxta mare et quod eji ibid.qmdant marifcns 
 qui aliquando per flttxum maris minor atur & aliquando per de- 
 fiuxum maris augetur abfq^ hoc quod appropriavit Jibi prout per 
 prefentation predic fupponebatur. And the Attorney of the 
 King maintained the contrary, and thereupon the King and 
 the Abbat were at an iffue 5 Co by the Cafe I gather thefe 
 matters: 
 
 Firft, That if by little the Sea fometimes decreafe and 
 leave fome parcel to the Land, and lbme other times run 
 over the fame again, this ground belongs not to the King 5 
 lor thefe be grounds whereto the Subject may have a 
 property, as in the grounds of the ihore, but otherwile it 
 
 is 
 
LeSiura Prima. 51 
 
 is where great quantity of ground which had always been 
 drowned before is left, that belongs to the King. 
 
 Alfo by this prefident the Law was taken to be, that thele 
 grounds left by the Sea to the Land, were in the Coun- 
 ty of Norfolk,, whereto they did adjoin, and in my opini- 
 on within that Parifh whereto they lay; for there was a Pre- 
 fentment, which was by a Jury of Norfolk and the Jury 
 taken to try an Iifue muft be de viceneto cjufdem comitatus : 
 but note there, the Prefentment was by a Jury de Corpore 
 Comitatus, in 22. Lib. djjif.pl. 93. The Cafe was, That Lib. 12. Ag". 
 a River of water did run between two Lordfhips, and the?'- 91- 
 foil of one fide, together with the River of water, did 
 wholly belong to one of the faid Lordfhips, and the River 
 by little and little did gather upon the foil of the other Lord, 
 but 10 flowly, that if one had fixed his eye a whole day 
 thereon together,it could not be perceived j by this petty and 
 unperceivable increale, the increafment was got to the 
 owner of the River; but if the River by a ludden and unu- 
 fual floud had gained haftily a great parcel of the other 
 Lords ground, he fhould not thereby have loft the fame : 
 and 10 of petty and unperceivable increafements from the 
 Sea, the King gains no property, for De minimis non Curat 
 Rexj but put the cafe the Sea overflow a field where divers 
 mens grounds lie promifcuoufly , and there continueth fo 
 long, that the fame is accounted parcel of the Sea, and then 
 after many years the Sea goes back and leaves the fame, but 
 the grounds are fo defaced, as the bounds thereof be clean 
 extinct and grown out of knowledge, it may be the King 
 fhall have thofe grounds; yet in Hiftories I find that Nilus 
 every year lb overflows the grounds adjoining, that their 
 bounds are defaced thereby ; yet they are able to fet them 
 out by the Art of Geometry. 
 
 But if the bounds can be known, in filch Cafe, 
 if the Sea hath overflowed a man's Land for 
 forty years, and then goes back, he (hall have 
 
 H 2 his 
 
52 Leftura Prima. 
 
 his Land again, and not the King. Mich. 7 Jac. 
 RoTiabr.iss.per Ccke <£? Fofter^ Roll abr. Prerogative Le Roy. 
 
 168. 
 
 The Prince Thefe grounds in my Cafe which are left by the Sea, and 
 
 Hne^f'c/" '' e ^ rom l ^ e naven next to tne fh° re j af e as I have former- 
 jier. Iy delivered it within the County Palatine of Cheften, and 
 
 therefore whether the Prince or the King (hall have them, 
 is now my queftion : The Prince hath not onely Jura Regalia, 
 but alio Efcheta Regalia within his laid Palatinate, and fo in 
 my opinion is not onely owner of the County, but Lord of 
 the Prerogatives there, and all Juri(Hi&ion is to the Prince, 
 onely a Writ of Error lieth in the King's Bench of a Judg- 
 ment there, like an Appeal to Cajar, then he is Lord of thofe 
 Laws by which the Freehold and Inheritance of thole lands 
 be ruled, wherefore then Ihould not thefe lands belong to 
 his Grace ? And fitft it is ufual to have a Commiffion di- 
 rected to enquire of thefe Lands ut de terris concelatis, and 
 this inquiry (hall be by Commiffion 5 if that Commiffion 
 be to ifl'ue out of the County Palatine oiChejicr, then the 
 Lands would queftionlefs fall to the Prince, and the enquiry 
 to be made of the Freeholders of the faid County Palatine. 
 Barty/s The Cafe put in Bar kley 's Cafe in the Comment, of Mr. Plow- 
 den, fo. 129. doth force much againft the princes Title 5 for 
 there it is put, that the Bilhop of Durham had Liberties and 
 Privileges in Terris fuis inter Fluvios de Tyne & Tefe, and af- 
 terward purchafed more Lands between thefe two Rivers, 
 the faid Liberties and Privileges fhall not extend thereto; 
 and Co if one have a Warren in his Lands in Doyle, and he 
 purchale other Lands there , his Warren cannot be exten- 
 ded upon thefe new purchafed Lands , for faith the book, 
 Things or privileges confined to certain Precincts or Domi- 
 nions, cannot be extended farther, though the Dominion be in- 
 Urged, and that theyfhaU not beinlargedveith the inlargement 5 
 but the County Palatine vefted in the Prince, is pre- 
 scribed within no other bounds than the word County- 
 doth confine it 5 and therefore this falling to be within the 
 
 County,, 
 
 Gafe. 
 
Lefaira Prima. 53 
 
 County, Ihould be properly his, and as I am informed, 
 the Prince hath fpecial words therefore in his Charters, if 
 it were granted that thefe grounds could be claimed by 
 Charters; but I am clear of Opinion, That no incrcaie 
 of the new left grounds can poffibly become within the 
 County of the City of Chefler j for the bounds thereof can- 
 not extend over that circle which their Charter hath con- 
 fined them to : and fo for the caufes and reafons formerly 
 declared, I take it, That the faid Ifland is the Kings, the 
 ground left between the haven and the ancient fhore, be- 
 longs to the Prince as Earl of Chejler; and the fhore be- 
 came of the faid prefcription appertains to C. the Subjeft 
 as parcel of the faid Manor '■> and fo according to my faid 
 conclusion of my Cafe , here the Ring hath a part , the 
 Prince a part, and the Subjett a part of the grounds left 
 by the Sea, 
 
 My Tenets therefore be thefe :■ 
 
 Firft, that the Subject may have the grounds of the Sea r, 
 to the low- water mark, and that no Cuftome can extend 
 the ownerfhip of a Subject farther. 
 
 That a Subjeft cannot have the grounds to the low- water 2, 
 mark, but by cuftome and prefcription, and I take it that 
 it is very difputable whether grounds before they be relin- 
 quifhed by the Sea, may be gained by Charter and grant 
 from the Crown ; I fuppofe they may. 
 
 That the words iticrctnentitm & decrementum mark are 3. 
 fully defcribed by the faid Record of 43 E. 3. of the 
 Abbat of Ramfey : that is, That if the decreafe of the Sea 
 be by little and unperceiveable means, and grown onely in 
 long traft of time, whereby fbmc addition is made to the 
 Frontagers grounds, thefe by thefe words may appertain 
 to the Subjeft j and herein the faid words have no other 
 operation, but Lands left to the fhore by great quantities, 
 and by a fudden occafion and perceiveable means, accrew 
 wholly to the King, 
 
 That 
 
54 LeSfara Prima. 
 
 4. That the increafe to the faid County Palatine, for the 
 
 ciufes aforefaid, doth appertain to the Prince as Earl of 
 
 Chejier. 
 
 E 
 
 The Shore. 
 
 |UT now I am arrived at the continent, and the firft 
 ground I let my foot on is the fhore, which in Latine is 
 called L?ttns Maris, it taketh the name wholly from the Sea, 
 as partaking mod with her nature, and lb Ex digniori parte 
 appellatur$ yet it is not all one with the Sea, nor with the 
 
 Bration. Land, but participates with them both: And Mr. Brafton 
 in his lecond Book, Chap. 12. faith, That Littora Maris 
 
 Juftinian. acceJforia,\vhat the fhore is appears by Jiiftinian the Emperour 
 in his Inftitutes, lib.z. pag. 141. and is there thus defined, 
 Littm Mark eft quoufque maximum Hibernicus, & jus ftn& tts 
 eluderet & quoufqueflu&us Maris in eft ate longius exejiuatj and 
 
 Cktn. with this agreeth Cicero Topicorum, The pore is not counted 
 for lands or grounds gained from the Sea, or left by it, becaufe 
 at every full Sea it is covered with the waters thereof. In the 
 
 /M.13,2,5. 13th Chapter of St. Matthew'i, Gofpel, ver. 2, 3. it is faid, 
 That our Saviour Jefus went into a (hip, and fate there, 
 and the whole multitude ftood on the fhore, and he (pake 
 unto them: Hereby it appears, that the (hore was the dry 
 land, becaufe they flood thereon 5 and it was a great quanti- 
 ty of ground, for thereon ftood a multitude, and it was near 
 the brink of the water, becaufe they heard Jefus (peak unto 
 them out of the fhip. In point of property and owner- 
 ship it is the King's, as Lord of the Seas ; but as Sir Henry 
 Conjiable's Cafe is, a Subject may have the fame, as belong- 
 ing to his Manor by prefcription. In the Imperial Law 
 which the Civilians ufe, the Sea fhore is held to be common 
 to all, and that it is as lawfullfor Diogenes the poor Cynick, 
 as Crefus the rich King, Cafam. 161. Ponere & retiajiccare 5 
 but our Commonlaw of England doth in reafon much 
 furpafs either the Imperial Law or the Civil Law, in diftin- 
 guifhingupon thefej for it is faid, Rex in ea habetproprietatem 
 
 fed 
 
Lefiura Prima. 5 5 
 
 fed populus habet ufnm ibidem ntctffmum : Co that as to the 
 Jading and unlading of Ships, and for drying of Nets there, 
 and for other nectllary bufineffes, the Subjects have thefe 
 ufes therein, but the foil and grounds thereof belong pro- 
 perly dom Regi. And a Subject may have the fame by prescri- 
 ption, and therefore fuch a^ hold thefhore to be the extreme 
 point both of Land and water be in a great error, for asjujii- 
 tiian faith in his Injiitutes, Quod gemma & lapilliprecioft inve~ 
 niuntur, which can be taken no otherwifey2^////>er terram 
 aqua relief am: lb that this fhallfuffice to have laid concern- 
 ing the Sea (hore. 
 
 Sea Coafts. 
 
 TH E coafts of the Sea come next in order to be treated 
 of: Cofiera mark be words well known, but their con- 
 fined definition is hard to be found out 5 yet certainly they 
 contain the fhore and banks, for by the Statute of 27 El. Chap. 27 £/, 
 04. an Aft was made for the mending of the banks and Sea 
 works on the Sea Coafts} but in the 7th. Chap, of Maccabees Maccabees ; • 
 Coafts have a larger extent, for there Demetrius Son of Sc- 
 leucus departed from Rome, and came to a City of the Sea 
 Coafts 3 here a whole City is fet on the Sea Coafts : and in 
 Jujiine treating of Alexander the great, it is reported of him, Jufihe, 
 that he entred into Lycia and Pampbilia, and won and con- 
 quered all the Sea Coafts : this could be taken for no lefs 
 than whole Countries; for Alexander's great mind and huge 
 Army,could not marchon a Mole-hill,or lrnall traft of ground: 
 In St. Mark- Chap. 7. it is thus written, That Je/us departing 
 from the Coajis of Tire and Sidon, came toG.ililee, Co that it may 
 thereby be gathered, That thefe Coafts were near the Sea, 
 for our Saviour was no fooner out of the Coafts but he was 
 on the Sea, which (hews that Sea andCoafts be contigul Ja- 
 centia, yet no certain definition can I find of the words Coaftj 
 of the Sea, but by thefe and fuch like defcriptions; yet this 
 I gather and collect thereby, that in refpect of the whole 
 World, a whole Kingdom lying next may be faid to be a Sea 
 
 Coaft, 
 
5^ Leffura Primal 
 
 Coaft, and a whole County in refpeft of a Kingdom 5 and 
 in my opinion the next Town and Territories thereof lying 
 next tothe Seas, be in our Law taken to be the Sea Coafts and 
 no other ; and therefore fomedo much err which take Coaft 
 to be the edge of Land next the water, and fliore to be the 
 brinks of the water next the Land quafi duo oppofita. 
 
 And becaufe Creeks, Havens and Ports be all of them 
 within the charge of this Law, and this Statute was ma- 
 terially made in defence thereof and as they differ in appel- 
 lation, fo they vary in definition, yet they do in fome things 
 agree in the material ; I will therefore deliver my opinion 
 of them. 
 
 Creeks. 
 
 C Reeks of the Sea is an Inlet of Sea cornered into the 
 main Land, (hooting with a narrow paffage into fbme 
 Angle of the Land, and therein ftretching it (elf more than 
 ordinary into the Land , and (b holdeth not even quarter 
 with the Levant Sea ; and fuch Creeks or Inlets we com- 
 monly term in the Law to be Arms of the Sea: for like as 
 the Arme of a man (hooteth out from the Body, (b by a me- 
 taphor the inlet or corner of the Sea let into the Land, is 
 called an Arm of the Sea 5 and although it go far into the 
 land , yet the points of Land on both fides may well be 
 difcovered : and this appears in that great Arm of the Sea 
 on Hutaber, where it runs betwixt Lincolnfhire and York? 
 foire, the points of either County may be feen at once, and 
 feem to ftand even over the one to the other. 
 
 Arm of the Sea. 
 
 AN D an Arm of the Sea is faid to extend into the Land 
 fo far as the flow and reflow goeth : In the Patent of 
 the Admiral of England I find this word Creeks ufed 5 for 
 there the King granteth to him omnia bona mercimonia&Ca- 
 talla in vel fuper Mare littora ere cos & Cofleras Maris, but it 
 
 differs 
 
LeRura Prima. 57 
 
 differs much both from the fhore and coaft; for a (bore is 
 
 iometimes dry Land, and fometimes water, a Coaft is always 
 
 dry Land, but the Creek is always Sea and new Land : In 
 
 the Statute 28 H. 8. Chap. 1 5. Rajials Piracy, A. It is that all i2/i.8.c.i$, 
 
 felonies, &c. done upon the Sea, Haven or Creek, where 
 
 the Admiral hath Jurifdi&ion, (hall be tried in fuch County 
 
 which the King (hall appoint j by the Statute it is manifeft 
 
 that the Creek is not all one with the Sea, nor the fame that 
 
 a Haven is, by the Statute made in the 4 H. 8. cap. 20. Rajial4H.s.c.vi. 
 
 Merchants,5.appoints that all Merchandizes entring in or go- Diverfity be- 
 
 ing out of the Realm of England, (hould be charged and dif- ^"° * e 
 
 charged in great Ports, and not in Creeks or fmall arrivals 5 a Coaft. 
 
 by which Statute it is apparent that a Creek is not all one A Creek ' 
 
 that a Port is : But yet here it feems to be an Inlet of the creek. 
 
 Sea where Ships may have their arrivals, as at Fofdyke, Ba y- 
 
 Stow, Wainflet, and fuch like 5 and I take it that a Bay 
 
 and a Creek be all one, and that a Mere and a Fleet be Fleet and 
 
 alfo of that nature, and that all thefe rather vary in words Mere * 
 
 than in matter. 
 
 A Port. 
 
 A Port is a harbor and fafc arrival for Ships, Boats, and 
 Ballengers of burthen, to fraught and unfraught thern 
 at, as by the laid Statute of 4 H. 4. appeareth : In the Irijk Re- 
 port s, Pol. 56. Ports be faid to be OJlia & Janua Regni j I 
 take a port to be fome fpecial place in fome great Borough, 
 where arrival of fhips be, as the Cinque Ports, which be Do~ 
 ver, Sandwich, Rye, Rnmney and Winthelfey, the moft famous 
 in this Realm, and thefe be places of great privileges : and Bo- 
 jion, Hull, Lyn and Plymouth, be alfo Ports and Port Towns, 
 where there are fpecial Offices and Officers belonging to them, 
 touching Merchants and Merchandizes : And the faid Sta- 
 tute of 4 H.4. directed that Merchants (hould be charged and 
 difcharged at great Ports, was for that there were Officers 
 for the King, deputed to receive His Highnefs's Cuftoms and miimgflxad. 
 profits thereupon arifing ; hereupon came that Officer cal- Cro - pi 20.6. 
 
 I led 
 
5 8 LeUura Prima. 
 
 cambd.iw. led Portgreve, which fignifieth theGovernour of the Pore, 
 as Mr. Cambden noteth page 244. the difference between a 
 Greek, a Haven, and a Port, be thefe 3 
 
 Diverfity between a Creek, Haven and Port. 
 
 A 
 
 Creek is a corner of the Sea let into the Land far- 
 ther than ordinary, and more than the Sea is, but it 
 is no ufual or accuftomed place of arrival for (hips 3 and 
 commonly it hath neither fafe harbor nor legal privi- 
 lege. 
 
 A Haven is properly a fafe place of harbor for {hips, but 
 may be without any privilege at all, of which kind I know 
 fome. 
 
 And a Port is not onely a fafe harbor for (hips of the 
 greateft burthen, but it is alio always graced with legal pri- 
 !,utpittcbar- vileges 3 and this appears fo by the Statute of Magna Charta, 
 ta, cap. 9. C3 y y % Quod omnes Communitates & Bar ones de quinc^ porti- 
 bus & omnes alii portus habeant omnes libertates & liberas 
 Confttettuiinef, which proveth my former definition of Ports 
 to be true. 
 
 After all thefe definitions and diftincrions, I have now 
 prepared ray Cafe ready to receive his cenfure upon the laft 
 conclufionj that is, That all the faid grounds were within 
 this Statute, but no part thereof within this Commiflion of 
 Sewers : and therefore it is firft to be noted , That thefe 
 grounds were left by the Sea fince the awarding of this 
 CommiiSon, and the words of the Preamble of this Sta- 
 irute fpeak of grounds heretofore won 3 which words (Here- 
 tofore rwn) feemeth to tie the Statute and Commiffionj 
 both to grounds left or won before the faid Statute, and not 
 fuch as be won after, like to the Statute of Weji. 2. de Do- 
 nk conditionalibus quod ad dona prius faEia non extenditvr, 
 which excludeth out of that Statute all gifts made before, 
 Arid the words ( Heretofore and hereafter) are words of con- 
 fluence in point of time, and wherefoever they are fpo- 
 ken, they come with au Empbaf(s } as if they required exprefe 
 
 obfer- 
 
LeSlitra Prima. 59 
 
 obiervance; and fo is the Statute of 32 H.8. cap.iS. of Lea- ?2 ff.s. c.26. 
 fes, that Statute is of all Leafes hereafter to be made by 
 Tenant in tail, with fuch cautions and provifo'sas be limited 
 and fet down in that Statute, fhould be good : But Leafes 
 formerly made, though all the provifo's in the faid 
 Statute were obferved, were notwithstanding by reafon 
 of the faid word Hereafter out of the relief of that Sta- 
 tute. 
 
 And fo in the Statute of WiS's 32 H. 8. which had thefe ?t ft. 8. c.%, 
 words in it, All perfons having Lands , or which hereafter 
 Jlwuld have, might devife', this did not make good any de- 
 vifes of Lands made before; but if this fhould pals for 
 current , then I (hould not perform my word in my con- 
 clusion, which puts it all within the Statute; and this 
 exception, if it were material, would not put it onely out 
 of the Commiffion, but the Statute alfo 5 yet notwithftan- 
 ding though the conftrucVion made of allthe faidformer Sta- 
 tutes, (tand with Law, by reafon of the faid words (Here- 
 tofore and hereafter) yet in this Statute of Sewers, the fame 
 be not material, neither be the faid words (Heretofore won) 
 to be precifely obferved, becaufe they be placed in the Pre- 
 amble of the Statute, and not in the enacting part of the 
 Law, as in the laid former Statute they were: And expo- 
 fitions are not tied to Titles and Preambles , which many 
 times comes (hort of the parts of the Law, but to the Body 
 and enafting part of the Statute, which is the matter and 
 fubftance : And hereupon the Statute of 2 1 H.8. cap. 1 5. of Z iH. 8.c.i$, 
 Leafes recites in the Preamble thereof, That whereat divers 
 Leafes had aforetime been made for Incomes and great Fines, 
 and yet after the Lejfors didfujfer Recoveries, if at this day a. 
 Leaje be made, and that without Fine or Income, yet fuch a Lef 
 fee fhall be received to falfifie the recovery had again ft his Lef- 
 for notwithjianding : The Preamble of that Statute feems 
 to remedie no Leflees, but fuch as made Fines and were made 
 before that Statute, but the faid words were not put in the 
 Body or enafted part of the Statute: And fo it is in our 
 Statute; the words (Heretofore won) be onely put in the 
 
 I 2 preamble 
 
6o LeRurd Prima: 
 
 preamble and not in the material part of the Law, and /b the 
 Expofition is not to be tied hereto 5 fo notwithstanding 
 this Exception, thefe grounds though gained fince the Sta- 
 tute, are within the relief thereof. 
 
 The fecond caufe wherefore thefe new grounds (hould 
 not be within this Law, is, Becaufe thefe Lands be increa- 
 fed beyond the bounds (ince the making of thefe Laws, and 
 Co it may be alledged that they cannot extend to the new in- 
 Rlw. Cora, largement : for Mr. Plove.'m his Com.fol. 1 29. faith, that Laws 
 °*' 29 * ana privileges tied to a certain Place or PrecinCt, cannot be 
 extended or inlarged beyond the ancient Bounds , although 
 rfi.6A.7,2,the Precinct be inlarged. As the Cafe in 7 H. 6. fol. 32. 
 where in a Native habendo, a Villain had remained a year and 
 a day in London, which was ancient Demefn, and there was a 
 privilege, that every Villain and Bondflave which had re- 
 mained a day and a year in London, the Lord might not feize 
 him 3 and the Villain pleaded that he had remained ayear and 
 a day there, andfo took himfelf to be within that privilege,- 
 but becaufe fince the faid liberty granted the Bounds of 
 London were much increafed, therefore it was there held, 
 that the faid liberty and privilege did not extend to the 
 new inlargement. And the Cafe is alio put in the (aid 
 Comment, that the Bifhop of Durham had divers liberties in 
 his Lands lying hetween the two Rivers of Tyne and Teje\ 
 and after he purchafed other Lands there, the faid liberties 
 did not extend to the faid new purchafed Landsyand the like 
 Law is if one have a Warren in his Manor and. Lands in 
 Dak, after he purchafe more grounds there, his Warren 
 doth not extend unto them. And fb where one had by 
 Charter the Lands of perfbns forfeited for Treafon , he 
 could not have by the faid ancient Charter , Lands for- 
 feited for Treafon by Tenants in Tail , becaufe the 
 Forfeiture of them was given by a late Statute fince 
 the Charter, but his non objiantilus, I am of Opinion, 
 That this Statute I now treat on extendeth to thefe 
 new gained grounds : and 1 take a difference between, a 
 fpecial Law of Privileges v and Liberties which is ftin- 
 
 ted. 
 
LeSiura Prima'. 61 
 
 ted or bounded either by Statute, Charter or Cuftome, 
 the fame can by no conftruftion be made to exceed the 
 Bounds 3 but the general Law of this Kingdom, as this Law 
 of ours is , the Extents thereof be as large as the whole 
 Realm is, and they be not tied to (tinted Limits, as parti-* 
 cular private Charters and Cuftomes be 5 and fb I con- 
 clude, That in point of Extent, this Statute of 23 H. 8. 
 is tied to no other Bounds than to the Kingdom of En- 
 gland. 
 
 Diverfity between Grounds gained and Grounds left. 
 
 TH E third matter is that which I have grou nded the con- 
 clusion of my Cafe upon, and that is, Whetherthe 
 grounds in my Cafe newly left by the Sea to the (hore, and 
 the Shore be fych Grounds as be within this Commiffion? 
 And in my Opinion they be not : And therefore to maintain 
 my Opinion herein, I take a difference bet ween Grounds left 
 by the Sea, and Grounds gained from the Sea 5 for Grounds 
 left are of no value, and bring forth no Fruit or encreafe 
 at all, but the uppermoft part thereof are Sand, which thefe 
 Laws take no hold of •-, for the Commiffion extends onely to 
 Grounds won and made profitable for the Commonwealth 
 of this Realm, which Terra reli&a. yields not, for no- pro- 
 fit at all thereof arifetb, till the Sand be inned and gained; 
 and thefe Laws made the Commiffioners Savers and not 
 Gainers^ and therefore did. extend the Commiffion but to 
 the uttermoft Banks and Walls , and left the Shore as 
 Grounds poffefTed by the Sea, and fo be put pro indefenfo 
 by this Law ; and therefore 1 do make my Conclufion as- 
 followeth : 
 
 Fir ft, That the Seas, Creeks and Bays are all within this 1, 
 Statute in point of extent 3 but that they and the fhores, 
 and the relinquifh'd Grounds, be all of them out of 
 this Coromifuon of Sewers to be dealt withall there- 
 by, 
 
 Secondly, 
 
6t Letiura Prima. 
 
 2. Secondly, that Ports and Havens are totally, the Waters, 
 as well as the Walls and Banks thereof, within the Com- 
 miffion of Sewers. 
 
 3. Thirdly , the flaore and grounds left by the Sea when 
 they are put as in Gainage, are then and not before within 
 the power of the Commiffion of Sewers. 
 
 4. Fourthly, although the Grounds left by the Sea are not 
 in point of defence within the Commiffion of Sewers, yet 
 a Wall or Bank may be thereon raifed for the aid and fuccor 
 of the Countrey, but not for any caufe where the defence 
 extends but to themfelves. And although Grounds have 
 been gained from the Sea in the County of Lincoln and 
 elfewhere in this Realm, yet that was done at the labor 
 of private men , and not by the Commiffion of Sewers, 
 which aims at the general good, and not at private Com- 
 modities. 
 
 So that Super totam materiam, I am of Opinion with the 
 conclusion of my Cafe, that is, That the (aid new Ifland is 
 the King's, the grounds left to the ihore pertain to C. the 
 fubjeft ; and that becaufe they are all of them within the 
 Realm of England, they are therefore within the extent of 
 this Statute : But in regard they are Grounds left onely, and 
 not gained nor made profitable for the Commonwealth of 
 this Realm, they are not therefore within this Commiffion. 
 And fb I conclude my Argument as I did my Cafe : in 
 which, I hope, I have neither injured the Subject in his 
 private Inheritance , nor wronged Prerogative in any 
 point. 
 
 Fink Prima LeUura. 
 
 Initium 
 
(*3) 
 
 Initinm Secundte Le&ur&. 
 
 FOrafmuch as the firft day I went perambulation 
 about the Sea, and of all which belong to her 
 Empire and Dominion 5 wherein I did furvey her 
 Bounds, her Qualities and her Government: Now 
 I do intend to go a Progrefs through the Land,and 
 to take a view of the fair goodly Rivers, which make their 
 voyage to the Sea, for thefe my Statute hath taken into her 
 protection. And this fecond day I purpofe to call a Court 
 of Operand Terminer : And I do intend, with your gentle 
 patience, to examine all the particulars there arifing. And 
 becaufe the laid Statute of 22, H. 8. muft be my chief guide 
 to direcl my faireft pafTage through thefe uncouth ways, I 
 will pray aid thereon •-, and I will now proceed to declare 
 what bufineft on Land this Law hath undertaken to defend, 
 and what offences it purpofeth to reform : And according- 
 ly the faid Law doth diftribute it felf into thefe particular 
 Branches : 
 
 Into matters of defence 
 this Statute maintain- 
 
 1. Walk 
 
 2. Banks. 
 
 3. Ditches. 
 
 4. Gutters. 
 
 riru, «i ethj are t k e £ f ]i ow /i 5 Sewers 
 
 ing, wz, 
 
 6. Goats. 
 
 7. Calceys. 
 _8. Bridges, 
 
 Secondly, 
 
«4 
 
 2. 
 
 Second Cafe. 
 
 Leffnra Secunda. 
 
 Into matters of Offence 
 
 Streams. 
 
 Mills. 
 
 Ponds. 
 
 which this Statute ter- 1 4- Filhgarths. 
 
 Secondly, < 
 
 meth Lets, Impedi- 
 ments and Annoyan <;. 
 ces which are to be 
 put down or reformed, 
 as caufe fhall require ; 
 
 5. Mildams. 
 
 6. Locks. 
 
 7. Hebbingweres. 
 
 8. Hecks. 
 
 9. Floudgates, 
 
 10. Other like 
 Lets and Impe- 
 diments. 
 
 And to the end I might fully examine this part' of the 
 Statute which produceth thefe matters, I have framed a 
 Cafe, which doth give occafion in this days exercife to di- 
 spute of all them. 
 
 The Cafe for the Second Led:ure. 
 
 ALeafeth his Manor in the County of Lincoln, in 
 # which be Copyholds, to B. a younger Son for his life, 
 upon Condition to have it for the life of C. upon Condition 
 to have it to him and the heirs of the body of his Father. 
 A Copyhold is forfeit, the firft Condition is performed, the 
 Commiffioners of Sewers in that County upon view furvey, 
 and by their difcretion decree a new bank where none was 
 before to refift the Sea, and a new River to be cut to drain 
 the fuperfluous waters in S. and an old Sewer in D. to be 
 repaired 5 and by Inquifition affefTes B. the LelTee for the 
 Manor, the Copyholder for the Copyhold Land, and the 
 Town of 5. and alfb the Parfbn there for his Tythes, be- 
 caufe they lie all in the Level} the fecond condition is per- 
 formed, B. enters in the Copyhold. 
 
 My conclufion is, That this new Bank, new River, and 
 old Sewer be well decreed 3 but the faid Sefs is void in toto 
 & in qualihtt parte. 
 
 Points 
 
LeSlura Secunia. 6$ 
 
 Points at the Commonhve. 
 
 The Points of this Cafe are three at the Commonlaw, 
 and three upon the Statute } but all of them are Co woven 
 within another, that every one of them go hand in hand 
 from the beginning to the end of the Cafe. ' 
 
 Imprimis^ Whether the Duplicate Condition be good, or i. 
 not? 
 
 Secondly, what Eftate B. the younger Son hath by the a„ 
 firft Condition, and what Eftate he hath got by the fe- 
 cond } 
 
 Thirdly, a Copyhold becomes forfeit to the Lord , and 3. 
 before the Lord take advantage of it his Eftate is changed, 
 Whether by the change of his Eftate the benefit of the for- 
 feiture be loft, or not > 
 
 Points upon the Statute. 
 
 Imprimk t WhetherCoramiffioners have power to decree i„ 
 a new Bank, a new Drain, and other new defences, or not > 
 And herein the qualities and properties of Rivers, Streams 
 and Banks, and their dependants, are to be treated of 
 
 Secondly, Whether they may decree the (aid new Defen- 2. 
 ces by view and lurvey ? And herein is to be handled, What 
 Commiffioners of Sewers may do by furvey, and what they 
 may do by their difcretion, and what they may do by 
 Jury. 
 
 Thirdly, in what Cafes AlTeffes and Taxes may be laid 3. 
 and impofed, and on what things, and in what manner they 
 are tobeimpofed 5 and whether the Rates let upon the per- 
 sons in any cafe be well done or not, and where the fault 
 is if any be. 
 
 Argumentum Le&orfo. 
 
 Seeing it hath been the ancient order for the Reader of 
 this place to maintain the Conclusions of his Cafe, ! fhall 
 therefore endeaver my felf to perform that order which Cu- 
 ftome hath impofed upon me} and accordingly as I have 
 concluded, fo I take the Law to be. 
 
 And touching the firft Point, it hath been challenged and 
 drawn in queftion upon fome Opinion delivered in the Re- 
 
 K £tor 
 
££ Leffura Secunda. 
 
 sirEJ.coo^s ftor of Cheddington's Cafe in Sir Edward Cook's firft Report ; 
 
 i Report, where it's faid,T/6<tf one contingent cannot depend upon another: 
 But more ftrittly it is called to an accompt in the Lord Staf- 
 
 Cot>\, Rep. B.forcfs Cafe, in Sir Edward Coo^s eighth Report j for there 
 it is held, That one pojjibility cannot depend upon another pof- 
 fibility 5 and this Cafe is there put, That if A. let Lands to B. 
 for years upon Condition to have it for life, and upon Conditi- 
 on to have Fee, that the Fee fimple can never increafe by the 
 Jecond Condition ; but as he faith in another Cafe, Amicus 
 Plato \ Amicus Socrates, fed magis arnica Veritas, his rule taken 
 in the fiift Cafe is very general, and the Lord Stafford's 
 Cafe admits diftin&ions, which in my Argument I fhall ap- 
 ply my felf unto. 
 
 And fome differences I (hall take in this Point in quefti- 
 on 5 therefore I fhall thus diftinguifh , That if upon per- 
 formance of the firft Condition, the Original Eftate be de- 
 termined upon which both the firft and fecond Condition 
 were built and grounded , the fecond Condition and in- 
 creafe thereupon is utterly void 5 but if the firft Eftate be 
 eotdeftroyed nor confounded upon the firft Condition per- 
 formed, the fecond Condition and Eftate thereof which 
 fhall begotten thereby, may then well grow upon the old 
 ftock. To explain this by Example, If A. give Land to 
 B. in Fee fimple, upon Condition to have the Land in Tail, 
 ypon Condition to have for life , here becaufe the firft E- 
 ftate and Livery by the firft Condition is not deftroyed, 
 therefore the fecond Condition fhould well ftand in force. 
 So I do make a Leafe to A. for twenty years , upon Con- 
 dition to have the Land for forty years, upon Condition to 
 have Fee 5 this firft Condition and fecond Condition may 
 have both their full Operations: for by the performance of 
 the firft Condition, trie Leafe of twenty years is not de- 
 ftroyed, but ftands on foot 5 and therefore the original E- 
 ftate remaining unconfounded, the Fee fimple may well in- 
 creafe by the performance of the fecond Condition : Butif a 
 Leafe be made to A. for his life, upon Condition to have in 
 Tatf, upon Condition to have Fee 5 the fecond Condition 
 
 here 
 
LeEhcra Secun&a. 67 
 
 here is utterly void, becaufe by the performance of the firft: 
 Condition, A. had an Eftate in Tail, which drowned and 
 deftroyed his Eftate for life 5 and fo becaufe every decreafing 
 and increafing Eftate is to depend upon the firfl: Eftate 
 which receives the Livery, which is the life of all, there- 
 fore the Second Eftate can never accrew in this Cafe : and 
 this is the true reafon, as I take it, of the faid Cafe put in 
 the Lord Stafford's Cafe 5 for there the leafe for years was Lord staf. 
 deftroyed by the Leafe for life, which came by the firft /° r <*' s Ca(c - 
 Condition, and fo the Fee fimple there could never accrew 
 by the fecond Condition. And in anfwer to the faid general 
 ground taken in the Re&or ofCheddingtons Cafe, That one Reaor de 
 contingent or pojfbility cannot depend upon another -, under fa- (jheddingnrS 
 vour I take it, not that I am bound thereby, neither was 
 it the meaning of Sir Edward Cool^, as I take it, to extend 
 the fame fo largely as they are there put, becaufe I find many 
 Authorities of great account which are againft the (aid gene- 
 ral pofition. 
 
 And firft in the 38 H.8. Br. Feoffments, pi 71. a Feoff- 38//. 8, 
 ment was made to the ufe of A. and his heirs, untill J.S. paid 
 him Ten pounds, and then to J. S. and his heir?, and fo to 
 the third perfon ; and what is this but one condition, con- 
 tingent and poffibility to depend upon another, for thefe 
 contingents there were held good, and were built upon a 
 fure foundation. 
 
 And fo in Digge's Cafe in Sir Edward Coo^s Reports, where d/^'s Cafe. 
 a Feoffment is made to the ufe of A. and his heirs, wuh 
 power of Revocation, and after of new Limitation of E- 
 ftates} thefe be alfo contingents and poffibilities depending 
 upon others, and" many fuch double contingents may be 
 put. 
 
 The Cafe of Sir Edward CooJ^ put in the end of the Re- 
 ft or of Cheddingtons Cafe out of 12 Lib. Aff. pi. 5. in my 12 ub. AJf, 
 opinion doth not difallow the fecond Condition j for there 
 the Cafe is, That A. Leafed to B. upon Condition, That if A. or 
 his heirs pay to B. Ten pounds within a certain day, that they 
 might re-enter 5 and if A. nor his heirs Jlwuld not pay the Ten 
 
 K 2 pounds 
 
68 LeSlura Secutxla. 
 
 pmds within the time ; Then if R.paid to A. Ten pounds at 
 another day, that hejhottld have Fee: Both A. andB. failed in 
 payment, and A. enired, and being put out, brought an AJ/zze^ 
 and nihil Cepit pet bteve 5 this doth not prove that one 
 condition cannot depend upon another, neither can I fee well 
 what Exposition to make of fo uncertain a Cafe, fo that I 
 take this Cafe to be no evidence againft mine. 
 i 4 f;;8./.i5. But in the 14 H. 8; fol. 15. there is a Cafe which in my 
 opinion makes more againft my double condition than any 
 other, which is put by Brudnel Chief Jufttce 5 that is , if 
 
 A. be bound in an Obligation to B. upon condition to in- 
 feoff J. S. before Eafier eniuing, then the Obligation to be 
 w> id - T and if he do not infeoff him, then to pay Ten pounds 
 at Pentecoji, then the Obligation to be void 5 The. Feoff- 
 ment is not made before Eafier, therefore Brudnel held the 
 Obligation was forfeit, and that the fecond Condition was 
 not good: But there is a (Qtuere) fet upon that Cafe, and 
 fo it may well be* for I fee it commonly done, that if a de- 
 fefans be made of a Statute which is broken, and fo the Sta- 
 tute becomes forfeit, yet a new defefans may defeat it 5 and 
 lb in my Opinion may the fecond Condition in this Cafe 
 avoid, the Obligation, if the firft conclufion had not been 
 in the Cafe. 
 
 ^Conceit. lihair add this Cafe alfo as a conceit 5 that is, A. infeoffs 
 
 B. upon condition , if A. go to Lincoln he (hall have the 
 Lands to him, and the heirs of his Body, and if he go to 
 Bojion he fhall have kfor Ten years: and he goes firft to 
 Rojion. 
 
 I do here hold thefe Conditions being put promilcuoufiy, 
 without diftindion of the times of the Conditions which 
 Ihall be firft performed', and which the fecond, that the Fee 
 as decreafed into an Eftate far years, and can neves>increafe 
 into an Eftate in tail by performing of the. fecond Conditi- 
 on, becaufe the Livery out of which it fhould grow was 
 quite deftroyed by the firft decreafer. So that my intent 
 appears, that one Condition may depend upon another • 
 upon the faid diftinftian* but whether by the performance 
 
 .of. 
 
 Stconcl 
 
Leftura Secunda. 6y 
 
 of the firft Condition in my Cafe there will an Eftate come 
 to B. or not, I meant it for a queftion : for B. had before an 
 Eftate for his own life; then is it not poffible that his Eftate 
 can hereby be increafed by having the Land alio for the life 
 of C. if it be admitted argument! gratia, that B. (hall or may 
 have both thefe Eftates ftand in him both at one time: for 
 if C. dyed firft, then is B. never like to have any benefit 
 thereof; And if B. himfelf (hould die before C. then alio 
 were it impoflible for B. to make any ufe of this Eftate for 
 the life of C. unlefs it were in him to grant away to another, 
 as in the Cafe of the Office in the i H.-j. where an Office i h. 7. 29, 
 is granted to the King, the King could not have the Office ^"f^ c&k ° 
 himfelf; and lb in that point for the King to take by the 
 grant, he could not, yet by that Book it was in him to grant 
 over to another which might have it. And like to this is 
 the Cafe where J. S. is Parfon of the Church of Dale, and 
 the Patron grants the next avoidance, this grant can he him- 
 felf take no benefit by, unlefs he refign, yet if he die it (hall 
 come to his Executors. 
 
 But I take the Law to be in my Cafe, that B. (hall not by 
 the firft Condition have both the Eftates in him at once, that 
 is,- for his own life, and after for the life of C. but that 
 the Eftate of B. by the firft Condition, (hall be decreafed or 
 changed from his own life into the life of C. and (hall be 
 melted and newly molded by this Condition; for an Eftate 
 may as well decreafe as increafe by a Condition: and yet 
 the Lord Stafford's principal Cafe was, That Queen Eliza- 
 beth did grant the Manor to Tindal and the heirs of his bodfc 
 upon Condition upon payment of Twenty Shillings to her by Tin- - 
 dal, that hefiould have the Reverjton to him and his heirr-j and 
 there it-is- holden for Law, that by the payment of Twenty 
 Shillings, the Reverfion in Fee Simple (hall increafe to 
 Tindal, and (hall not alter or' drown the Eftate Tail, 
 which is an excellent Cafe ; but alter the putting of- that 
 Cafe, and thenit may alter the Law alfb, that is> I give 
 Land to J. S. and the heirs of his body , upon Conditi- A Conceit. 
 on if he pay me Twenty Shillings j that he (hall have the 
 
 (aid 
 
70 Leftura Secuncla. 
 
 faid Lands to him and his heirs: In ray conceit by the per- 
 formance of this Condition, the Eftate Tail, is by increafe 
 changed into a Fee Simple $ in which, note the difference 
 between Tindah Cafe and this , where upon payment of 
 20 s. the Reverfion is granted to him and his heirs : and 
 where the words be, That upon payment of Twenty Shillings 
 he f!)all have the Lands to him and his heirs : In the firft Cafe, 
 the Fee Simple accrewing (hall not alter the Eftate Tail, 
 but in the fecond Cafe, by the Fee increafing, the fi- 
 liate Tail is determined and changed into a Fee Simple, 
 quod qtitere. 
 
 Admitting the firft Condition did increafe the Eftate of B. 
 
 from his own life to the life of C. and the fecond condition 
 
 is performed, by the which another Eftate will accrew to 
 
 B. as I take it will, becaufe an Eftate decreafed , is parcel 
 
 of the firft Eftate ; than what Eftate B. hath got by this new 
 
 Limitation, isthequeftion: And in my Opinion, he hath 
 
 at the moft but gotten an Eftate again for his own life, and 
 
 that the Limitation to the heirs of the body of his Father 
 
 is utterly void, be his Father dead or alive 5 for if his Father 
 
 be dead, his elder Brother is the heir of his body, within thefe 
 
 words of Limitation, who cannot take the Lands by defcent 
 
 from B. his Brother, or from his Father 5 but as the Cafe 
 
 Lmkton. E- is put in Littleton's Title Tail, and in the 4 and 5 Ph. and Ma. 
 
 ftate-taii. j n J)y er ^ Qrejwold'% Cafe, where Lands were given to the 
 
 tcMar. rjyM-eldeft Son, and the heirs of the body of his Father 5 this is 
 
 *st' a good Eftate in Tail, being made to the eldeft Son, becaufe 
 
 he is capable to take the Lands in both degrees. 
 
 ( Although about the duration of fuch an E- 
 ftate Tail, there hath been a queftion, viz^ whe- 
 ther if the eldeft Son die without IfTue, his Bro- 
 ther fhall inherit by force of this intail, or the 
 Lands fhall revert to the Donor. Dyer fupra. Leo- 
 nard 2. Cafe 2 p. Rofe and Morrice's Cafe.) 
 
 And 
 
Leftura Secunda. 71 
 
 And in 2 E. 3. the Cafe is famous, and is known by the 2 e. ?. 
 name ofRoberges's Cafe, where Lands were given to her and 
 to the heirs of the husband of her body begotten 5 and it 
 was there held, That if her husband were then dead, and 
 left any heir which he had by ber, they might take jointly 
 with her} forthatitwasnotpoffible to take by defcent from 
 the faid Roberges, becaufe he which takes it rauft not be 
 heir to her, but to the husband , who never held any E- 
 ftate therein : And fo to be ftiori, I am of Opinion, That 
 no Eftate of inheritance be gained by B. by thefe words, 
 The heirs of the body of his father. 
 
 The Cafe upon the third Point is this, a- Manor is gran- Third Point 
 ted to one for his life, upon condition to have it for the life 
 of C. then a Copyhold is forfeit, and before the Lord feize, 
 his Eftate is altered or changed ; if now he can take advan- 
 tage of this forfeiture or not, wherein the altering of the 
 Eftate of one to another is of like force, as where it alters 
 in the Partie's felf, againft which it may be faid, That if 
 Tenant for life make Wajle , and then he in the Reversion, 
 grant over the Reversion , the Grantee fljall not now p^ 
 nijh this Wafle. 
 
 And it was refolded in the Cafe of Chamberlin 
 and Dra{e,Micb. 1 65 7.that the fucceeding Lord of 
 a Manor, (hall not take advantage of wafte done 
 in the time of the preceding Lord. Siderf. 2. 5*. 
 
 And lb Mr. Perkins, fol.20. If aTenant alien in Mortmain, Pcr - ir . , 
 and then the. Lord grant away his Seigniory, the Grantee fj) all 
 not enter for this Mortmain: fo by Fitz. in his Nat. bre. in pj tl f?ar 
 his admeafurement of Dower, If a Guardian ajfjgn to a woman Natl bn. ' 
 "tore dower than Jhe ought to have, and then grant hit Guardian- 
 flip over, the Grantee cannot have an admeafurement of Dower 
 againfi her : and fo Bingham's Cafe in Sir EdwardCoo^ 2 Rep. Bingham's 
 where there was Tenant for life, remainder in Fee of a Te- Cafe > c«>t- 
 nancy holden by Knights fervice, and he in remainder di- 2RepI 
 ed, his heirs within age, and then the Lord granted away 
 
 his 
 
j 2 LeBura Secunia. 
 
 his Seigniory, and then Tenant for life died, by which the 
 faid heir was to have been in ward * yet becaufethe Seigni- 
 ory was granted away after the inception of the Wardfhip, 
 Boimiumfs before it was perfectly due, it was there held, that neither 
 cafe in Dyer. tne g rant0 mor the grantee thould have the fame : So Leflee 
 for life without impeachment of wafte,remainderfor his own 
 life, the privilege is loft 5 but yet notwithftanding, I do 
 hold that in this Cafe B. after he hath by the performance 
 of the Condition altered his Eftate which he had when the 
 forfeiture was committed ■, yet (hall he afterwards take 
 advantage thereof well enough : As if there be Tenant 
 for life, the Remainder for life to J. S. and the firft Te- 
 nant for life commit wafte or forfeiture, he in the reverfion 
 cannot punifti this during the life of him in the Remain- 
 der for life, but after his death he may •, alfo if one make 
 a Leafe for years , upon Condition to be void, and the 
 Leffor grant away his reverfion, the Grantee may enter for 
 breach of this Condition by 11 H. 7. 17. and yet here the 
 11 H.f. 17. Eftate in reverfion is altered from one to another ; and I 
 doubt not, but if a Tenant for life, be the Remainder in 
 Fee to another of a Manor , and a Copihold is forfeit, 
 and then Tenant for life died , that he in Remainder 
 may enter into this Copyhold 5 and yet this Eftate is al- 
 tered into a poffeffion from a Remainder*, and in the 
 Cafe, although the Eftate in B. be altered, yet it is by de- 
 creafer, and fo thereby it is parcel of the old Eftate he had 
 before : and therefore it is like to a Cafe where the husband 
 and wife were Tenants in fpecial Tail, and they recove- 
 red by AiTize, and then the husband died , and after his 
 death without iflue, the wife's Eftate being altered from an 
 * -K4.47. & Eftate Tail, into an Eftate of poffibility of iffue extinct, was 
 i6 f- f ' tltIe again put out and 'difleifed, and the brought a Writ of Re- 
 ■ ' P 77, diffeifin, which will not lie but on the firft Eftate and a- 
 sainft the firft parties, and yet it was maintained, becaufe 
 it was parcel of her former Eftate: And fo in this Cafe, 
 although the Eftate of B. was altered from his own life in- 
 to the life of C. yet I am of Opinion, That he might take 
 
 advan- 
 
LeSiura Secunda. 73 
 
 advantage of this forfeiture, becaufe the Cuftomary Eftate 
 is utterly void thereby. 
 
 Points upon the Statute. 
 lam determined before I enter into the difcourfe of new 
 defences in my Cafe, to deliver my Opinion touching the 
 Walls, Banks and other ancient defences, which have had 
 their being time out of memory, and in truth be the very 
 materials and memorials of Antiquity : And becaufe Banks 
 and Walls be the firft named in the Commiffion, they (hall 
 therefore have the firft place in my argument, being the 
 moft ancient and approved defences, as wellagainft the rage 
 of the Seas, as againft the violence of frefli Waters, that 
 either Art or Nature have produced. 
 
 Bank. 
 
 TH E Bank of the Sea is the utmoft border of dry Land, 
 and is of the fame materials with the grounds wherein 
 and whereon it ftandeth ; it isibraetimes natural, andin fome 
 places artificial: Natural, as Mountains railed higher than 
 other grounds ad joyning as it pleated the Creator, when the 
 firft huge Chaos was feparated, divided and distributed 5 Ar- 
 tificial, when it is caft by man's hand. Jujiinian the Empe- 
 ror treating of thefe in his Injiitutes, and his title de rerum 
 divifione defcribeth them in this manner, Riparum ufus ejl 
 publicus illar verb domiri ad eos pertinet qui proximior pra- 
 diis domini Junt, itaque naves ad eat appelfere, Junes arbori- 
 bu* ibi natis Religare, onus aliquod in his Reponere cuilibet li- 
 berum efl, by which authority it appeareth, that the owner- 
 (hip and property of the Sea Bank and Banks of great Ri- 
 vers, be to them whole grounds are next thereto ad joyning, 
 and the Trees, Graft and other things thereon growing, 
 belong to the owner of the foil, but the ufe of the Banks 
 is common to all the King's liege people, as to tie the (hips 
 and Boats to the Trees, and to tow them to and fro, and 
 to lade and unlade their Merchandizes thereon, and for 
 filhers to dry their Nets on. And as the owner of the foil 
 
 L and 
 
74 Lefiura Secunda. 
 
 and proprietor of the grounds, cannot juftify the digging 
 or carting of them down, whereby the people fhall be 
 hindred of their neceflary ufe thereof, no more can the 
 people which have but nccejlfarinm ufum, fell up the Trees, 
 or mow the Grafs thereon growing, neither ought they 
 to dig ballaft there, but every one, as well owner as ufer, 
 Sic uti ftto tit alhnnnt -non l<edat. I cannot more aptly 
 compare a Bank of the Sea, or of a navigable River, than 
 to a High- way, for that the property thereof is to him whole 
 ground is next adjoyning, and the ufe thereof is common 
 to all men, and the power thereof the King hath by His 
 Pnprietas Laws, Proprietas tyomino, ufuspopulo, potejias Regi: where- 
 
 foTioVejhs ln *° r more c ' ear Nl u ft ra " on °f ^is matter, I put this Cafe, 
 &e& ° ' That J. S. doth cut the Sea Bank, or the Bank of a great 
 River 5 and J.B. which hath occafion to pafs thereby, falleth 
 unawares into the cut, and is hurt in body or goods, the 
 party which cutteth this Bank ihcurreth thefe mulcts : For 
 rlrft, the owner of the foil may have his Action of Trefpafs, 
 8 E. 4. 9- quart folum fodit, and he which fell therein may have his 
 Ve. fg. 27 ' A&ion upon the Cafe againft the digger of that cut, for to 
 recover his damage for his fpecial hurt 5 and the offender 
 may alfo be indicted at the King's fuit for the general wrong 
 done to the King's people : And the like Law is of a High- 
 way. 
 
 A Wall doth differ in point of ownerfllip from a Bank, 
 firft, in refpeft of the materials the fame is made on, for a 
 Bank is made Ex folo &fundo qu<e ex fait propriis natttris jnnt 
 eadem cum terra fuper qua edificatw, but lb is not a Wall, for 
 it is an artificial edifice, not of the materiafs arifing of the 
 place where it-ftandeth, but which be brought thither and 
 built there, ad propria oner a & coftagia partk '■> fo that the 
 ownerlhip and property of a Wall doth appertain to him who 
 is bound to repair the lame, though his ground lie not next 
 thereto 5 but of a Bank the property and ownerlhip is bis 
 whole grounds adjoin thereto: And this (hall, I hope, iu£ 
 fice to have faid of Banks and Walls, the two firft defences 
 nominated in the Goramiffion of Sewers. 
 
 The 
 
LeBtma Secumla. 75 
 
 The letter of this Statute and CommiiTion, feem to ex- 
 tend onely to Banks, Walls and other defences ftanding 
 and being by the Coafts of the Sea and Marfh grounds there- 
 to ad joy ning '-, but whether the Banks and Walls of frefh Ri- 
 vers which have their courfes to the Sea be within this Sta- 
 tute or not, hath heretofore bred fome q ueftion '■> but lor my 
 own part, I am clear of opinion that they be within the pro- 
 vifion of thefe Laws, for there be two mifchiefs recited 
 in the Statute 5 the firft is, for not maintaining the Walls 
 and Banks againft the Sea, by reafon whereof great hurt 
 hath happened thereby, by the overflowing thereof: and 
 the other, by the inundation of frefh water-courfes through 
 Land-flouds, which have done fome damage to the grounds 
 next adjoyning} and thefe Laws apply a remedy to both 
 thefe grievances," that is, by repairing the Walls and Banks 
 next the Sea, and by maintaining of the defences of the frefh 
 Inland Rivers, to caufe them to keep their Waters within 
 their Chanels. And I take it there be words in the Statute 
 that will bear this conftru&ion, viz. That by the rage of the 
 Sea, flowing and rtflowing, and by means of the Trenches 
 of frefh Waters descending, and having their courfes to the 
 Sea by divers ways the Wall?, Ditches, Banks, &c be fo di- 
 rupt, lacerate and broken, &c. And alfo in the preamble of 
 the Statute the words there be, that by reafon of the outragi- 
 ous flowing furges and courfe of the Sea in and upon Marlh 
 grounds, and other low places heretofore through politique 
 wifedom won and made profitable for the great Common- 
 wealth of this Realm, as alio by occafion of Lands, Waters, 
 and other outragiousSprings, in and upon Meadows, Paftures 
 and low-grounds adjoining to Rivers, Streams and Currents, 
 wherein the Waters are to have their courfes. And what 
 keeps the frefh Waters within this Chanel but good and 
 ferviceable Walls and Banks, and what things doth this 
 Law intend to be dirupt, lacerate and broken, but the 
 Walls, Banks and other defences which pent up their Wa- 
 ters? and thefe Words extend more properly to the Walls 
 and Banks of frefh Inland Rivers than to Sea Coafts. And I 
 
 L 2 do 
 
7*5 LeRura Secunda. 
 
 do find fome ancient Authority in the point out of the 
 Rumney Charter of Runtney Marfh, pag. where the Words be, addi- 
 Marlh. jlri&iori faciend' ad reparatid' Wallia & watergaugia ejufdem 
 marifci contra maris impetum inundatiommaliarumaquar' dul- 
 cuim •■) which laft words can have no other conftru&ion or 
 interpretation, but to extend the fame to the Banks and 
 Walls of navigable, and other frefh Rivers and Water- 
 i H.e,. c. j 2. gauges of frefh Streams. And the Statute of i H. 4. cap. 1 2. 
 makes the Icruple clear wherein the words be, that the com- 
 mon paflage of Ships and Boats in great Rivers of England, 
 were oftentimes difturbed by leaving of wears, <&c. and 
 provided a remedy therein; fo hereby it ismanifeft that frefli 
 navigable Streams are within thefe Laws. 
 
 Private Walls and Banfe. 
 
 BU T all Banks and Walls wherein Waters be pent are not 
 within. the provifion of thefe Laws, but onely fuch as 
 belong to common and publique Rivers and Ditches, Sew- 
 ers and Streams: for Walls and Banks made and ere&ed as 
 fences to mens private grounds, and there fet or made to 
 Ditches, Gutters and Streams, for the draining and watering 
 of mens private grounds are not within thefe Laws, for 
 thefe Laws take cognilance and notice of none but of fuch 
 as tend to the good fervice of the Common- wealth, and 
 therefore whereas in the Ports of Holland in the County of 
 Lincoln, and in other parts of this Realm, divers private per- 
 fons have for inning and fafety of their Marfhes and. Marfh 
 Grounds, caft great Banks for thofe private ufes: thefe 
 Banks are not within the protection and defence of thefe 
 Laws to be maintained j but I am of opinion, That they 
 may be extirped if they be letting and a hinderance to 
 the common good of the Countrey where they be erec- 
 ted. 
 
 Forafmuch as I am now in hand with Walls and Banks, 
 the defences to Rivers, Sewers, Ditches and Gutters, I 
 therefore take it, that it will hold good correfpondency here 
 
 in 
 
LeRura Secunda. 77 
 
 in this place, to treat of them and of their dependences. 
 A River therefore is a running Stream, pent in on either fide 
 with Walls and Banks, and beareth that name as well where 
 the Waters flow and reflow, as where the Waters have their 
 current one way, as is expreffed in the Cafe of the Pifcary 
 of the Bonne in Ireland: In the Statute of 4 H. 7. Chap. 15.4^ 7- j> 
 Thames is termed a River: In 34 Lib. Af.pl. 1 r. and mffij* 
 Plow. Com. fol. 129. Tjine and Tefe be both named Rivers : ri.com.i2 9 . 
 and in 19 Hj. Cap. 18. Severn is faid to be a River ; Trent, 19 H _ 7 l3 . 
 Humber, Boflon Haven, Lyn Haven, andTyber,Orontes, Eu- 
 phrates and Aufidns, near which Hanibal the Carthaginian. 
 General (truck the Battel of Canna, be all of them in Hi- 
 (lories of great authority named Rivers. 
 
 Rcnnatm Choppinus in his Treatife de Dominio Franci<e t ckofpinw> 
 Lib. l. Tit. 16. de fluminibui , faith, That Flnminnm duo 
 funt genera, Regalia qtttidam, alia Bannalia five privata, Re- 
 galia dicuntur ex quibus princeps Jure patrimoniali veftigal 
 capit, in quibus modum & tempus pifcationis conjlituit : and 
 Sir John Davies in his Iri/b Reports in the faid Cafe of Bonne, 
 faith, That Jo far as the Sea doth flow an dreflow, it is a Royal 
 Stream, andthefifbings therein belong to the Crown 5 but where 
 the fame doth not flow and reflow, And in all Rivers not 
 navigable the Tertenants of both fides, de Communi Jure, 
 Owe the River, and have the Pifcary, yet a SubjeZ may 
 have the free fifhing in the Royal Streams by Cujiome and pre- 
 fcriptiom And in the River of Thames tarn aqua quamfo- 
 lum pertinuit Dom' Regi, and by Charter they were conveyed j 
 to the Lord Mayor of London, and Citizens of the fame. 
 
 So the Soil of all other Rivers, as high as ; 
 there is flux and reflux of the Sea, is in the King,- 
 if no other claim it by Prefcription ; Siderfin 1. *»* u , 
 
 140. 
 
 In Lib. lntr.fol. 666. there is a prefident put in this in vHeri lib. 
 manner, That an Aftion of Trefpafs was brought guare c *"• M «*• 
 defend' pifcat' eji in frta Jeparali pifcaria & pifces inde, videh- 
 
 cet s 
 
7 3 Lettura Secunda. 
 
 tet, duos Salmones cepit t, the Defendant juftifiecl, and faid, 
 That he was feifed of the Manor of Dale, which doth ex- 
 tend it felf ufque ad medium aqmcde V. qu<c eji eadem pifcari- 
 a in qua fupponitur pifcationem prediff' fieri ex auftrali par- 
 te, and that the Plaintiff eodem tempore quo, fuitfeifitut de 
 mamrio de Dale quod fe extendit ufque ad medium jilt aqua 
 predic ex boreali parte ejufdcm aqu£ & quod ipfe defenders & 
 omnes quorum ft at tint ipfe habet in predic manerio de Dale, a 
 tempore quo non extat memoria hominum in contrario feifit' fu- 
 erant de predic auftrali parte de predic' aqu<e ut de Jeparali 
 pifcaria fua: in which pleading it appears, That the Lords 
 on either fide the River, owe the River by feveral moities 
 and the feveral moities and the feveral parts of thefifhing as 
 incident thereto. 
 
 It may alfo here, as I take it, be moved for an apt que- 
 
 ftion, in whom the property of running Waters was 5 for 
 
 Nat. br. in Nafura Brevium, fol. 123. there is a quod permitt' ha- 
 
 f'.c?i54. ^ en lii}£ram P'fc aria ™ ** <"!»* 'Pi?™ L. whereby it appears, 
 That the Plaintiff had property in thofe Waters 5 and in Plo. 
 Com. 154. one granted aquam fuam in L. and the Pifcary 
 paiTeth thereby, and fodid the foil alfo in my opinion: for 
 
 tiff. 7./ 4. in 11 H.j. fol. 4. a precipe quodreddat is brought de una a- 
 era terre Cu aqua Cooperta. In my conceit the Civil Law 
 makes prettier and neater diftinftions of thefe than our 
 Commonlaw doth 5 for there it is (aid, That naturali ratione 
 qu&dam pint Communia ut Aer, aqua profluens, mare & litora 
 maris: I concur in opinion with them, that the Air is com- 
 mon to allj and I hold my former definitions touching the 
 properties of the Sea and the Sea fhores: But that there 
 fhould be a property fixed in running Waters, I cannot be 
 drawn to that Opinion, for the Civil Law faith farther, 
 quod aqua profluens non manet in certo loco fed procul fuit ex* 
 tra ditionem Ejus cuju* flumen eft ut ad mare tandem perveniat ; 
 for in my opinion it fhould be ftrange that the Law of pro- 
 perty fhould be fixed upon fuch uncertainties, as to be altered 
 into Mmm, Tuum, Suum, before thefe words can be fpoken, 
 and to be changed in every twinckling of an eye, and to be 
 
 more 
 
LeRura Secunda. 77 
 
 more uncertain in the proprietor, than a Camelion of his 
 Colours. Our Commonlaw, which of all others is the 
 mod certain, did not fet his property upon a Deer in Parks, 
 Conneys or Hares in Warrens, nor on Fifties in running 
 Streams j all which be more permanent than running 
 Waters be : And therefore I am of Opinion , that ta- 
 king this word Aqua, for the bare running Water, there 
 can be no property therein , but as the fame is incident 
 to the Soil , taking them two for one, it is drawn with 
 the property thereof: and this difference is apparent by 
 12 Henry 7. afore faid , and Mr. Linvoood puts a diffe- 
 rence inter Flui/ium & flumen ; for faith he , EJi pe- 
 rennis decurfus aquar fed flumen eji propria ipfj. aqua. 
 
 Let it not be held Queftionable, whether Rivers of 
 both kinds be within thefe Laws or not, though they" 
 be not put among the defences which this Statute fpea- 
 keth of 5 for that exprefly thofe things which are ter- 
 med Lets and Impediments, are commanded by this Sta- 
 tute to be removed out of the Rivers and Streams for 
 hindring the Waters ; and Navigation being (b careful- 
 ly provided for cannot be fupported, unlets Rivers Na- 
 vigable be maintained : and thefe Rivers are like the 
 veins of a man's Body, by means whereof the increafe 
 of the Grounds near thereunto adjoining are abundant- 
 ly multiplied , and the Waters which trouble the Le- 
 vel are conveyed away thereby : fo that I am clear of 
 Opinion , that Rivers and their Chanels , Waters and 
 Banks, are all of them fully within the defence of thefe 
 Laws, howfoever fome which would have no new Ri- 
 vers caft by the power of thefe Laws, would extend 
 the words but to the repairs, and not. to the River it 
 fel£ 
 
 Server, 
 
So Leftara Secunda. 
 
 A 1 
 
 Sewer. 
 
 Sewer, whereupon thefe Laws took their name, hath 
 been no great ftranger to our Commonlaws of this 
 Realm, being perfeftly defcribed, though not precisely defi- 
 ned in our Law* fome mincing the word, com pound it oft wo 
 words, Sea and were, faying, that nomina funt confonantia 
 rebuff and there is fome coherence between the name andthe 
 nature of the thing. Authorities in Law will beft decide 
 
 20 //. 6. /.!. the queftion, and therefore 20 B.6. f. 1. an aftion of wafte 
 is brought there againft Tenant by the courtefie, for fuffer- 
 ing a Sewer in part of the grounds to be unrepaired, by rea- 
 fon whereof his grounds in L. which the Defendant held by 
 the courtefie of England, were furrounded} fo that by this 
 book it is made manifeft , that the Sewer is a frefh Water 
 trench compafied in on both fides with a Bank, and is a 
 
 uff.* f.7.1mall current or little River. And in 12 H. \.fol. 7. an 
 A&ion of the Cafe was brought for (topping of a Sewer in 
 Dale, by reafon whereof the Waters did overflow the Banks, 
 and drown the Plaintiffs Meadow Grounds: So thefe two 
 Cafes fufficiently declare what a Sewer is 3 and Hollingfiead 
 in his Chronicle termeth the Fleet Dike in London a Sewer 5 
 and I am of opinion, That it is a diminutive of a River, and 
 by exprefs words Sewers be within thefe Laws, & jlc ejl in 
 39 H. 6.31. 
 
 Gutter. 
 
 A Gutter is of a lefs fize, and of a narrower paffage and 
 current than a Sewer is ; and as I take it, a Gutter is the 
 diminutive of a Sewer : and the difference between them is, 
 That a Sewer is a common publick Stream, and a Gutter is 
 a ftraight private running Water; and the ufe of a Sewer is 
 common, and of a Gutter peculiar, and by exprefs words 
 alfo a Gutter is within thefe Laws, & ceo eji Jic mention? 
 
 59 H. 6. 31. 
 
 Ditchet 
 
LeRura Secunda. tit 
 
 Ditches. 
 
 A Ditch Fojfa is alfodefcribed in our Books, as in 1 2 H4. 12 h. 4. 7. 
 7. where an A&ion upon the Cafe was brought againft 
 the Mr. of S. Marks in Brijiol, for that he was bound by the 
 tenure of his Land to cleanfea Ditch there} he did neglecl: to 
 doe the fame , by means whereof the Waters therein were 
 ftopped,and did thereby furround the Plaintiff's Grounds} fo 
 that hereby it is apparent, That a Ditch is a kind of current 
 of Waters in itifimo gradit. And Mr. Cambden in Sua Lin- Cambdcn. 
 colnienji Hiftoria doth there defcribe Fo/dike to be Fojfa in- 
 cibts quam Henrietta Primus per Jeptem milliaria a Withania in 
 Trentum perduxit tit Lincolnienjibu* ad fttbvehenda necejfa- 
 ria ufui ejfetj this Ditch is at this day a current and paflage 
 for Boats of fmall burthen in Winter, but in Summer none 
 at all, though of late great (urns of Money have been ex- 
 pended thereupon, Sed tamen adhuc nihil inde botii venit: at 
 the beft it istheworft in all that Countrey, and is of lb flow 
 a current »/ non videtur currere omnino : It (erves in many 
 places for a fence to divide Lord (hips, and is a great trough 
 to fwallow up Waters thereabouts, which otherwise would 
 lie upon theLevel, and of it I (hall fay no more, but Spcro 
 meliora & expeffo. 
 
 Other famous Ditches there be, as that in the North-eaft 
 part of the City of York, which is in a manner a ftanding 
 Water : And there is an old forlorn Dike on the Fen fides 
 in the County of Lincoln, called Caredike, more ancient 
 than profitable, for it doth, as many other of thofe unufual 
 Ditches do, run crofs to the ordinary currents of Waters in 
 thofe parts : For where the Seas (for example) (land Eaft 
 from the main Land, and fo the ordinary currents run all 
 from Weft to Eaft direQly towards the Sea, this runs North 
 and South, obvious and crofs to the natural current of the 
 Waters, which is the true caufe wherefore their currents be 
 fo flow, fmall or none at all. There is another of them on 
 Newmarket Heath qu£ admiranda Fojfa vocaf the Devil's 
 
 M Dike: 
 
g 2 LeSlura Seeunia. 
 
 Dike : and in Wiltshire there is a Ditch famou?, called Wanf- 
 dike, or Mer curii Fojfa, whichfcrvesforadivifionof Coun- 
 treys, and fo be Fojfa. Limtania, and are either altogether 
 dry Dikes, or contain commonly no more Waters than 
 thefe that fall into them : None of thefe Ditches be within 
 thefe Laws, but fuch of them which have a kind of cur- 
 rent, and which in fome fort partake with the Rivers. 
 
 Pools. 
 
 A Pool is a mere ftanding Water, without any current 
 at all, and hath leldom or never any iffue to convey a- 
 way the Waters 5 but a Ditch hath no conftant ftanding, nor 
 any apparent current : A Pool is properly the Inheritance of 
 fome private, but a Foffe or Ditch is in ufe common. 
 Pools be not within this Law for two caufes; the one, be- 
 caufe both in property and ufe they be private and peculiar: 
 The other is, because thefe Laws feem to extend to grounds 
 carnally, and not continually drowned & ad ea qmefrequen- 
 tiifj accidunt Jura adaptantur ; yet all Pools be not excluded 
 from the helps of thefe Laws: for fuch as adjoin to great 
 Rivers , and lie upon the fides thereof without divifion, 
 they are in a manner part of the Rivers 5 and of their kind are 
 the two famous Pools called Bradford and Stvanpool, both 
 near unto the City of Lincoln. 
 
 Ponds. 
 
 A Pond is a ftanding Ditch caft by labourof man's hand 
 in his private Grounds for his private ufe, to ferve his 
 ihoufe and houfehold with neceflary Waters } but a Pool is 
 a low plat of Ground by nature, and is not caft by man's 
 hand. I find a Pond within my Law I read on in exprejjit 
 UrminiSi not as a thing defended thereby, but as a Let and 
 Impediment: And had I not found him therein named, I 
 Jhould not by any Exposition have here brought it in a- 
 mongft the Water Inftrumentsj for I much marvell what 
 
 Impedi- 
 
LeElura Secunda. 83 
 
 Impediment a Pond can be at all, unlefs by cafting of Tren- 
 ches from the River to the fame, it (hall be a means to take 
 thereinto fome of the Waters of the River, and may there- 
 by hinder Navigation 5 but this is far fetcht. 
 
 Streams. 
 
 STreams be not any of thefe, for all thefe have their pro- 
 per peculiar Banks, Bounds and Chanels, and are put 
 in amongft them 5 but a Stream is properly a current of Wa- 
 ters running over the Level at random, and be not kept 
 in with Banks or Walls, and Co Linwood faith, that Flumen 
 which is a Stream nihil aliud eji qttam ipfa aqua. 
 
 Conduits. 
 
 A Conduit or ought thereto belonging is not within 
 thefe Laws in any fort, whether it pertain to a pri- 
 vate perfon, or to a Town or Corporation. 
 
 Springs. 
 
 SPrings I find within this Statute, but coupled with fuch a 
 word, that they thereby feem to be excluded and exiled 
 quite from claiming any privilege of defence by thefe 
 Laws •■) for the word (Ohtragiow) being joined therewith, 
 doth fignifie the meaning of thefe Laws to take them to be 
 hurtful), and not helpfully but all this cometh of the word 
 Otitragiovf, which being but a quality annexed upon acci- 
 dent, may upon juftoccafion be taken away. And the word 
 Springt of it felf is both in appellation and operation, very 
 beneficial for the Commonwealth: for I may juftly term 
 them the vital Spirits of many the great and Royal Rivers of 
 this Kingdom, as of Thames, Trent, and fuch like : And 
 therefore I am willing to let fuch of them as be not outra- 
 gious and hurtfull, to take up a place of defence within thefe 
 Laws 3 for the Trent at the head is derived from Springs 
 
 M z as 
 
84 LeEtura Secunda. 
 
 as many other Rivers be : and I give both the efience and 
 aiTiftance to them, and fo in my opinion they are worthy the 
 protection of thefe Laws: and I doubt not but the Waters 
 ilTuing and gufhingfrom the outragious Springs, may by the 
 provident and difcreet care of the Commiffioners be fo or- 
 dered, as the fame may be applyed and employed to ne- 
 cefTary ufes. 
 
 So now I have run through, like a fwift Stream, the qua* 
 lities of thefe Rivers, Gutters, Sewers and Ditches, and 
 of all their dependencies, and wherein they are to have 
 aid and affiftance of thefe Laws of Sewers, being in 
 truth the very Materials of thefe Laws : yet for a little 
 better explanation of their feveral natures and kinds,. I 
 fhall therefore put thefe Cafes 5 
 
 a. Firft, If the Town of A. want Water by the drinefs of 
 
 the feafbn for the ufe of their Cattel , or for other 
 houfehold affairs , as for brewing , warning and fuch 
 like ; and in the Town of B. which doth adjoin there- 
 to , there is plenty of Waters , more perhaps than is 
 neceffary for ufe there, the Commiffioners of Sewers 
 have no power by any of thefe Laws, for any of the 
 laid purpofes, to make any order or decree to relieve 
 the Town of A. with Waters from B. for this Statute 
 makes but two ufes of Rivers , Sewers and Streams , 
 the one for draining, the other for failing,; and being 
 for neither of thefe purpofes, the Commiffioners have no 
 power to deal therein. 
 
 da But if two Towns do adjoin, and in either of them 
 
 there is a River Navigable, and by accident one cf 
 them is dried up, and the other aboundeth with Waters, 
 more perhaps than there is neceffary ufe of; I am, in 
 that cafe, of Opinion, that the Commiffioners of Sew- 
 ers have power by the Commiffion to make a Law 
 or Ordinance to relieve the River which wants Wa- 
 ters, out of the abundance of Waters which the other 
 River hath, in help and fupply of Navigation. 
 
 Sut. 
 
Leftura Seamda. 85 
 
 But put the cafe that J. S. keeps Boats for his own 3. 
 neceflary ufcs and occafions, and for no other purpofe, 
 the Commiffiriners have no Warrant by their Commit 
 fion to relieve J. S. with Waters for this his own pri- 
 vate ufe, for that their power is the Republike 3 Yet 
 if J. S. hath ufed with his Boats to carry and recarry 
 for the common ufe of the people in general , then he 
 Is within the relief of thefe Laws. 
 
 The new Stream and cut which was now of late 4.- 
 made and cafl: by Mr. Middleton from Ware to London, 
 could not have been done by the power of thefe Laws 
 becaufe it was not made for the draining or failing , 
 but for houfchold affairs, and therefore fpecial Statutes 
 were ena&ed to begin , continue and perfed: that work 
 in 3, 4 Jac. Regis 5 and after the Stream was effected , 
 thefe two Statutes brought the fame within the power 
 of thefe Laws. 
 
 And now feeing my Law hath brought me in my 
 argument and difcourfe among the things defended by 
 thefe Laws 3 I (hall now make a little digreilion from 
 my Cafe, to treat of Bridges, and Calceys and Goats, 
 the proper inventions and works of mens hands , and 
 pertinent to this place to be treated of by the order cf 
 this Statute 3 and they be three material Inftruments which' 
 this Statute by name hath been carefull to take order 
 for.. 
 
 Bridges. 
 
 B Ridges are diverfly taken in thefe Statute?-, for forrie 
 are thereby to be maintained, and other fome are to> 
 be extirped or reformed as Lets and Impediments 3 where- 
 in I think it not amifs for inftruction , to open fbmo 
 other leading Statutes which have provided for them. 
 
 The firft Statute of Bridges is in Magna Chart a, cap. 35; Magna ch'ar- 
 nulla villa nee liber homo dijiringatur facere pontes niji qui ab to > ca h '5- 
 antiquo & de. jure facere Confueverant tempore Henrici Avh 
 
 nojir 
 
$6 LeSiura Secunda. 
 
 noftr this word (facere) is to be conftrued in the (en(e of Re- 
 parare or Manutenere, for other conftru£lion it cannot have. 
 And if this Statute mould be in force, I take it that it would 
 abate much the power of theCommiffioners of Sewers; for 
 it feemeth by the Letter of it, that either no Bridges were 
 
 H. i. to be repaired, but fuch as were made in the time of H. 2. 
 
 and before^ neither mould any be bound to repair them, 
 but fuch as in His time had then uled, and were bound to 
 repair them : but this Statute is neither repealed, nor muft 
 be abridged, as not to extend to Bridges made fithence; 
 and I take it, under favour, that it ftands on furrounded 
 grounds, which this Statute hath to do with} as alfb for 
 
 22/^.8.5. uach Bridges as the Statute of 22 H. 8. f. 5. hath power over, 
 which are Bridges (landing on High- ways, for both thefe 
 Statutes do in my Opinion oppofe the faid Statute of Mag- 
 na Charta : Howibever Sir Edward Cool{ in his Cafes of the 
 
 Cafe of the Ifle of Ely recites the faid Statute as it were in force at this 
 
 of Ely. (j a y . an d jf f 0j tnen t he expofition mud: be made, a 3 1 take 
 it, that all Bridges made and erected fince are out of the 
 inhibition of that Statute, or elfe that Statute is totally re- 
 pealed: For otherwife all Bridges builded fince mould not 
 be repaired, becaufe no Perfon or Town mould be obliged 
 to do them: And then were the power of Commiffioners 
 of Sewers almoft altogether inhibited, touching Bridges, 
 and their hands clofed up for medling therewithal!, but 
 I take this Statute of Sewers in full ftrength to deal with 
 fuch Bridges as come within the reach of it. 
 
 Bridges within the Law of Sewers, are fuch as lie on or 
 near furrounded grounds, efpecially if they be not onely 
 placed there for free paffage, but alfo for ftrength, to de- 
 fend the violence of the Waters, as many of this kind be; 
 viz. London Bridge, Rochejier Bridge, the great Bridges at 
 Lincoln, Bojlon Bridge, and the like; and fuch as lie on 
 Inland and high Countreys, over High-ways, as Burton, 
 Trent, Ware, Wains ford, Huntington and fuch like, be 
 within the faid Statute of 22 H. 8. and I make little doubt 
 of it, but all the faid laft mentioned Bridges are alfo with- 
 in 
 
Leftura Secun&a. 87 
 
 in the provifion of the faid Laws of Sewers , for they lie 
 and are built over fuch Rivers as be all of them within thefe 
 Laws. 
 
 The Statute of 22 H.8. extends not to Bridges lying out 22 h. 9. 
 of High- ways, but the Statute of Sewers doth extend to 
 fuch alfo: And therefore if a Bridge ftand on a common 
 Sewer, Ditch or Gutter which hath his current to the Sea, 
 or to fbme River, the Commiffioners of Sewers have power 
 over fuch, either to repair the fame, or to extirp it, as 
 juft caufe and occafion fhall require. 
 
 It appears by what hath been before faid, our 
 Reader was of Opinion that all Ditches (except 
 dry Dikes^ Gutters , Sewers , Streams and Wa- 
 ter-courfes, where no paffageof Boats is ufed, 
 nor lying by the Coafts of the Sea or Marfh- 
 ground, are within the furvey and correction of 
 the Commiilioners of Sewers. And he here faith 
 the like of Bridges Handing on any Common 
 Sewer, Ditch, or Gutter which hath its current 
 to any River. But yet, under favour this feems 
 very questionable, upon the words of this Sta- 
 tute of 2 3 H. 8. 5. which fpeaks onely of Ditches, 
 Gutters, Sewers and Streams by the Coafts of the 
 Sea, or Marih-ground ; and is exprefly contrary 
 to the Statute of %Jac. cap. 14. whereby 'tis de- 3 7^.14, 
 clared that the Walls, Ditches, Banks, Gutters, 
 Sewers, Gates, Cawfeys, Bridges, Streams and 
 Water-courfes, in and about the City of London, 
 where no palTage of Boats is ufed, having their 
 fall into the River of Thames, where it doth u- 
 fually ebb and flow, and is ufed for free paflage : 
 
 of 
 
8S LeSlura Secunda. 
 
 of Boats to the Sea, though they were as need- 
 full to be furveyed, reformed and amended from 
 noyance of the River of Thames, by the Com- 
 miflioners of Sewers , as thofe Rivers, Streams 
 and Water-courfes, where the Water doth usu- 
 ally ebb and flow, and where more ufual paflage 
 of Boats hath been, yet are not under the fur- 
 vey, corre&ion and amendment of the Com- 
 miflioners of Sewers, nor of any Statute of Sew- 
 ers. And therefore by that Statute of 3 Jac. it 
 is provided, that fuch Walls, Ditches, is'c. 
 within the limits of two Miles of London, (hall 
 be fubjeft to the Commitfion of Sewers, and to 
 all Statutes made for Sewers, and to all penal- 
 ties in the faid Statutes contained, as if the Water 
 therein had ebbed, flowed, and therein free paf- 
 fagewith Boats, and Barges to the Sea had been 
 heretofore ufed. 
 
 So that by the Judgment of that Parliament, 
 neither fuch Ditches, Gutters, Sewers, Streams, 
 (src. where there is neither flux or reflux, or paf- 
 faee of Boats, though they fall into a navigable 
 River which ebbs and flows, and is ufed for 
 free paffage of Boats to the Sea, nor any of their 
 Walls or Banks, or the Bridges which ftand on 
 them, (other than fuch as the faid A<5t hath provi- 
 ded for, vkt thofe which are within two Miles of 
 London) are within the furvey or jurifdiftion 
 of the Commiflioners of Sewers. 
 
 Alfa 
 
LeSI/tra SzCunda. £? 
 
 Alfo private Bridges are within thefe Laws, as if J. S. 
 and his Anceftors, owners of fuch a Houfe, have had and 
 ufed to have a Bridge over a great or left River to the 
 Church, and to his Pafture Grounds, or to his Common, 
 this Bridge, and all other* of this kind, ate within this 
 Statute of Sewers ; viz. to be put down or reformed if 
 they be Impediments to the Common- wealth , and alfo 
 to be maintained, if thereby the fame be any material 
 defence againft the rage and violence of the Waters, o- 
 therwife not, but for putting down fuch Bridges which 
 have been by prelaiption, I hope the Commiffioners 
 of Sewers will be well advifed therein, feeing time hath 
 given great approbation of them, and therefore I (hall han- 
 dle this point more fully, when I come to treat of Lets 
 and Impediments, where that part of this Statute comes 
 raoft fit to be handled. 
 
 The Statute of 22 H. 8. extends to the repairing and a- 
 mending of Bridges onely, but if it be fit to take an Arch 
 away, or to add a new Arch thereto, or to ereft and build 
 a new Bridge where none was before, this is mod fit to be 
 done by the Commiffioners of Sewers, whole power may 
 be extended thereto. 
 
 All Bridges fct upon Rivers by perfons without authority, 
 may be pulled down by the Commiffioners of Sewers, and 
 the parties punifhed 5 for no man ought of his own autho- 
 rity to be fo bold with the common and High- ways or Streams, 
 as to ereft Bridges or other Engines thereon without lawfull 
 Warrant. 
 
 Bridges in High- ways, where there is no Stream under, 
 but onely lome petty Land Stream at rain and wet feafbns, 
 thefe be dry Bridges, and be not within this Statute of Sew- . -fj_ 
 
 ers, but yet they be within the Statute of 22 H. 8. if they d^v-cfifcu — 
 ftand on High- ways : In i^Jacobi Regis it was found by In- ^. j lK . 
 qui fition taken at the City oi Lincoln in the Guild-hall there, 
 before SwThomas Grantham Knight, and my felf, and other 
 Commiffioners of the Sewers, that the great Bridge at Brace- 
 bridge near the City of Lincoln, and ftanding upon the River 
 
 N of 
 
po Left'ura Secunda. 
 
 of Wytham thirty Miles from the Sea, was fallen into great 
 decay, whereby Carts, Carriages and Men on Horfe-back 
 could not pals over the fame, as in times paft had been ufed, 
 in defett of Hen. Sapcots Efq. who ought, to repair a part 
 thereof, by reafbn of his Manor of Bracebridge 5 and of 
 Bartholomew Gregge, who by reafon of his houfe ftanding at 
 the Bridge foot, called the Hermitage, on the North fide of 
 the River, ought to repair another part ; and of the Corpo- 
 ration of Lincoln who was to repair a part thereof} and of 
 the Countrey of Moreland, who ufed to repair another part: 
 And the fame was decreed accordingly. But Mr. Sapcot with- 
 out caufe finding himfelf grieved thereat, preferred his Bill 
 into the Exchequer Chamber againft Sir Thomas Grantham 
 and others, to be relieved therein} and did alledge, That 
 the fame flood far from the Sea, pretending thereby that the 
 Commiffioners of Sewers had no power to deal with the fame: 
 but at the hearing of the Caufe in Anno 16. Jac. he was o- 
 ver- ruled in that and all other parts of this Suit. 
 
 A 
 
 .<i 
 
 A Calcey. 
 
 Calcey or Calfway is a paiTage made by art, of Earth, 
 
 Gravel, Stones and fuch like, on or over fome high 
 
 or Common way leading through furrounded grounds for 
 
 the fafe paffage of the King's liege people, and thefe Calceys 
 
 have always been expreffed in the ancient Commiflions of 
 
 the Sewers in the Regifter, Fitz. nat. bre. and in the Statute 
 
 Regifter of 6 H. 6. cap. 5. but not any Calcey s be in thefe Laws, but 
 
 4 h 6.' B ^ uc ^ 1 as ^ e over furrounded and low grounds, as that of Bar- 
 
 fion Ban^ Southy Bank^ and fuch like: but touching Cal- 
 
 ceys lying in Towns and Villages which be in the high up- 
 
 landi(h Countries, this Law doth not in any fort extend unto 
 
 them, but all Calceys leading over the (aid Bridges, andnear 
 
 unto them, are provided for by this Law 5 yet no private 
 
 Calceys are to be dealt withall by the faid Commiffioners. 
 
 Goats. 
 
LeUura Secunda. jji 
 
 Goats. 
 
 GOats be ufual Engines erected and built with Percullef- 
 fesand Doors of Timber, Stone or Brick, invented firft 
 in Lower Germany and after brought into England, and u- 
 fed here by imitation, and experience hath given fo great 
 approbation of them, as they are now, and that with good 
 realbn and caufe inducing the fame, accounted the moft 
 ufefull instruments for draining the Waters out of the Land 
 into the Sea: There is a twofold ufe made of them, the 
 one when frefh Water flows and descends upon the low 
 grounds where thefe Engines are always placed, and where- 
 to all the Chanels where they ftand have their currents 
 and drains directed, the lame is let out by thefe into fome 
 creek of the Sea 3 and if at fome great floods the Seas break 
 into the Lands, the fait Waters ufually have their returns 
 through thefe back to the Sea: Many of thefe Coats which 
 are placed on High- ways, ferve alfo for Bridges. This Goat 
 is no fiich imaginary Engine as the Mills be which fome rare 
 wife men of late have invented, but this Invention is war- 
 ranted by experience , the other is rejected as altogether 
 chargeable and illufory : Yet thefe Engines feem to me not 
 to be very ancient here in this Kingdom, for that I do not 
 find them mentioned in any of the ancient Commiffions 
 granted, before this Statute did exprefi the fame 3 and (ure- 
 ly this Statute was 10 curious in the fpecial repetition of fuch 
 defences in fpecie as it intended to defend and maintain, 
 that I am of Opinion , it can fcarce be drawn to extend 
 to any other: And therefore I do agree with the Opinion 
 of Sir Edward Qoo\ in his Cafe of the Ifle of Ely, that an 
 artificial Mill, and fuch like new invented Engines, are not 
 to be erected by the power of thefe Laws, but being once 
 erected and proved by experience to be beneficial to the 
 publique State, they may be continued and maintained by 
 the authority of this Statute. 
 
 N 2 Netp 
 
2 2 Leftura Secunda. 
 
 New Defences. 
 
 Hitherto I have proceeded onely in the handling and dif- 
 courfing of the old and ancient defences which be 
 helpfull both to Sea and Land : And therefore I am now de- 
 firous to enter into the argument of new defences, being a 
 matter very fit and apt to be difputed on: And to give 
 iome warrant to my argument therein, I have fo compofed 
 my Cafe, as both old and new be therein contained, 
 wherein the point will be (hortly this, Whether the new 
 River and new Bank mentioned in my Cafe, could be or- 
 dered to be made by the power and authority of thefe Laws: 
 And thofe which would take a part to argue on the contra- 
 ry, may alledge much matter, and many reafons to make 
 good their arguments ; fitft, out of the words of the Law 
 it fclf, for thereby it feemeth, that this Statute can bear no 
 iiich expofnion by reafbnj the words thereof literally taken, 
 feem to extend onely to the old and ancient defences, and 
 not to the erecting of new : And the words thereof in this 
 point be thefe$ 
 
 Forafmuch as the Walls, Banks, Ditches, &c. by the rage of 
 the Seas, and by the frejl) Waters defending, befo lacerate, du 
 rupt and broken , the Commijjion therefore doth authorize the 
 Earls of Lincoln, Rutland and Exeter •-, Robert Lord Wil- 
 loughby of Grimlthrop, Sir William Welby, Sir Thomas 
 Grantham, and Sir John Hatcher, Knights, whereof three 
 to be of the Quorum, to furvey and amend the /aid Walls, and 
 Banks, Ditches, &c. in all places neceffary, and the fame as 
 oft as need fliall be to make new : Upon thefe words of the 
 Statute, do thole which argue againft the new defences in- 
 fer, that the Commiffioners have not any power to caufe 
 new Banks, new Walls, or other defences to be erected $ 
 and r o take a difference between the words nova conJiruere i 
 & de novo conjiruere, the firft extending to erect new ones 
 where none were before, and the other purporting the 
 erecting of a new one where before an old one flood : and 
 
 the 
 
Le&ura Secunda. P3 
 
 the words which inforce this cxpofiiion, be penned ftrongly 
 to that purpofe} for firft, they have power to repair and 
 amend, What ? fuch Walls and Banks as were before, and 
 the fame to build new j which words, The fame, literally 
 taken, muft needs extend to fuch old tences as were beforej 
 and the conftruftion being Co made, excludes clearly the 
 power to make new ones where none was before: and 
 this expofition may be exampled in other Cafes of like qua- 
 lity, as in 22 H. 6. fo. 18. where it is faid, That if Leffe for 22 H. 6. 
 years fnffer a houfe to fall down, and before an A3 ion of Wujie 
 he brought again jl him, he buildeth another in the fame place 
 where the former food, of the fame quality and quantity, that 
 full excufe him in the Atfion of Wafle : but 10 would it 
 not have dene if he had builded the fame in all points an- 
 fwerable in another place, for the one is renewed, the o- 
 ther a new one : and in the 10E7. fol. 18. in the Abbot io//.<j.f.i8. 
 of Thornton's Cafe, the words in a Leale were, That the 
 Lejfee Jhould repair a Chapel leafed to him, and the fame de 
 novo conflruere & conflru&am curare , which words there 
 bear the fame fenfe in expofition : And the Statute of Mag- 
 na Charta cap. 16. feemeth, touching Banks, to fway the Magna char- 
 fame way 5 for there the Statute is, Quod nulls repartk de- '* "?• i 6 - 
 fendantur nifi ills qu£ fuerunt in defenjo tempore Henrici Re* 
 gif avi nofiri & per eofdem locos & eofdem terminos ficut tffe 
 confuiveriint tempore fuo\ this makes much againft ere&ing 
 of new Banks, if it be in force : for if no pei Ton (hould be 
 bound to repair fuch as were built fince that time, then 
 were it vain to build new ones. Sir Edward Cool^ in his 
 Cafe of the Ilk of Ely, is ftrongly of the fame Opinion , cafe of the 
 That no new River fljould be made and cafl by the power of this ™ eo( El -'- 
 Commijjiom, for the cafe there is, That the Commijfioners of 
 Sewers in thofe parts made an order and decree, That a new R /'- 
 ver Jhould be cut out of the old River there called Owfe, through 
 the main Landfven Miles unto another part of the /aid River: 
 And the queftion there was, Whether the Commillioners 
 of Sewers had any fuch power or not ? and he there deli- 
 vered his Opinion exprefly, That they had not ? and affirms 
 
 it. 
 
 % ? 
 
£4. Left ura Secunda. 
 
 it, That it was dangerous and inconvenient that Commiffioners 
 of Sewers Jfjould have any fuck Power and Authority, for then 
 they might thereby Jiop up the Havens, which are the Ports of 
 the Realm: And for the juftifying of this Opinion therein, 
 FitK_.Na.B>e. he alledgeth Fitzher. Na. Ere. fo. 225. and the Regifier, fol. 
 
 ■»'' 7? 5 - 2 5 2, tnat ' n ca ^ e wnere a new R-iver or Stream was defired 
 to be made, the Writ of ad quod damn was to be awarded, 
 which fhould firfk be dire&ed to theEfcheator of that Coun- 
 ty, to the end he muft enquire and certifie what damage 
 it might be if fuch a Cut fhould be made, or a new Trench 
 caft; and fo concluded direftly againft the making of new 
 Rivers and Drains by the Commifltoners of Sewers. And 
 truly there is one thing more which makes flrong on that 
 fide, which is, That a new River, Drain or Cut, cannot 
 be made but through fome man's private Inheritance., and 
 to the prejudice thereof, which is a matter very confidera- 
 ble: So that all thefe things laid together, might very well 
 move Sir Edward Cook^ to be of the laid Opinion, That 
 no fuch new River or Drain could be made by the Com- 
 milTioners of Sewers by the power of thefe Laws. 
 Argumentum in contrarium. 
 The reafons and authorities put on the other part are 
 weighty and ponderous, and require a very good anfwer ; 
 The Law it which I (hall endeavour to give thereto : It is true, that the 
 MKnds V to r ft! words of this Statute and Commiffion bear much with the 
 faid foimer expofition s So I hope to find words in this Sta- 
 tute alfo, which will tend as much the other way : And 
 they be in the fore-part thereof, viz. That daily considering 
 the great damages and lofles which have happened in many 
 and divers pamof thisRealm,as well by the contagious flow- 
 ing furges and courfe of the Sea, in and upon marfh grounds, 
 and other low places heretofore through politique wifedom 
 won and made profitable for the Commonwealth of this 
 Realm, &c. And thefe grounds which have been fb won, 
 ■could not be lb kept and preferved , but by banking and 
 new fencing in; which proves dire&ly, that the faid new 
 Banks and new fencing might be made for the inning and 
 
 keeping 
 
LeSiura Secunda. 95 
 
 keeping of the faid new won grounds: And alfo the Sta- The expired 
 tute of 6 H. 6. cap. 5. gave the Commiffioners of Sewers pow- ^jf.,^' ^ 
 er to repair the ancient Banks, and Walls and Fences & ea- this expofi- 
 dem, & alia de novo conjiniere 5 by which words the Com- tion • 
 millioners which had their power from that Statute, might 
 make new defences, as Banks, Walls and fuch like : And 
 lb is the opinion of Sir Edward Cook, delivered upon thefaid 
 Statute of H. 6. in his Cafe of the Ifle of Ely, which being 
 obferved and granted, makes ftrongly for this part ; for that 
 the Statute of 2 3 H.8. doth not onely confirm all former Sta- 
 tutes of the Sewers then in ejfe, but alio gives authority to 
 the Commiffioners to do after the Tenor and effect of all 
 and fingular the Statutes and Ordinances before that time 
 made : And although the faid Statute of ft 6. was in time 
 then expired, yet the form and effeft of it may be follow- 
 ed and obferved: And to that end I take thisdiverfity be- 
 tween a Law repealed and a Law expired , for a repealed 
 Law is made void and fruftrate, as either unworthy or un- 
 neceffary for fome refpec"rs to be any longer continued or 
 put in execution, and therefore was forbidden to beufed or 
 pra&ifed , but a Law expired in time , though it hath 
 loft his vigor and force, yet it is like a vertuous man de- 
 ceafed, his life and aftions may be worthy imitation, 
 though the date of days be at an end 5 but a Law 
 repealed is like a man condemned for fome Offence , 
 whole Life and Actions are neither of them worthy I- 
 mitation , unlefs it be to doe the contrary : And the 
 faid Statute of Henry 6. was a worthy Law , which this 
 Statute intended not to come fhort on, but to extend 
 farther than the Limits of that Law did reach unto : al- 
 fo the faid Statute of Henry 6. is ufed by Sir Edward 
 Cook^ in the pleading of Rooi(s Cafe in his 5th Report, r ^$ Cafe, 
 where he could make there no other ufe of it , feeing 
 it was in time expired, than onely by way of imitati- 
 on. 
 
 Alfo we mult conceive, that thefe Laws of Sewers are J f h t e hi e s q ^ 
 of great and urgent neceffity and ufe for the good of the will help th» 
 
 whole c *p°fi" on ' 
 
Le&tura Secunda. 
 
 whole Commonwealth of the Realm, and therefore the in- 
 tent thereof may be extended in exposition beyond the let- 
 ter of the words •■, for the words be (avd the fame to mal^e 
 new) which according to the bare words in a literal con- 
 ftru&ion, cannot extend to new ones where none was be- 
 fore, but to the reedifying of the decaied old ones 5 but 
 the learned Expofiror, whofe confirmations be not fo much 
 grounded upon the letter as upon the f.nfe, may in equal 
 juftice extend the fenfe to new making, as well as to re- 
 Braflon. newing of defences •-, for Mr. BraEl. li. 1. Chap.%. defineth 
 equity to be Rerttm convenientia qua in paribus caufts paria 
 deader at jura & omnia bene coequiperat & dicitur equitas quaff 
 equalitas : And if the grave and learned Judges have in pri- 
 vate affairs introduced this equity to dirt ft, inlarge or di- 
 minifh the letter of the Laws in the fenfc of construction, 
 AM and as by many Prefidents we find in Mn Plow. Com. in Hillmd 
 Cafe? eS Grange's Cafe, fol. 178. and in many other authorities, a 
 fortiori fhall this Statute of 23 H. 8. be expounded with as 
 much favourable equity as can be, to inlarge the letter of 
 •- the Law in the fenfe of conflrucYton , becaufe it tends fo 
 much to the advancement of the Commonwealth, Et qui 
 heret in litera heret in cortice. And if the makers of the 
 Law, when this Statute was put into the frame, had been 
 demanded, whether their meaning was to have it extended 
 to the making of thefe new defences where either juft occa- 
 fion or neceliity did inforce it $ they would have anfwered, 
 That they fo intended it 5 for the foul and life of the Law 
 Jieth in the fenfible exposition thereof, and not in the bare 
 letter , as Mr. Plow, alfo fully demonftrates in his Com. in 
 Eajion and Stud's Cafe. 
 
 And whereas it is formerly alledged, that the warinefs of 
 the Common-law was fuch in thefe Cafes, that it admitted 
 not one fuch new Trench, River or new Cut to be made, 
 without the awarding out of the Writ of Ad quod damn 
 dire&ed to the Efcheator, an Officer fworn to inquire, 
 firft, what damage it might be if fuch a new cut or drain 
 were made? and then upon his inquifition returned, there 
 
 might 
 
Left Ma Seam da. '97 
 
 might be one made, if by the inquifition it were found 
 convenient, elfe not to be proceeded farther in: But in 
 anfwer thereto, being the argument fet down in the faid 
 Cafe of the Ifle of Ely, I am of Opinion, That there may 
 be more wary and circumfpeft proceedings by this Com- 
 miffion, than in the Ad quod damn by the Efcheator; for 
 there be many Coramiffioners which be all fworn, and in 
 the Ad quod damn there is but one, the Efcheator,/>/** vident 
 oculi quant oculut & tutitti eji rem committere pluribui, quam 
 uni, and in my opinion, it is much better to commit this weigh- 
 ty bufineis to many Commillioners of great gravity, expe- 
 rience, learning, wifedom and integrity, thantooneEfchea- 
 tor, who may perhaps want all thofe vertues: And farther, 
 whereas in the faid Cafe of the Ifle of Ely, it is inferred, 
 or rather feared, that by giving this power to the Commif- 
 fioners of Sewers, they may thereby ftop up the Havens of 
 this Kingdom ; that fear is needlefs, for I find, that neither 
 by the letter nor the fenfe of thefe Laws, any fuch exposi- 
 tion can be made, either to the flopping up or hindring of 
 their currents and pafTages. But to proceed in my former difc 
 courfe in making new defences: I know that in the 45, 43 & 44 £/, 
 and 44 Eliz. a great controverfie did arife in the County of 
 Lincoln, about the building and erefring of two new Goats 
 at Sfyrbecfand Langrate y for the draining of the Waters out 
 of South Holland Fens into Bojion Haven j which work Sir 
 Edward Dimtck, Knight, did further what he might, by the 
 ftrength of himfelf and his friends; and it was oppofed by 
 the Countrey of Kejieven : and the very exception there- 
 to taken, was , That the Commillioners of Sewers could 
 not by the power of their Commiilion make a Law for the 
 erecting of thefe new Goats where never any flood there 
 before: And that Cafe proceeded fb far, as the fame came 
 in the end before the two Chief Juftices, Popham and An- 
 derfon, who both delivered their opinion ?, that the faid 
 new Goats, if they were found to be profitable for the good 
 and fafety of the County, might be erefted by the power 
 of this Statute j but they then wifhed and ad vifed, that the 
 
 O Com- 
 
c>8 Leftura Secunda. 
 
 Commiffioners (hould be wary, provident and circumfpeft 
 to advife deliberately before hand, that by the opinion 
 of experienced perfons in thofe affairs, the faid new works 
 (hould in all appearance feem to be profitable to the Com- 
 monweal, if they were effected; and that Commiffioners 
 fhould not in any fort make fuch devices at the fuit, prop- 
 ortion, and requeft of private perfons for their private and 
 peculiar good, who many times fought their own ends un- 
 der pretence of the publick good. And a like great con- 
 troverfie did arife in 12 Jae. in the Counties of ' Cambridge^ 
 Huntington and Northampton , about the making of new 
 cuts and drains in the Ifle of Ely by the power of the Com- 
 miffioners of Sewers, which being much oppofed, the fame 
 came in the end to be heard before the King and Coun- 
 cil, wherein this Order was conceived as followeth. 
 
 The Kings Councils Order. 
 
 HIS Majefty's Attorny-general having ac- 
 cording to an Order of this Board of the 
 Thirteenth of Otlober laft , called unto him the 
 King's learned Council ; and taking informa- 
 tion of fuch Complaints as were firft exhibited 
 unto this Board, touching fundry Suits and 
 Vexations moved of late by certain obflinateand 
 ili-difpofed Perfons, againft His Majefty's Com* 
 miflioners of Sewers, for the Counties of Lin- 
 coln, Huntington, Northampton and Cambridge , 
 and th-ir Officers and Minifters, for executing 
 the Orders and Decrees of the Commiffioners, 
 to the manifefl deftruction and inundations of 
 many large levels and parts of the faid Counties : 
 And having by their Lordfhips like Dire^tions> 
 
 upon* 
 
Lettura Secunda. 99 
 
 upon advifed consideration, weighed and com- 
 pared the faid late and undue proceeding with 
 ancient Laws of this Realm, appearing in divers 
 notable Records in the point now queftioned , 
 with the continual and concurrent practice of 
 ancient and later Times ; and alfo the Opinions 
 of the Lord Popbam, late Chief Juftice, delive- 
 red in writing very exactly and fully upon the 
 (aid Queftions, touching the Power and Autho- 
 rity of the faid Commiflion 5 and thereupon 
 making report at large unto their Lordftiips this 
 day in full Counfel, of the whole ftate of the 
 Caufe ; Forafmuch as thereby it appeared, That 
 thefe Inventions and Difturbances confift upon 
 four Heads, wherein the extent of the Com- 
 miflion was queftioned, upon pretext and con- 
 ceit of Law : Firft, That the Commiflioners of 
 Sewers had not authority to caufe new Banks, 
 Drains or Sluces to be made where there had 
 not been any before. Secondly, That they 
 might not lay the Tax or Rate upon Hundreds, 
 Towns or Inhabitants thereof in general , but 
 upon the firft prefentment or judgment to 
 charge every man in particular, according to 
 the quantity of his Land or Common. Thirdly, 
 That they had not power fufficient to commit 
 to prifon Perfons refractory and difobedient to 
 their Orders, Warrants and Decrees. And laft- 
 ly, That Actions of Trefpafs, Falfe imprifon- 
 
 O 2 ment, 
 
loo LeViura Secunda. 
 
 ment, and other Procefs at the Common-law, 
 have been brought againft fome of their Offi- 
 cers and Miniflers for executing their Decrees 
 and Warrants ; Their Lordfhips rinding in their 
 wifedoms, that it can neither (land with Law, 
 nor with common Senfe or Reafon, that in a 
 Caufe of fo great confequent the Law can be 
 fo void of providence, as to reftrain the Com- 
 miffioners of Sewers from making new Works to 
 reftrain the fury of the Waters, as well as to re^ 
 pair the old where necelfity doth require it for 
 the fafety of the Countrey, or to caufe a charge 
 upon the Towns or Hundreds in general that 
 are intereffed in the benefit or lofs, without at- 
 tending particular furvey or admeafurement of 
 Acres, when the fervice is to have fpeedy and 
 fudden execution , or that a Commiflion of fo 
 high a nature, and of fo great ufe to the Com- 
 monwealth, and evident neceffity, and of fo an- 
 cient jurisdiction, both before the Statute and 
 fince, fhould want means of coertion for obedi- 
 ence to their Orders , Warrants and Decrees, 
 when as on the performance of them, the prefer- 
 vation of many thoufands of His Majefty's Sur> 
 jects Lives, Goods and Lands doth depend ; It 
 plainly appearing, That it will be a direct fru- 
 ftrating and overthrow of the Authority of the 
 faid Commiflion of Sewers, if the Commiffio- 
 ners, their Officers and Minillers fhould be fur> 
 
 jecl: 
 
Leflura Secunda. ioi 
 
 ject to every Suit at the pleafure of the Delin- 
 quent in His Majefty's Courts of the Common- 
 law, and fo to weary and difcourage all men 
 from doing their duties in that behalf: For the 
 Reafon aforefaid, and for the fupreme Reafon 
 above all reafons, which is the falvation of the 
 King's Land and People, Their Lordfhips did 
 order, That the Perfons formerly committed 
 by this Board for their contempt concerning 
 this caufe, fhall ftand committed untill they re- 
 leafeor fufficiently difcharge fuch Actions, Suits 
 and Demands as they have brought at the Com- 
 mon-law againft the Commiflioners of Sewers, 
 or any thc° Minifters or Officers of the faid 
 Commiflion; faving unto them neverthelefs 
 any Complaint or Suit for any Oppreflion or 
 Grievance before the Court of Sewers, or this 
 Table, if they receive not Jultice at the Com- 
 miflioners hands. And their Lordfhips farther 
 Order, That Letters from the Table fhall bj 
 written to the Commiflioners of Decrees of like 
 nature, when it (hould be found needfull, re- 
 quiring, incouraging and warranting them to 
 proceed in the execution of their feveral Com- 
 miflions, according unto former practice and 
 ufage, Any late disturbance, oppofition or con- 
 ceit of Law whereupon the faid difturbance hath 
 been grounded notwithstanding ; with admo- 
 nition neverthelefs, That care be taken that there 
 
 be 
 
'02 Letlura Secunda. 
 
 be no juft caufe of complaint given by any abufe 
 of the faid Commiflion. 
 
 Examnat' per Edmunds Cleric Cotifilii, 
 Prefent at this Order making, were, 
 
 i. The King's Majefty 
 in Perfon. 
 
 2. The Archbifhop of 
 Canterbury. 
 
 3. L. Chancelour. Elf- 
 meare. 
 
 4. L. Treafurer Earl of 
 Suffolk. 
 
 5. L. Steward D. de Le- 
 nox. 
 
 6. L. Admiral Howard 
 Earl of Nottingham. 
 
 7. L. Chamberlain Earl 
 of Pembroke. 
 
 8. E. of Arundel ', Ho- 
 ward. 
 
 9. Vifcount Wallingford. 
 
 10. Vifcount Fenton. 
 
 1 1. Andrews Bifhop of 
 Ely. 
 
 12. Lord Wotton. 
 
 1 3. Lord Cary. 
 
 14. Secretary Winmo d. 
 
 1 5. Secretary Lake. 
 
 \6. Sir foully Grevil 
 Chancelour of the 
 Exchequer. 
 
 17. Matter of the Rolls 
 Cefar. 
 
 18. Sir Francis Bacon 
 Attorney-general. 
 
 All of them of the Privy-Concil. 
 
 This order is in fome points legal, and may ftand for 
 a direftion in matters of Law, and the other parts thereof 
 may ftand for a prefident of ftate 5 and it thereby plainly 
 appeareth that the King's learned Council were of opinion, 
 That the faid new works might be ordered and decreed to 
 EZTa Y thC ? omm j ffi °ners of Sewers, and that the 
 lame had warrant from former prefidents. 
 
 But 
 
LeRura Secumla. 103 
 
 But the laft allegation on the contrary party is very forci- 
 ble againft this argument, That by the making and erecfing 
 of thtfe new Defences, the inheritances of private perfbns 
 are thereby prejudiced whereon they be built \ yet asCato 
 faith, Vix ttl/a Lex fieri pot eft qu£ omnibus utilis fit fed fimijori Cart, 
 parti profiiiat fufficiti, and therefore this objection I thus An- 
 fwer, That thefe new works are not to be undertaken but 
 upon urgent neceffity in defence of the Countrey, or for the 
 fafety thereof, fb that the Commonwealth be therein deep- 
 ly intereffed and ingaged •-, and things which concern the 
 Commonweal are of greater accompt in the Law, than the 
 intereft of private perfbns. 
 
 And fb it is 13 H. 8. fol. 16. That the Commonwealth n H - & 
 (ball be preferred before the private Eftate, and for the good 
 of the Commonwealth a private perfbn (hall receive damage, 
 if otherwife it cannot be efchewed 5 as a private man's houfe 
 (hall be pulled down, if the next houfe thereto be on fire, 
 to fave the Town 5 and the Suburbs of a City may be pul- 
 led down in time of War, to fave the City 5 and Bulwarks 
 may be raifed on private mens grounds for defence of the 
 Realm : And what greater Enemy can there be than the Sea, 
 who threatens with his mercilefs waves to fwallovv up all 
 before it, but that the hand of the Almighty hath tied and Pro ch. %, 
 bound him in the fetters of his eternal decree, and given ver ' 27 ' 
 policy and means to man to keep him from invading the 
 Land by artificial works, proper for fuch fervices? There- 
 fore in my Opinion, by the very true intent and meaning 
 of the (aid Statute, and by a jufr, equal and reafbnablecon- 
 ftrudion, it fhould lie in the power of the Commiffioners 
 of Sewers, upon juft and urgent occafions and confidera- 
 tions, to make Orders and Decrees for erefting and making 
 of new Banks, new Walls, Goats, Stream?, Sluces, and 
 other neceffary Defences againft the overflowing of the 
 Sea $ For Ubi nova fit maris incurfio ibi novum ejiapponendnm 
 remedium^ with this caution, That under the pretence of the 
 Commonweal a private man's welfare be not intended to the 
 charge, trouble and burthen of the Countrey : And with 
 
 this 
 
 
104 LeUura Secunda. 
 
 this alfo, That where any man's particular intereft and inhe- 
 ritance is prejudiced for the Commonwealths caufe, by any 
 fuch new ere&ed works, That that part of the Countrey be 
 ordered to recompence the lame which have good thereby, 
 according as is wifely and difcreetly ordered by two feveral 
 
 s7£/. c. as. Statutes, the one made in Anno 27 Eliz. Chap. 22. Rafial 
 Havens and Rivers, is where the Commiffioners have pow- 
 er to compound and agree with the Lords and owners of 
 the grounds through which the new Cuts are to be made 5 
 
 3 Jac. 14. And the other 3 Jjc. Reg. c. 14. for bringing the new ftream 
 to London : and although thefe Statutes hold not in the 
 general cafe of Sewers, but are applied to the faid particu- 
 lar matters therein exprefled, yet they may ferve as good 
 Rules to direft our Commiffioners to imitate upon like occa- 
 fion happening. 
 
 In the Cafe of the Inhabitants of Outwett, New- 
 ton and Ty d, HiL 1 640. in jup. Banc, it was ur- 
 ged by Twifden of Council, with the faid Vills, 
 that the CommiiTioners of Sewers cannot order 
 a new Wall to be made, notwithstanding what 
 Calis here faith 5 and Roll feemed to incline to 
 that opinion ; but yet allowed the Commiffio- 
 ners Order, becaufe it appeared that the Wall 
 . which they had ordered to be made was not 
 wholly a new work ; and fo not within the Cafe 
 of the Ifle of Ely, which was for the making of 
 a new work totally : Style 1^2. 
 
 But it was clearly refolved, Pafch. 18 Car. 1. 
 B. R. That if an old Wall or Bank be thrown 
 down by the violence of a Tempeft, and that 
 was ftraight, the Commiflioners of Sewers may 
 order a new one to be made there, in the form 
 
 of 
 
Letlura Secun&a. 105 
 
 of a Horfeftioe, or any other form : March ip8, 
 iqq, 200. 
 
 The fecond Point upon this Statute. 
 It appeareth by my Cafe, That the Cornmiffioners of 
 Sewers did decree a new Bank to be railed, and a new Ri- 
 ver to be caft, and an old Sewer to be repaired upon their 
 view, furvey and difcretion. The Words of this Com- 
 miffion upon which I framed this part of the Cafe be the(e 
 (videlicet) We have ajfigned yoitThzoyh\\\isEarlof Lincoln, 
 Robert Lord Willoughby of Earsby, Sir George Manners 
 Knight, Sir Philip Tyrwhit, and Sir John Wray, Knights 
 and Baronets, Sir William Pelham, Sir John Read, Sir 
 Edward Afcough, Sir Hammond Knights, An- 
 
 thony Erby, E/^Quor'; the faidEarl, Lord, and Sir George 
 Manners, tee will 'to he three to furvey thelf 'alls, Banhj, Drains, 
 Sewers, &c. and the fame to caufe to be repaired, amended or 
 put down as caufe Jloall require, after your wifedom and dif- 
 cretions, and to doe after our Statutes 5 as alfo to inquire by 
 the oaths of lawfull and honeji men of thofe places where fuch 
 default be. By the Tenor of which words I conceive, That 
 Cornmiffioners of Sewers have power by their Commiffion 
 to proceed three manner of ways ; (viz,.) firft, By Survey: 
 2. By Jury: 3. By difcretion 5 wherein it behoveth Corn- 
 miffioners of Sewers to know perfectly how to ufe and dif- 
 pofe of their powers with due understanding of thefe parts 
 of this Commiffion and Law: And the better to prepare 
 them herein, I (hall take fome pains to declare unto them 
 what they may do by furvey without a Jury, and what by 
 Jury, and what by their difcretion, without both furvey 
 and Jury. 
 
 View and Survey. 
 
 VIEW is the primary part of Survey, and Survey is 
 much, but not altogether directed by view. It is true 
 that View is of great ufe in the Commonlaw, and it is to 
 
 P be 
 
io6 Lettura Secunda. 
 
 be done and performed in perfon, and fuch Views are taker* 
 Penington's jn Trials of Affizes ? yet by the 36 H.8. in Djer f.61. a ve- 
 Caft - r y perfonal View needeth not in an Affize, if upon exami- 
 
 nation of the Jurors it may appear, that a competent num- 
 ber of them know the grounds in queftion, in fuch ibrt as 
 they can put the party in pofieffion if he recover } but in an 
 A&ion of Wafte, an exprefs perfonal View is both required 
 and requifite, for the words of that Writ directs the She- 
 riff Accedere ad locum vajiatum^ In a word, there is a di- 
 verfity between a View and a Survey, for by the View one 
 is to take notice onely by the eye, but to iurveyis not onely 
 to take notice of a thing by the eye, but alfo by ufing other 
 ceremonies and circumftances, as the hand to meafure, and 
 the foot to pace the diftances. 
 
 And the Coromiffioners Surveyors have power to take 
 information by examination of others: And although Judge 
 i 7 //.8.28. Filz. in 27 H. 8. fol. 28. holds a Surveyor of very fmall 
 efteem in his power and authority, that is, That he may 
 hear, fee and fay nothing, Our voter & rien dire: Yet un- 
 der the favour of that Book, I take a Surveyor to be of 
 4, Ed. 1. more efteem and authority ; for by an old Statute made in 
 4. Ed. 1. Rajial Surveyors, firft, he is there defcribed to be 
 a man which is to view the work, and to make inquiry, 
 and to fet down which be Copiholds, which be Freeholds, 
 &c whereby it appeareth, that a Surveyor is an a-ftor, and 
 not a looker on, as Mr. Fitzherbert would have him; fo 
 by thefe defcriptions the Commiffioners may inform them- 
 felves what is meant by the word Survey, put in the Statute : 
 And many of our Statutes take notice of fuch an Officer as 
 a Surveyor 5 For in the Statute of Bridges and High- ways, 
 there be fuch Officers appointed $ and in the Statute made 
 for the erection of the Court of Wardb and Liveries, there is 
 a grave Officer appointed, who is called the Surveyor gene- 
 ral of that Court, and he is a Judge in matters there handled. 
 
 And there is alfo an Officer in this Statute of Sewers, cal- 
 led a Surveyor, who hath no judicial power, but is meerly 
 an Officer. 
 
 What 
 
LeUura Secunda. 107 
 
 What things Officers of Sewers may doe by 
 Survey onely. 
 
 EVery thing which Commiffioners of Sewers are to do, 
 muft be by the true underftanding of their authorities; 
 and this muft be fo done, that they make luch diftin&ions, 
 differences and applications as may ftand with knowledge, 
 skill and learning 5 or otherwife their proceedings will prove 
 irregular: And therefore it is not onely meet todefcribe the 
 Officer Surveyor as formerly I have done, but alfo his Office, 
 which I now mean to do. 
 
 Firft, Commiffioners of Sewers may view the Defences, 41* 
 and thereby may inform themfelves which ftands in need of 
 repairing and amending, and which not 5 and wherein the 
 defaults and defe&s appear to be, and what they be. 
 
 Secondly, they may by Survey take notice and know- 2. 
 ledge, by conference with Carpenters, Mafons, Smiths and 
 other Officers, what things are fitting to be provided for ef- 
 fecting the works, and what fums of money will be fpent 
 for the finifhing thereof. 
 
 Thirdly, the Commiffioners may by view and furvey, 3, 
 take knowledge of the lets, impediments and annoiances in 
 the Banks, Walls, Rivers, Streams, Gutters, Sewers, and 
 of the height and lowneis of the (aid Banks and Walls; and 
 may thereby difcover and find out the wants, imperfecti- 
 ons, weaknels and ftrength of them, and fo may caufe the 
 lets and impediments to be removed, and the wants to be 
 fupplied, and the weak places ftrengthned, ascaufe fhall re- 
 quire. 
 
 Fourthly, alfo by Survey onely they may (ufficiently-in- 4. 
 form themfelves of the incroachment, and of the ftraitnefs, 
 depth, widenefs and fhallowneis of the Rivers, Streams, 
 Gutters and Sewers, and may view the defects in thefe 
 kinds. 
 
 Theie things I have produced, as proper to be perfor- 
 med by view and furvey of the Gommiilioners, 
 
 P 2 And 
 
 
108 LeSiura Secunda. 
 
 And by Hemes opinion in his Reading, p. g* 
 a Man that is blind cannot be a Comfhiffioner 
 of Sewers, becaufe he cannot view or "fur-vey. 
 
 And now 1 (hall proceed to the reft. 
 
 Things to be done by a Jury. 
 
 i. FTfrftj wnat perfon or perfons did ereft and let up any let and 
 [^ impediments, as a Floud-gate, Mill-dam or fuch like, muft 
 be found by Jury 3 for here the words of the Statute are to 
 be obferved, which are theTe, And alfo to inquire by the oaths 
 
 -y~ of good and lawfull men of thefaid fiire or/hires, place or places , 
 where fuch defaults or annoyances be, as well within liberties as 
 without, by whom the truth may rather be known through whofe 
 default thefaid hurts and damages have happened, or who hath 
 or holdeth any Lands or Tenements, or Common ofpaflure, or pro- 
 fit offijhing, or hath or may have any hurl, lofs or dif advantage 
 by any manner of means in thefaid places, as well near to thefaid 
 Dangers, Lets and Impediments, as inhabiting or dwelling 
 thereabouts, by the /aid Walls, Ditches,&c. Sothat the firft Ar^ 
 tide is full within the words of this Statute $ and therefore it 
 muft be done by Jury, and no other accufation is of fufficient 
 ftrength in the Law to put a man to his anfwer. And herein 
 the makers of thefe Laws didfagely, for how (hould Com- 
 millioners of Sewers take notice by view or furvey of fuch 
 things as a«re done or committed in their abfence ? 
 
 2. Secondly, if any Wall, Bank, River, Sewer, or other 
 
 defence be defe&ive by negleft or fufFerance of fuch as 
 fhould repair the fame, the Gommiffioners of Sewers are to 
 inquire by Jury in whofe default the fame happened. 
 
 Thirdly, the Commiffioners are to enquire, What per- 
 lon or perfons ought or be bound by Cuftome, Prelcripti- 
 on, Tenure, Covenant or otherwife; or for or by realbn 
 of what Lands or Grounds he or they be tyed or bound to 
 do the repair?, and where thole Grounds do lie, and who 
 be the owners thereof ? 
 
 And 
 
Leftura Secunda. I op 
 
 And if a Jury find before the CommifTioners 
 of Sewers, that" one ought to repair a Bank, isrc. 
 which is decayed by the Sea, &c. and it be remo- 
 ved into the Kings Bench. The Juftices there 
 will not quafh the Inquifition, or grant a new 
 Trial, unlefs the Perfon who was found guilty 
 will firft repair the Bank, of which he (hall be 
 reimburfed , if he be acquitted ; And becaufe 
 the Lord Dunbarr refufed fo to doe , the Court 
 of Kings Bench granted a Procedendo, Siderftn r. 
 78. And this (lands with great reafon, becaufe 
 of the damage which may happen, if the re- 
 pair (hould be deferred , untill it were determi- 
 ned who ought to doe ir. 
 
 Fourthly, alfo it muft be inquired by Jury, What 4, 
 Grounds lie within the hurt or danger of Waters, either 
 within the furcounckr -by the Sea, or the inundation of the 
 fre(h Waters, and-to whom they do belong? 
 
 Fifthly, antMf a.ne\tf$luce,« Goat or 'other defence is to 5.. 
 be erected, built and made, or a new Sewer, Gutter or n „'/,$ 
 
 Trench to be caft, this may be determined of by the view /<♦ b*f 7 *>"v 
 and furvey of the Commiflioners, and fo may the aptnefs of 
 the places where they are to be fet or caft, and the length, / / / 
 
 height, bredth and depth of them 5 for thefe things are pro-ifo cX& kveiyohju* 
 per for a view and furvey: But what perfons hold Lands^^^7j.^_l J? 
 and Tenements within the Level, which are fit to bej^f| S^T/o H- 
 chargeable thereunto, and the quantity of their Lands are - l '^y, h V. Jrii 
 to be inquired of by Jury. And thefe few caufes I have "^ s ' 
 put for example fake : and if any other fall out within the 
 like reafon, then they are to receive the fame conftruc- 
 tion. 
 
 Sixthly, in every cafe where an Amerciament is to be inv- 62, 
 pofed, it muft be by prefentment of good and lawfull men 
 
 upon 
 
no 
 
 LeStura SecunJa. 
 
 upon their Oaths, Et hoc perjiatutum de Magna Charta, 0.14, 
 nulla miferecord ponatur nijfper Sacramentutn proboruftt &le- 
 galinm hominum de viceneto, &c. 
 
 Upon a prefentment made by a Jury to the 
 Commiffioners of Sewers, an Order -was made 
 by them to reimburfe the Dyke Reeves for mo- 
 ney expended in repairing a Sea-wall, by laying 
 a Tax upon divers Towns ; which prefentment, 
 order, and the proceedings thereupon being re- 
 moved by Certiorari , Mich. \6\$. Exception 
 was taken thereunto for that 1 . It did not ap- 
 pear that the Breach was within the Hundreds 
 whence the Jury came, and fo they had no au- 
 thority to enquire. 2. The Jury had onely power 
 to enquire of things within the Hundred of Wif~ 
 bitchy and it did not appear that Newton and Tyd, 
 two of the Vills taxed, were within that Hun- 
 dred ; and fo the Commiffioners had excee- 
 ded their authority ; and the prefentment was 
 quafhed : Style 185, 191, 592. 
 
 The preferments at a Court of Sewers mud 
 be by the oaths of twelve men ; and therefore 
 i^upon a Certiorari directed to the Commiilio- 
 / ners of Sewers, they return a prefentment to be 
 
 fttfijAh** p er far amentum Juratorum generally, without 
 
 faying, twelve men, it is not good, becaufe 
 that for any thing appears to the contrary, it 
 might be by two or three onely, where it ought 
 to be by twelve, March i$>8. 
 
 Surveyors 
 
Leff 7 ?ra Secunda. I i t 
 
 Surveyors prefentment. 
 
 BU T it hath been ufed, that Surveyors of the Sewers 
 have made prefentments of defaults of things governed 
 by thefe Laws; but whether fuch a prefentment be binding 
 or not, is a good point. It is clear in my Opinion, that 
 they Can make no prefentment, but fuch as happeneth with- / .^^^ ta-» f> ■' J 
 in their view and furvey, and what thofe things be they for- ^ i./-« J* 
 merly appeared. They cannot prefent that J. S. is bound by 
 prefcription, cuftome, covenant or other wile, to repair fuch 
 a Wall, Bank or Sewer, for this is not within their Office. 
 In Kcilorvajs Rep. f. 141. there is a cuftome alledged, that KeUmafs 
 two men within the provoft might prefent the Articles of the Re h f- M 1 * 
 Leetj But I doubt of fuch Prefentment, though it have a 
 cuftome to ftrengthen it : I take this difference, that an ori- 
 ginal prefentment Surveyors cannot make, as to prefent J.S. 
 that by the tenure of his Lands he ought to repair fuch a 
 Bridge, Wall, Bank or other Defence $ But the Surveyors 
 may make a fupplemental prefentment 5 as for example, 
 if it hath been prefented before by a Jury , that J. S. 
 ought to have repaired fuch a Ditch, and hath not done 
 the fame, and day is given him by the Commiffioners of 
 Sewers to doe the fame, if the fame be not repaired at the 
 day, the Surveyor may prefent in this cafe the not re- 
 pairing, becaufe this rs but an Oath of affiftence, ad infor- 
 mandum confeientiam "judicif, for the amerciament (hall be 
 impofed by the force of the laid former prefentment 3 anti 
 this latter prefentment by the Surveyors, is onely to give 
 the Juftices notice of the Parties farther neglec}, to the end 
 they may impofe the greater amerciament : And a prefent- 
 ment by Surveyors is not traverfable, being of fo fmall 
 efteem in Law, as our Law will not vouchfafe to take an n, & 
 iffue upon it, for their aft herein is not in the ordinary le» ^ ' 
 gal form. 
 
 What 
 
D' 
 
 ii2 LeSlura Secwida. 
 
 What Commiffioners of Sewers may doe by 
 discretion. 
 
 Jfcretion is the herb of grace that I could wifti every 
 Commiffioner of Sewers well ftored withall, for the 
 makers of this Statute had an intention to make it of great 
 ufe, being literally nominated nine or ten times in this Law, 
 and for this caufe I have inferted in my Cafe; but note, that 
 the word Wifedom is coupled with it, and the word (Good) 
 is annexed to them both, as beft fhewing of what pure 
 Metal they mould be made of, After your good Wifedom 
 and Difcretion. 
 
 There be three feveral degrees of Discretion, Difcretio 
 generate, Difcretio legate, Difcretio fpeciate. 
 i. Difcretio generate is required of every one in every thing 
 
 that he is to doe or attempt. 
 
 2. Legate difcretio is that which Sir Edward Cook, meaneth 
 and fetteth forth in Rooks and Keighl/s Cafes, Hoc ejifcire 
 per legem quod fit jujiumj and this is meerly to adminifter 
 Juftice according to the prefcribed rules of the Law ; and 
 herein is this discretion limited, that it go not beyond or 
 befides thofe Laws which are to be executed: And this dif- 
 
 Sicen. cretion is to be governed by the Laws, for Cicero faith, Sa- 
 pient?* efi judicit cogitare tantum fibi effe permiffum quantum 
 fit Commiffum out creditum. 
 
 And according to this difcretion the Com- 
 millioners of Sewers ought to proceed, as was 
 refolved in the Cafe of Hetley verfus Sir John 
 Boyer, Buljlr. 2. 1^7, i£ 8. Cro. Hil. 1 1 Jac. 336'. 
 
 3. The third Difcretion is where the Laws have given no 
 certain rule to be directed by in a Cafe within the power of 
 this Commiflion, there the Commiffioners are to order 
 thefe affairs with fuch Wifedom and judgment, that al- 
 though their cenfure be not framed in a Rule of Law, yet 
 
 they 
 
LeSiura Secumla. 113 
 
 they are to do therein fecundum <equum & lonum\ and here- 
 in difcretion is the abfolute Judge of the Caufe, and gives 
 the Rule: But in the cafe of Legal Difcretion, there dif- 
 cretion is but a fervant, and is tied to attend upon the 
 Law$ and there the Law direfts the cenfure, and Difcreti- 
 on is but to doe the fame wifely and teraporately j for ipfe Cato. 
 etenim leges cupiunt tit jure regantur. Sir Ed. Cook in Rook's floods Cafe. 
 Cafe 5 Report, gives this Rute to the Commiffioners, That 
 although the words of the Commiffion be, That they flionld do- 
 according to their Difcretions, yet their proceedings ought to 
 be limited and bounded within the Rules of Law and Reafon 5 
 for that Difcretion is a Science to difcern betwixt falfity and 
 truth, between right and wrong, between fhadows and fub* 
 fiance, betwixt equity and colourable gloffes, and the Commif- 
 jioners ought n«t to follow their wills and private affections 5 for 
 that talis defcretio difcretionem confundit : And therefore 
 now I will declare in few words, in what things theie 
 Commiffioners are to be ruled by good Difcretion. 
 
 Firft, thequantityof Fines be left to the difcretion of the i» 
 Commiffioners. 
 
 Item, Imprisonment of the Bodies of the Offenders when 2. 
 they deferve, and the time how long, Heth much in theic 
 difcretion. 
 
 Item, It Heth in their grave Wifedoms and Difcretions, 3, 
 when and where to ereft new Walls, Banks and other De- 
 fences, and what (urns of Money to raife and levy there- 
 fore. 
 
 The ele&ion of Officers lieth in their difcretion. 4, 
 
 It lieth many times in their difcretion whom to fine, and 5, 
 whom to imprifbn. 
 
 I take it this word Difcretion ufed in the Statute, givetfr 6; 
 power to the Commiffioners to order bufineffes there ari- 
 fing in courfe of equity, for hoc nihil alittd eft, but to pro- 
 ceed fecundum <equum & bonum. 
 
 I have put thefe few Cafes, as examples to diredt and in- 
 ftrucl: what may be done by Difcretion, omitting many o- 
 ther, becaufe I had rather truft to the worft certain Law, 
 
 Q than 1 
 
H4 LeSiura Secunda. 
 
 than to give too much way to the uncertain discretion of 
 Ariftotk Ret, the Commiffioners, according to the old faying, Quoad fi- 
 eri pojjit quam plurima. Ugibus ipjis definiantur quam paucijji- 
 ma vero judich arbilrio relinquantur^ and herein I fuppofe 
 I have made good ray words in this, that I have proved by 
 my*Argumenr, That the faid new Bank and new River 
 might well be decreed by the view and furvey of the Com- 
 miffioners, and by their good discretion, and fo might 
 the Cxi^ old Sewer be repaired 5 and therefore thefe being 
 ended I will now proceed to the handling of the reft re- 
 maining. 
 
 My former labour hath been to expound and declare what 
 defences, as well againft the overflowing of the Sea, as a- 
 gainft the inundation of frefti Waters, were and be to be 
 maintained, and alfo new erected by the Tenor and power 
 of thefe Laws : So that now it comes very aptly to be hand- 
 led, .for what caufes, confiderations and matters one (hall 
 or may be tied to the repairing and keeping thereof 5 which 
 I take to be thefe nine feveral ways. 
 
 1. By Frontage. 2. ByOwnerfhip. 3. By Prefcripti- 
 on. 4. By Cuftome. 5. By Tenure. 6. By Covenant. 
 7. Per ufnm ret. 8. A Townlhip. 9. By thefe Laws of 
 Sewers. 
 
 I fuppofe I (hall produce fufficient Warrant and Autho- 
 rities for to maintain all thefe diftinftions , wherein I am 
 defirous that Commiffioners of Sewers, for whofe learning 
 and inftru&ion I have taken thele pains, would apply them- 
 felvesto doe their duties and fervice herein carefully and ad- 
 vifedly and like to skilfull Phyficians, would apply fitting 
 Medicines to the curing of every Difeafe, elfe (hall they 
 oftentimes Opprimere infontes & dimittere reos : But if they 
 will feriously caft their eyes upon thefe infuing Cafes, they 
 will be very helpfull to them in their proceedings. 
 
 Frontage. 
 
Leflura Secunda. 115 
 
 Frontage. 
 
 FRontage is where the Grounds of any Man do join 
 with the brow or front thereof to the Sea, or to great 
 or royal Streams 5 and in cafe of the Sea or royal EUver, 
 the property of the Banks and Grounds adjoining are and 
 belong to the Subject, whole Lands do but and bound 
 thereon, but the foil of the Sea and royal Rivers do apper- 
 tain to the King, as formerly in my Tractate of Rivers may 
 appear. But in cafe of petty and mean Rivers and Streams, 
 the foil of them, as well as the Banks thereof, do apper- 
 tain to them whofe Grounds adjoin thereto ; fo that Fron- 
 tage and Ownerlhip in bafe inferior Rivers do not differ, 
 but in great Streams and the Sea they do vary as aforefaid : 
 And in 37 lib. JJfiz. plac. 10. it feems that the Frontagers 37 -^^ 
 are bound to the repairs 5 and in 8 H. 7. he whofe Grounds t L I0 - 
 are next adjoining to a High- way, is bound to repair the 8 M 7 * 
 fame. And by thefe cafes there is no difference touching 
 repairs of the High-ftreams and the High- ways in my 
 opinion. 
 
 Ownerjhip. 
 
 THE Ownerfhip of a Bank, Wall or other Defence is 
 a fufficient warrant to impofe the charge of the re- 
 pairs thereof upon him, without befog tied thereto by pres- 
 cription, as appears in 8 H. 7. fol. 5. and it ftands with 9ffi7; . 
 reafon, that every man (hould be bound to repair his own ; 
 and the confideration is alfo moving, for that his Grounds 
 which lie neareft the Waters are fooneft fubjeft to drow- 
 ning, and if any increafe be upon the (mall Rivers it falls 
 to his (hare. 
 
 ? 2 Pre'- 
 
1 1 6 Lettura Secunda. 
 
 Prefcriftio?i and Cuftome. 
 
 PHefcription and Cuftome are much of one quality, for 
 in both of them the efficient matter is (ufe to repair) 
 and the Law hath taken notice of them in many of our 
 Books : Prefcription doth not bind or tie one to the re- 
 pair of any thing, unlefs it be ralione terra. 
 
 And neither in that cafe, barely in refpect of 
 the Land , but of the Eftate which the Party 
 hath in the Land 5 And therefore it hath been 
 adjudged, that a prefcription that every Occu- 
 pier, i?c. ufed to repair a Defence is naught, 
 tor 'tis too general, and would extend to Te- 
 nants at will, fufferan.ee, diffeifors, <&c. but it 
 ought be, He and all thofe whofe Eftate, isc. 
 Cro. Jac. 445. Audly verfu* Fawkener. 
 
 And in this it doth differ from Cuftome: for if it bepre- 
 fented that A. B. and his Anceftors have time out of me- 
 mory ufed to repair fuch a Bank, Wall or other Defence, 
 this prefentment is void, and doth not bind the party prout 
 
 21 Ed. 4. confiat in 2 1 £. 4. 38. 7 H. 4. 3 1. 1 Q H. 7. Kelwey, fof.^z. 
 
 19 it 7. an ^ 45 & 3- But Bodies politique or corporate may be by 
 
 45 Ed. 3. Cuftome bound to repairs, without making mention in the 
 Prefentment or Indictment that they are to do the fame ra- 
 tione talk Mejfaagii terra ant tinementii, And to that pur- 
 
 21 E. 4. p (e De t he Books of 2 1 E. 4. 38 and 44 Ed. 3. Fitzherb. 
 
 44 ■ ?• Xitle Bar. plac, 103. for there a Prior was presented, that 
 he and his PredecefTors had ufed time out of memory to 
 repair fuch a Bridge, which was in decay, and this prefent- 
 ment, though it charged no Land, was good: And in 
 
 *9 &• 1' j y Hen. 7. aforefaid, it is faid, that one might be bound to 
 repair a Bank or Wall ratione Rejiantia, but this could not 
 be otherwife taken but that he was charged to doe the 
 
 fame 
 
A 
 
 Leftura Secunda. 1 1 7 
 
 fame for the Houfe he dwelt in, for Refiantia imports Co 
 
 much. ., ■ 
 
 Alfo if a man and his Anceftors have voluntarily made a 
 defence for a long feafon, this will not bind his Heir there- 
 to, though he have affets defcended to him in Fee fimple, 
 for defcending charges will not bind the Heirs, unlefs he 
 defcending have aOets , as an equal confideration to bind 
 him thereto 5 neither will defcending affets of Land bind 
 an Heir in this cafe, unlefs the Land it felf be really tied 
 and charged. 
 
 Tenure. 
 
 Man by the Tenure of his Land may be bound to re- 
 pair a Wall, Bank or other Defence mentioned in this 
 Law, and in proof thereof the Book Cafe of 1 1 H. j.f isL « H - 7< 
 is full in the point 3 where it is faid, That if before the Sta- 
 tute of Wefiminfier the Third, a man had made a Feoffment in 
 Fee * or iffwce that Statute one had made a Gift in Tail, to hold 
 the fame by repairing a Bridge, the faid Feoffee and Donee and 
 his heirs fljould have been bound by thefaidTenure to repair the 
 faid Bridge-, and-with this agree the Books of 12 B7. 18. and « h. 7. 
 24 H. Br.Cafefol.g. and in Porter's Cafe in Sir EdwardCooli* Z^cak. 
 firft Report, it is (aid, That if Lands were given to repair 
 Ways, Bridges, Calceys or fitch like, this doth bind the Ow- 
 ners of thofe Lands to do thofe repairs in perpetuity : And in 
 the Cafe of 1 2 H. 4. fol. 7. the Prior of St. Marks in Brijlol i 2 ff. 4 . 
 was obliged and bound by the Tenure of his Land to repair 
 a common Sewer : and this enough to fatisfie this point. 
 
 Covenant. 
 
 SO likewife a man may be bound by his Covenant to re- 
 pair a Wall, Bank, Sewer or other fuch like matter^ 
 and he may bind himfelf and his Heirs to do the fame ; but 
 yet this Covenant will not bind his Heirs after his death, g& ^ 
 unlefs there be left affets in Fee fimple to defcend to the (aid 2 D)er ,%. j* 
 
 Heir 
 
j i £ Leftura Secunda. 
 
 Heir from the (aid Anceftor which made the Covenant. 
 Wherein I take this difference between a Covenant to 
 bind an Heir, and a Prescription $ For by Covenant the 
 Heir (hall be bound to the repairs, if he have aflfets defen- 
 ded to him from that Anceftor 5 but the Heir fhall not be 
 bound by Prefcription to repair, though he have affets de- 
 fended from- his Anceftor who repaired the faid Defences : 
 But if Land be charged therewithall by Tenure or other- 
 wife, as a charge impos'd upon Land by prefcription, then 
 the faid Lands are therewithall chargeable in cujuacttnque 
 manm devenerint, quod not a, 
 
 Leftce for years of Lands within a Levell, fub- 
 je<5t to be drown'd by the Sea, covenants with 
 his LefTor to pay all AfTefments, Charges and 
 Taxes, towards or concerning the reparation of 
 the premiffes : A Wall which was in defence of 
 ttiis Levell., and built ftraight, was thrown 
 down by a fudden and inevitable Tempdt : By 
 order of the Commiffioners of Sewers, a new . 
 Wall was built in the form of a Horihoe ; and 
 fche Commiffioners taxed every man within the 
 Levell, and among others a LefTee for years, 
 whom they alfo trufted with the collection of 
 all the money : Leflee for years dies, the leafe 
 being within a fhort time of expiration ; His 
 Executor enters into the Land , and the Com- 
 miflioners charge him with the whole, and the. 
 years immediately after expire : And it was re- 
 (blved that the Covenant doth bind the Leflee, 
 and- that the Commiflioners may take notice of 
 it,, and tax, the Leflee totally for his Land, with' 
 
 out 
 
LeRura Sscunda. up 
 
 out laying. any thing upon him in the reverfion 5 
 for the Covenant doth extend to this new Wall, 
 and the making of it h the form of a Horfhoe, 
 is not material, feeing it was adjoining to the 
 Land : and although the new Wall be not par- 
 cel of the PremhTes, as it was at the time of 
 entring into the Covenant, becaufe the Wall 
 then in effe, and to which the Covenant did ex- 
 tend, was a ftraight Wall, yet according to the 
 words of the Covenant the Tax is towards the 
 reparation of the Premiffes : And Bramjion^ Ch. 
 Juft. took this difference, that if a Stranger co- 
 venants to pay charges towards repairing fuch a 
 Wall , that that is not within the Commiflio- 
 ners jurifdiction, becaufe he is a mere Stranger, 
 and not within their Commiffion, and there- 
 fore they cannot take notice of fuch a Cove- 
 nant ; but otherwife it is where the Covenantor 
 is the occupier of the Land, for there the Per- 
 fon and the Covenant are within their jurifdic- 
 tion, and they may tax him for reparations ac- 
 cording to his Covenant : It was likewife refol- 
 ved, that the charge upon the Executor was le- 
 gally impofed ; And whereas it was objected, 
 That the term was determined, and peradven- 
 tute the Executor hath not aflets : It was an- 
 fwered, That the Executor was an occupier at 
 the time of the Decree, and therefore was within 
 the words of the Commiffion ; And he having 
 
 not 
 
i2o LeRura Secuncla. 
 
 not alledged before the Commiflioners, that he 
 had no aflets, he hath loft that advantage, and 
 it (hall be intended that he hath afTets , by his 
 not gainfaying it : And accordingly the Court 
 confirmed theCommiifioners Decree againft the 
 Executor, March 198, 199,200, 201. 
 
 4$ m. 4. It appears by the Statute of 43 El. cap. 4. That if Lands, 
 Rents, Annuities, Goods or Chattels, be given towards the 
 repairing of Bridges, Ports, Havens, Calceys or Sea Banks, 
 that the fame (hall be (b employed by that Statute: So that 
 Goods, Chattels and Annuities, be chargeable to thefe re- 
 pairs by the force of that Statute, as well as Lands, Houfes 
 and Grounds, in cafe any fuch thing (hall happen to come 
 before the CommilTioners of Sewers, and they may 
 
 compell the performance,. March 200. 
 
 But note befides all the former matter, That an Heir (half 
 not be bound by the Covenant of his Anceftor, though he 
 have affets defcended, unlefs he be bound exprefly by the, 
 word Heirs in the Covenant. 
 
 Vfm rel 
 
 I Now intend to declare where ufe (hall tie one to the re- 
 pairs of the Defences mentioned' in this Law (I do not 
 hereby mean that ufe which I have formerly mentioned in 
 Prefeription and Cuftome, which is ufe to repair) but the 
 ufe I intend in this place, is, the ufe which one is to have 
 of the defence or thing which is to be repaired : As where 
 one and his Anceftors have ufed to have the ufe of the Ri- 
 ver or Waters by failing up and down the fame, or have u- 
 fed to have a Ferry on' or over them, or a Staithto go up 
 and down, or a Crane to draw up Waters, or fbme other 
 Engine to draw up the Waters for the ufe of their Houfes 5 
 Thefe ufes which men have of thefe things may be caufes 
 
 \ and 
 
Leftura Secunda. 12 £ 
 
 and confederations fufficient to tie them to the repairs of 
 the Walls, Banks and Rivers: And for warrant m this 
 learning is the Book of 37 Lib. AJJiz,. plac. 10 for there %1 .h%4fc 
 were fome perfons which were bound to repair the River, 
 becaufe they had paffage on it with their Boats, and o- 
 thers were charged becaufe they had free hfhing in the Ri- 
 ver; and in my Opinion it ftands with good reafon, and 
 agreeable to Law, That thofe perfons, before others, fhould 
 be bound and tied to the repairs of fuch things whereof 
 they have peculiar and feveral profits and ufe of more than 
 others have: And it is manifeft, that this very Statute 
 aims full at this point, when it direfted that fuch perfons 
 fhould be rated, taxed and felled towards the repairs, 
 which had profit of fifhing and other Commodities m the 
 
 Rivers. . •«-"'.■«. 
 
 But left fome may miftake my meaning and learning alfo 
 in the faid former Cafes, I will therefore make the fame plain 
 by diftinSion, which is this, That Frontage, Ownerfhip, 
 and this ufe I laft fpake of, do not bind any to the repair- 
 ing and maintaining of Walls, Banks, Bridges, Sewers or 
 other Defences, when and where any other man or Cor- .1 
 
 poration be bound to do the fame by Prefcription , Cu- 
 ftome, Tenure or Covenant: For the faid three parts, Fron- 
 tage, Ownerfhip and Vfw rei 9 be but implicite ties onely 
 in conftrucTion of Law, and ferve the turn onely when no 
 other perfon or perfons are bound exprefly thereunto 3 and 
 this diftincYion may be maintained by the Book of 8 H.7. 8 #. 7 , 
 fol. 5. and other Books, where it is faid, That he rvhofe 
 Grounds are next adjoining is bound to repair jinlefs fome other 
 be bound to do the fame by Tenure or Prefcription : Where- 
 by it followeth, that if one be bound to do the fame by 
 fpecial Tenure or Prefcription, it freeth the Frontager. 
 
 Note alfo another difference, that in cafes where a Fron- 
 tager and one who hath liberum pafagium on the River, and 
 a man which hath a free Pifcary there, are not any one of 
 them bound to make the repairs alone, but all alike toge- 
 ther ; and fo is the Book of 37 4lfe» & ac ' l0 * anc * * ** U P* 
 
 R pofe 
 
122 Le&ura Secunda. 
 
 37j38^#<- pofe the Book of 38 Ajfiz. plac. 15. maintains this point 
 with me$ for there the Law is declared to be, That he which 
 is bound by prefcription to rep air ', is bound peremptorily alone to 
 do the work^, and not any others and if no juch per fin can be 
 found, then the parties whofe Grounds do adjoin, and thoje 
 which have free fifhing in the River, and free pjjfige thereon, 
 be all of them to do and perform the fame jointly, and no one 
 of them is a difcharge for the other, becaufe they floall be in 
 confimili calu. So by this which hath been faid touching 
 thefe matters, the Commifiioners may fee and behold how 
 carefully and underftandingly the Laws of this Realm have 
 indeavoured to do equal Juftice 5 and my defire is, that 
 they would as carefully put them in execution. 
 
 I 
 
 A Townfhip ajfefed. 
 
 T hath been held for a great queftion, Whether a Town- 
 
 (hip or Hundred in general might be affefled and taxed 
 
 to the Sewers, without impollng the fame on particular 
 
 Cafe of the Perfons ? And Sir Edward Cook, in the Cafe of the Ifle of 
 
 Ukof £/> £^ j s Q f pi n j otl dire&ly, That a Tax, Rate or a Sefs 
 
 could not, nay might not be fet or impofed upon a Town, 
 
 or upon the Inhabitants of a Town •-, for, faith he, The 
 
 taxation, feffment or charge ought to have thefe qualities 5 It 
 
 ought to be according to the quantity of their hands by number 
 
 of Acres and Pearches, or by the tenure of profit of fifhing and 
 
 Common ofPaJiure, which if it fl)ould be laid upon a Town, it 
 
 would hold none of thofe proportions : and h\i opinion is not 
 
 Rumney alone in this very point, for in the ancient Charter o[R/m- 
 
 MarJJiCtfe. „ e j Mar/h, pag. 50. it is fa':d, Quod unufquifque proportione, 
 
 ac periculo incumbentium <eque contribuat 5 And page 12. and 
 
 39. of the fame Charter, the Taxation is exprelfed to be by 
 
 Acres, Perches and Carucates 5 and our Statute in exprefs 
 
 Words is, And all thoje perfons and every of them to tax and 
 
 affefs, charge, difirain and punifl), as well within the Limit /, 
 
 Leets and Bounds of old timi accujlomed, or otherwife, or 
 
 elfewhere within this Realm 0/ England, after the quantities 
 
 of 
 
LeRura Secunda. 123 
 
 of their Lands, Tenements and Rents, and by the number of 
 Acres and Perches, and after the rate of every perfon's portion^ 
 tenure or profit, or after the quantity of their Common of Pa- 
 flure, or fi flying, by fitch re ays and means as you the Lord 
 Fitzwilliams, Sir Francis Vane, and Sir Thomas Mounfon 
 Knight and Baronet, Sir Edward Dimock, Sir William 
 Armin, Sir Thomas Grantham, Sir George Fitzwilliams, 
 Knights, Richard Totheby and Edward King, Efauires, 
 whereof three to be of the Quorum, full feem mojl conve- 
 nient : Thefe words literally taken, afford the conftru&ion 
 to be according to the opinion of Sir Edward Coke. 
 
 And of the fame opinion with Sir Edward Coke, 
 viz. that a whole Townfhip cannot be afTeiTed up- 
 on theCommiflion of Sewers, Juftice Dodder idge 
 declared himfelf to be in the Cafe of Net ley ver- 
 fas Sir Jolm Boyer and others, Hil. 1 1 Jac. B.R. 
 and his reafon was, becaufe then upon fuch an 
 affeffment one man may be charged with the 
 whole; Bulftrodei. 199. Cro. Jac. -2,2,6. And Roll, 
 Mich. 1 649. in the cafe of the Inhabitants of 
 Outsell, held that a Tax impofed by the Com- 
 miilioners of Sewers ought to be particular, and 
 not to be laid upon the Townfhip ; unlefs there 
 were a particular cuftome for fuchTownlhipto 
 be fo rated or taxed, Style 1 79. 
 
 But on the other part I find by many ancient Books and 
 Authorities of the Law, that Taxations and Charges have 
 been generally laid uponTownfhips and Hundreds in mat- 
 ters of this kind, as in the 37. lib. Ajfiz. plac. 10. Four fe- 
 yeral Townfhips were charged with the repairs of a River, 
 becaufe they had pafiage thereon with Boats 5 and in 38. lib. nktfAQii. 
 Ajjiz. plac 15. a Townfhip was there charged with the re- 
 pair of a Bridge : And the Statute of Magna Charta, cap. 1 5. 
 
 R a quod 
 
124 LeSlura Secunda. 
 
 quod nulla villa nee liber homo dijlringatur facet 'e pontes nift 
 qui ab antiquo facere confueverunt j fo that if ab antiquo a 
 Townfhip had ufed to repair Bridges, it was tied thereunto 
 by the implied conftrudtion of this Statute : And the Sta- 
 21 h. 8. 5. tute of 2 2 H. 8. cap. 5. gave authority to Juftices of Peace 
 to charge a County, Hundred or Town with the repair of 
 Bridges, if no certain Perfon were fpecially tied to the re- 
 pair thereof: and many times in ancient Statutes and Books 
 of our Law, we (hall find Townfhips and Hundreds char- 
 Dr. and Stu- ged generally, as in Doffour and Student, fol. 74. a Town- 
 dm - fhip was amerced 5 and by the ancient and famous Statute 
 
 Stat, whion. of Winche/ler a Townfhip (hall be amerced for the efcape 
 of a Robber by the High- way : And 3 Ed. 3. Title Corone 
 Thxh. in Filz. pi. 293. a Townfhip was amerced for the efcape of 
 Brook.- a Murtherer 5 and in n E4.2. Brook. 94. a Town was 
 feffed for the expences for the Knight of the Parliament, 
 and it might be levied on any Perfon's goods of the Town 5 
 and this was for the uncertainty of the Perfbns, and for the 
 infinitenefs of the number of them, as it is faid in Richard 
 Godfrey's Cafe. 
 
 But it may perhaps be objeded on the other part, That if a 
 Town or Hundred may be jointly taxed, then it might io 
 come to pais, that one Man's Goods which had no Grounds 
 fubjeft to the charge, and which could reap nor take any 
 hurt thereby, might come to be diftrained for the whole 
 tax, rate or fefs of the Town j and another man which had 
 great quantities of Grounds there fubjeft to danger might 
 efcape free , and therefore fuch expofition to be made of 
 the faid Law, were not within the rule and. compafs of 
 equality. 
 
 And another objection may alio be made, That it is true, 
 that by an exprefs Statute or Cuftome, an affefs, rate or tax, 
 may be laid upon a Town or Hundred, as was done by the 
 faid Statute of the 22 H. 8. and others formerly mentio- 
 ned $ but fuch expofition were contrary to the letter of this 
 Statute of 23 R8. of Sewers. 
 
 I do 
 
LeSiura Secunda. 125 
 
 I do confers, that if thefe two objections could not be 
 anfwered, I fhould change my Opinion: It is true: That 
 if a tax or fefs had been fet upon a Hundred by the faid Sta- 
 tute of Winchefier, for the cfcape of a Robber, and that 
 charge had been levied upon one man's goods of the Town, 
 as it might have been, he had had no remedy to caufe his 
 fellow Townsmen to be contributers to him to bear equal 
 (hare with him; and fo if the party robbed had recovered 
 by Action againft the Hundred, and the goods of one in 
 the Hundred had been taken in execution, he had no means 
 to get contribution : And yet that Law carried that defect 
 with it three hundred years, or thereabouts, till in the 27th 
 year of Queen Eliz. Chap. 13. wherein Order was taken, 27 £//^. 13. 
 that if Come one or few mens goods were taken in executi- 
 on upon the recovery in an Action taken againft the Hun- 
 dred by the party robbed, he or they fhould have contri- 
 bution, which before that Statute of 27 of Elizabeth could 
 not be had. 
 
 But to give anfwer to the two objections ; Firft, if in 
 our cafe of the Sewers, a Townfhip fhould be Taxed, yet 
 this Tax could not be taken or levied, but onely of fuch as 
 had grounds within the charge, which had good by the re- 
 pair, or might have hurt by the neglect thereof 5 for in 
 1 1 H. 4. fol. 3 5. it is faid for Law, That if a Town be affeffed 1 1/7.4./.^ 
 in the Tax, and the Colle&or doth difirain the goods of a man 
 of the Town who was not chargeable thereto , that party may 
 have and take his A&ion of Trefpafs again ji the Diftrainer 
 and Colletior, for that he at his peril mufl look, well to it t 
 that he whofe goods were taken were fnbjeH to the charge. 
 
 So in our cafe of the Sewers, if the goods of one which 
 was not fubject to the Tax or Affefs impofed were taken, he 
 might have his Action of Trefpafs againft the Diftrainer, 
 and fhould recover his damages thereby 5 fo this falve cures 
 one of the faid maladies. 
 
 But then the cafe goes farther, That if the goods of one 
 man of the Town (hould be ta\en for the whole Seffe of the 
 Town, and he is fitch a perfon as in truth is chargeable there- 
 
 nnto t 
 
I2# Leflura Secunda. 
 
 unto, he can have no A&ion again ft the Diftrainer for taking 
 his Cat (el, for he is fuck a per/on as cannot excnfe himfilf but 
 that he is chargeable: This indeed draws the Cafe to a deC- 
 perate iflue, for this Teems to be as great a mifchief as ever 
 the Statute of Winchefter did ever fuffer, which was reme- 
 died by the Said Statute of 27 Eliz. but our Cafe hath not 
 fuch a Cure provided j Therefore it puts me to the old adage 
 of Law, Better it is to fuffer a mifchief to one or more. parti- 
 cular perfons, than to. permit an inconvenience to the whole 
 Commonwealth which concerns a multitude : But yet I (hall 
 give this objeftion a better anfwer, I hope, than with an 
 old adage; for in our Cafe the party whofe goods are taken 
 for the whole town, is not without a fitting and conveni- 
 ent remedy ; for when his goods be taken and he is con- 
 ftrained to pay the whole feffment of the Town, he may 
 make his complaint to the Commifftoners of Sewers, and 
 , may give in the particular names of every Townfman' and 
 the quantity of each mans Eftate which be charged thereto, 
 or the true value of their Lands, and may crave of the Com- 
 miffioners of Sewers for to make a Law to make them all to 
 contribute, eVery one according to his portion of Land : 
 And in my Opinion the Comraiffioners of Sewers have pow- 
 er to impofe a proportionable rate upon every of them, ac- 
 cording to the quantity and quality of his ground, by'way 
 of contribution, and may award Procefs to force and com- 
 pel] them to pay the fame to the faid party } whereby it 
 plainly appears, that the party fo diftrained hath a direct 
 remedy to come by his loffes. In DoBor and Student a 
 whole Town was amerced, and they met together by com- 
 mon confent, and afiefied and rated eVery man equally 
 according to his ability, and allowed of as a good caufe. 
 But Comraiffioners of Sewers may if they can come to 
 the knowledge of the certainty of every man's Eftate, rate 
 in the primary and original Seile every perfon according to 
 his feveral quantity of Eftate, which may be done in this 
 manner, when the Commiffioners be agreed how much to 
 lay upon fuch a Town, then to fend for three or four of the 
 
 Inha- 
 
LeStura Secunda. 127 
 
 Inhabitants, and caufe them to give in every man's Eftate, 
 and to make and appoint them SelTors to rate every man, or 
 elfe the Commiffioners themfelves, having true intelligence 
 of every man's Land, may eafily fet the rate and charge up- 
 on every particular perfon in an even and proportionable 
 fum ; and thus every man at the firft (hall know his own rate, 
 as in the afTeffing of the Subfidy, and no roan (hall be bur- 
 thened with his Neighbours charge 5 and thefe were good 
 courfes to be ufed within both the letter and fenfe of thefe 
 Laws: And this courfe was ufed by the Four and twenty 
 Jurators in Kent in Rnvt»eji Marft,. who alwaies upon their chart, of 
 Oaths fet down every particular man's grounds in certain, Rum v- 
 and their juft quantities, and accordingly were the parties fag ' s °' 
 feverally taxed. 
 
 And if the Commiffioners of Sewers do in 
 the primary and original fefs, rate every Perfon 
 according to his feveral quantity of Land, they 
 ought (as it feems) to defign in certain the 
 Perfon whom they tax : And therefore by the 
 opinion of Roll, Pafcb. 23 Car. 1. if they tax a 
 Man and his Affigns, or the Land of fuch an 
 one, and his Affigns, that is too generally ex- 
 prelTed, and the tax ill $ for there is no rule how- 
 to levy the money equally upon fuch a tax, 
 Style 1 3. And whereas afterwards in the Cafe of 
 the Inhabitants of Out well, Mich. 1649. it was 
 faid by Roll, That fuch tax ought to be laid up- 
 on the number of the Acres, and not upon the 
 Perfons of the Inhabitants, Style 185. By that 
 1 conceive he means, that in the taxation of eve- 
 ry man the Acres ought to be fet down, in re- 
 fpect of which he is taxed : For ptherwife if the 
 
 Perfons 
 
128 Lefilura Secunda. 
 
 Perfons fhould not be named in the tax , there 
 could be no diftrefs taken of the Goods of the 
 Owner of the Lands ( for the uncertainty who 
 is Owner) unlefs upon the Lands themfelves 
 which are charged ; which would be inconve- 
 nient, and a great obftacle to the execution of 
 this Comrniflion. 
 
 Howfoever the Tax in my Opinion generally impofed 
 upon the Town is good, as appears by many Authorities 
 and Books before remembred, even by this Statute, as well 
 376-38 w. as by Cuftome^ for in the faid Book of the 37 and 38 
 a Sk- lib. Ajjiz. it doth not appear that the Townfhips fliere ra- 
 
 ted were fo taxed by any Cuftome, but meerly by the Law 
 of the Land 5 and fo is the learning delivered to be in the 
 Council's Order aforefaid. 
 
 And I do remember, that at the Affizes held at Lincoln 
 in Anno 1 2 Jacobi, in a Tryul before Sir Edward Coo^ then 
 Judge of Affize, in the Cafe of Sir Philip Conisby Knight, 
 the Town of Mauton was afiefTed five pounds, and Twig- 
 more as much, and a diftrefs was taken for non-payment 
 thereof, and was juftified in a Replevin, and the verdict 
 paired for the distrainer, and no great (cruple was then made 
 of the faid Aflefs laid and impofed generally upon the 
 Towns, which Cafe I fpecially noted, becaufe it was tryed 
 and patted for current before the faid Sir Edward Cook., who 
 had the year before reported the Law in his Tenth Report 
 to the contrary. And I am alfo of Opinion, that if a new 
 defence be agreed to be made, as a Wall, Bank, Sewer or 
 any other, and a SefTe is appointed for this work, and laid 
 upon a Town, That the fame is a good SefTe and well laid, 
 as well as in the Cafe of old repairs, where Cuftome may 
 give Warrant unto it, and the Commiffioners in their dis- 
 cretion may fb do in imitation of the faid former rules and 
 prefidents, and it ftands with good wifedom and difcretion 
 to imitate and follow ancient and approved Laws and Sta- 
 tutes 
 
Leftura Secwula. 129 
 
 tutes made in Parliament, which are done by the vvifedom 
 of the whole Realm: And in my conceit a decree made 
 which hath no reference or dependency to former prefi- . 1 
 
 dents, may be doubted whether it be legitimate or not, ha- J^HiL'f *+f » **$ 
 ving no ancient Laws to patronize it. And thus I conclude 
 my third point of my Cafe, That a Townfoip maybe tax- 
 ed by the Laws of Sewers. 
 
 Tythes. 
 
 HERE is likewife in my Cafe a Parfon rated and felled 
 for his Tythes, and is now to be put to the queftion, 
 Whether by thefc Laws he may be taxed for them, or not. 
 The ancient Commiffions of this kind have very ftrift 
 words in them to tie every one to the charge of thefe De- 
 fences, being for the preservation of the Commonweal 5 
 and this Statute extends it felf with a long and large arme 
 to fetch and reach every Man that hath Grounds lying 
 within the Level, and which partake of the good which 
 the Defences bring to them, to be contributory to the 
 charge. 
 
 It is true that Ecclefiaftical and Spiritual Perfons, as 
 Parfons and Vicars hold their Ecclefiaftical Livings exempt 
 ab omni onere feculari, for they do not hold their Churches 
 of any Lord, but of the Lord of Heaven, in refpedi of the 
 fpiritual fervice they doe therefore : And I take it that Par- 
 fons and Vicars hold not their Churches in free Alms, for 
 then the Founder (hould be their Lord in point of tenure 
 and fervice, which I have not obferved to be fo in any: 
 And in our Law-books it appears, that fpiritual Perfons 
 were exempted from lay and temporal charges, as in Mag- Mag. ch. 14. 
 tia Charts cap. 14. A fpiritual Perfon jh all not be amerced 
 according to his fpiritual Living : In Fitz. Nat. bre. f. 228. pii^.Nat,bre, 
 there is a Writ directed by the King to his Officers and Mi- 
 nifters, forbidding them that they take not any Toll, Mu- 
 rage or Pontage of ecclefiaftical Parfons, Vicars and fuch 
 like 3 and the faid Writ lheweth, that by the Cuftome of 
 
 S the 
 
j 20 Leffura SecunJa. 
 
 the Realm no fuch exa&ions ought to be taken of them : 
 And there is another Writ there to discharge them for pay- 
 ing Cuftoms de bonis fuis Ecclejiajlicis vel de alik pro ftjien- 
 tatione fua emptk } And alfo they have this privilege, That 
 the Sheriff nor any Lay officer are not permitted to meddle 
 
 zoH.6.f.2o. with their ecclefiaftical Pofleffions ? for in 20 H. 6. fol. 20. 
 and in many other Books, it is held, that in a Writ of 
 Summons the Sheriff may not fummon a fpiritual Perfbn on 
 his Spiritualities, but he muft rather return that he is Ckri- 
 cm beneficiatus non habens laicum feodum 5 and upon this 
 return the Party is to take a Writ dire&ed to the Bifhop, 
 to fummon him on his Spiritualities : And therefore if the 
 Poileiiions of fpiritual Perfbns are had in fuch great efteem 
 in our Law, what then (hall be done with Tythes which 
 are faid to be due Jure Divino I I have not read that they 
 (hall be charged to any thing but to the repair of the Tem- 
 
 iSth chapter $le ■> in the 18th Chapter of Numbers, the 21,22, 23, 24, 
 
 oi mmbers. 25, 26, 27, and 28th verfes, The Lord faid, I have given 
 to the Children of Levi all the Tenth in lfrael for an Inheri- 
 tance 5 and yet the Levites paid a Tenth thereout to the 
 Priefts 3 and fo Clergymen in times paft paid a Tenth to 
 the Pope j and in imitation , or rather in reformation 
 
 16 h. 8. thereof by the Statute of 26 H. 8. cap. 3. the like is now 
 paid to the King, as fupreme Head and Governour of the 
 Church here on Earth : So here be charges paid out of the 
 
 sddsn. Tythes, but they be fpiritual charges. And in Mr. Set- 
 den's Hiftory of Tythe, fag. 13. it appears by collecfion 
 and connexion of Stories divine, That the firft or the firft 
 year Tythe was paid to the Levite, The fecond to the 
 Feaft at ferufalem, and the third to the Poor : And had 
 
 43E//X. a not the Statute of 43 ofEliz. cap. 2. made the Parfbn and 
 the Vicar liable and chargeable to the relief of the Poor, 
 which was in imitation as it feemeth of the Mofaical Law, 
 they had not been bound or tied to doe the fame 3 for it is 
 held to be more charity to relieve the Church than the 
 Poor : And in payment of Taxes and Subfidies they are 
 granted in their Convocation- houfe, a Council merely 
 
 confifting 
 
Leftura Secu?ida. 131 
 
 confiftmg of the Clergy, and then are confirmed in Parlia- 
 ment, of which Houfe alfo they area Member. And there- 
 fore in my opinion, feeing Tythes are (b lacred a duty, 
 that a Lay- man could not have any help for at the Com- 
 mon-law, and were exempt from temporal and prophane 
 ules, I am therefore of opinion, That they are not to be 
 rated or taxed by the general words of thefe Laws 5 Yet 
 I am of opinion, That Tythes in the hand of a Temporal 
 or Lay-man are to be rated by thefe Laws, for when they 
 are come into his hands, Tunc res fpirituales fiunt tentporales 
 & tranfeunt decim<C in Catalla. 
 
 But I muft here leave thefe Ecclefiaflical perfons and their 
 Church livings : There is another point of this Law will 
 reach unto fome of their pofleilions, as to their Glebe 
 Lands which belong to their Churches, and their Meadow 
 and Pafture grounds, for thefe be not lacred, as Tythes be, 
 But came to them by the benevolent gifts of Laymen, and 
 not ex dono dei & evange/ii as Tythes did 5 and fo they took 
 that burthen with them from the Lay donor, which after 
 may be impofed upon them : And therefore fuch Parfons, 
 Vicars or other Spiritual perfons which hold a plough Land 
 in Culture, are chargeable by the Statute of 2 Mar. towards 2 Mau 
 the repair of the High- ways, as other Lay men be : But in 
 that Statute there be Eccleliaftical Officers ufed, as Church- 
 wardens, whereby it was conceived, that that Statute had 
 an eye to bring Ecclefiaftical perfons within the reach of it : 
 And fo for their houfes and grounds I take them to be with- 
 in thefe Laws of the Sewers, for the King's own Lands are alfb 
 chargeable thereunto, and yet on earth within His Domi- 
 nions He is faid to be caput Ecclefa, and as much reafon 
 were it to exempt His polTeffions as theirs, if the refpeft 
 of the perfon (hould bear any fuch fway in the Cafe. 
 
 Alfo I do find by divers ancient Records, That Abbey?, 
 Priories, and other Spiritual poffeflions, have been charge- 
 able to the repair of Bridges, Calceys, Banks and High- 
 ways, by Cuftome and Prescription, as appeareth alfo by 
 theBooksof 11 H.4./0/.83, 83. and /L±Ed.z, Fitz,. Tir!e"«4- 
 
 S a Bar, " Ed ' * 
 
13,2 Leclura Secunda. 
 
 Bar.pl, 301. and I take it, that by a very exprefs and lpe- 
 cial Cuftorae or Prelcription, a portion of Tythes in a 
 Clergy mans hand may be charged with the repairs of 
 Bridges, Waies, Walls or Sea Banks, but not without a 
 diredt affirmative Cuftome } for I fuppofe that they may as 
 well indure a charge in this kind, as a charge in a Modus 
 decimandi. 
 
 And fo I conclude this part of the Cafe, That the Parfon 
 was not to be feiTed for his Tythes by the general words of 
 this Law. 
 
 Notwithstanding the opinion of our Reader 
 here ; It feems that Tythes, though in the hands 
 of a fpiritual or ecclefiaftical Perfon may be ra- 
 ted or taxed by the Commiilioners of Sewers by 
 the general words of the Statute of 23//; 8. 5.. 
 For it was refolved 5 Car. 1. by all the Judges 
 of England ( as Sir Nicholas Hyde , heretofore 
 Chief Juftice of the Kings Bench, reported) that 
 Tythes are at this day chargeable with all char- 
 ges impofed by any Act of Parliament, where- 
 in they are not particularly excepted, as upon, 
 the Statute of 43 Eli^ to the Poor, to maimed 
 Souldiers, Kings Bench, Marjhalfey, Bridges, isc. 
 Parfons Counfellor, part 2. cap.i$. 
 
 A Copyholder. 
 
 HE R.E h alfo a Copyholder taxed within my Cafe fbr 
 his Copyhold Land, and whether he for his Copy* 
 hold, and the Lord for the Freehold of that foil, (hall be 
 afllfled therefore, is another queftion, 
 
 A Copyhold by the Cuftome of the Manor yieldeth 
 and affordeth to the Lord. Seigniory Rent, Fines due upon 
 
 admit- 
 
Leftura Secmida. 13% 
 
 admittances, and fuch like duties 3 but the Copyholder 
 bath the real and vifible profits of the foil, and therefore 
 both Lord and Copyholder receive Et commodum & fxlvati- 
 onem, by the (aid defences : And therefore the words of this 
 Law be exceeding copious and full in this point of fefs (viz.) 
 To inquire who hath and holdeth any Lands or Tenements, 
 or Common of pafhire, or fifhing, or hath or may have 
 any hurt, or damage or lofs by any means, in or near the 
 faid places 3 and in this cafe the Lord holdeth the faid Land 
 in Tenure, though not mCulture, and many ways may have 
 hurt and damage 3 As if the Copyhold were overflowed' 
 by the Sea, the Lord fhould lofe his Freehold of the foil, 
 bis Seigniory, yearly Rents and Fines for admittances, and 
 all other perqnijites : So that the faid words of this Statute 
 beat mainly upon him. But as there be reafons to be ur- 
 ged againft him, fb there be matters to exempt him from 
 this charge, and to lay the burthen on the Copyholder. 
 
 Firft, though he be Lord of the Copyhold, yet he is 1. 
 ftized of the Freehold thereof, but in Imagination and con- 
 ftru&ion of the Law, for the Copyholder is pernor and ta- 
 ker of the vifible and fubftantial profits. 
 
 Secondly, the charge of repairs refpe&s the pofleffioner in 2* 
 prejenti, which is eafie to be found out, and not imaginary 
 owners as the Lord is. 
 
 And Thirdly, if the Lord and owner fhould both be 3$. 
 charged pro una eademque re, which the Law doth never 
 permit, for this b not like the Cafe cf Lord and Commoner,, 
 they there fhall be charged, the one for his foil, and the o- 
 ther for his Common > for in this Cafe the Lord is the im- 
 mediate proprietor of the Soil, and he hath the prefent 
 and real occupation thereof, as well as the Commoner hath 
 the ufe of his Common; and therefore they fhall both be 
 taxed to thefe repairs diverf.s tanten refpe3h\ 
 
 But for the Copyholder it may be obje&ed, that he is 
 not within this Statute -, for in Heidon'sCzfe in Sir Edward aM*ri 
 Cookj 3d Report, it is truly (aid, That a Copyholder it. not ca<e< 
 within the Lam and Statutes which alter the Service,. Tenure,. 
 
 Interest. 
 
134 LeStura Secunda. 
 
 Intereji of the Land, or other thing in prejudice of the Lord$ 
 and this is the caufe that a Copyholders Lands cannot be ex- 
 tended or put in execution upon the Statute of Wejlminjier 
 the Second, nor in extent upon the Statute of ABon Burnel 
 and De mercatoribus, for if they (hould, then might the She- 
 riff make the Lord new Tenants, without furrender and ad- 
 mittances, which is contrary to Cuftome, the life and ef- 
 ience of all Copyholds $ yet ihereis another good rule put 
 in the faid Cafe of Heidon, that is, That where a Statute is 
 made for the general good and wealth of the Realm, and that 
 no prejudice can come to the Lord by alteration of Tenure, Ser- 
 vice, EJiate or Cujiome, there Copyholds may well he within 
 tho/e Statutes ^ Therefore now it is to be confidered, whe- 
 ther this Statute of Sewers will in any fort hurt or preju- 
 dice the Lord or no j for it is certain, that thefe Laws tend 
 as much to the wealth and welfare of this Realm, as any 
 can do; and in rating and affeffing thefe Copyholds to the 
 repairs of Banks, Walls and Sewers, &c. it alters neither 
 the Copyholders Intereft, nor the Lords Tenure, nor doth 
 it in any fort prejudice the cuftome of the Manor. 
 
 But then it may be objected, That if feiTe be impofed 
 upon a Copyholder for his Land, and be not paid, thefe 
 Laws give fale of Lands, which indeed is the onely claule 
 of this Statute which is material, to exempt a Copyholder 
 out of there Laws $ for clearly I take it, That Commiffio- 
 ners of Sewers have no power to decree the Copyhold 
 Land away for non-payment of the telle: Yet 1 am of 
 Opinion, that a Copyholder, though he be not within 
 that part of the Statute which giveth fale of Lands, yet 
 he is within the other part thereof, for divers Reafons. 
 
 One I find by experience, and in divers prefidents, that 
 many Copyholds have been and be charged with repairs of 
 Bridges and other Defences in divers parts of this Realm by 
 Cuftoms: Alfo if a Lord grant a Copyhold -to J. S. and 
 his Heirs by Copy, Tenendum by the repairs of fuch a Wall, 
 Bank or Bridge, this bindes this Copyhold thereto in point 
 of charge. 
 
 And 
 
LeSlura Secunial i^f 
 
 And laftly, this Statute bindes fuch to the repairs which 
 may have good by the doing, or hurt by the neglett : And 
 it is apparent, that by overflowing or inundation, a Copy- 
 holders Land fuftains equal damage with other Lands 5 and 
 for thefe Reafons I refblve that a Copyhold is within thefe 
 Laws: And fhortly touching Copyholds, I do confine 
 them to thefe four heads. 
 
 My four Tenents concerning Copyholds. 
 
 Firft, a Copyholder is fefTable towards thefe repairs for his r. 
 Copyhold. 
 
 Secondly, that the Lord of the Copyhold is not to be 2. 
 taxed for the Soil of the Copyhold 5 for although he 
 might come to it by forfeiture committed, yet that is a 
 foreign poffibility : and although he be feized in Law of the 
 Freehold, yet becaufe the IiTues and Profits go with the 
 Copyholder, this Law therefore will not charge him for the 
 Soil. 
 
 Thirdly, in refpeft the Copyhold rent is a rent of Af- 3, 
 fize, and rents be within the exprefs letter of this Statute, 
 and becaufe his rents by the overflowing of the Sea be loft, 
 therefore the Lord (hall be alTelTed for it if it be of value. 
 
 Fourthly, I am of opinion, that a Copyhold may not 4* 
 be fold by the Commiffioners of Sewers, and yet Copy- 
 holders be within other parts of this Law. 
 
 Now becaufe it is a high point in this Statute, in what 
 manner to rate, tax and affefs by the judicious power of 
 thefe Laws: and in regard my Cafe toucheth all manner of 
 Sefles and Rates which be or may be impofed by thefe 
 Laws, I will therefore fpread it abroad: and I do intend 
 to treat of what Lands and other things are to be alTeiTed, 
 towards the repairs in my Cafe, and what perfons to be af- 
 feffed, and in what degree. 
 
 Wherein firft I am of opinion, that one is not to be af- 
 leffed for his high and descending grounds, for fo it appears Regifkr.. 
 was the opinion of Brudnel in the 1 2 H. 8. fol. 3, where 
 he faith, That if a man's ground be furronnded with Waters, 
 he may mak$ a trench in hk own grounds t* let the Water run 
 
 do&K* 
 
i%4 LeElura Secunda. 
 
 downwards y and to defcend upon hk neighbours grounds \ for 
 water is an element dependable (jure nature) And alfb high 
 descending grounds can have no fuch u(e of Walls and Banks, 
 as other grounds fkuate lower may have, for the Waters 
 ■can have no force againft them, and therefore the owner is 
 not chargeable therefore; and the words of the Comraiffi- 
 on exprefTed in the Regifter be, Qui defenfionem Commo- 
 dum& falvationem per PredittasWaBias, Gutturas, Pontes, 
 Calceta & gurgites habere poterint nuUatenm parcantur. And 
 the Charter of Rumney MarJ/j teems to bear the fame fenfe 
 .(viz.) Quod pro fecuritate difti Marifci dijlrift tones fiant it a 
 quod £que fiant fecundum portiones major es & minores quas 
 homines habent in eodem Marifco ; But high grounds by na- 
 jR«£s Cafe, ture need not Engines of art to defend them : And in Roo/(s 
 Cafe in Sir Edward CooI(s 5 th Report, and Keighley's Cafe, 
 it is truly declared , That the grounds lying on the Level 
 which are in apparent danger fubjeEt to furrounder, are onely 
 ■chargeable to repairs by this Law-j But yet grounds lying on 
 high Mountainous places may be by Cuftome, Prescription 
 or Tenure liable and ftand chargeable to repairs of Walls, 
 Banks, Sewers, Goats and other Defences: And in fuch 
 cafes though they be never (b high , yet thefe Laws will 
 reach unto them, but no charge is to be impofed on them 
 by this Statute, and by force thereof onely, without a fpe- 
 cial Cuftome or Prefcription to warrant the fame. 
 
 Annuity. 
 
 IP a Dean and Chapter or other Corporate perfbns or Bo- 
 dy Politique be by Prefcription to pay a yearly Annui- 
 ty to J. S. and his Heirs, J. S. is not (enable for his Annui- 
 ty, yet the (aid Corporate or Politique perfbns pay the (ame 
 in refpeft of their Lands which lie in danger of fiirroun- 
 ding, and fo the grounds be fubjeft to thefe Laws, but it it 
 fueth not thereout : And the faid Corporate and Politique 
 perfbns are not charged in their Lands, but in refpecT: of their 
 Lands to pay the fame. 
 
 Commons. 
 
LeRura Secun^a, 137 
 
 Commons. 
 
 THofe perfons which have Common of Pifcary, Tur- 
 bary or of Pafture in great Fens , Marilhes and 
 Waftes, may be charged, but Commoners in agrk fentina- 
 th after the corn fevered, as ftock Commons which be of a 
 fmall value, are not to be charged for their Commons, but 
 for their Lands. 
 
 Ferry. 
 
 HE which had a Ferry over a River was in 37 lib. AJJiz. 
 pi. 10. charged to repair the River, and fo for a Ferry 
 one may be charged by this Law. 
 
 Herbage. 
 
 HE which hath the Vefture or Herbage of grounds, as 
 Prima tonfura vel vejinra terr£ t may be charged to 
 the repairs. 
 
 Free pajfage. 
 
 IT appears like wife, that thofe perfons which had pa£» 
 fage for their Boats on the River , were to be rated 
 towards the repairs in 37 Lib. JJJiz. pi. 10. but this is to 
 be intended of thofe perfons which had free and cuftoma- 
 ry paffage thereon, as a liberty and inheritance, and was not 
 meant or intended of poor Boatmen which come thereon 
 with their Boats accidentally, by the general Cuftome of 
 the Realm. 
 
 Paris, 
 
138 LeRura Secunda* 
 
 Varks, Warrens, Chafes. 
 
 A Man for his Park of Deer, and Warren of Conies,, 
 (hall be charged if thefe liberties lie within the Le- 
 vel 5 but for Chafes I fuppofe one is not chargeable onely, 
 for Deer which be fer£ »atur<e not bound to certain pre- 
 cincts, but in that Cafe the owner is onely to be taxed fot 
 the Soil. 
 
 Mart, Fair or Market. 
 
 ALSO if one have onely the liberty of a Mart, Fairot 
 Market to be kept in a place which is fubject to iur- 
 rounder, In my Opinion, becaufe they are but cafual in 
 their profits, and not continual in their being, although 
 they be confcribed to place and circuit, yet being no part 
 of the Soil, nor of the iffues and profits thereof, they are not 
 taxable within thefe Laws. 
 
 Offices. 
 
 TH E Office of the Clerk of the Market, Town Clerk, 
 or fuch like, although thefe Officers be confined to a 
 certain place and precinds within the Level which is fub- 
 je& to furrounder, are notwithstanding exempt from thefe 
 taxations. 
 
 Proxies, Synods.. 
 
 HE which hath Proxies or Synods of Annual fums 
 of money, fuch as was in the Cafe of Proxies in 
 the lriJJj Reports, is not feffable within this Law ; for al- 
 though the perlbn is charged therefore in relpecT: of the 
 grounds, yet the fame doth not iiTue thereout. 
 
 The Morgager for the Title he hath by the Condition to 
 reduce the Lands back again to him, or he which hath Ti- 
 de 
 
LeSlura Secunda. l^p 
 
 tie to Land by Attion, Condition or Entry, or he which 
 hath a contingent ufe (hall not be taxed for them. 
 
 Neither was Cefiuy que ufe at the Common Law before 
 the Statute of 27 H. 8. of ufes, nor is the Bargainee of 27 * 8, 
 Land before the Deed be inrolled feflable by this Law. 
 
 Neither is one who hath the prefentation or nomina- 
 tion to a Church as Patron, or he which is Founder for 
 his Founderlhip, Taxable within this Statute, yet they 
 be Tenements, the largeft Words of charge within this 
 Law 5 but the Law intends the immediate poiTeflion of 
 fiich Tenements which be proficuous, and not thefe things 
 which be Tenements in Law, and which be but convey- 
 ances, and their fruit is Ceremony without Subftance. 
 
 This Law fetteth down fuch things for the which one is 
 chargeable, viz,. (He which hath Lands, Tenements, Rents, 
 Common of Pajlure, Profit of Fifiing or other Commodities, 
 and fuch as have Safety, Profit, Defence or any other Com- 
 modity) Thefe be the Words of charge recited by this Law : 
 This Word Land is of large extent, for it reacheth to Hou- 
 les, Arable, Pafture, Meadow, Mills, Tofts, and to all 
 other Edifices, Moors, Mariflis, Woods, Wood Grounds, 
 for all thefe the Earth is the fubftance Et omne /bio cedet, 
 and the (everal increafes thereof be but qualities. 
 
 The Word Tenements is of larger extent than Lands 5 
 for it containeth all which the Word Lands doth , and 
 all things elfe which lie in Tenure : fo that I think it 
 (ball be but labour loft to enter farther into the particulars 
 thereof 
 
 Lord and Te?iant. 
 
 IF there be Lord and Tenant, and the Tenant holdeth of 
 the Lord by yearly Rent fervices, the Lord may be rated 
 as well for his Rent, as the Tenant for his Land, to Annual 
 repairs, as well as to accidental, by reafon of thefe Words 
 in the Statute (that is, That every one be rated and taxed ac- 
 cording to the rate of every perfons Rent, Tenure or Profit,) 
 
 T 2 here 
 
r j4o Letlura Secwida. 
 
 here be full words to charge the Lord for his Rent 5 and fo 
 Rent charges, and Rent feck (hall be fubjecl: to fefles in this 
 kind : for otherwife the Tenant of the grounds may be un- 
 done thereby, in regard the Rents going and iffuing out of 
 the grounds may amount to as much alraoft as the yearly 
 value of the grounds do : But if the Rents be fo fmall as 
 they are fcarce worth the gathering, then in difcretion the 
 Commiffioners may fpare them, for De minimis non Curat 
 Lex. 
 
 Alfb whether the remainder man, and he in Reverfion 
 depending upon an Eftate in Tail, (hall be rated and taxed, 
 or not, by the power of thefe Laws, is an apt queftion for 
 thi9 place 5 and therein my Opinion is, That being dry and 
 fruitless Remainders and Reverfions, they (hall not be (ef- 
 fed to the repairs, but the Tenant in Tail in poiTeffion fhall 
 be folely charged 5 for it is more to be feared, that Tenant 
 in Tail will cut off the Remainder and Reverfion by a Re- 
 covery, than that the Sea (hall drown his Eftate by an o- 
 verflow. 
 
 I 
 
 Lejfee for years, and he in reverfion. 
 
 N the Cafe of the Leffee for years and for life, and thofe 
 in Reverfion and Remainder, there is a greater caufe of 
 difpute than between Tenant in Tail, and he in the Rever- 
 fion : And becaufe it is an often Cafe, I have therefore ta- 
 ken the more pains to refolve the fame. 
 
 Firft, the Leffee is in the prefent polTtfiaon, and fo is fob- 
 JeflrefsCafc. }e& to all ordinary charges 5 and with this agreeth Jeffreys 
 Cafe in Sir Edward Coo^s 5th Report, for there the Cafe 
 was refolved, that where the Inhabitants of a Town weie 
 aiTefled towards the repair of a Church, there the Leflee 
 for years was charged, and not the LeiTor, though he had 
 a yearly Rent referved. 
 
 And the fame rcfolution was by all the 
 Judges of die Kings Bench in the Cafe of Paget 
 
 and 
 
.LeUura Secunda. i^ 
 
 and Crumptott, Pafch. 41 Eliz- upon view of Jef- 
 freys Cafe, Cro. Eliz. £59. 
 
 For in point of the Rent this Cafe and that will differ, 
 by reafon Rents be exprefiy within this Law ; but I now 
 fpeak of a Leffee where no Rent is referved : In 17 Ed. 4, X1 u. 4. 
 /. 6. a tenth was granted to the King by Parliament, of the 
 value of their Lands, and the Leffee for years was charged 
 therewithall, and fo was the Law there taken, if the Par- 
 liament had given the tenth part of the iffues and profits of 
 the Lands. 
 
 The Cafe of the Proxies in the lrijh Reports doth in my Cafe of 
 opinion in reafon refemble this Cafe 5 for the Cafe was there, Proxic! ' 
 That the Bijhop of Meath in Ireland had a Proxy of fifteen 
 /hillings payable out of the Commandry 0/ Sells, then par cell of 
 the Pofiejjions of St. John'/, all which came to the Crown by 
 the dijfoluticn of Monajieries in that Kingdom $ and after 
 the faid Bijhop granted the faid Proxies to Queen Elizabeth, 
 and after Queen Elizabeth made a leafe of the Commandry to 
 Dr. Forth, referring a yearly rent, without mentioning the 
 Proxy 3 And it was there refolved, That Do&or Forth the 
 Leffee for years fhould be at the charge to pay the faid Proxy , 
 with all the arrearages thereof which did rncur in his time : 
 And fo in the cafe of a Rent-charge, the Leffee is chargea- 
 ble, and he is to pay the Tythes, and the Compofition- 
 money due therefore : So that thefe Cafes fway ftrongly 
 againft the Leffee for years, to lay the whole charge upon 
 him, and to exempt the Leffor. 
 
 But yet we muft here diftinguifh and make a difference 
 between annual repairs in ordinary things, and extraordi- 
 nary repairs, For tofurnifh the Defence with petty repara- 
 tions, they (hall be laid onely upon the Leffee for years or 
 for life ; but if a new Wall, Bank or Goat, or Sewer be 
 to be built new, and erefted 3 or if the ancient Defences 
 be decayed in the main Timber, or in the principal parts 
 thereof, here as well the Leffor as the Leffee fhall be put 
 to the charge, for thefe things be not ordinary and annual 
 
 charges,. 
 
141 LeBura SecunHa. 
 
 charges, but do reach from the beginning of the leafe to 
 the top of the Inheritance : as for petty reparations they 
 are by intendment to continue but for a fhort time, which 
 are likely to be fpent during the term and leafe 5 but thefe 
 new Defences are apparently done to fave the Inheritance : 
 And this difference holds good correfpondency with other 
 49 Ed. 3. Cafes in our Law, as in 49 Ed. 3. fol. 1. and 3 Eliz. in 
 3,EUx.D)tr. £)j er ^ f i ,98, ar) d j n that Book again, fol. 134. and in 
 
 divers other Books it is holden for Law, That if a Houfe 
 in leafe decay in the Groundfels, Poll or Balk, in the great 
 Timber, in direct, wearing by traft of time, and not in de- 
 fault of the Leffee j the Leffee may take and cut up Timber 
 growing on the Grounds leafed to repair the fame, and the 
 Leffee fhall be at charges of workmanfhip, for the repairs 
 are in matter of right, and doe the LeiTee good during his 
 leafe, and the Leffor after the expiration thereof: And be- 
 caufe thefe great repairs extend to both their Goods, there- 
 fore they fhall both be contributory thereto : But if a Houfe 
 be decayed in fplinting, tback, walling, or in fuch petty 
 matters, the LeiTee for years fhall be at the fble charge, 
 for thefe may be fpent in his own time. 
 
 So I fuppofe my meaning is herein well perceived, which 
 is, That in petty, annual and ordinary repairs, the LeiTee 
 alone fhall doe the fame \ but where the fame wants in 
 great Timber, or when a new Defence is to be built, they 
 fhall both be at the charge : And with this the Statute of 
 r jac. c.20. 7 Jac. cap. 20. doth directly in reafbn agree withall 5 out of 
 which Statute it is plainly to be obferved, that in the great 
 repairs, as alfo in the new building, as well the Lefldr as 
 the Leffee fhall be both at the charge : Yet in the Statute 
 of 3 Ed. 6. cap. 8. there is a claufe in efTeft, That all Lots, 
 Scots and [urns of money hereafter to be rated by the Commif- 
 fioners of Sewers upon the King's Lands, fhall be gathered or 
 levied by difirefs on thofe Grounds as in cafe of other P erfons i, 
 and that all Bills of acquittance (igned with the hand of fitch 
 Receiver or Collet? or, fhall be afufjicient Warrant to the Au- 
 ditors and Receivers j and other the King's Officers, for al- 
 lowance 
 
LeUura Seewid'a. 143 
 
 lowance to the Farmer or Tenant to the Kings Majejiy 5 
 Whereby it appeareth, that the Farmer of the King (hall 
 not be at the charge, but His Majefty 3 yet by the Statute 
 i^Eliz. cap. 9. it may be colle&ed, that the LefTee for \iElii- c.9. 
 years (hall be charged, but all thefe are to be reconciled 
 with my faid diverfity. 
 
 But Heath Juftice B. R. in the Cafe of Com- 
 mins and Maffam was of opinion that the Com- 
 mitfioners of Sewers may charge the LefTor or 
 LefTee, at their difcretion, though it were for a 
 new Defence, March ip8. 
 
 But now it may be objected to me 5 Sir, do you thinks it mm 
 reafonable or poffible for Commiffioners of Sewers to tah$ no- 
 tice at the firfl of every private Man's Inheritance, and the 
 fiveral EJiates which the Parties have therein, when it will 
 Jcarce be pojjible by private fearch to find them out ? 
 
 To this I anfwer, That it is not reafonable to tie the 
 Commiflioners to fuch difficult and obfcure bufinefies ; but it 
 is fufficient for the Commiflioners to impofe or lay the rate, 
 tax or fefs on the Grounds, or on the vifible Pofleffours 
 thereof : and if the money fo rated be demanded on the 
 LefTee for years, or for life 5 or if the Goods be diftrained 
 therefore, or they be compelled to pay the fame, then they 
 may come before the Gommiflioners, and (hew forth their 
 leafe, and make it appear, that J. S. hath the reverfion, 
 and as the cafe is, to be charged as well as himfelf; and 
 upon due proof thereof made, the Commifiioners upon 
 hearing the Parties on both (ides may apportion the tax on 
 either of them, as in juftice, dilcretion and true judgment 
 is requifite. And fo if a tax be fet upon Land, the Owner 
 may come in before the Commiflioners, and make it to ap- 
 pear before them, that J. D. hath a Common, and Rent 
 thereout 3 and upon proof thereof made, the Commiflio- 
 ners are to lay the charge accordingly : And fo it (hall not 
 tie the Commiflioners at the firft to lay the charge upon 
 
 every 
 
144 LeHura Secunda. 
 
 every particular Perfon , for that were opiu infinitum & 
 impoffibik, but to relieve the Parties upon their complaint 5 
 and this may be eafily done, and it [lands with the juftice 
 of thefe Laws (b to doe : And if the Parties grieved will 
 not complain for relief, let it be juftly accounted their own 
 folly, and no injuftice of the Commiffioners ; for the very 
 t h. 4. «.i2. Statute direfts, that fuch as are grieved (hall have relief up- 
 on their complaints, which confirms my opinion in this 
 , point. 
 
 Taxes, Rates and Ajfejjments impofed merely by 
 the Laws of Sewers. 
 
 I Have formerly put nine feveral matters to tie men to the 
 repairs, and this, by the Laws of Sewers is the laft, but 
 not the leaft of them : I propofe thefe to be by the Laws 
 of Sewers, becaufe they be not backed, helped, aided or 
 affifted by Cuftoms, Prescriptions, Common right, or by a- 
 ny other r\ule of the Commonlaw, or by Tenure or Co- 
 venant, or any acl: of the party, as all the reft be, but are 
 onely compofed, made, ordered and directed by the fble 
 power and authority of thefe Laws of Sewers : and thefe 
 are fuch as fall out of all the former rules, and therefore in 
 nova, caufa novum remedium eft adhibendum : But yet before 
 I enter into my own works, I will fet down and declare the 
 opinions delivered in Rool(s and Keighley's Cafes, which fee- 
 Rw^i Cafe, med one of them oppofite to the other : for in Rood's Cafe 
 it is faid, That if one be bound in rej]>e$ of his Lands to repair 
 a Wall or Banl^ by Tenure, Rrefcription or othervoife, that yet 
 the Commiffioners of Servers could not affefs the faid party a- 
 lone to repair the fame 5 and faid, that the Commiffioners were 
 not tied to the Rules of Prejcription, Tenure, Cufiome or o~ 
 therroife, but ought to affefs all the Level to do the fame, which 
 are to have good thereby : But this being miftaken, is very 
 Keighlefs juftly and difcreetly altered in the faid Cafe of Keighley by 
 Ca,e * the Authour himfelf ; for how could it be prefumed, that 
 
 the learned makere of this worthy Law would have ftricken 
 
 down 
 
LeRura Secunda. 145 
 
 down at one blow fo many thoufand Prefcriptions, Cuftoms, 
 Tenures, Covenants and Ufes, as be within this Realm, 
 which be tied and bound to doe and make the repairs in this 
 kind, fome in consideration of Houfes and Land, others for 
 yearly Rents, and for other caufes, which to have let at li- 
 berty, and to have impofed the charge on the Levellers, 
 would have wrought and brought a wondrous innovation, 
 change and alteration in thefe works$ all which by this 
 expolition are freed and faved : But yet there be certain Ca- 
 -fe.v which of meer neceffity lay the charge upon the Level, 
 which are as follows: 
 
 The charge upon the Level. 
 
 FI RST, If any grounds were heretofore by Cuftome, i« 
 Prefcription, Tenure or otherwife obliged and bound 
 to repair any Wall, Bank, River, Sewer, Goat, Sluce, 
 Jetty, or other Defence, which grounds fo charged have been 
 of late devoured and overflown by the Sea, and fo remain 5 
 The Commiffioners of Sewers are in that Cafe tied to lay 
 the charge now upon the Level, which fhnd in danger of 
 taking hurt by the not making the repairs, or which are to 
 receive good by the doing thereof. 
 
 Secondly, Alio if A. B. be bound by the Tenure of his T2. 
 Land to repair a Bridge, Calcey or Bank, and he dieth with- 
 out Heirs, whereby the Land efcheateth to the Lord of the 
 Fee, in th.s Cafe the Tenure is ended, and the chief Lord 
 is not bound to the repairs, and therefore now the charge 
 muft lie on the Level, and fo is the Law if this Tenure 
 had been in other fort extinguished. 
 
 Thirdly, Where no perfons or grounds can be known, 3. 
 which ought to make the repairs by Tenure, Prefcription, 
 Cuftome, Covenant or otherwife, then the Commiffioners 
 of Sewers are to lay the charge on the Level. 
 
 Fourthly, If John a Stile be chargeable to make the re- 
 pairs, and be not able to doe the fame, here the Level are 4. 
 to be charged to affift him therein, as appears in Keighleys Keigbie/s 
 Cafe. U Fifthly, Cafc ' 
 
tq.6 LeRura Secunda. 
 
 5. Fifthly, If J S. by reafon of his Lands or otherwife be 
 
 tied to repair the Sea Bank, but the hazard is fo apparent 
 dangerous to the Countrey, that J. S. in all likelihood can- 
 not repair the fame, and fo the Countrey might be in dan- 
 ger to be overflown e'er J. S. alone could do it, here alio 
 the Countrey on that Level are to be rated and taxed to- 
 wards the fame: Keighlefs Cafe. 
 
 And fo Roll in the Cafe of the Inhabitants of 
 Outsell, &c. if it be to prevent a prefent and 
 publick danger, Style 102. 
 
 £. Sixthly, If the Sea at the Spring-tides, or at extraordi- 
 
 nary cafual fwelling Tides or Floods, have broke down 
 the fences, and overthrown the Banks, and drowned the 
 Countrey without any default in the party who was tied to 
 have repaired the fame 3 the Level (hall in this Cafe make 
 up the breach, for things which happen extraordinarily by 
 the Sea or great Waters, which neither policy of man could 
 prevent, nor induftry or force could refift, are counted in- 
 evitable and undefenceable : and fo is the Law in the Cafe 
 of LelTee for years or for life, if they fuffer by neglect their 
 Banks or Walls to be broken down, and their grounds fur- 
 rounded, they be punilhable in an Aftion of Wafte -, But if 
 thofe grounds by the extraordinary rage and violence of the 
 Sea or Waters be born down, and their grounds furrounded 
 thereby, they are in this cafe freed from all Waftes ; and in 
 18 H. 8. proof thereof the Cafe in 28 and 29 H. 8. Dyer fol. 33 is 
 V}eu much to this purpofe, where one made a Leafe for years of 
 
 grounds to J.S. lying near the River of Ex, and the Leflee 
 covenanted to fuftain and repair the Banks of the River 
 to preferve the Meadow from furrounder on pain of ten 
 pounds 5 yet after an extraordinary flood, the Banks were 
 broken down, and the Meadows were furrounded, and it 
 was there holden to be no breach of Covenant, and that 
 
 he (hould be excufed from the penalty : but yet 
 he mull: make and repair the Banks in convenient 
 time- Nota,, 
 
Lettura Secunda. 147 
 
 Nota, this was in the Cafe of a frefh River, whereby in 433 
 this Cafe the Law muft lay the charge on the Level, if any 
 danger be likely to enfue by the protrafting of time. 
 
 In an Action of Wafte brought in C. B. a- 
 gainft the Leffee, for furfering the Sea-wall ad- 
 joining to his Land to be ruinous, per que per 
 fluxum <& refluxum Maris, le terre fuit furmind, 
 Dyer, Chief Juftice, held, that though the Leffee 
 Ihall be excufed where the Wall is born down 
 by the fudden violence of the Sea, and the Land 
 furrounded thereby, and the fame could not be 
 prevented ; yet if there be a fmall breach in the 
 Sea-bank or Wall, and the LeiTee doth not re- 
 pair it, but furTers it to continue, fo that after- 
 wards the violence of the Sea, breaks the reft of 
 the Wall, and furrounds the Land, that in that 
 cafe it is wafte in the leffee, for it was his own 
 fault, that he did not amend it at the begin- 
 ning, Moor 62, 6%. fee the fame difference taken 
 by Dyer and Welch in another cafe, Moor 73. 
 
 But this difference was not allowed for the 
 Banks of the River of Trent, 6 Eliz. in the Cafe 
 of Griffith, who brought an Action of Wafte, 
 for that the Leffee fuftered the Banks of the faid 
 River, which ran by the Lands to be unrepaired, 
 whereby the Water brake the Banks, and fur- 
 rounded the Lands ; For there it was faid by all 
 the Judges, that the Trent is not fo violent, but 
 that the Leffee by his policy and induftry, might 
 
 U 2 have 
 
148 teViura Secunda. 
 
 have prefer ved the Banks, and caufed the water 
 to have ran within its limits, Moor 6 p. fo that it 
 feems in fuch cafe, where there is neither Sea, nor 
 any extraordinary high fwelling-waters, but a Ri- 
 ver of an ordinary and gentle current, fuch ex- 
 cufe of the Leflee is not to be received , but if 
 there be any irruption and furrounding, it is 
 wafte. 
 
 J. Seventhly, if one do hold his Land by the yearly pay- 
 
 ment of Ten Shillings towards the repair of a Wall, if this 
 money will not defray the charge, the reft muft be laid on 
 the Level. 
 
 & Eighthly, If a new Wall or Bank be to be ere&ed, or a 
 
 new Sewer, Trench or River to be caft, or Sluce or new 
 Goat to be built, in thefe cafes the Commiliioners muft lay 
 the charge on the Level which are to take benefit thereby, 
 as well for new building thereof, as with the maintain- 
 ing of them: for in the Cafe of new Defences there can 
 be no Prescription, Cuftome or Tenure bound to doe the 
 lame. 
 
 9. And laftly, In cafe there be a great Port in the Countrey, 
 
 by the which the whole Countrey hath benefit j for the 
 Ports and Havens, as hath been faid, be OJiia &janu<e Regni, 
 and are the Defences to the whole Countrey tempore pacts & 
 tempore belli^ and are thofe places, by means whereof the 
 upland Countreys be made partakers of the Sea Commodi- 
 ties 5 therefore in my opinion, the extraordinary repairs of 
 thefe be not altogether tied to the Level, as in other Cafes, 
 nor to prefcription or Cuftome of repairing, which extends 
 but to ordinary defefts, but upon great and urgent neceffi- 
 lies, for the fafety of the Port, upon the welfare whereof 
 the fafety of the Countrey doth depend, the whole Coun- 
 trey are obliged and bound to contribute towards the re- 
 pairs, for thefe reafons following: 
 
 Firft, 
 
Letlura Secunda. 149 
 
 Firft, for that in time of peace it is the Gate which 1. 
 openeth it felf to let in from Foreign p.nrts the Ships and 
 Barques, which bring hither to this Ifland fuch Merchandizes, 
 Wares and Commodities, both for our profit and pleafure 
 as we have need to ufe. 
 
 Secondly, At thefe Ports we (hip out to Foreign Na- 2i 
 tions our excefs of Corn, Cloth, Skins, Lead and other 
 Wares, wherewithall we do abound, and receive in truck 
 therefore other things more ufefull and neceUary for us. 
 
 Thirdly, In time of War we have (hipping here for 3. 
 our Souldiers, and means at the eafitft charge to tran- 
 fport them to fuch Places as the King and Council (hall di- 
 rect. 
 
 Fourthly, In thofe Ports are commonly great Havens, 4. 
 which are the chief receptacles of all our freth Waters, in- 
 to which the Waters which drown the grounds of the coun- 
 tries adjoining are conveyed. 
 
 And laftly, it appears by divers Authors, that a Coun- 5. 
 trey well furnifhed with Ports and Havens, is not more 
 ftrengthned than honoured thereby ; and if it be as lawfull 
 as convenient to put a cafe of Chronicle Law upon it, in the 
 28th year Eliz. in Holing/head's Chronicles, it appeareth what Hd. Croru 
 great care the Queen and the Lords of the Privy Council, 
 and the Knights and Gentlemen of Kent took for the re- 
 pairing of Doz>«r Haven, what preparation was made for it, 
 what moneys Levied, and how forward all the Countrey 
 was to effeft that work, may be a Spectacle to others for 
 to lend their helping hands to the maintaining of (uch wor- 
 thy Works, being of all other the moft Honorable to our 
 Nation, and the moft ufefull to the inriching thereof} for 
 which caufes in my opinion, becaufe the Mountains as well 
 as the Valleys have both Sahatiotte/it defenfionem & commo- 
 dum thereby, therefore in time of need the one as well 
 as the other (hould be charged by the power of this Com- 
 miffion, to contribute to the extraordinary repairing of the 
 lame. 
 
 A Sea-- 
 
15° Leclura Secunda. 
 
 A Sea-wall was overthrown by a fudden and 
 inevitable Temped ; one within the Level fub- 
 jed to be drowned, disburfed all the money for 
 the building of a new Wall : Afterwards the 
 Commiflioners taxed every man within the Level 
 for the repaying of the fum disburfed, with his da- 
 mages, viz. mtercft for his money, and this mat- 
 ter being difclofed upon a return to a Certiorari, 
 Brampton, Ch. Juft. and Heath, Jud. B. R. were of 
 opinion that this charge was legally impofed, as 
 well for the damages, as the principal money ; 
 And that the Commiflioners having jurifdi&ion 
 of the principal, have jurifdiction likewife of the 
 damages, which are the acceflbry : For who elfe 
 would hereafter disburfe all the money in any 
 imminent danger and neceflity, if he friould not 
 be allowed ufe for his money ? March i?8, i$>£, 
 
 200, 20Io 
 
 I have now proceeded in this point of Sefs fo far, that I 
 take it, I may Juftly here make ray full period of this days 
 exercife; and I have taken up the more time herein be- 
 caufe thereupon a main part and ftrength of this Law con- 
 tilts : And therefore I will now apply my fdf to my conclu- 
 fion, in the which I have already proceeded fo far, that I have 
 made it in fome fort to appear, that fome oftheSefles in par- 
 ticular are not well impofed, as theLeflee in cafe of thenew 
 defences was not alone chargeable, for that he in the rever- 
 sion was to contribute thereto, and that no impofition 
 ought to have been laid upon the Parfon for his Tythes 
 but the owner of the Soil was to be charged for all ; fo that 
 
 c rr tW ° £ L aIrCady rukd for me ; But y et «f any of the 
 Seffes Ihould be good, then 1 fhould fail in my conclusion ; 
 
 I (hall 
 
LeRura Secunda. 151 
 
 I (hall therefore fet forth in few words, that all the SefTes 
 are void. 
 
 And the caule is this, That the draining of the fupeiflu- 
 ous Waters in S. appeareih by my Cafe to be onely com- 
 modious for S. and that D. the other Town had no good 
 thereby : And it appears alfo, that by the repairing of the 
 ancient Sewer in D. that Town onely had benefit thereby, 
 therefore to afTefs S. to repair in D.and D. to contribute to 
 S. where in thofe Cafes there could be no benefit, is diretl:- 
 ly againft the letter and fenfe of thefe Laws •-, but herein 
 either of them ought to have been at charge with that, by 
 the which it took benefit, and that not otherwifej and 
 therefore the mixture marred all the matter: And fo upon 
 all this I conclude my Argument as I did my Cafe, that 
 the new Bank, new River, and old Sewer were well de- 
 creed, but that the aiTels is void in toto & in qnalibet parte, 
 
 Fin'ps Seamdae. Le£iur<x> 
 
 LeRura 
 
(i53) 
 
 K* 
 
 Leffura Tenia. 
 
 IN my two preceding Cafes, the main body of this 
 great Law were contrived, and therefore I took a 
 greater and larger compafs in my Arguments there- 
 in, than otherwife I would have done ; and I am 
 now come to the execution of thefe Laws, wherein 
 the life and livelihood of all Laws confift : And it may 
 well be faid of execution , as Mr. Plowden in Zouch and Plow. Cm. 
 Stowell's Cafe, in his Commentaries, fol. 358. faith of a fine, 
 that it is finis fruSus exitvs & ejfeQui Legk 5 10 is execu- 
 tion the fruit , iflue and end of the Law, and without it 
 nothing is effectual, and till it come nothing is material 5 
 for to begin a Suit and ftay at the declaration, were a fruit- 
 lefs enterprife^ and to proceed on to judgment, and to 
 go no farther, were like a Traveller which undertook a 
 journey, and returns or fits down without farther moving, 
 before he came at the end of his intended progress. 
 
 Law, as Cicero faith, is but mutm Magijlratw, the Ma- cian. 
 giftrate is Lex loquens j but I fhall add fomething, which 
 upon the matter is the fum of all things, that is, That exe- 
 cutio eji Lex agens : And becaufe I tfteem the time to be al- 
 moft loft or mifpent which h prologued out in p.eimbles, 
 I will therefore now briefly divide thi, pait of this Statute 
 into thefe infuing heads : 
 
 Either in punifhing the^Impriibrment, j, 
 
 body and perfon of the < Fine, or 
 Delinquent with (.Amerciament. 
 
 * v .ill 
 
 X Or 
 
154 Leftura Tenia. 
 
 2, Or in doing expcution fBy diftrefs, 
 
 upon the Offender'^ or by the 
 
 Goods (.Abfolute (ale thereof. 
 
 j. Or otherwife in exten- rBy charging the Land in per- 
 
 ding upon the £veaJ< petuity, or temporarily j or 
 Eftate, (. by the abfolute fale thereof! 
 
 The true and due execution of all thefe in a juft, legal, 
 eq al and qualified decree, fequireth of all other parts of 
 Law this gteateft and trueft discretion, confideration, wife- 
 dom and judgment of theCommiffioners: And I take it, it 
 raay ftand as a ground infallible, that there be as many de- 
 grees of puniShment, as there be offences 5 It behoovetb 
 therefore the Commissioners to be circumfpedt, that they ap- 
 ply to every offence his due puniihment 3 for it is injustice 
 to punifh the offence committed in a wrong degree 5 to pro- 
 nounce a Traitor's judgment upon a Felon , or a Felon's 
 judgment upon a Traitor, is grand mifprifion; to impri- 
 ibn the Body, or to fine the perfbn, where an Amerciament 
 is onely due, is not onely injuftice in the Commiffioners, 
 but thereby alfo their discretions are to be drawn in que- 
 stion and cenSured. 
 
 And feeing the Statute doth So much lie upon discretion 
 of the Commiffioners, as in many parts of this Law it is 
 mentioned 5 It feemeth the Parliament did give them to un- 
 derstand, That fuch as were to meddle in thofe affairs, 
 Should be both difcreet and. wife, and Should Strive to be- 
 come learned in thole affairs. 
 
 And therefore for the better furnifhing of them with the 
 true understanding of the Said parts of this Statute, I have 
 framed a Cafe thereupon, which doth give juft occafion to 
 treat fully of them all. 
 
 Tie 
 
LeUura Terlia. 155 
 
 fix third Cafe. 
 
 A Cave the Office of a Ranger of a Forefr, to which a 
 , Manor is belonging to J. S. & Abnepti, and to the 
 heirs, males and females, of their Bodies in Frank-mar- 
 riage, and dieth, B. and C. their legitimate Son and Daugh- 
 ter, and D. their Baftard Daughter enter, and dieth in fei- 
 fin, and E. her Daughter enters: The Commiilioners of 
 Sewers at a Court make a Law, That a Goat (hall be re- 
 paired, and aflefs feverally A. B. C. and E. to doe it, upon 
 furmife that they all had benefit: B. and C. refufe to obey, 
 for which B. is imprifbned, and C. is fined 5 A. and E. tender 
 pleas of difcharge, which are refufed, and they are feve- 
 rally amerced, and a Law made, that A. (hould be di- 
 ftrained, and for non-payment the diftrefs to be fold, with- 
 out allowance of Replevin, and the intereft of J5. fhould 
 be alfb fold, becaufe (he hath nothing to be diftrained by. 
 
 I conclude, the Commiffioners of Sewers have done due 
 Juftice upon the Offenders in every part of this Law. 
 Argumentum LeQork. 
 
 The paflages of thb Cafe are both at the Commonlaw 
 and by this Statute : The Commonlaw is the means, but 
 the Statute is the matter I mult infift upon : But feeing the 
 Statute Law can receive no due conftru&ion, but by the 
 Rules of the Commonlaw, I have therefore made a har- 
 monial compofition of them both in my Cafe, and I do 
 diftinguifh and branch out my Cafe into thefe enfuing 
 points. 
 
 Points at the Commonlaw. 
 
 Imprimis^ Whether this Office may be intailed or not } I. 
 
 Secondly, Whether it be an ordinary Intail, or a Frank- 2. 
 marriage > 
 
 Thirdly, Whether the Baftard be inheritable to this E- 3. 
 (late, or not? 
 
 X 2 Points 
 
156 LeSiura Tertia. 
 
 Points upon the Statute. 
 
 1. Firft, Whether the Comraiffioners have a Court, or one* 
 Iy the ftrength of the Commiffion without a Court? 
 
 2. Secondly, Whether Commiffioners of Sewers have pow- 
 er to imprifon and to fine? if lb, then whether they have 
 well behaved themfelves in this Cafe, or not? 
 
 3. Thirdly, Whether this Law doth admit of any pleas, 
 and especially of pleas of difcharge ? 
 
 4. Fourthly, Whether the Law made touching the diftrefi 
 be well made, becaufe it feemeth prima facie to oppofe a 
 main point of the Commonlaw, in denying of Replevins? 
 
 5^ Fifthly and, laftly, If the Law made for fale of Lands or 
 
 Tenements in Tail be warranted by this Statute, or not ? 
 
 Thefe be the materials of this Cafe, wherein you may 
 perceive by the beginning-, what you are to expeft in the 
 fequel and eonclufion of my argument. 
 
 Thefe Points upon the Statute are of great confequence 
 and importance, and tend much into the powers of thefe 
 Laws: In the handling whereof, according to my won- 
 ted falhion, I intend to maintain the Affirmatives of my 
 Cafe. 
 
 B>et" 6. 
 2.6. 71 
 Davit I 
 fol. 34. 
 
 Firft Point. 
 
 I did not intend it a point of any importance in my Cafe, 
 Whether Land might belong to an Office ; for that in the 
 1 Hi f ifl. 7. fol. 28. in Sir Richard Croft's Cafe, it is refolved it 
 might: For there Land did belong to the Office of a Fore- 
 fter, and might belong to the Office of the Warden of the 
 Fleet, and alfo to a Corody which was no Office, and thefe 
 as well as to a Ipiritual Office, Parfon, Vicar, Prebend or 
 fuch like. 
 
 And yet it hath been held, that Land may be 
 appendant to offices of Inheritance, but not to 
 offices for life; for then the Freehold would 
 upon the death of every Officer be in obeyanee :: 
 fJ v t Rep ' ®J er ^' E.6.j\. Davis Rep. foL 34*. 
 
 But 
 
LeRura Tertia. j ? 7 
 
 But whether or no thefe Lands might be parted from the 
 Office by alienation, I thought that an argumentable point: 
 in 6 H. 8. Dyer, f. 2. E/npfon's Cafe it is faid, if the King ere- 6 h. 8. 
 ate a Duke, and grant to him an annuity to maintain his Dj,er a - 
 Dignity, that annuity was lo incident to his Dignity as it 
 could not be fever'd therefrom ; and Co of Lands belong- 
 ing to a Parfon, Vicar, Biftiop or fuch like, becaufe they 
 were given to the maintenance of them in their places, and 
 therefore if thefe were fevered, they might be recontinued 
 again to their Succeflbrs. 
 
 And in the Cafe of Sir Henry Nevil in Plo. Com. an Of- pi,, com. 
 fice of a Parker was granted to two, and Annuity for the 
 exercife of it; and it is there refolved, that the Annuity 
 might not be levered from the Office : and fo it might be 
 laid in my Cafe, That the Manor which belongs to the Of- 
 fice was at the firft laid thereto, or given therewithal for 
 the maintenance of the Officer in his place by the Founder, 
 and lb may not be fevered therefrom without his confenr. 
 And touching the intailing of the Office of the Ranger of 
 a Foreft, it is held in Mancel's Cafe in the Comment of 
 Mr. Plowdett, that the Office of a Bailiff or Receiver of the 
 Rents of a Manor may be intailed. 
 
 And fo it was refolved by all the Judges of 
 England in flevil's Cafe, Co. 7. 33. and that tiiezftrf&cife* 
 office of Steward of a Manor might be likewife 
 intailed within the Statute de donis conditiona- 
 libua. 
 
 So an ufe and a Copyhold, becaufe thefe concerned and 
 depended upon Land. But the Office of the Mafter of the 
 Hawks, or the Mafter-lhip of the Hoife could not be given 
 in Tail within the Statute of Wtfl. 2. de donis conditionali- 
 bvs, nor an Annuity which chargeth the perfony Yet all 
 thefe may be given or granted within thefe intailed limita- 
 tions^ but yet they are no intails within that Statute, 
 
 I'am 
 
"158 Leflura Tertia. 
 
 I am of Opinion, That the Office of a Ranger of a Fo- 
 reft cannot of it felf be given in Tail, but having a Manor 
 belonging to it, makes the queftion of more moment 5 For 
 as the Office De fe is not intailable, (b the Land per fe may 
 be intailed : But Land in our cafe ie not the principal, but 
 the acceiTory <*S accefforium fequitur fuum principale 5 and 
 therefore feeing the Land follows the Office, as the fhadow 
 doth the Body, and palTeth out of his own kind by the ce- 
 remony belonging to the Office, and not by the ceremo- 
 ny by which Land is transferred and pafled, I thould there- 
 fore take it, that the Eftate of the Land fhould be fuch as 
 the Office of it felf might bear, which could not be intail- 
 ed ; yet becaufe in the laid Cafe of the Forefter, with Land 
 
 i h. 7. belonging to it, it is taken to be in Tail in I H. 7. aforeiaid, 
 with a remainder thereof over in Fee, I am therefore con- 
 cluded to make any farther Queftion of it, and fo I leave 
 it as I found it, and do pals to the argument of the other 
 Points. 
 
 Second Point. 
 The fecond Commonlaw Point is, Whether this gift in 
 my Cafe be a Frank- marriage or another intailj I have ob- 
 ferved in Books that there be five things incident to a gift 
 in Frank-marriage (viz,.) 
 
 1. Firft, It muft be to or with a Cofin within the four de- 
 grees. 
 
 2. Secondly, The Word Franl(-»tarriage muft be literally 
 exprefTed. 
 
 3. Thirdlv, The Reverfion muft be left at the time of the 
 gift in the Donor 5 and then there be two other things fol- 
 low as confequents. 
 
 4. Fourthly, Acquital of payment of Rents and Services 5 
 
 But the Tenant in Frank-marriage (hall doe feal- 
 ty, according to Littleton. 
 
 5. And Fifthly, Warranty to fecure the Eftate. 
 
 And the want of thefe or any of thefe in the creation 
 doth deftroy that Eftate in the conception. 
 
 Here 
 
Leftura Tertia. j$p 
 
 Here feera to be two Impediments in ray Cafe to hinder 
 th's ^ift to take rocs: as a Frank-marriage; It is made abnepti t 
 which is the Colin in the fourth degree, and the laft in thofe 
 g ; f s, whereby the gift that way cannot have his full opera- 
 tion, for that the firft Heir of their Bodies is out of the for- 
 mer Privileges: But in regard I take it that a Frank- mar- 
 riage doth more refpeft his original creation In incept o than 
 the defcent of the privileges to the Heirs In fuo progref[u y 
 
 1 take this to be no impediment to hinder this from being 
 a gift in Frank-marriage. But here the words in the gift 
 preceding the word Fran^marriage do differ much from it, 
 for by the fpecial limitation the Heirs Females {hall inherit 
 with the Heirs Males, Simul & Semel as Heirs in common; 
 But in the Cafe of the Frank-marriage Heirs Males (hall 
 firft inherit fingle, and for want of them then the Females. 
 
 I do agree the Law, that in cafes where the fpecial words 
 of limitation may in conftruftion be made to agree with the 
 word, and limitation of Art contained in Frank- marriage, 
 the gift {hall be taken a Frank- marriage, as in the Cafe of 
 
 2 H. 3. lt.fuff.Fitz. Mordanc.plac. 52. where Lands were gi- 2 h. 3. 
 ven in Frank- marriage to R. S. cum Alicia forort le donor it a 
 quod poji mortem di&a Alicte & putrorum foorum, the Land 
 fhould revert to the donor; and this was adjudged a gift 
 
 in Frank- marriage, and the words It a quod were holden of 
 no validity; neither will the words of Refervandnm Redden- 
 dum Tenendum or Warrantizandum ; though they vary from 
 the nature of a Frank-marriage, yet they {hall not deftroy 
 the fame as an Habendum may do, which is the word whofe 
 proper place is to create the Eftate: and therefore if any- 
 thing come therein, which is repugnant thereunto, the lame 
 will alter the quality of the gift : And with this agreeth the 
 Cafe in 45 Ed. 3. Title Tail 14. and 31. where Lands were 4$ Ed. *> 
 given to J. S. in Frank-marriage with B. the Daughter of the 
 Donor, Habendum to them and their Heirs, and this was held 
 aFeefimple, and no Frank- marriage; fo in Webbe and *>***& 
 Totters Cafe, Owen 26. 
 
 And 
 
i£o Leftura Tertia. 
 
 And the like Law is where Lands are granted in Frank-mar- 
 riage, the remainder in Fee toJ.S. and his Heirs 5 theFrank- 
 Godb. 20. marriage is defeated by the opinion in Br. Cafes, and Godb. 
 
 20. And if Lands be given in Frank- marriage, 
 the remainder to the Heirs of the Husband, by 
 this remainder the Frank-marriage is defeated, 
 Mm 543. Moor 643. €a[e 888. And fo in my Cafe, becaufe there 
 can be no reconciliation between the fpecial words of limi- 
 tation in my Cafe, and the Word Frank-marriage: I am 
 therefore of Opinion, that this Gift is an Eftate in Tail, 
 according to the fpecial limitation, and no Frank-marriage. 
 
 Note, The Cafes here put, are of a remainder 
 in feefimple 5 For if Lands be given in Frank- 
 marriage, the remainder to the Donees, or to 
 a Stranger in tail, the gift in Frank- marriage 
 Hands good , notwithftanding this remainder , 
 becaufe the Donor hath mil the reversion in fee 
 in himfelf, and the Donees in Frank-marriage 
 ■ luff. 31. hold of the Donor, Co. 1 hi ft. 21. b. Godbolt 20. 
 
 Gnah. 00. . _ 9 /* 
 
 Webbe and Potter s Cafe. 
 
 Third Point. 
 Whether the Baftard (hall inherit to have an Eftate in 
 tail, is the third Common-law queftion 5 for I am clear of 
 opinion, that a Baftard cannot inherit to a gift in Frank- 
 marriage, becaufe Adultery and Fornication, which is the 
 Seed of every Baftard, is oppofite to marriage, and in br * ach 
 of that powerful! link and knot of Matrimony, which is an 
 Ordinance derived from the Divine Power of the Almighty ; 
 And therefore feeing marriage is the material confideration 
 of fuch a gift, Baftardy the oppofite can never (being out 
 of the consideration) come wiihin the privileges to inherit 
 this Eftate. 
 
 So 
 
 Godb. 20. 
 
Leoiura Tertia. i£f 
 
 So if I give Lands to J. and S. and to the Heirs of their 
 two Bodies lawfully begotten, their Baftard cannot inhe- 
 rit to this gift, became he is not heir of their two Bodies 
 lawfully begotten 5 But if the Word Lawfully had been out 
 of the limitation, then I fee no reafon but that a Baftard 
 may inherit to an Eftate in tail, as to a Fee-fimple condi- 
 tional, which he might have done at the Common-law, 
 feeing an Eftate tail may be made before marriage, as ex- 
 pecting to be confirmed thereby '■> and fo a Baftard born 
 before marriage is by the confummation of a fucceeding 
 marriage made capable to inherit to them, if his poffeffion 
 continue without difturbance to his death : Yet in Plow. 
 Com. fol. 57. in Winbifb and Tailboy's Cafe, it is faid, That Ph.cm.^ 
 if there be a Baftard, Eigne and Mulier paifhe , and the 
 Baftard after the death of the Anceftour entreth into intailed 
 hands, and dieth feized, this doth not bind the Midier in 
 cafe of Ejiates Tail, as it doth in an Eftate of Fee-fimple : 
 and voucheth for authority in the point, 39 Ed. 3. plac ^Ed.q, 
 ultimo, where the Cafe is, That Lands were given in tail to 
 J. S. the remainder in tail to C. and J. S. hath Ijfue by a 
 Woman a Baftard , and dieth feifed , and then the Baftard 
 dieth feized, having Ijfue, he in the remainder may recover 
 the Land againft the Ijfue of the Baftard ; affirming, That 
 the continuance of poffeffion in the Baftard ft)all not be preju- 
 dicial to him in remainder : To which opinion I do fub- 
 fcribe, becaufe he in remainder is a ftranger in bloud, and 
 fb cannot be concluded as the Mulier (hall be;, for a Mu- 
 lier indeed is like a graft drawn out of both the blouds of 
 Father- and Mother : fo the Baftard is a flip which is deri- 
 ved from the fime Stock, and had hh being therefrom. 
 
 And for my own opinion, confidering the Statute of 
 Weftminfter 2. de Donis doth accept of Gifts in tail made 
 before Marriage, upon the hope and expectation of a fuc- 
 ceeding Marriage to perfect the fame, even fo the Marriage 
 fucceeding to a Baftard's birth gives him and his Iffue a pri- 
 vilege in thefe Cafes of defcenr, which is denied to other 
 Baftards or mere Strangers. And I fee no reafon where- 
 
 Y fore 
 
1^2 LeStura Tenia. 
 
 fore that maxime and principle of Law Ihould be altered by 
 the faid Statute of Weft, 2. but becaufe Monntagne's opinion 
 in Mr. Plow. Com. fways the other way 5 I will therefore 
 fubmit this Point to men of greater judgment than my 
 own : So that if the Law fall out for the Baftard IlTue, 
 then (he fhould have title to the half part belonging to the 
 Females, and to no part belonging to the Heirs- males : And 
 with this Concludon I do here end my Common- law Points, 
 and will now refort to the handling of my Statute Points. 
 
 In the Cafe of Blodwell verfu* Edwards, Mich. 
 38 & 39 EliZz B. R. Popham Chief Juftice, and 
 other of the Judges were of opinion, that if a 
 limitation be to fuch iffue of the Body of a 
 Woman, as (hall be reputed to be begotten by 
 A on her Body , and (he hath afterwards a 
 Baftard,. who is reputed to be their Iffue : The 
 Baftard can never take by fuch a limitation : For 
 the Law hath not any expectancy that any fuch 
 Perfon fhould be, nor will give liberty or fcope, 
 to provide for fuch before they be 5 And if he can- 
 not take at the time of his birth, he never after- 
 wards (hall take 5 Now the Baftard was not ca- 
 pable to take at the time of his birth, becaufe he 
 could not then be reputed to be the Son of A 
 For none can gain fuch a reputation at the in- 
 ftant time of his birth , but it muft be gained 
 by continuance of time, and reputation of the 
 Countrey. The limitation alfo to one and the 
 Iffue of his Body, is always to be intended law- 
 full Iffue ', and the Law will never regard any 
 other Iffue,, Cro. Eliz. 510. 
 
 Which 
 
Lettura Tertia. 16*3 
 
 Which opinion directly contradicts that of 
 our Reader, vi% That if Lands be given to /. 
 and S. and to the Heirs of their two Bodies be- 
 gotten, without the word ( lawfully) a Baftard 
 may take by fuch a limitation : And the cafe 
 feems to be ftronger againft him, becaufe he 
 puts in the word, Heirs. For though a Baftard 
 may be the KTue of their two Bodies, yet he 
 cannot be the Heir of their two Bodies : Nor 
 can the marriage of J. and S. fubfcquent to the 
 birth of the Baftard alter the cafe , if that in 
 Croke be Law 5 For although what our Reader 
 faith is true , that the Statute of W. 1. de donis 
 doth accept of gifts in tail, made before mar- 
 riage, upon the hope and expectation of a fuc- 
 ceeding marriage to perfect the fame, yet a 
 Baftard cannot perfect fuch a gift in tail in the 
 eye of the Law, which onely regards lawful! 
 Ifliic. 
 
 The Sewers are a Court of Juflice. 
 
 I Am defirous to attribute to this Law all the honour and 
 dignity which may in any fort belong to it $ and there- 
 fore I am unwilling to forget any thing which may mate- 
 rially tend to the upholding and maintaining thereof: 
 wherein amongft the reft, and the chiefeft of them all, it 
 is, To prove the Commiffioners of Sewers a Court of 
 Juftice ; I know feme Opinion hath been to the contrary, 
 and held, That the Commiffioners had onely the power of 
 a Commiffion , and not any Court j and I fuppofe much 
 may be faid to maintain that Opinion, 
 
 Y 2 Firft, 
 
1-^4 Lefiura Tertia. 
 
 i. Fit ft, Becaufc in exprejjis ter mints there is no Court or- 
 
 dained by this Statute, or by any other, and without words 
 exprefs in the Point, they can have vo Court. 
 2. Secondly, By prefcdents in the like cafe it hath been held 
 
 The Cafe of no Court, as in the Cafe of the City of London, in Sir Ed- 
 *e city of warc i Cool(l 8th Report, The King granted to the Major and 
 Commonalty Plenum & integrum fcrutinium gubernationem 
 & corrctJionem omnium & {tngularum mijleriarum , and it 
 was refolved, That they had no Court in this cafe, becaufe 
 no Court was granted to them by the Patent, as it is hol- 
 den in Doftour Bonham'% Cafe, /. 119. in the fame Report, 
 wherein the principal Cafe there put fways the fame way $ 
 for there the Phyficians had power to imprilon, and to fine 
 Offenders, yet they had not any Court thereby. 
 
 And fo if a Commiffion iffue out of the Chancery to 
 examine matters in a Suit there depending, and to Oyer and 
 Terminer the fame, yet hereby thefe CommilTioners have 
 not any Court $ for in that cafe the Commiffion is derived 
 out of the proper power of the Chancery, which is the 
 Court for that caufe eo injiante when it is in Commiffion ; 
 And one Caufe cannot uno eodemque tempore depend in fe<- 
 veral Courts -, neither have the CommilTioners upon the 
 Statutes of Bankrupts and charitable ufes any Courts : nor 
 the CommilTioners in the cafe of 1 <& 2 Eliz. Dyer, fol. 175. 
 which had power to hear and determine the Office of the 
 Exigenter, had not any Court, but onely the power of a 
 Commiffion : For in truth thefe are all of them rather Mi- 
 nisterial than Judicial CommilTions, and fb a Court is not 
 proper to them. 
 
 Yet I am of opinion, That the Commiffioners of Sewers 
 have an eminent Court of Record : It is. true, that Courts 
 had. their beginnings in three forts 5 
 li Firft, By Prefcription. 
 
 2. Secondly:, By Charter- grant from the Growa And,' 
 
 3. Thirdly, By Aft of Parliament. 
 
 i*. The Courts, Hundred and Leet began by cuftoms, 
 and fo did the eminent Courts ofrVefiminJier-hal/.. 
 
 2. Courts 
 
Lediura Ttrtia. 165 
 
 2. Courts in Corporations mod of them took their be- 
 ginnings by Charters. And, 
 
 3. The Courts of fir ft Fruits and Tenths, and the Court 
 of Wards and Liveries were erected by A& of Parliament, 
 
 the one in 32, the other in 33 H. 8. But to bring the que- 32 h. 8. 
 ftion nearer home to our Statute of Sewers, which is but 33 H - 8 - 
 add.it amentum legtbui anticpik Sewerarum, for they have 
 been ufed from the beginning of Laws,, though perhaps 
 not known by that name: And yet before the 6 Hen. 6. 
 they were known by that name, as by 'the perufal of that 
 Statute may be collected : And therefore for the caufes 
 and reafons hereafter enfuing , I hold the fame to be a 
 Court. 
 
 Firft, For that the Statute of 12 Ed. 4. cap.j. and our 1." 
 very Statute of 23 H. 8. calls the Commiliioners of Sewers 12 Ed. 4, 
 Jujlices, So Fitz. N. B. 1 1 3. b. and one cannot properly 
 be a Juftice or a Judge but in a Court, and that in 
 Fitz^erbert was urged hjBrampfion, Chief Juftice 
 B. R. Pafcb. 18 Car. r. in the Cafe of Commins 
 and Maffam, to prove they were a Court before 
 the Statute of 2 3 H. 8. 5 . Maub 201. March Jc ^ 
 
 Secondly* Here be legal Proceedings and Procefs: for 2,- 
 this Statute faith, That the Commrjjioners may mul^ and di- 
 re^ all Writs, Preceps , Warrants, and other Command- 
 ments, to all Sheriffs, Bailiffs, and other Minijlers, &c. 
 And the Statute of 1 H. 4. cap. 12. hath thefe words in it 1 h. 4. 
 (That he that thinks him/elf grieved may purfue and he foxll 
 have right) and where there be legal proceedings, and where 
 parties grieved may come in and have remedies for the 
 wrongs and injuries done to them, there is properly a Courc 
 of Juftice to have them in : But in Dr. Bonhams Cafe the 
 Phyficians had no legal proceedings, and therefore parties 
 grieved could have no remedy, which was the reafon they 
 had net a Court, 
 
 And 
 
i#g Letlura Tertia. 
 
 3. And Thirdly, The chief reafon wherefore I take it that 
 
 Commiffioners of Sewers have a Court, is, BecaufetheCom- 
 miffion of Sewers is a member of the ancient and renown- 
 ed Court of Oyer and Terminer, which was and is a Court 
 of great efteem, power and authority 5 and fo it was need- 
 left to ereft a new Court in this cafe, as it was needfull 
 to erect and found the Courts of Wards and firft Fruits^ the 
 firft would elfe have remained in the Chancery, to the 
 which primarily it did belong, and the other was a new 
 Revenue, and wanted a Court to direct or difpofe of it. 
 
 4. Fourthly, The Commiffioners have a Clerk proper to 
 themfelves to regifter their Laws. 
 
 5. Fifthly, The Commiffioners have power to make Or- 
 ders and Decrees, which are Judgments in effect, and 
 fome of them cannot be revelled but by Act of Parlia- 
 ment. 
 
 6. And Laftly, Writs of Error have been brought to reverie 
 Judgments given in that Court. 
 
 For all which caufes I do conclude, That the Commiffio- 
 ners of Sewers have a Court of Record, although it be 
 not holden in aliquo loco certo: So was the Kings Bench, a 
 Court of more Eminency than this, but ubicunque fueri- 
 mtti in Ang!i<e, and for exprefs Authority in the point is 
 
 Gregorys Gregorys Cafe in the 6th Report ofCook^ Chief Juftice, that 
 
 Cafc> the Sewers is a Court of Record. 
 
 jferne. And this Court (by the opinion of Heme, 
 
 Lecf. p. 7, 8.) may fit and inquire by a Jury on 
 the Sunday, though the fame be not in Law 
 dies juridicus ; For judicial Acts propter necejfi- 
 tatem are good on that day 5 And the Sea is an 
 Enemy not to be repelled but by this Court. 
 
 Note., All Commiflions of Sewers , and all 
 returns and proceedings thereupon are by the 
 Statute of 23 H. 8. 5. to be in Englifh, and not 
 
 in 
 
Letlura Tertia. 167 
 
 in Latin : And fuch ftri&nefs is not obferved in 
 the forms of fuch proceedings, as in Indict- 
 ments, Siderfin 1. 78. Style 85. siderf. i.?« 
 
 Neither doth there need any adjournment of ' 5 " 
 the Commiffion of Sewers, as was agreed, Mick 
 1 640. by the Court of upper Bench ( then fo 
 called ) in the Cafe of the Inhabitants of Out- 
 well, is?c. Style 1 7 9. style 179. 
 
 And although before the faid Statute, when 
 the Proceedings of the Commiilioners of Sewers 
 were in Latin, a Writ of Error would lie there- 
 upon : yet no Writ of Error now lieth upon 
 any of their Proceedings , becaufe they are 
 all in Englifh : March 1 5)7, 201. Commins verfus March 197, 
 Majfam : But in that Cafe Brampfton then Chief 20 
 Jultice B. R. faid the Party grieved fhould be at 
 no lofs thereby 5 for he fhall be permitted to 
 difcharge himfelf by Plea, as in all Cafes the 
 Party fhall be, where he can neither have a Writ 
 of Error or Audita querela, as in 11 H. 7. io.n«7. 
 lb. 20 1. And a Certiorari likewife mil lies, to ' 
 remove fuch Proceedings into the Kings Be?icb ; 
 See for this pofiea, pag. in Certiorari. 
 
 Imprisonment imposed by the Com mi (/loners of 
 
 Sewers. 
 
 IT is a point of high confequence, whether Commiffioners 
 of Sewers have power by thefe Laws to imprifon the Bo- 
 dy of a man for any thing touching the fame, for that im- 
 prifonment of the Body feeroeth to fway fomewhat againft 1 
 
 the 
 
i68 LeStura Tertia. 
 
 the grand Charter of England, and againfl: the liberty of a 
 
 28 H. 8. free-born Subject 5 and it is faid in Bonhams cafe, 28 H. 8. 
 
 ^ r - in Djer, that liberty is a thing which the Law much favo- 
 
 reth : and I find in our Books of Law, That the Judges 
 have been very carefull and cmious in not extending words 
 contained in Charters to the imprifonment of mens Bodies, 
 unlels they were exprefs in the Point: And therefore in 
 
 claries Cafe. Claris cafe in Sir Edward Ccol(s 5th Report, fol. 64. The 
 cafe is, That the Term was to be kept at Saint Albans^ and 
 the Major there and his brethren did alTefs every Townfman 
 towards erecting and building of the Courts of Juftice, and 
 made an Order, That he which {hould refufe to afiift and 
 pay (hould be imprifoned} and one being arretted and im- 
 prifoned, brought his Action of falfe imprifonment againft 
 
 Mayor of the Major, who pleaded in effect, That they were incorpo- 
 
 St. Albans. rate by King Ed. 6. and had power granted to them in their 
 Charters to make Ordinances, by reafon whereof they made 
 the faid Order, and fo juftified, the imprifonment: But it 
 was adjudged againft the Major, for that by the laid Char- 
 ter they had not any power to make an Ordinance to impri- 
 (bn a man's Body, for that were againft the grand Charter 
 
 Magn. Chart, in MagnaCharta, cap.29. Quod null Hi liber homo imprifonetur 
 nifi per legem terr£ : But by that Book they might have in- 
 flicted a penalty, and diftrained, or brought an Action of 
 
 Dr. Bonbam's Debt for it. In Doctor Bonham's cafe in the 8th Report, 
 
 Cafe ' King H. 8. incorporated the Phyiicians of London, and gave 
 
 them power by Charter to examine the Imperites, and to 
 find out the defects, Et pro deUUis fuis in non bene exequendo 
 faciendo & utendo illos per punitionem eorum delinquentium 
 per fines amerciamentum e^ imprifon amentum corporum Juo* 
 rum : hereby it appears, that by the King's Letters Patents 
 they had power to imprifon the Body 5 but I find their 
 
 2 £//*. Dx> Charters comfirmed by Aft of Parliament : Yet in 2 Eliz. 
 
 I7S ' Dyer fol. 175. the cafe is, That the Queen did award a Com- 
 
 mijjion dire&ed to certain Commifjioners, to Hear and De- 
 termine the controversies betwixt Scrogs and CoKhil touching 
 the Office of the Exigenter, and that //Scrogs Jliould refufi 
 
 to 
 
LeRura Tenia. 16$ 
 
 U obey to make anfwer before them, they fhould commit him to 
 Prifon'j but the validity of this laft Commiffion I much 
 doubt of. I am of Opinion, That the Commiffioners of 
 Bankrupts and charitable ules , have no power to commit 
 any man 5 but if any abufe or mifdemeanor be committed 
 in contempt or derogation of their Authorities, they may 
 make Certificate thereof into the Chancery, and refer the 
 punifhment thereof to the will and difcretion of the Lord 
 Chancelor or Lord Keeper for the time being. 
 
 In Godfrey's Cafe in the 1 1 th Report a ?id Roll l . 7 2,0*f. Oodfic/i 
 there is a Difcourfe what Courts have power to imprifon, Cafe " 
 and which not, and there it is faid, Some Courts may Fine, 
 but not imprifbn, as the Courts Leet and Sheriff's turn ; fome 
 others could neither fine nor imprifon, as Courts Baron and 
 County Courts ; and fome could neither fine, imprifon nor 
 amerce, as Ecclefiaftical Courts 5 And fome may imprifon 
 and not fine, as chief Conftables at their Petty Seffions for 
 an affray done in difturbance of them; And other Courts 
 there were which might fine, imprifon and amerce, as the 
 eminent Courts of Wejlminfler. 
 
 So that imprifonment is not incident to every Court, nor 
 to every offence 3 Yet I am of Opinion that the Commiffi- 
 oners of Sewers may imprifon the Body, for it is not one- 
 ]y a Court of Record, but is authorized by A& of Parlia- 
 ment; and I fuppofe that there be words in the Commiffi- 
 on and Statute which will bear this conftru&ion, which are 
 as follow, viz. And all fuch at ye foall find negligent, gain- 
 faying or rebelling in the works, reparation or reformation of the 
 premifes, or negligent in the due execution of the Commiffion^ 
 That ye compel/ them by dijirefs , fines and amerciaments , 
 and by other Pun) foments, ways or means, &c. Which words 
 are ftrong, and large enough to authorize the Commiilioners 
 of Sewers upon juft caufe to imprifbn the Body } But here 
 they are to be carefull, and not to think that they may im- 
 prifon, fine or amerce in any cafe, becaufe the words be 
 generally put together: But this conftru&ion muftbe there- 
 of made, That they may imprifon where imprifonment is 
 
 Z due, 
 
170 LeBura Tenia. 
 
 due, and fine in cafes fineable, and amerce in cafes araer- 
 ceable, and diftrain where a diftrefs properly lieth by the 
 Rules of Law 5 and they may not imprilon, where by the 
 Laws imprifonment is not due, but every one of the laid 
 punithments is to be ufed in its proper kind 5 for thefe 
 words promifcuoufly put together, rnuft be ordered by a 
 juft and legal conftruftion, according to the Rules of Law 
 and Reafbn. 
 
 And I have known the words of a Statute generally 
 and promifcuoufly put together, have been marfhalled ac- 
 cording to their distributive operations, as the Statute of 
 i R- 3- iRi. 3. which is, That all Feoffments, Gifts, Grants, Re* 
 leafes andConfirmations of hand made by Ceftuy que v&fhonld 
 be good--, Yet though thefe words were generally put toge- 
 ther, notwithstanding the wife and difereet Sages and Ex- 
 positors of our Laws have fo Mar (hailed the words of this 
 Statute, that they made conftru&ion thereof according to 
 the Rules and Reafons of the Law, That this, That Ceftuy 
 que ufe in PolTeflion might make a Feoffment j and that Ce- 
 Jiuy que ufe in Reverfion or Remainder might grant the Land, 
 and Cejiuy que ufe of a discontinued Eftate might releafe or 
 confirm : and yet the words of this Statute were general, 
 howlbever Reafon muft be the Expofitor, that every thing 
 be done in due form of Law, and not in prepofterous 
 manner. 
 
 And thefe matters being thus pafled over, I (hall endea- 
 vour my felf to declare in what Cafes Commifiioners of Sew- 
 ers may imprifon, fine and amerce, and where not. 
 
 Imprifonment, fine and amerciament.. 
 Fi?ies, 
 
 IF one give evil language to Commissioners in Court, or 
 difturb the peace there, or hinder the bufinefs of the 
 Court in a Turbulent falhion, he may be by them Fined or 
 
 com- 
 
Leffiwd Tertia. 171 
 
 committed to Prifon, or both, at the difcretion of the Com- 
 rniffioners > for by 34 H. 6.fol. 24. in every cafe when a man 34 h. <s. 
 is fined, he may be imprifoned ; and by 19 Hen. 6. fol. 67. 19 h. 6. 
 in every cafe where one is imprifoned he may be fined 5 and 
 our Law in exprefs words gives the Commiffioners power 
 to fet fines : and then by the opinion of the faid Books ex 
 conjeqiienti they may impriibn. 
 
 But in all Cafes where the Commiflioners of 
 Sewers impofe a fine upon a Man, the fame 
 ought to be reafonable 5 and if it be exec/five, a 
 Certiorari may be granted by the Court of Kings 
 Bench, and the Judges there may moderate the 
 Rnc : By Brampftofi, Chief Juft ice, B.R. 18 Car. 1. 
 
 March 202. 
 
 If one oppofe againft a Law of Sewers not legally in 
 queftioning the fame, but refraftary contemning thereof* 
 or by diffwading perfons affeffed not to pay fuch, or not 
 to obey the Law, I am of opinion that a perfon is both fine- 
 able and imprifonable} and if this be done in facie Curi<e t 
 it aggravates the contempt $ and this is the Rebelling 
 which this Statute fpeaketh of. 
 
 If one do refute to obey the Decree, Rule or Order of 
 the Court, efpecially if it be done in afFront of the Commif- 
 fioners, when they be in execution of their Commilfion, 
 Thi; is a con-empt, and he is to be imprifoned for fuch 
 his difobedience, and this agreeth with 37 Hen. 6. fol. 14. 37 m. 6. 
 
 There is no question but a man may be fined 
 by the Court of Sewers for not obeying their 
 Decree, Rule or Order : See Brufters Cafe, Style stykw. 
 445. where one was fined by them for not obey- 
 ing their Orders, after a Certiorari was delivered 
 to them to remove the Orders, made againft the 
 Party. But it being fhewed to the Court of 
 
 Z 2 Kings 
 
172 Lettura Tenia'. 
 
 Kings Bench that the fine fet was for difobeying 
 a new Order of theirs made againft the Party, 
 after the Certiorari was returned, and not for 
 difobeying the Orders removed by the Certiorari, 
 and fo no contempt to the Court : An Attach- 
 ment againft the Commiflioners of Sewers was 
 decreed ; and Roll faid, that they might proceed 
 upon the Commiflion of Sewers , notwithstan- 
 ding the Certiorari, for the Certiorari doth not 
 remove the Commiflion. 
 
 But for a bare difobedience to their Orders, 
 it feems they cannot imprifon. For in the Cafe 
 of the Inhabitants of Oldberry verfut Stafford, 
 Trin. 1 5 Car. 2. where the Commiflioners of 
 Sewers had made an Order for a Miller to repair 
 the Floudgates, and if he broke the faid Order, 
 or refufed to obferve it, that then he fhould be 
 imprifoned , it was refolved by the Court of 
 Kings Bench that the Order was illegal. For 
 although the Commiflioners of Sewers being a 
 Court of Record, may imprifon a man for a 
 contempt committed towards them , yet that. 
 fhall be intended onely of a contempt com- 
 mitted in their prefence, and not barely in difo- 
 au»/.M4*beying their Order, Siderfini. 145. 
 
 m,Jae. in TerminoPafihe IQ Jac. in the King's Bench, the cafe, 
 
 there was in debate between Hetley and Carter, where cer- 
 tain Commiflioners of Sewers in the Counties of Hunting- 
 ton and Northampton made a Law, That certain Townfhipsin 
 ahofe Counties were afleffed tea work of Sewers, and one- * 
 
 Town 
 
Leclura Tenia. 173 
 
 Town was rated to five pounds 5 and becaufe the fame was 
 not paid, the Commiflioners caufed a Warrant to be di- 
 rected to the (aid Carter^ to diftrain for it, and he diftrained 
 the Cattle of Hetley one of the Inhabitants, and Hetley 
 brought an A&ion of Trefpafs in the Kings Bench againft 
 Carter and arretted him thereupon, and upon complaint 
 made to Sir Anthony Mildmay, and Sir John Boyer Knights, 
 and other the Commiflioners of Sewers, they caufed Hetley 
 to be attached by their Warrant, and committed him till 
 he ftiould releafe his A&ion brought againft Carter, and 
 untill he fhould be delivered out of the Prifon by Warrant 
 to be granted by them : But afterwards Hetley procured a 
 Habeas corpus cum caufa out of the Kings Bench, and was 
 removed, where all the faid matter appeared $ and there- 
 upon Attachments were awarded againft the faid ComraifG- 
 oners^ - and Sir John Boyer appearing, was by Cook^ chief Ju- 
 ftice, Crook* Dodderidg and Houghton, Juftices, commit- 
 ted to the King's Bench Prifon, and was fined two hundred" 
 pounds, but was after delivered Ex favore regis fed non ex 
 Rigore Legist 
 
 And Sir Anthony Mildmay not appearing in 
 the Kings Bench upon warning given him , an 
 Indictment of Praemunire upon the Statute of 
 27 E. 3. cap. 1. was exhibited againft him for 27 £.3-1. 
 this offence, and he had judgment ( as it feems) 
 thereupon ; But he afterwards obtained the 
 King's pardon, which was allowed in Court: 
 See the Cafe at large in Bultbodei. 107, io8, 8 «'^ 2 -' 
 190, 2pp, 300. and Cro. till. 1 1 jac. 336. cw./^.^d; 
 
 And in my opinion, The faid Commiflioners in this cafe' 
 in making a Warrant to attach Hetley, and in imprifoning 
 of him for the faid caufes did exceedingly err, and the 
 rather, becaufe they took upon them to overrule the Ju- 
 ftices of the King's Bench, being of a higher and greater 
 
 authority 
 
174 Left ura Tertia. 
 
 authority than they were of 5 But this is no prefident to im- 
 peach the power of the Comrniffioners of Sewers for com- 
 mitting perfons offending their authorities toPrifbn, if their 
 proceedings therein be confonant to the Laws of this Realm 5 
 but they were punifhed in this cafe, not for executing their 
 power, but for exceeding their limits, and the bounds of 
 their Cornmiffion. 
 
 If a Collector, or Expenditor, or other Officers of Sew- 
 ers have been negligent in the execution of his Office and 
 place, he is fineable therefore, though his offence be but 
 neglect, becaufe he was an Officer, and was alfo fworn to 
 execute the fame duly. 
 
 But I take it, a neglect in another ordinary perfon is not 
 to be punifhed. 
 
 And if one be rated to pay towards repairs, and he 
 neglect to pay the fame at the days and times appointed, 
 he is not fineable therefore, but is to be amerced in this 
 Cafe. 
 
 If a Collector or Officer of Sewers do diftrain a man, or 
 
 doe any other Act: contrary to an Inhibition of Sewers 
 
 to him directed by the Comrniffioners of Sewers, he may 
 
 - h. 4. be fined and imprifoned & Jimile faftum fait in 7 Hen. 4. 
 
 fol. 33. 
 
 If a Purprefture be committed in the King's ftreams, as in 
 fixing Piles and Stakes therein, or in flopping, ftraitning or 
 diverting the courfe of the Waters from their ancient cha- 
 ttels or courfe?, thefe offences being preftnted, the offen- 
 ders are finable therefore, if in the Preferment they be 
 found to be done vi & armk, or be prefented by the name 
 
 ,9 H. 6. of Purpreltures ; for by 19 H. 6. fol. 8. if the offence be 
 done with force, and fo prefented, then the Offender is 
 fineable, but otherwife it is if the offence be not found, 
 but omitted, for then an amerciament is onely due. And 
 
 7 Eliz.f.240. it is faid in Djer 7 Eliz. fol. 240. That for a Purprejhre 
 one is fineable, and a Purprefture may be committed in aquk 
 Regiis as well as m vik Regiis, by the opinion of Glanvil: 
 
 Kdewy 141. And in Kekwaj's Report, fol. 141. 
 
 And 
 
LeSiura Tertia. 175 
 
 And a Purprefture is taken to be an offence done to the Purprefture. 
 King immediately, or to his Pofleffions 5 But if the like of- 
 fence be done to a Subject or to his Lands, it is termed a 
 Nufans. . Kuftmf. 
 
 The Abbat of Mellefont was fined for ere&ing a Were in 
 the Royal River of Boyne in Ireland, which is exprefled in 
 the Irijli Reports in the Cafe of the Royal Pifcary of the Ban 
 in Ireland, and this was a Purprefture. 
 
 If one do refufe to accept an Office of Sewers, being 
 thereto duly elected by the Commiffioners, he is fineable 
 therefore, for in Grejl/s Cafe, 8th Report, One being elec- Gre/l/s Cafe, 
 ted and chofen Conftable, did refule to take the Office, 
 and he was fined. 
 
 And if an Officer do mifdemean himfclf in his Office, he 
 is fineable, for in 10 H. 6. fol. 6. A Tythingman did re- 10 h. 6, 
 fufe to make prefentment, being thereto required, and he 
 was fined therefore. So in cafe of the Sewers, if one of 
 the Jury, or which is a Surveyor, refufe to make prefent- 
 ment when he is required by the Gommifrioners, he is to 
 be fined. So if a Juror depart after he is fworn on the Jury, 
 or before he be fworn, after his appearance be recorded, he 
 is to be fined 5 And if an Expenditor or Colle&or, Officers 
 of Sewers, be required by the Court to accorapt for the 
 moneys received and laid out by them, and they refufe, 
 they may be punifhed by fines. 
 
 And if the Sheriff upon Writ or Warrant direfted to 
 him to return a Jury before the Commiffioners , make no 
 return thereof, nor doth not attend when he is required, 
 he is to be fined by the Commiffioners. 
 
 Alio an Officer of this Court is fineable for falsities done 
 by him in his Office, for thefe are a violation of his Oath,, 
 and is a breach of that truft which the Court repofed in 
 him at his election and entrance into his Office, and there- 
 fore the offence is greater in him than in another man. 
 
 I have learned in Books that a Fine hath thefe qualities 
 with it : 
 
 Firft, 
 
176 LeEtura Tertia. 
 
 1. Firft, The Party in that cafe is iraprifonable. 
 
 2. Secondly, The caufe for which it is impofed is not tra- 
 verfable, being merely the Aft of the Court ; but if it be 
 impofed upon a prefentment found by Jury, then the caufe 
 is traverfable. 
 
 3. Thirdly, All fines ought to be afTefTed, abated or in- 
 creafed in Plena curia, and not elfewhere. 
 
 4. Fourthly, Every fine ought to be reafonable. 
 
 And therefore I (hall put the Commiffioners of Sewers 
 34 Ed. 3. in mind as the Statute of 34 Ed. 3. cap. 1. did the Juftices 
 of Peace, that thofe fines that they (hould impofe for any 
 offence coming before them thould be reafonable, having 
 refpeft to the quantity and quality of the offence, for Ex- 
 cejfift in re qttalibet jure reprobatur communi. 
 
 But becaufe in Godfry's Cafe it is faid, that Commitment 
 
 of the Body to prifon is incident to a fine , as by a Capias pro 
 
 fine alfo may be colIeBed j Yet I hold it^jueftionable, whether 
 
 the fine (hall precede the commitment, or the commitment 
 
 the fine. But for my own opinion, I hold that this lieth 
 
 much in the difcretion of the Juftices, and I find cafes and 
 
 414/fc. prefidents both ways , for in4i djfiz.plac.12. anOfBcerwas 
 
 P 1 ' 12 - imprifoned quoufque finem fecerit, where the imprifonment 
 
 7 H' 6- preceded the fine : and with this agreeth 7 H 6. fol, 25. 
 
 33 h. 6. and in 33 H. 6. fol. 21. one was fined, and after imprifoned 
 
 for it, and there the fine did precede the imprifonment. 
 
 But upon all thefe I take the Law to be, that if one be 
 fined, and this fine may be levied by the Juftices, as Juftices 
 of the Peace may doe (but not Juftices of Sewers) there 
 the imprifonment may be quoufque finem fecit, becaufe the 
 fine is leviable by them : But the Law is not Co of Com- 
 millioners of Sewers, becaufe they have no power to levy 
 but to extreat the fines into the King's Exchequer. How- 
 fbever one before them may be both imprifoned and fined 
 Diverfis tamen refpeCtibm , The one for the wrong done, 
 the other for the contempt or difobedience to the Court 5 
 . As for example, if one refufe to be a Colle&our, he is finea- 
 ble to the Ring, becaufe hereby the Commonweal is with- 
 out 
 
LeUura Tertia. 177 
 
 out an Officer ; and he may alfo be imprifbned for difobey- 
 ing the Juftice's command ; and yet in my opinion it lieth 
 much, if not altogether in the difcretion of the Commif- 
 fioners to impofe or inflicl: both the faid punifhments, or 
 one of them, at their pleafures, being not therein precifely 
 limited by this Statute. 
 
 Amerciaments. 
 
 AMerciaments be not fo grievous as Fines be, for they 
 be derived of the word Mifericordia, which (ignifieth 
 moderation and mercy -, and to that end was the Writ in 
 the Regifter moderata mifericordia devifed , where one is 
 outragioufly amerced he might be relieved by fuing forth 
 that Writ, which Writ and the Law in that cafe is groun- 
 ded upon the grand Charter, cap. 14. Quod nuUth liber ho- Ma S nacb4rt. 
 mo amercietur nijt fecundum quantitatem deli&i : And that 
 none of the faid amerciaments be impofed fed per Jur amen- 
 tum legalium homimtm de viceneto. 
 
 Glanvil in his Book faith, Eft autem mifericordia Domini GlamiiL 
 Regit qua quie per Juramentum legalium hominum de viceneto 
 eatenus amerciand' eft : And Fleta, lib. I. cap. 48. faith, Fleta. 
 Quod liber homo non amercietur niji per fact 'amentum parium 
 fuorum. And with thefe agreeth Bratton, lib. 3. cap. 1. Erdlm. 
 and Fitz. Nat. Bre. fol. 76. and if the Steward fet an araer- Fit*, n. b. 
 ciament upon a man on his own head it is void. 
 
 By which authorities it plainly appeareth, that amercia- 
 ments are to be impofed by a Jury, or by the Oaths of good 
 and lawfull men 5 and therefore I have heretofore much 
 marvelled , when fometimes I have feen Juftices of Sewers 
 take upon them to let down amerciaments, without affi- 
 ftance of the Jury, which aft of theirs was diredly againft 
 the faid great Charter of England, and contrary to the (aid 
 authorities of Law. 
 
 So that there is a difference between the impofing of 
 fines which are done by the Juftices, and amerciaments 
 which be by Jury, or otherwifc, per facramentnm parium : 
 
 A a So 
 
178 Leftura Tertti. 
 
 So is there great diverfity between the offences of the one 
 kind, and the other $ For if one do fuffer a Wall, Bank, 
 or other work of Sewers to fall into decay for want of re- 
 pairing, which he was bound to maintain by Frontage, 
 Tenure, Cuftome or Covenant, he is in this cafe to be 
 amerced therefore : And fb if one be bound by any of the 
 faid ties to repair a Bridge, Calcey, Goat, Getty, Sluce, 
 or to cleanfe a River, if the fame by his neglect be left un- 
 done or unrepaired, he is therefore amerceable. So if one be 
 prefented for cafting Dirt, Sand, Ballaft, or other annoy- 
 ance into the Rivers or Streams, or for digging down the 
 Banks, or for pulling down the Walls thereof} if the pre- 
 fentment do not exprefs the fame to be done with force, or 
 therein be wanting the word Purprejinre, the Party pre- 
 lented is then but amerceable therefore : So when one is 
 tied to cleanle the Rivers for paflage of Boats and Ballan- 
 gers, Or for the draining of the waters, if he fuffer Sand- 
 *? beds to lie and choak up the Chanel , he is amerceable, 
 J and not fineable therefore 5 for no permiffion, fufferance, 
 neglect or nonfealans can be found to be by force, becaufe 
 they confift not in Agendo, & fie in (imilibus cafibus 5 Yet 
 fbme Cafes following fall out of thefe Rules front feqmtn- 
 tnr. As if the violence of waters was 10 great, either by 
 breaking in of the Sea in an extraordinary manner, or by 
 a fudden floud or inundation of frefh waters after a rain, 
 that thereby the Defences are broken down, or caufed 
 Sandbeds or other Nuiartces to be, thefe being prefented, 
 no man is amerceable therefore, becaufe the fame could 
 not have been prevented by policy , nor refifted by 
 ftrength. 
 
 42/Jfr. jjjiz- In 42 lib. AJJiz. plac. 1 5. a Prefentment was, That J. S. 
 had fujftred trees to grow into the water, and lay in the Stream^ 
 by reajon whereof J?)ips were hindred in their paffage 5 and there 
 was a Writ awarded directed to the Sheriff to remove the Nu* 
 fans 1 but Knivet Juftice faid there, That J. S. fliouid not be 
 amerced, becaufe the Ntifans was no AU of hts } but the Trees 
 grew fo naturally of ihemfelves, 
 
 But 
 
LeUura Tertia. iyp 
 
 But perhaps It will be obje&ed to me, Can no Amerci- 
 aments be fet but by a Jury, or by the Oathes of twelve 
 men? 
 
 Yet, I am of opinion it may be done by the prefentment 
 of the Surveyors of the Sewers, for that is per Sacramen- 
 tum parium as the Law appoints •-, and in a Nonfitit we fee 
 daily that in fuch cafe the Plaintiff is to be amerced, and 
 this amerciament fhall be aiTefied by the Coroners of the 
 County, as appears in GreiJIefs cafe} and fo the Words of Grnj/fr/s 
 the Statute and of the Law may herein be fatisfied. Cafc ' 
 
 Now I hope I have fully inftru&ed the Commiffioners, 
 wherein they may learn whom to iraprifon, when to fine, 
 and how to amerce in a legal and orderly fort, and accor- 
 ding to the ancient and approved Rules of Law, and of the 
 grand Charter; for in thofe things they are to direct their 
 difcretions by the faid Rules, and they are to be guided 
 thereby, and are not to proceed therein according to their 
 own wills. 
 
 And herein I (hall conclude the Second point of this part 
 of the Law, that is, That Commiffioners of Sewers have 
 power to imprifbn, to fine, and to amerce; And that B. 
 for refufing to obey their Order was juftly iraprifoned, 
 and C. was as juftly fined : And for the reafons and caufes 
 aforefaid, the Commiffioners in their difcretions, though 
 the offepces of both were alike, yet they had power to 
 imprifon the one and to fine the other. And now I do 
 intend to, proceed to the Fourth Point of my Cafe, and 
 the Third Point I intend to handle in a more convenient 
 place. 
 
 Difirefs. 
 
 TH E Point of Diftrefs in my Cafe is grounded upon 4 Point, 
 thefe words of this Law, viz. And all thofe perjons 
 and every of them to tax 9 ajfefe, difirain and puniJJ), as well 
 within the Metes, Limits and Bounds, of old time aca/Jiomed, 
 or otherwife t or eljewhere within the Realm of England. 
 
 A a 2 Three 
 
i8o Leftura Tenia. 
 
 Three forts of Diftrejfes. 
 
 Firft, There be divers kinds of Diftreffes (viz,) Judi- 
 cial, which always iflueth out of the Rolls of the Court. 
 
 Secondly, Minifterial, and fuch Diftrefs is to be perfor- 
 med by the Officers of thefe Laws, without any judgment 
 directing the fame. 
 
 Thirdly, And there is a Diftrefs of Common right, not 
 given nor awarded by Judgement in Court, or by War- 
 rant of the Commiffioners, but incident to the thing it 
 felf 
 
 And Firft of the judicial Diftrefs which is awarded by the 
 Court upon a presentment found of a Nufans, or in the 
 recovery of an affize of Nufans, or in an Action of the 
 4 i Affo. cafe, as it appears by the 42 Ajjiz.flac, 15. 32 Edw.%. 23. 
 a£ an< * 7 He/tr. 4. 8. there a Diftringas ad Amovendum (hall 
 Th. 4. 3 ' be awarded to remove the Nufans ; and fo in cafe of a de- 
 cay prefented : As if J. S. fufTer a Bank or Wall to de- 
 cay, and that be prefented, a Diftringas ad reparandntf* 
 fhall be directed to the Sheriff to diftrain J. S. to repair the 
 fame. 
 
 Secondly, A Diftrefs Minifterial is where one is aflefled 
 or rated to pay a certain fum of money towards the repair- 
 ing of a Wall, Bank, Sewer or Goat ; here upon Warrant 
 from the Commiffioners of Sewers, the Officer expreffed in 
 that Warrant to diftrain the cattel of the party which ought 
 to pay the faid Rate and Sefs, and which did negleft to pay 
 the fame: And yet where there is a Rate and Se&impofed 
 upon one by the Commiffioners of Sewers, I am of opini- 
 on that the Collector or Officer may diftrain therefore witta 
 out any exprefs Warrant from the Commiffioners fb to do; 
 and my reafbn is grounded upon the Statute which is this, 
 becaufe the Statute and CommilTlon which be the general 
 Laws, do of themfelves in this cafe give a Diftrefs. And 
 therefore in thefe cafes, the Warrant of the Commiffioners 
 20 Elirfyer. is fuperfluous, like to the Cafe in 20 Eliz. Dyer, fol. 362. 
 where a fine was levied of Lands, to the intent that J. S. 
 fhould have and receive a yearly Rent thereout, although 
 
 in 
 
Letlura Tertia. 181 
 
 in the conveyances there was no mention made, that the 
 party might diftrain for the lame : Yet in that Book it is 
 mentioned to be adjudged, That the owner of that Rent might 
 diftrain for the fame, becaufe the Statute of 27 H. 8. in that 27 h. a. 
 Cafe gave a Diftrefs: Upon which Statute the laid convey- 
 ance was grounded. So if there be two Coparceners to 
 whom Land doth defcend, and they make partition, and 
 for more equality, (he that hath the better part doth grant 
 to the other and her Heirs a yearly rent out of her Land, 
 but limits no claufeor power of diftrefs, (he to whom this 
 yearly rent is granted may diftrain therefore : And fo may 
 a Bailiff diftrain for an amerciament in a Leet without a 
 Warrant, becaufe the general Law gives a diftrefs in thefe 
 Cafes. 
 
 Thirdly, And as touching a Diftrefs of common right,. 
 It is in cafe where one doth hold his Land of his Lord a* 
 of his Manor, to repair a Bank, Wall or other Work of 
 Sewers 3 the Lord of whom thefe Lands be holden may 
 diftrain his Tenant of common right to compell him to make 
 thefe repairs; and the Diftrefs given in the faid Cafe of 
 the Coparceners, and in the faid cafe of amerciament in a 
 Court of Leet, feem both to be diftrelTes of common right ;. 
 And that the Law is, that a Diftrefs lieth for a Rate, Lot 
 or Tax impofed by the Commifiioners of Sewers, it is ma- 
 nifeft by the Cafe of Rood's in Cool(s 5th Report, which is full Rooi£s Cafe. 
 and direct authority in the point. 
 
 But yet note, That the Officer before he di- 
 ftrains, ought to give notice of the tax to the 
 Party, and demand it, Style 13. W4* 
 
 In what place a Diftrefs is to be taken, 
 
 NOW touching; the place where thefe DiftrefTes are to- 
 be taken, comes next into our confederation, where- 
 in the quality of the matter diftrained for, and the power 
 from whence the diftreffes are derived, are to be confide- 
 red of And 
 
1 82 LeSiura Tertia. 
 
 And therefore if a Lord do diftrain his Tenant Ration* 
 tenure, for to repair a Wall, Bank or other defence, this 
 diftrefs muft be taken on the Ground holden by this Te- 
 nure and not elfewhere, for thefe Grounds are chargeable 
 therew'uhall, as the opinion of Juftice SyUiard is 2 1 Ed. 4, 
 fol. 38. But not as that cafe is, but in point of Tenure; 
 11 Ed. 4. f or there the cafe was That a prelentment was found in h<ec 
 verba, videlicet Jurat ores prefent' quod eft communis Regia via 
 in Parochia San Hi Martini in Campis in Com' Middle fix in- 
 ter Hojpitia Epifc Dunelmenfis & Epifc' Norwich totaliter 
 fuperundat' aquis & quod tarn domini Jf>irituales quant tempo- 
 rales & Jufticiarii domini Regis & Servientes ad legem & 
 omnes alii Legis miniftri & omnes alii per viam illam verfus 
 Weftmonaftef itiner antes pro legibus domini Regis ibidem mi- 
 ni ftrandk & obfervandis fepius impediuntur per quod via ilia 
 totaliter fuperinundata exijiit excejju emanationis aqu£ pluvia- 
 fis ibidem remanent' quam quidem aquam Epifcopus Norwicen- 
 fis raiione tenure fu& ibidem evacuare debuit & quod ipfe & 
 omnes predeceffores fiti ratione Tenur£ fu<e ibidem evacuare 
 debent: And in this cafe I take it the Land was charged, 
 not as in refpeft the Biftiop of Norwich did hold the fame 
 of fame Lord by the Tenure, to repair the Sewer to avoid 
 the Water; but his Land ftood charged with the fame as a 
 charge impofed thereon by Cuftome or Prefcription, a? by 
 the Prefident it felf appeareth ; for if the Bifhop of Norwich 
 had been by the Tenure of his houfe or Lands bound to 
 avoid the Waters, there needed no Prefcription to have 
 been alledged. 
 s H. 7. Alio in 5 H. 7. fol. 3. there is a like Prefentment made 
 
 againft an Abbot, Quod ipfe & predeceffores fui, ought to 
 repair a gutter ratione tenure terrar' fuar'i but becaufe in 
 that cafe the Prefentment did not fet forth where thole 
 Lands lay which were charged, the Prefentment for that 
 caufe was holden to be void : So that there is a great difTfrT 
 rence between a Tenure charge, and a charge impofed up- 
 on Land by Prefcription •-, For in the cafe where a Tenant 
 holdeth his Land to repair a Bridge, Wall or Bank of the 
 
 Lord 
 
Letlura Tertia. ,i#':r 
 
 Lord of the Fee, Tht Lord in this cafe may diftrain the Te- 
 nant ot common right by tht Common laws of England: But 
 where ones Land is charged by Preicription and Cuftome, 
 there is no remedy to force and comptll the Tenant to do 
 the repairs but by Prefentment, and upon a Prefentment 
 procefs may be awarded againft him to diftrain him to make 
 the repairs. 
 
 And if upon a Prefentment made by the Laws of Sewers, 
 J. S. is charged to repair a Sewer, and a Dijiringas ad repa- 
 rattdum be awarded againft him, the Sheriff may diftrain 
 the party in any place within the power of the Commiffion 
 of Sewers. But this being a judicial Diftrefs which iffueth 
 out of the Rolls, the Juftices are tied to the limits and 
 bounds of the Coramiflion} Yet in 19 K 6. fol. 7. the cafe 19 « 6* 
 was, That the Admiral of England hath jurisdiction in cau- 
 fes arijing onely on the Seas, and he hath no jurisdiction or 
 forcer to meddle with any thing done upon the Land: Yet up- 
 on a Prefentment made in the Admiral Court one was Pre- 
 fented and Amerced, and a diftrefs for this amerciament was- 
 taken on the Land, and exception was thereto taken, that 
 the diftrefs was taken out of the jurisdiction of that Court; 
 But there Newton chief Juftice and the reft of the Juftices 
 (aid, That the power of the Admiral to hold plea was rejlrai- 
 ned by Statute to matters arifing on the Sets, hut Executions 
 were not fo. 
 
 And I have farther obferved by the Book of 8 R. 1. Fifz- 8 . ^. 2s 
 her. Avoury 253. that where no place is certainly prefcribed 
 to diftrain in, that in fuch a cafe the diftrefs may be taken 
 in any place within the power and jurisdiction of the Court, 
 out of which the Writ or Warrant of diftrefs doth iflue : 
 As if one be amerced in a Court Leet or in a Court Baron, 
 he may be diftrained for thefe amerciaments in any place 
 within the jurisdiction of thefe Courts 3 and for an amercia- 
 ment fet and impofed in the Sheriffs turn a diftrefs may be 
 taken for it in any place of the County 5 for fo far the 
 power of that Court doth extend it felf. 
 
 Yet 
 
184 LeRura Tertia. 
 
 Yet quere whether a diftrefs can be taken for 
 an amerciament in a Court Baron, in any o- 
 ther part of the Manor, fave upon the Lands of 
 the Offender : For in Pill and Tower's Cafe, 
 Mich. 42 Eliz. C. B. it feems to be the opinion 
 of all the Juftices of that Court, that fuch a di- 
 ftrefs was not lawfull, unlefs there were a Pre- 
 fcription for it 5 and in fuch cafe fome of the 
 Juftices held it good : but WalmefLy denied that 
 the Lord could prefcribe to diftrain for fuch 
 amerciament , anywhere within the Manor ; 
 ^ -Crook?, Eliz* 79 2. ' 
 
 But in the cafe of a (efs, rate or tax impofed by the Com- 
 mkfioners of Sewers, a diftrefs for any of thofe may be taken 
 in anyplace within the Realm of England ■■> for in this cafe 
 the diftrefs is meerly grounded upon the Statute, and is 
 bounded by the fame limits, which is as large as the Realm 
 of England: And hereupon by this conftruftion made in 
 this legal manner, all the words in the faid claufe of this 
 Statute have their full operation. 
 jtooit's Cafe. And although in Roo%s cafe the diftrefs was there taken 
 on the ground charged, yet that doth not prove but that a 
 diftrefs might have been taken in any other place, for I ve- 
 lily take it, that the place where the diftrefs was taken, in 
 that cafe was not intended any material point , though in 
 my fucceeding argument for another purpofe 1 {hall make 
 it one. So that my opinion touching diftreffes to be ta- 
 ken in cafes of Sewers, appears to ftand upon thefe three di- 
 ftin&ions. 
 I. Firft, that the Lord of whom the grounds be holden to 
 
 make the repairs, muft diftrain on the grounds Co holden, 
 and not elfewhere. 
 
 Secondly, 
 
LeRura Tertia. 185 
 
 Secondly, That upon a Dijlringas ad reparandum or Amo- 
 vendum upon a Prefentment, which iffueth out of the Rolls 
 of that Court, and is a judicial procefs, a diftrefs muft 
 thereupon be taken within the bounds of the Commiffion 
 of Sewers Ex congruitate. 
 
 Thirdly, A diftrefs for a rate, or fefs, or tax aflefled 
 and impofed by the Commiffioners of Sewers may be taken 
 in any part or place within the Realm of England j for this 
 is a diftrefs grounded upon the Statute, and is as large as the 
 extent thereof. And fo the difference appears where the 
 diftrefs is guided by the Commiffion, and where by the 
 Statute. 
 
 Wbofe goods may be diftrained. 
 
 IT comes now in turn to be handled, whofe goods may 
 be diftrained and taken within thefe Laws. For the 
 words of diftrefs be put Co generally in this Statute, that 
 they muft receive their expofition by the Rules of the Com- 
 monlaw, in regard thefe Laws do give no fpecial direction 
 therein •-, and therefore the diftrefs mentioned in Rood's cafe AoofsCafc. 
 may in this place be queftioned : For there Carter was af- 
 feffed, but the goods of Rool(s were diftrained and taken 
 for the faid affefs, and no challenge or exception was there 
 made of it 5 and no marvel, for it was fpecially found that 
 the goods were taken and diftrained on the grounds char- 
 ged, for otherwife that diftrefs had been tortious } wherein 
 I take this diverfity, That where grounds are chargeable 
 to repairs of defences, and a Sefs is thereon impofed by the 
 Commiffioners of Sewers, the goods of a Stranger may be 
 taken therefore on the grounds feffed ; and this is warran- 
 ted by Rooi(s cafe. But Rool(s being a Stranger, his goods 
 could not in any fort have been taken for the Sefs impofed 
 upon Carter, but on the grounds charged : and the like Law 
 for Rents and Services iffuing out of Lands, the goods of 
 a Stranger Levant and Couchant on the grounds fb holden 
 may be diftrained for Rents and Services, by 7 H, 7. 2. and 7 #• 7. 
 11 H. 7.4. Bb But 11 * 7 ' 
 
l8£ Letlura Tertia. . 
 
 But put the cafe a little farther, that in the Sellions Court 
 of the Sewers, A. B. is amerced for Non-payment of his Sets 
 towards the repairs of a work of Sewers j and in this cafe I 
 am of opinion, that the proper goods of A. B. are to be di- 
 ftrained for this amerciament, and not the goods of a Stran- 
 ger going on his grounds charged to the (aid affefs, becaufe 
 this amerciament is a collateral charge, which falls on the 
 perfon of the offender who was to pay the affefs, and doth 
 not in any fort charge the grounds: and this opinion hath 
 
 /.i M §.. warrant from the cafe in 41 Ed. 3. fol. 26. Br. Leet 4. for 
 there A. B. was amerced in a Court-leet, for receiving 
 and keeping one in his Houfe which was not fworn to the 
 King 5 in which Cafe it was holden, that no Goods could 
 be diftrained for this amerciament, but onely the proper 
 Goods of the Party amerced, although the Goods of others 
 were levant and couchant on his Ground : And farther in 
 proof of my faid opinion, the Cafe of the Lord Cromwell 
 
 tyet 322. in 15E/. in Dyer, f. 322. doth come fully thereto, which 
 is, That a Replevin in an avowry was made for a pain and 
 forfeiture of ten (hillings, due for the breach of a Bye- 
 law, Contra ordinem Cnri£, and alledged to make Bye-laws 
 within the Manor by the cuftome thereof: In which Cafe 
 It is apparent, that the proper Goods of the Party are to 
 be diftrained therefore, and not the Goods of a Stranger 
 levant and couchant on the Grounds. 
 
 47 &* 3- And in the 47 Ed. 3. fol. 1 2. the Prior oiTittdah Cafe, 
 where the Prior was amerced, and another Man's Goods 
 were taken and diftrained on the Grounds of the Prior for 
 the faid amerciament, and the diftrefs was not well taken 5 
 and Co my opinion may be conceived, that for an aflefs the 
 Goods of a Stranger may be diftrained on the Grounds 
 charged, but may not there be taken for a fine or amercia- 
 ment, which be collateral duties, and attend upon the 
 Peifbn, and do not charge the Soil 
 
 Although the Goods of a Stranger (hall not 
 be diftramed for an amerciament, though they 
 
 are: 
 
LeUura Tertia. 187 
 
 are levant and couchant upon the Lands of the 
 Party amerced ; yet by the opinion ofBrampfton, 
 Chief Juftice, B. R. ijCar. 1. the Goods of an 
 Undertenant may for an amerciament fet upon 
 his Landlord ; and that without any particular 
 cuftome to warrant it : As where a cuftomary 
 Tenant is amerced for not repairing, in that cafe 
 he held, that the Goods of his Under-tenant le- 
 vant and couchant upon the cuftomary Lands 
 may be diftrained for fuch amerciament ; March March !«*. 
 16 \. Thome and Tylers Cafe; Tamen quere, for 
 the reafon of that Cafe in 41 Ed. 3. 26. that the 
 amerciament falls on the Perfon of the Offen- 
 der, and the caufe of the diftrefs doth not anfe 
 ratione fo/i, as is faid in Br. Leet 4. holds as well Br. Lett $ 
 in the Cafe of the Under-tenant, as of a mere 
 Stranger, But if this opinion of Brampfton be 
 Law, by the fame rule, the Cattel of an Under- 
 tenant of a Perfon amerced in the Court of 
 Sewers, if they are levant and couchant upon 
 his Lands, may be diftrained for fuch amercia- 
 ment. 
 
 This difcourfe being thus ended, I (hall now enter into 
 a matter of greater moment 5 and yet becaufe thefe matters 
 be frtquent in bufinefles of the Sewers, that which I (hall 
 here pretermit I will in fome other place more fully dif^ 
 courfe of. 
 
 B b 2 Goods 
 
T 
 
 188 Lettura Tertial 
 
 Goods fold. 
 
 H E farther matter of this point will reft upon this^. 
 whether Goods diftrained and taken for a Sefs and 
 Rate of Sewers may be fold, or not 5 which point hath 
 been oftner pra&ifed than the Law truly decided : But be- 
 fore I fhall touch upon the mam, I will make an fngrefs to 
 treat of fuch matters whereby the property of a Man's Goods 
 may be altered without his confent. 
 
 I. And firft, at the Common- law, if a Man's Goods be 
 
 wrecked, waived or taken as ftrays, or fold in Market 
 overt, the property may be altered. 
 
 ft. Secondly, by Cuftome, as in London upon a Foreign 
 
 Attachment Goods may be attached and fold to another : 
 tya279. and in io£/. Dyer, f&l. 279. b. a Cuftome is alledged to 
 be in Tor\ that Foreign Goods there bought and fold are 
 feifable by the Corporation, and lb in cafe of a Heriot 
 Cuftome. 
 
 3- Thirdly, But the King by his Charter cannot take the 
 
 properties of my Goods from me, as in the Cafe of London 
 Cafe of the Cooi(s Rep. the Cafe of Aufien and Waltham, where King, 
 ^ of Lon ' Henry the 6th granted to the Corporation of Dyers there 
 hy Charter, That if upon fearch they jliould find any Clothes 
 died with Logwood, that they feife them as forfeit 5 but re- 
 folved, that this Grant was in that point void. 
 
 4. Fourthly, By a Bye-law in a Court- leet or Baron, the 
 
 property of my Good9 cannot be taken from me. 
 
 5» And fifthly, By a judgment againft one at the Common- 
 
 law, although a Man's Perfbn nor his Lands were liable 
 thereto, yet his Goods were. 
 
 Thefe five Grounds being firft taken, I fhall now exa- 
 mine the particular of our Cafe in queftion touching the 
 Law made by the Commillioners for (ale of Goods ; and a- 
 gainft this fale many things may be alledged. 
 
 SL Firft, This Statute I reade on gives a diftrefs, and a di~ 
 
 feels is but a gage or gledg?, and cannot be fold 5 for if 3 
 
 Lordi 
 
LeSiura Tenia. 189 
 
 Lord diftrain his Tenants Cattel for Rent and Services, he 
 cannot fell the Diftrefs : And although in ioc^ii Eliz. Djer 280. 
 Djer, fol. 280. a return irrepleviable was awarded to the 
 Lord or Avowant, yet he cannot fell this diftrefs, nor work 
 them by the opinion of that Book. 
 
 Secondly, The Statute of 7 Jac. cap. 20. Raflal Marfies 2. 
 and Fens, doth enac>, that a Commiffion in the nature of 7 7«. 20. 
 this of ours fhould be directed to the Bifhop of Norwich, 
 and others for the recovery of Fen-grounds 5 where for an 
 aflefs impofed, and for Fines and Amerciaments, exprefs 
 power is given by that Statute to fell the Party's Goods 
 which doth refufe to pay, Ergo, without fuch an exprefs 
 claufe a fale of Goods could not have been lawfull. 
 
 And by the Statute of 1 and 3 Jac. the forfeitures of 1 & 3 foes. 
 Alehoufekeepers may be levied by fale of their Goods, by 
 the exprefs letter of thefe Laws : and fo it may be inferred, 
 that our Statute wanting fuch an exprefs claufe to authorise 
 a fale, therefore no fale can be. 
 
 But much may be faid to the contrary ; for although in- 
 cafes of fale the Laws be tender, yet it is plain, that both 
 our Common-law, Guftoms and Courts of Juftice daily ufe 
 them, and are frequent in thofe (ales : And we know that 
 a diftrefs is properly a pledge to be detained till fatisfaftion 
 be made, and therv to be reftored, and is not to be (old : 
 Tet in 3 H. 7. fol. 4. a diftrefs taken for an amerciament in $.H. -p. 
 a Leet or Law-day may be fold as well in the cafe where 
 the Subject hath by Charter or Prefcription the profits of 
 the laid Courts, as where the King himfelf hath them 5 and. 
 all the reafbn which that Book yieldeth for it, is, becaufe 
 they be the King's Courts \ And fo it Was likewife re- 
 folved in Godfrey's Cafe, Roll 1. 76. and the rea- *»**. •&. 
 Ton there given why fuch a diftrefs may be fold, 
 is, becaufe it is for a publick matter : But a diftrefs 
 taken for an amerciament in a Court- baron cannot be fold 5 
 
 no not although it be a Court- baron of the 
 
 King's 
 
i^b LeUura Tenia. 
 
 *fj£ 53- King's , Bulftrode i. 55. And in 22 Affiz. pUe. 72. 
 cro. Jac.2$$. and CYo. M/VA, 8 Jrff. 255. it is faid, That if one re- 
 cover a debt in a Court-baron, the Goods of the Debtor could 
 
 not be fold therefore 3 At lead, if there be not a cuf- 
 BrwwAi.41. tome to warrant it ; for by the opinion in Brown- 
 low 1. 41. it feems that Goods may be fold up- 
 on a Levari facia* out- of a Court- baron, if there 
 be a CUliome for it. Yet I have feen always in prac- 
 tice, that for debts and damages recovered in the County 
 Courts, the Goods of the Debtors have and be ufually fold 
 for them by Levari facias 5 and in my opinion this is ufed 
 per totam Angliam : and a fale in fuch a cafe in a Court- 
 baron by cuftome is good 5 and with this agreeth the Book 
 of 7 H. 4. fol. 27. and 21 H. 7. /. 40. in a Leet-court one 
 prescribed and alledged a cuftome to. have of every one 
 which made an affray within his Liberty, a certain fum of 
 money, and prefcribed alfo to diftrain for it, and to fell the 
 diftrefs : and with this agreeth 1 1 H. 4. 14. and 1 1 H. 4. 
 fol. 2. A diftrefs taken for the Knights Fees of the Parlia- 
 ment was fold. Therefore now let us fee and examine well 
 by what authority our Officers of Sewers may fell the di- 
 ftreffes taken. The words in our Statute which are mod 
 poweifull in this point, be thefe, (viz.) To depute and af- 
 ft in diligent, faithful! and true Keepers, Bailiffs, Surveyors, 
 Colled- or -s, Expenditors , and other Officers for the fafety\ 
 confervation, reparation, and making, repairing, reforming 
 and amending of the Premises and every of them, and to hear 
 the accompt of the Collcttors and other Minijiers, of and for 
 the receipt and laying out of the money that Jloall be levied and 
 paid in and about the fame : Here is the word (Levy) ufed, 
 and money levied is properly upon a fale, execution or 
 forfeiture 3 And the words of our Statute go farther, (viz.) 
 And to diflrain, or otherrvije to punifl) the Debtors and De- 
 tails of the fame by fines , amerciaments , pains , or other 
 like mans after their good difcretions ; and no likelier means 
 
 to 
 
 7 H. 4. 
 21 H. 7 
 
 .11 H. 4. 
 
LeSlura Tertia. I pi 
 
 to thefe is there any, than to make fale of the Debtor's 
 Goods for non-payment of his fefs, and it is confonant to o- 
 ther Laws : alfo in another part of this Statute are ufed thefe 
 words, And the Clerks by the Commijfioners to be ajfigned to 
 have two fallings per diem of the rales , taxes , lots and 
 waives at fiall be affejfed or loji by authority of the faid Com- 
 ntiffion, to be levied and paid by their difcretions : And Co it 
 feemeth by the very exprefs letter of this Law, the taxes, 
 feffes and rates may be levied by the difcreiion of the Com- 
 miffioners, which if they pleafe may be by (ale of the Ofc 
 fender's Goods : And in many parts of this Statute, the 
 Juftices of Sewers have power to make Laws, Ordinances 
 and Decrees, which being done according to reafon, fhall 
 be held for firm and inviolable : And therefore upon juft 
 caufe in my opinion, the Commiffioners may make a Law 
 or Ordinance for the fale of Goods in furtherance of this 
 fervice 5 and this being a Law which tendeth fo much to 
 the (ervice of the Commonwealth, and is fo profitable and 
 commodious for the fame, it is therefore good reafon to 
 extend the fame, and the expofition thereof, as far as the 
 Letter and intent of the Letter fhall reach ; which may be 
 as far as fhall ftand with reafon, and rules of other Laws, 
 Statutes, Cuftoms and Ufages of other Courts which have 
 power in fale of Goods in caufes of this nature, and is not 
 altogether without prefident : For in the Charter ofRomney ch. Rmne} 
 Mar/h, pag. 36, &%J. It is faid in thefe words in a debate Mar ^' h 
 between Hamo and Godfrey, Et preditfu* Hamo-conceffit pro 
 fe & aJik quod computabit cor vigint' quit nor Jural eleB' de 
 patria fuper diftriHionibus & averiis capt' predi&i Godfredi 
 pro predict' WaUiis & rvatergangiis repar al> initio ijiius pla- 
 citi ufque nunc, &c. & dijiri&iones ill^ fecundum quant i- 
 tatem portionis fibi contingent interim pro predict' Walliis & 
 •xatergangik repar andum ficut precHSt' ejl per predi&? dijlric- 
 Hones quod idem Hamo d> alii fit ftfacient in omnibm quod in- 
 jun&HKt fuerit per prtdi&i comput' inter eos de furplufagio re- 
 cepto de averiis venditor preditt' Godfredi occafione predift'. 
 Hereby tl is manifeft, that Hum the Bailiff ibid the Cattel 
 
 of 
 
ip2 Leftura Tertia. 
 
 of Godfrey to make the repairs of the Walls and the Water- 
 ganges ; and our Statute gives power to the Gommiffio- 
 ners of Sewers to doe after the cuftoms of Rontney MarJ/j y 
 which by this prefident formerly vouched, warrants the fale 
 of Goods. 
 
 And it was ruled in the Cafe of Combs and 
 Cbeny, Mich. 24 Car. 1. B.R. that the Commif- 
 Akyn 92. fioners of Sewers may fell a diftrefs, Aleyn 92. 
 
 Yet herein I am of opinion, that the Bailiffs which di- 
 ftrain cannot Ex officio without a fpecial Warrant firft di- 
 rected to them for that purpofe from the Commiffioners, 
 make (ale of Goods diftrained for a lay , tax or fefs of 
 Sewers ; And I take it, it were a good Warrant for the 
 Commiffioners to make an advifed fpecial Law of Sewers for 
 fale of Goods diftrained upon a juft occafion, before they 
 direcT; any Warrant Exfobito to the BailiiFs, or for any fuch 
 purpofe. 
 
 But now herein follows a matter of fome confequence, 
 and worthy the handling, That if by the Laws of Sewers 
 goods may be fold towards the repairs of thefe work?, as 
 in my opinion they may, Then whofe goods may be fold 
 is the queftion next to be decided; wherein to be brief, I 
 am firm of opinion, That no goods can or ought to be fold 
 by the power of thefe Laws of Sewers, but onely the pro- 
 per goods of the party felTed and taxed, though the goods 
 and chattels of other men be Levant and Couchant on the 
 grounds felled to the repairs: For I hold it not confbnant 
 to reafbn, nor that it ftands with any rule of Law, That 
 the goods and chattels of a ft ranger fhould be abfolutely ta- 
 ken away from him, and fold for the dept and default of a- 
 nother man. And to this purpofe the cafe put in the 
 3 &k> 3 El. Dyer, f. 199. may fitly be applied to this point, where 
 a cuftome is alledged for a Lord of a Manor to have and take 
 the beft Beaft which his Tenant had at his death 5 and if 
 fuch beft Beaft (hould be efloyned, that then he might have 
 and take the beft Beaft of any other Levant and Couchant 
 
 upon 
 
Leftura Tertia. 102 
 
 upon the Land •-, and this was adjudged a void cuftorae, as 
 to the goods of a ftranger to be made fubjeft to fuch a for- 
 feiture. 
 
 It feems questionable , whether die Rule, 
 
 That no goods can or ought to be fold by the 
 
 power of thefe Laws of Sewers , but onely the 
 
 proper Goods of the Party fefled and taxed, be 
 
 fo general, as is here fet down 5 For if a man be 
 
 taxed in refpect of his Land, and he fells or lets 
 
 the Land to another, it feems reafonable that 
 
 the Goods of the Aflignee may be diftrained 
 
 and fold for the tax, becaufe the fame is a 
 
 charge upon the Land, into whofe hands foevet 
 
 it comes j And the reafon here given by our 
 
 Reader why no Goods but thofe of the Party af- 
 
 fefled fhould be fold, viz^ that it ftands not with 
 
 any rule of Law, That the Goods and Chattels 
 
 of a Stranger fhould be abfolutely taken away 
 
 from him, and fold for the debt and default of 
 
 another man , holds not in this cafe ; for the 
 
 Aflignee is not a Stranger to the Land, nor con- 
 
 fequently to the debt, tor he takes the Land cum 
 
 onere 5 and this feems to be the meaning of what 
 
 is faid in Style 13. 111 the Cafe of Whitley and^ij. 
 
 Fatcfett , B. R. That for nonpayment of a tax 
 
 impofed by the Commi/Iioners of Sewers, the 
 
 Cattel of the Owner of the Land taxed, or of 
 
 his Aflignee, may be diftrained and fold ; But a 
 
 Stranger's Cattel upon the Ground cannot be 
 
 fold 
 
 C c Thus 
 
1 24. Leftura Tertia. 
 
 Thus far I have purfued my argument in difcourfing up- 
 on thefe diftrefles, and touching fuch matters as do depend 
 thereon, becaufe in my experience I have found them the 
 readieft part of the execution of thefe Laws; and I have 
 heretofore beheld much enormous proceedings therein , 
 both in the Commiffioners and in their Officers, and there- 
 fore I thought it very needfull to have treated thereon for 
 their better direction in thefe affairs hereafter. 
 
 Replevins. 
 
 YE T as I find diftrefs to be the moft ufefull execution 
 of thefe Laws of Sewers, fo I have feen the procee- 
 dings therein much ftayed and interrupted by the ufual fuing 
 of Replevins, by which means the (aid diftrefles taken by the 
 authority of thefe Laws have been fet at liberty, and the 
 work of Sewers hath been much letted and hindred there- 
 by. And therefore the fifth point in my Cafe doth mini- 
 fker a good occafion to enter into the ferious examination of 
 them. 
 
 And now my intent is, to declare in what cafe a Reple- 
 vin doth lie, and where not 5 and fiirely this point hath 
 heretofore been much ftirred in , and not without feme 
 caufe, for the very Statute feemeth to allow of Replevins in 
 thefe words, (viz.) That if any aft ion of Trejpafs, or any 0- 
 ther A3 ion fh all be attempted again fh any perfon for taking any 
 D/Jlrefs, or for any other thing concerning the Law of Sewers^ 
 that the Defendant in fuch Action may make Avonry,cognifance 
 or juflification, that the taking of the faid Diftrefs, Trefpafs or 
 other A&, whereof the Plaintijf complained was done by the 
 authority of the Commiffion of Sewers, for a Lot or Tax affef- 
 fed by the faid Commijfion, or for other fuch a& or caufe as the 
 Defendant did by the faid Commiffion: And in what aftioa 
 can a man fo proper!} make his avoury, Cognifance or Ju- 
 stification as in a Replevin, being a word onely apt for that 
 aftion; and a Diftrefs is de Jua natura, properly replevifa- 
 ble by the Commonlaw : and for direct authority in the 
 
 point, 
 
Leffura Tertia. 1^5 
 
 point, it appears in Rook's cafe, that a Replevin was there rm1$ Cafe, 
 fued for the delivery of the diftrefs taken by the power of 
 thefe Laws of Sewers : But I mud here diftinguifh, for I am 
 of opinion a Replevin doth not lie, nor ought not to be 
 granted from the Sheriff, or any of his Deputies, for that 
 the Sewer is a Judicial Court of Record, and of greater au- 
 thority than the power of the Sheriff, which in thefe cafes 
 was but Minifterial ; and the higheft authority that he hath 
 is but vicontiel, which is much inferior to the power of 
 thi3 Commiffion j and therefore the Sheriff is not of fuf- 
 ficient power to fuperfede a Court of higher power Yet 
 if one fue a Replevin, which afterwards in Bank was abated, 
 and a return of the Cattel there awarded, another Replevin 
 did lie by the opinion of the Book of 34 Henr. 6. fol. 37. ?4 & s. 
 and fo it appeareth by the Statute of Wefiminjier, chap. 2. 
 but thefe new Replevins came out of the faid Courts where 
 the former was, for it is not likely, that the Sheriff could 
 make deliverance by his Warrant of Cattel, contrary to the 
 award and return of a Court of Juftice in a Retorno habett- 
 do •-, and therefore by the fame Statute the Secunda delibera- 
 tione, is now to be awarded out of the Rolls of the Court 
 whence the Retorno habendo came : And if one would re- 
 ferable this cafe with other authorities, and with the rea- 
 fon of other Book cafes of the Law, it will be made there- 
 by apparent, that the higher Court may take or remove a 
 caufe out of the inferior Court, but not E contra, neither 
 can the inferior Court fuperfede the fuperior : For if one 
 be impleaded in the King's Court at Wejlmnjler, and in com- 
 ing towards London he is arretted in a Corporation Court, 
 he may be delivered thence by the power of the fuperior 
 Court to the which he was attendant, and the power of 
 the inferior Court (hall be fuperfeded thereby, as the Law 
 is declared in divers of our Books 5 By the which it is plain, 
 -that ones perfbn being in the privilege and proteftion of 
 the King's Court, could not juftly be imprifoned by the 
 power of an inferior Court : And in String fellow's cafe in 
 3 Ed. 6. Dyer fol. 67. The goods of one w«e feized by the 3 Ed. 6, 
 
 Cc 2 Sheriff 
 
196 LeRura Tertia. 
 
 Sheriff by procefs out of the Chancery for a fubjecl: , and 
 after feifure, and before delivery thereof was made, a Writ 
 of Prerogative came out of the Exchequer, rehear fing there- 
 by, that the Ring was to be ferved before any other, and 
 commanding the Sheriff to levy the fame on the goods of the 
 fame Debtor 5 And whether thefe goods that lay under the 
 power of a Procefs in one Court might be taken from 
 thence by the power of another Court, was the queftion; 
 and the better opinion therein, as I take it was, that they 
 could not, for that by the former Procefs they were privi- 
 leged from all other Jurisdictions, powers and authorities, 
 efpecially if they were of an inferior degree: Yet there be 
 two cafes which not being curioufly looked into make fhew 
 
 aft 4, as if the Law were otherwife; the one is in the 11 Hen.$. 
 fol. 2. where the goods of jf. S. were taken in Execution 
 by the Sheriff by a fieri facias which came out of the King's 
 Court of Wejiminjkr^ and the Sheriff fold them to J. D. 
 and there was a Replevin fued in that cafe, but no delive- 
 rance made of the Gattel in Court: and the other cafe is in 
 
 7 H. 4. 7 Hen. 4. fol.,28. goods were taken by a Levy which iffu- 
 cd out of a Court Baron, and they were fold by the Bai- 
 liff, and there was alfo a Replevin fued, but no deliverance 
 made of the Cattel in Court, neither would the Court or- 
 der the defendant to gage deliverance: 10 that by thefe two 
 cafes it may feem that a Replevin did lie, though another 
 Court had formerly the jurisdiction of the Cartel taken by 
 the diftrefs : But, under favour, I hope I fhall eafily re- 
 concile thefe Books, and fhall make it to appear that they 
 do not make agaioft my opinion formerly delivered upon 
 this diverfity, That when the Goods were feized or taken 
 by Procefs, and remained by the vertue thereof in the hands 
 ©f the Sheriff or of his Bailiffs, during that time no Reple* 
 vin did lie in the cafe; but after fuch time as the goods or 
 cartel were fold away, as in the faid two cafes formerly al- 
 ledged they were, then againft the party that bought them, 
 or any other, a Replevin did lie in the cafe; for after the 
 fi»le they were out of the prote&ion of the former parties, 
 
 and 
 
LeStura Tenia. ipj 
 
 and then a Replevin might well take hold of them, being 
 out of all other Jurisdiction. And the fame difference I 
 take in this cafe of the Sewers, that is, That lb long as 
 goods diftrained by Warrant and Proctfs out of this Court 
 of Sewers remain in the cuftody thereof, they be not re- 
 plevilable by the Warrant of the Sheriff or of his Deputies, 
 but after they be Ibid away, then by the fale thereof they 
 are out of the protection and privilege of the Court of Sew- 
 ers, and then the Sheriff may caufe them to be delivered 
 by Replevin. Yet it may be objected unto me, that in 
 Roo%s cafe a Replevin was taken againfl him which detain- 
 ed the diftrels by Warrant of the Commiffioners of Sew- 
 ers 5 it is true, the Book is lb, which cafe I admit, and 
 that the Replevin was well granted there 5 yet I take it, it 
 doth not contradict my laid opinion, becaufe there Carter 
 was affeffed, but the goods of Rool(s were taken and detain- 
 ed for the Sefs, and Rooks did fue the replevin, which her 4 
 might well do, becaufe againft him or his goods there was 
 not any Law of Sewers extant or in force, neither was he 
 or his goods within the privilege or jurisdiction of thefe 
 Laws of Sewers: But if Carter t Cattel had been taken* 
 who was the very party feffed, he could have had no Re- 
 plevin from the Sheriff or his Deputies to deliver his 
 Cattel. 
 
 But although a Replevin doth not lie in the cafe afore- 
 (aid from the Sheriff or his Deputies, Ex officio to delivers 
 a diftrefs of Sewers, yet out of the King's Court at Wejl- 
 minjler a Replevin doth lie in thofe cafes: And the Charter 
 of Romney 2&arjh fag. 18. doth afford us in this cafe a very Ch. Romney 
 good Prefident 5 for there complaint was made to the Ring, Mar fi' 
 letting forth thereby, That whereas his Highnefs had ap- 
 pointed and authorized Henry de Bathonia to be his Juftice, 
 and to determine the differences depending and touching 1 
 the repairing of the defences of the faid Marjh, he had or- 
 dained, that diftreffes might be taken according to the 
 24 Jurators, It a quod miUm vicecomes aut aliut balivm nojier 
 intromit tat in diftriftionibus iUk > in tamen (meaning the 
 
 Sheriff 
 
i ^"8 LeBwa Tertia. 
 
 Sheriff of Kent) mhilominm di(lri3iones illat propter hoe 
 fa&um per vigint' quatuor "juratores in prejudicio confederati- 
 ons eorundem reluxafii, tibi igitur precipimut quod difirifti- 
 onibus Wis in miUo te introntittas^ and in the fame Charter 
 the like matter is there alfo (b determined of pag. 7. By 
 the which may be collected, that the Sheriff Ex officio might 
 not meddle with fuch diftreffes: and in the fame Charter, 
 pag. 8. the words be farther, Quod fi quk de conjideratione 
 preditf' diftri&ionis fe injujie gravat' fentiret & inde conque- 
 ri veUet ad ipfum Dotninutn Regent querelam fiiam deferret & 
 ipje inCuria fua juflitiant fieri facere refervajfet 5 whereby it 
 is manifeft, that a Replevin lay for a diftrefs taken in the 
 King's Courts, for that they be of a fuperior authority and 
 jurifdi&ion to thefe inferior Courts of Sewers: And therefore 
 the Replevins which our Statute aims to give way to, are 
 Jntended to be taken out of the King's Courts, which in 
 v ~Law and Juftice ought to be obeyed, and not from the 
 Sheriff or his Officers by virtue of their Office onely. 
 
 But in my cafe the Commiffioners made a Law, that the 
 goods of A. (hould be fold without allowance of Replevin, 
 which is a good Law upon the diftin&ions and diverfities 
 aforefaidj that r, that A. who was the perfon affelTed 
 might not have or take a Replevin becaufe he was a per- 
 fon bound exprefly by the Law, nor that the Sheriff or 
 his Officers Ex Officio might grant a Replevin to deliver 
 the fame, being under the power of this Law of Sewers. 
 But the King's Courts at Wefiminfter may in thole cafes 
 of Sewers deliver the diftreffes 5 and this conftruftion made 
 of this Statute, as I take it, ftands with Laws and Reafbn. 
 31 Ed. ;. And in the 31 Ed. 3. Brook., Replevin, plac.6o. the Cafe 
 is put, a man did grant to A. B. a rent out of his grounds, 
 with power that if it were behind that he might diftrain 
 therefore, and detain the diftrefs againft gages and pledges* 
 and yet it was adjudged, that if the rent were behind and 
 the grantor diftrained, he could not detain this diftrefs a- 
 gainft the Replevin : Yet here were the direft words of the 
 party himfelf to the contrary, but his words could not o- 
 
 verrule 
 
Lettura Tertia. \$^ 
 
 venule the Law: So that upon all theft matters, I hold 
 theft Tenents following. 
 
 Imprimis, To make a general Law to reftrain all Reple- i« 
 vins, granted either from the Sheriff or the King's Courts, 
 is no good Law or Ordinance of Sewer6 $ for that Reple- 
 vins de jure are in fuch cafes grantable out of the KtDg's 
 Courts, and fuch a general Law favours too much of oppre£ 
 fion, in (topping up the Gates of Juftice. 
 
 Secondly, For a Sheriff or his Deputy to grant and a- 2, 
 ward Warrants of Replevin Ex Officio^ to deliver goods or 
 cattel diftrained, and detained for a Tax and Law of Sewers, 
 is in my opinion againft Law, and need not to be obeyed, 
 for that the diftrefs was Sub proteEfione fuperiorit Curi<e y 
 which is of a higher degree than a Sheriffs Ministerial War- 
 rant. 
 
 Thirdly, jf a di ftrefs be taken and fold for jtjejsofjew- %,. 7/ 
 
 ers, a Repjevinjieth againiHhe_buyer, fbr^y^h^faletheja^^^ 4 t*>a<-<r- 
 gooj[rjnd_cattg l were put ^out ofjhe ^>rme&ionof the <% '£&*/{& &&>. 
 Court ofSewers. 
 
 Fourthly, If a Rate or Tax be impofed by the Laws of 4, 
 Sewers upon J. S. and the goods of John a Downs be taken 
 therefore on the grounds of J. S. which were charged, J. D. 
 may fue a Replevin of his (aid cattel from the Sheriff, for 
 that he nor his goods were not exprefly bound by the Laws 
 of Sewers. 
 
 Fifthly, A Replevin lieth out of the King's Courts of 5* 
 Wejiminjler, to deliver a diftrefs taken and detained by the 
 Laws ot Sewers, for that they be Courts de altiore natura, 
 
 Agreeable hereunto is the Opinion of Heath 
 Juftice B. R. in the Cafe of Commins and Maf- 
 fam, That the Proceedings of the Commiflio- 
 ners of Sewers are examinable in the Kings 
 Bench upon a Replevin brought there $ March m»a g& 
 
 Sixthly, 
 
200 Leclura Tertia. 
 
 6. Sixthly, A diftrefs taken by a Lord on his Tenant for 
 not repairing a work of Sewers, which by the Tenure of 
 his Land he ought to do and repair, the Tenant may fue 
 a Replevin from the Sheriff Ex Officio to deliver the di- 
 ftrefs, for that this diftrefs was not taken or detained by 
 Warrant, Judgment or Decree of Sewer9. 
 
 7. Seventhly, If upon a Judgment given in the King's Court, 
 or upon a Decree made in this Court of Sewers, a Writ 
 or Warrant of Dijiringas ad Reparandum, or of that nature 
 be awarded, and the parties goods be thereby taken, thefe 
 goods ought not to be delivered by Replevin to be taken 
 either out of this Court, or out of any other Court of 
 the Ring's, becaufe it is an Execution out of a Judgment. 
 
 8. Eighthly, Although one grant a Rent out of his Land 
 with claufe of diftrefs, and with Grant or Covenant that 
 the Grantee might diftrain and detain this diftrefs till he 
 (hall be fatisfied his Rent, Yet a Replevin lieth in that 
 Cafe. 
 
 A perpetual charge. 
 
 SO now I have fully and at large declared my Opini* 
 on touching diftrefles and replevins; wherein, I hope, 
 I have fully fatisfyed the firft point of ray Cafe: [ intend 
 therefore now to proceed to the fixth point, which con- 
 cerns charges and fales of Lands to be made by the Com- 
 miffioners of Sewers by the power and authority of thrt 
 Law. 
 
 And Firft, I fuppofe the queftion may be extended to 
 this, that i , Whether the Commiffioners of Sewers can im- 
 pofe a perpetual charge upon Land to repair a work of Se- 
 wers for ever by the power of thefe Laws. 
 
 I do here acknowledge, that this is a knotty Point, yet 
 fomething may be alledged in maintenance of this Opinion 
 affirmatively : For in the parts of Holland in the County 
 of Lincoln, almoft every one knows which part he is to 
 repair and maintain in perpetuity; And Experkntia eji op- 
 
 tma 
 
Leftura Tertia. aoi 
 
 tima interpret rtrum\ And it appeareth by the Charter of 
 Romney Marjh, pag. 12. That the ufe there was to impofe a u *w 
 perpetual charges on fingular perfons 5 For the words there *W> ^ * 
 be thefe, Juratores per eor' facramenV menfurabunt per per- 
 ticam omnes terras & Tenement a qu£ infra di&um Marifeum 
 periculo fubjacent quibui menfueration fa&is viginti quatuor 
 per commttnitatempritu eleBi & jttrati habit refpeCfit adquan- 
 titatem WaUiar terrar' & Tenement' qn£ periculo fubjacent 
 per eor facrament' ordinabunt quantum ad predittarum Walli- 
 ar fujientationem & reparationem faciend' & fuftinend' ad 
 quemlibet pertineat, ita quod proportion' acrar terrar periculo 
 fubjacent' ftngulk afftgnetur fua portio perticar & predict of- 
 flgnatio fiat per locos certos ita ut fcietur ubt & per qu<e 
 /oca, ad quantum, fwguli defendere teneantur. Thefe words 
 in this Charter feem to be plain, That by the Laws efta- 
 bliChed in Romney Marfi, the Commiffioners had power to 
 affign to every man his portion to repair in perpetuity; 
 but I find no fuch words in our Statute : And whereas it 
 may be faid, that our Commiffioners have power to make 
 fale of the Lands; Ergo, They may charge them perpetu- 
 ally; but this is a non fequitur tor that, for the fale they 
 have exprefs Warrant, but not fo for the charge ; And pow- 
 ers and authorities muft be duly purfued, and are not to be 
 taken by equitable or argumentable collections or implica- 
 tions, fo that it may feem the Laws of Sewers were never 
 held fo perdurable as to bind mens Lands with perpetual 
 charges: And therefore this difference I take, That by the 
 cuftome of a Town or Countrey, every one may know his 
 particular portion, which the owners of grounds are obli- 
 ged and bound to repair perpetually; but without fuch a 
 Cuftome it hath been held, That the Commiluoners of Sew- 
 ers cannot bind any mans inheritance to a perpetual charge, 
 by any power or authority given by this Statute; but in the 
 faid cafe of Romney Marfi, the Cuftome there maintained 
 this point : yet Nota bene verba hujutStatuti, which be thefe 
 (viz.) And to make and ordain St attftes, Ordinances and I re- 
 viftons from time to time as the cafe fhall require, for the 
 -I J Dd fifegtra, 
 
2cr2 LeUura Tenia. 
 
 ftfegard, confervation, redrefs, correction and reformation of 
 the Premifes and every of them, and the parts lying to the fame 
 wcejfary and behoofefull, after the Lam and Cuftoms of Rom* 
 ney marfh in the County of Kent, or otherwife, by any ways 
 or means after their own wifedoms and difiretions : Thefe be 
 the words, and this is theclaufe which muft make good this 
 perpetual charge, for that it doth formerly appear that 
 fuch like Laws and Cuftoms there were in Romney Marfh 
 as this is; and therefore I may conclude this point, that the 
 eommifiioners m imitation of the faid Ordinance of Rom 
 ney Marfh, may make Decrees to bind Lands to perpetual 
 ȣ** charges 3 Yet! Sir EdwardCooim Keighk/s cafe fets it down, 
 as relolved, That the fever al Commifftoners of Sewers through- 
 out all England, are not bound to purfue the Laws and Cu/ioms 
 of Romney Marfti 5 but in cafe where fome particular place 
 within their Commitfion have fuch Laws and Cuftoms as 
 Romney Marjh hath, there they might purfue them. But 
 in my own Opinion, theCoromiffionersmay, ifthey'pleafe 
 make Ordinances and Laws like to thofe of Romney Marffj 
 where there hath not been any fuch ufe; and the words' 
 of the Statute, as I take it, will bear that conftruftion ; 
 and the faid Opinion of Sir Edward Cook, is not diretfly a 
 gamft this. And upon Decrees for fales of Land, it is ufu 
 al in thofe Decrees to bind thofe Lands to the perpetual 
 repairs. r r 
 
 Sales of Lands.. 
 
 THE words of the Statute which be made for fales of 
 Lands be thefe Provided always, That if any per Con 
 or perfons being afeffedor taxed to any lot or chirg/fl an, 
 Lands, Tenements or Hereditaments within the Limits of am 
 Commtjfion hare after to be dire3ed, do not pay the faid lot and 
 charge according to the Order and Affignment of the Commit 
 oners having power of the execution of the faid CommifTion 
 &c. by nafon whereof ifrtfhall happen, the faid CommifftJ. 
 nenfbr lack of payment of fuch lot and charge to decree and 
 
 ordain 
 
LeRura Tertia. 203 
 
 ordain the faid Lands and Tenements from the owner or ow- 
 ners thereof, and their Heirs, and the Heirs of every of them, 
 to any perfon or perfons for term of years, term of life, in Fee 
 fimple, or Fee tail, for payment of the fame lot and charge: 
 Then every fuch decree and ordinance Jo by them made, ingroffed 
 in Parchment, and certified under their feals into the Kings 
 Court of Chancery, with the Kings royal afjent had to the 
 fame, fliall bind all and every perfon and perfons that at the 
 making of the fame Decree had any intereji in fuch hands, Te- 
 nements and Hereditaments in ufe, poffffion, reverfion or re- 
 mainder, their Heirs and Feoffees and every of them, and 
 not to be in any wife reformed, unlefs it were by authority in 
 Parliament hereafter to be fummoned and holden within the 
 Realm. 
 
 And alfo that the fame haws, Ordinances and Decrees to 
 be made and ordained by theCommijfioners, or any fix oflhem 9 
 by authority of the faid Commiffion , fhall bind as well the 
 Lands, Tenements and Hereditaments of our Sovereign the 
 King, as all and every other Perfon and Perfons, and their 
 Heirs, and fuch their intereji as they fhall fortune to have in 
 any Lands, Tenements and Hereditaments, or other cafual 
 profit, advantage or commodity whatfoever they be, whereunto 
 the faid Laws, Ordinances and Decrees fhall in any-wife ex- 
 tend, according to the true purport, meaning and intent of 
 the faid Laws. 
 
 This Claufe or Provifo was ftrangely placed in this Sta- 
 tute, as if this Statute had not been the firft Father of it, 
 and as if this Law had made fome addition to a former Law : 
 But I take it, that this Statute was, and is, the firft and 
 onely Law which gave fale of Lands in Gates of Sewers, and 
 this Claufe ftands upon thefe four Pillars. 
 
 Imprimis , For what caufe Lands may be fold by the tt 
 Commiffioners of Sewers. 
 
 Secondly, What Lands are to be (old within thefe 2. 
 Laws. 
 
 Thirdly, What Perfons, what Eftates and Interefts are 3. 
 to be bound thereby. 
 
 Dd 2 Fourthly, 
 
204 Leftura Tertia. 
 
 4, Fourthly, To what Perfons thefe Lands may be fold or 
 
 decreed. 
 
 ■ The Statute is, If any Perfon fejfed do not pay 5 whereby 
 it is manifeft that the Lands are to be fold for feffes and 
 charges impofed by the Commiffioners which lieth in pay- 
 ment onely, and they may not be decreed away for any o- 
 ther eaufe or matter : And therefore if one hold his Land 
 to repair a Wall, Bank, Sewers or other work of Sewers , 
 and he neglect to repair the fame, the Gonfmiffioners of 
 Sewers cannot for thish caufe decree the Lands away from 
 the Owner, becaufe this charge lay not in payment : And I 
 cannot gather out of the words of this Statute, that Lands 
 can be decreed for any caufe than for non- payment of a lot 
 fefs or charge, by reafon this word payment is reiterated 
 three or four times in this branch of the Statute, and no o- 
 ther words be coupled with it to infer any other or larger 
 expofition. 
 
 If J. S. do hold his Lands of the Lord of a Manor, by 
 the payment of twenty (hillings yearly or other fum, to- 
 wards the repairs of a work of Sewers, and he do negleft to 
 pay the fame, whereby the Work is unrepaired, although 
 this is a charge which lieth in payment, yet becaufe it grows 
 due by Tenure by the Common-lay, and was not impofed 
 by the force of this Statute, therefore the Lands of J. S. 
 cannot be decreed from him by the non-payment thereof, 
 by the tenor and virtue of this Law of Sewers. 
 
 But if the Lands of one be generally charged to repair 
 fuch a Wall or other work of Sewers by prefcription , 
 covenant or otherwife, and the Commiffioners impofe a 
 fefs and rate upon him to repair it, and he do not, there in 
 this cafe, although the charge was by the rules of the Com- 
 mon Laws, yet becaufe the fefs and rate was fet upon him 
 by the power of this Statute, I am of opinion, that for ne- 
 gleft of payment the laid Lands may be fold by the Decree 
 of the Commiffioners of Sewers. 
 
 So if one do hold his Lands for the payment of twenty 
 Shillings to repair a Bank, and the Cpmmiffioners of Sewers 
 
 do 
 
LeRura- Tertia. 205 
 
 do order the Party to pay the twenty (hillings at a time by 
 them prefcribed (not being contrary to the ufual days of 
 payment ) and he do neglect to pay, The Commidioners 
 may decree his Lands from him, becaufe this charge, by 
 reafon of the (aid Order, had got the force and power of 
 this Statute. 
 
 If a charge be generally laid upon a Townfnip, Hundred 
 or Rape, which is not paid according to the Commiffio- 
 ners Order, no Lands can be decreed in this cafe, becaufe 
 no Perfons or Lands be in this cafe particularly charged, and 
 the Decree of the (ale muft be dire&ed by, and depend up- 
 on the fefs : but if after the general feis be laid, the fame 
 be after affeiTed upon particular Perfons by particular fums 
 by the faid Commiffioners, then upon default of payment, 
 their Lands making default may. be decreed from them by 
 the power of this Statute-. 
 
 If an affefs or charge of payment be laid upon certain 
 Lands without mentioning the Owner, the Lands cannot 
 be decreed from him by this Law ; for the words of the 
 Statute be ( That if any Per/on or Perfons affejjed to any lot 
 or charge do not pay.) So that I (hall take it, that no decree ' 
 
 for fale of Land can be made but where there is a Perfbn 
 certainly affeffed by name. 
 
 Lands cannot be decreed away from the Owners for de- 
 fault of payment of fines , amerciaments or pains ; for 
 though thefe be fums of money or charges impofed by the 
 Commiffioners of Sewers on Perfons certain for matters tou- 
 ching thefe Laws, yet becaufe they were not feffed or ra- 
 ted towards the repairs of any works of Sewers, but be fet 
 upon the Parties as mul&s and punifhments, and be due to 
 the King, therefore no decree of Lands can be made for 
 any of them. 
 
 Now the fecond part of this Glaufe is, what Lands may 2. 
 be decreed by the authority of the (aid Statute 5 and there- 
 by it appears they muft be fuch Lands as lie and be within 
 the power of this Commiffion of Sewers 5 and herein refts 
 a difference between the cafe of a diftrefs for a fefs which 
 
 may 
 
2o6 'Left w a Tertia. 
 
 may be taken in any place within this Realm, and the de- 
 cree of fale of Lands for non payment of a fefs which muft 
 lie within the bounds and extent of the Commiffionj for 
 this diftrefs is circumfcribed to the extent of the Statute 
 which is over the whole Realm, and the fale is tied to the 
 limits of the Commiffion : And I am alfo of opinion, that 
 no Land can be fold away by the decree of the Commiffio- 
 ners of Sewers, but fuch as were charged with the fefs. 
 
 If one hold his Lands in Comitat' Eborttm to repair a Sea- 
 bank in the County of Lincoln, and the Owner is afleffed 
 therefore, and makes default of payment, the Commiffio- 
 ner, of Sewers in the County of Lincoln may give warrant 
 to diftrain for this fefs in the County of York, h but they can- 
 not decree away by fale thofe Lands lying there which 
 Were charged with the fefi. 
 
 A Copyholder's Land cannot be decreed againft him by 
 this Law, for if it might, then thefe cuftomary Lands fhould 
 be transferred from one to another, contrary to the Cuf- 
 toms of the Manors whereof they be parcel * and it would 
 ifydnto infringe that rule which is delivered in Heydonh Cafe in 
 "«»• Cookj, 3d Report, which is, when an Aft of Parliament doth 
 alter the fervice, tenure and intereft of the Land or other 
 thing, in prejudice of the Lord, or of the cuftome of the 
 Manor, or of the Tenant, there the general words of fuch 
 a Statute do not extend to Copyholds: And in this cafe 
 if any fale fhould be made by the Commiffioners, all the 
 faid Rules fhould be infringed, for it were contrary to the 
 cuftome to pafs thefe Lands without furrender ; it were in 
 prejudice of the Lord to have Copyhold-land paiTed, and 
 he to have no fine : And I am likewife of opinion, that the 
 Freehold of thefe Lands could not be paffed away for a fefs 
 or a lay, becaufe the Lord hath but the fhadow, and the 
 Copyholder hath the fubftance 5 But if the Lord's Rents of 
 Affize fhould be aflefied as they ought to be, and he do 
 negleft to pay, then thefe Rents might be decreed from 
 him 5 and fo may all other Lands, Tenements and Heredi- 
 taments decreed, in refpeft whereof one is feiTable and fef- 
 fed by thefe Laws. jjj e 
 
LeSiura Tertia. 20J 
 
 The third branch of this Claufe is the direct point in my 3. 
 Cafe (vizJj What Perfons and what Eftates he hound hy thtfe 
 decrees .<? And firft of the Heirs in tail, whether they be 
 bound by a decree made againft the Donees in tail their 
 Anceftors, is the queftion 5 In the handling whereof I hold 
 it fitting, to (hew in what cafes the Heirs in tail have been 
 bound by the aft of their Anceftors, and the reafons and 
 caufes thereof 
 
 And therefore if a DiiTeifor make a gift in tail, and the 
 Donee in tail grant a rent to the Difleiflee for releafe of his 
 right, this will bind the Heir in tail, for that by this releafe 
 his Eftate, which before was deferable is now confirmed, 
 as by the Books of 44 Ed. 3. 22. and 20 Ed. 4. 13. ap* 44 Ed. 3, 
 
 peareth : and fo in 46 Ed. 3. a gift in tail was made ■&**£§£*; 
 quod the Donee might alien to the benefit of the Heirs in 
 tail 5 and this by Judge Welhey was held a condition which 
 bound the Heir in tail for his benefit : And in 12 Ed. 4. 1. 12 Ed. 4., 
 Tregoufe and Taltarm's Cafe was, That a recovery againft 
 Tenant in tail, with a Voucher by him over, did bind the 
 Heirs in tail, by the Common-law, by reafon of the inten- 
 ded recompence which was to come to him by the Vou- 
 cher 5 and fo a lineal warranty with aflets, and a collateral 
 warranty without affets, were and be both of them bars to 
 the Iflues, by reafon alfb of the intended recompences 5 and 
 thefe are things which were originally tied to thofe Eftates, 
 and were incidents to them ab initio: And therefore this 
 ihall fuffice to treat of bars to the Iffues in tail by the Com- 
 mon Laws 5 and now I (hall proceed to (hew in what cafes 
 they were barred of their Eftates by the Statutes of this 
 Realm. 
 
 By the Statute of 16 R 2. cap. 5. The Lands and Tene- \6 r. 2. 
 ments of one attaint in a Premunire are to be forfeited to 
 the Ring j and in 2 1 Eliz. one Trudgin was Tenant in tail, 21 El. 
 and was attainted in a Premunire, and the queftion was, 
 Whether intailed Lands were forfeited againft the Iflues in 
 tail, or not? And in Doctor Forjicr's Cafe in Coo/(s nth 
 Report, it is there faid to be refolved, that the general c. n*gif.\ 
 
 words 
 
208 LeBura Tertia. 
 
 words of that Statute did not repeal the Statute of Wefi- 
 Weflm. 2. minfier 2. of Intails, ai.d fo the forfeiture was there refol- 
 ved to continue but for the life of Triidgin, and did not 
 bind the-IlTues in tail. 
 
 A judgment in debt againft Tenant in tail, or if he be 
 
 bound in a Statute or in a Recognizance in the nature of a 
 
 Statute, the Lands intailed were not extendable, nor to be 
 
 Sut. Alton held in extent by the Statutes oiWefiminfier 2. A&on Bur- 
 
 Burnel. „ e i^ or by the Statute de Mercatoribus by any of the gene- 
 
 fJttritm?"' ral words of thefe Laws 5 but the Statute of 33 H. 8. cap. 39. 
 
 3 j h. 8. by exprefi words bindeth the Heirs in tail, for their Lands 
 
 whofe Anceftors ftood indebted to the King by Judgment, 
 
 Recognizance, Obligation or other fpecialty. 
 
 .25 H. 8. But the Statute of 26 H. 8. cap. 13. Enafts, That every 
 
 one which fhall be attainted ofTreafbn, fi all forfeit the Lands 
 
 whereof he is feized of any Efiate of Inheritance $ and by this 
 
 Statute intailed Lands were forfeited 5 and the words (Of 
 
 any Efiate of Inheritance) were the words which gave that 
 
 forfeiture, the one in fee-fimple, the other in fee- tail 5 and 
 
 the word (any) prefuppofeth more Eftates of Inheritance 
 
 than one. 
 
 But whether a decree of fale of Lands made by Commit 
 fioners of Sewers (hall bind the Heirs in tail, is the point of 
 my cafe s and in my opinion I think they (hall be barred, 
 for the caufts and reafons following : 
 
 Firft, The words of the Statute of Sewers be, That fuch 
 a decree fhall bind all and every Perfon and Perfbns that at 
 the making of the fame decree had any interefi in fuch Lands, 
 Tenements and Hereditaments in ufe, poffejfion, remainder or 
 reverfion, their Heirs and AJfigns : So that by exprefs words 
 it binds the Heirs 5 and it would have bound the Heirs of 
 a Tenant in feefimple, without the word (Heirs) expref- 
 fed in the Statute 5 therefore the word (Heirs) needed 
 not, but onely for the binding of the Heirs in tail. 
 
 Alfb if thefe Lands were charged by prescription, as ma- 
 ny Lands be, then were the Lands originally bound, and 
 the Heirs in tail ftand charged with thefe fefles, as well as 
 Land in fee-fimple. -And 
 
Leftura Tertia. 209 
 
 And laftly, This is a Law enafted for the prefervation of 
 the Commonweal, and is more to be favoured than parti- 
 cular Eftates of Heirs in tail : But the cafe of the Premu- 
 nire was penal in point of a forfeiture, which is to be ftricl:- 
 \y taken for the King, and favourably for the Subjeft $ and 
 therefore in my opinion, the Heirs in tail fhall be bound 
 in thefe cafes of fale, and the rather becaufe they be within 
 the words of the Statute, videlicet , Heirs generally pur, 
 which extend-; to Heirs in tail, as well as to Heirs hi fee- 
 fimple 'j and becaufe the fefs and charge fhall bind both 
 alike, fo in my opinion the fale fhall bind both, in regard 
 the fale depends upon the charge and left. 
 
 If a Prebend, Parfon or Vicar, Dean, Bifhop or fuch 
 like, which be feifed of Lands in their politick capacity be 
 fcffed to repairs of works of Sewers, their Lands cannot be 
 decreed away from them in fuch fort as to bind their Suc- 
 ceffours, for as this Statute of Sewers extends to bind Lands 
 by decrees in perpetuity, ib the Statutes of 1 and 13 and i,i^fyi^Et, 
 14 E!iz. reftrain Alienations, and where thofe Statutes re- 
 ftrain them, I am of opinion, that this general Statute of 
 Sewers doth not difpence with thofe Statutes. In Croft and croft and m~ 
 Howel's Cafe in Plow. Com. a fine with Proclamations and weli Cafe * 
 non-claim by five years did bind the Corporation of the 
 Myftery of the Cooks in London for their right in Lands, 
 and fo all other Corporations which are abfolute of them- 
 felves, and needed not the affent of any other, as Majors 
 and Commonalties, Deans and Chapters, Matter and Fel- 
 lows of College^ : but the Law is otherwife of Parlbns, Vi- 
 cars, Prebends, and fuch like } And the like expolition do 
 I make of them in this Statute of Sewers. But I will here 
 makeadiftindion$ I am notwithstanding of opinion, That 
 the Parfbns, Vicars, Prebends, and fuch like, for their own 
 negleft , are bound during their times, but not their Suc- 
 ceflours after them } And note, this Statute though it men- 
 tion Heirs, yet it doth not at all mention SuccefTours, which 
 is worthy of confideration alfb : And in my opinion this 
 Statute as to decrees to be made of Lands will bind Women 
 
 E e Covert- 
 
210 Leftura Tertia. 
 
 Covert-baron , Infants , Perfons that be non fatia mentis, 
 and fuch like, becaule it is a Law made for the fafety of 
 zowc//s the Commonwealth : And (b it is held in Zouch's Ca(e in 
 Ca< £ the Com. That the Statute of 4 H. 7. of Fines had bound 
 
 Infants, Idiots and Women Covert-baron, had they not 
 been excepted in that Statute 5 A fortiori (hall they be 
 compriied in this Statute, for the Statute of fines was made 
 for the peace of the Weal-publick, but the Statute of Sew- 
 ers was made for the fafety thereof 
 
 If there be two Tenants in Common which be fefled to- 
 wards the repairs of a Wall, Bank or fuch like work of 
 Sewers, and one of them do negleft to pay his proportio- 
 nable part, Whether Commiffioners may decree a moiety 
 without partition both of the fefs and Land, is a queftion 5 
 for their Eftates are feveral, though there be a community 
 in taking of the profits : And therefore the matter is> whe- 
 ther the aiTefs (hall attend upon the pofleffion which is in 
 Common, or upon their Eftates which be (everal : And al- 
 though Commiffioners in aiTefs be not bound to take no- 
 tice of their Eftate , yet if they take upon them to decree 
 a Man's Lands from him, they are then to take notice of his 
 Eftate, and of all other circumftances neceffarily depending 
 12 H. 6. thereupon : In 22 H. 6. fol. 12. if a trefpafs be done upon 
 Lands which are held in Common, they are to join in an 
 Action, but if one of them die that Aftion (hall furvive^ 
 for though they were joint in the perfonalty, yet they dis- 
 joined in the realty. 
 
 If the trefpafs or wrong be done to the Land 
 by ploughing, removing a Boundary, isre. both 
 the Tenants in Common (hall join in the Action, 
 and that is becaufe the one hath as great wrong 
 as the other ; But if the Beafts of one Tenant in 
 Common be diftrained or chafed, he onely (hall 
 1^.152. have the Action; Latch. 152. Jones 142. 
 
 Jones 142. j j ^ 
 
 My 
 
LeSiura Tertia. 211 
 
 My Lord Coke 1 Inft. 108. a. gives the fame 
 reafon why the Action (hall furvive, as was in- 
 tended here by our Reader, fcil. becaufe albeit 
 the property or Eftate be feveral between Te- 
 nants in Common , yet the perfonal Action is 
 joint, and every perfonal Action (hall furvive : 
 But the words here are tranfpofed ; For whereas 
 it's faid , ( though they were joint in the perfo- 
 nalty, yet they disjoined in the realty ; ) it (hould 
 have been, ( though they disjoined in the realty, 
 yet they were joint in the perfonalty ; ) For the 
 onely reafon that could be given why the Ac- 
 tion (hould not furvive, is becaufe they disjoined 
 in the realty, and upon this ground it was urged 
 by Danhy in the abovefaid Cafe of 22 H. 6. that 
 if trefpafs were done in the Land, and one Te- 
 nant in Common dies, the Survivor (hould not 
 have an Action of Trefpafs of the entierty. But 
 the Court overruled him therein 5 and the rea- 
 fon is becaufe they were joint in. the perfonalty, 
 and therefore the Action (hall furvive $ and not 
 becaufe they disjoined in the realty. 
 
 If two Tenants in Common of Land join in a grant 
 often pounds rent-charge out of their Lands, the Grantee 
 (hall have ten pounds yearly of either by the opinion of 
 Mr. Per^ns i and of Coke 1 Inft. 107. a. for that tinft.191.* 
 every man's grant (hall be taken moft ftrongly 
 againft himfelf , and therefore they are feveral 
 
 grants in Law. But if a feis of ten pounds be laid 
 and impofed upon them by this Law of Sewers, this fete 
 
 Ee a (hall 
 
 ■ 
 
2i2 LeHura Tertia. 
 
 {hall not double as the rent fhould 5 yet in this cafe of a 
 joint affefs impofed upon Tenants in Common, and one 
 would pay his moiety, and his Companion refufeth, the 
 Comrmtiioners of Sewers cannot fell a moiety of the Land, 
 for chat it i^ a joint fefs, and was not impofed by moieties, 
 and the tale doth depend upon the fefs, and all may not be 
 fold ; for that one Tenant in Common cannot prejudice 
 his Companion in things of realty. 
 4. The fourth matter is to whom Lands may be decreed by 
 
 this Law ; for by the words of the Statute it appeareth, 
 That the Commillioners have power to decree Lands for 
 default of payment for years, for life, in tail, or in fee-fim- 
 ple 3 whereby the Law intended they fhould make their de- 
 crees for fale, according to the quantity of the fefs, and 10 
 fhould ufe moderation in the Eftates they made or fold 
 therefore } and it was not intended they fhould fell the fee- 
 fimple away for fefs which might be fatisfied with the ma- 
 king of a lefs Eftate. 
 
 And I am of opinion, that this decree doth make the 
 Eftate, with the help of this Statute, according to the limi- 
 tation which fhould therein be declared, and that the Par- 
 ty fhall have Eftate according as the fame is thereby limi- 
 ted unto him ; and this is no equitable decree which binds 
 the Perfbn onely, as Chancery decrees be, but it binds the 
 Land , and therefore the Commiffioners may not decree 
 Lands to a Corporation, as to a Major and Commonalty, 
 Dean and Chapter or fuch like, which be Mortmain, for 
 the general words of this Statute do not repeal the Statute 
 of Mortmain in my opinion. 
 
 And herein I fhall end my Argument touching Decrees 5 
 and I take it, though the intereft of E. was intail, yet the 
 fale thereof might be made by this Statute for the caufes 
 and reafons aforefaid : And now onely remains under my 
 cenfure to declare my opinion, whether the Commillioners 
 of Sewers did juftice, in refuting to admit of Pleas of dif- 
 charge which were tendred to them by A. and E. wherein 
 may come juftly into our confiderations thefe things, (viz.) 
 
 Whether 
 
 t. 
 
LeSiura Tertia. 213 
 
 Whether Traverfes, Pleas of Exemptions, and other legal 
 proceedings, may be had in this Court of Sewers, or not 5 
 faving I add this, that thefe decrees of fale being binding^ 
 muft be certified into the Chancery, with the King's Royal 
 Affent had thereto. 
 
 Legal proceedings. 
 
 Traverfe. 
 
 TO enter into thefe parts of my Law, I think it fit to 
 begin with Traverfe, and to deliver my Opinion, 
 whether fuch pleas and proceedings are to be admitted in- 
 to this Court 5 for a Traverfe is a Flea of the party contain- 
 ing matter to the contrary of that that the party ftand-> ac- 
 jcufed of, or which is laid to his charge : And in fbme cafes 
 our Books and authorities of Law admit the party to a Tra- 
 verfe, and in other Cafes the fame is to be denied 5 for in 
 5 H. 7-fol. 9. & 45 Ed. 3. fol. 8. & 28 H. 8. in Dyer, fol. 13. $ #. 7. 
 if one be prefented in a Leet Court for a Blowipe or any o- £| E £ |* 
 £her perfbnal wrong, this Prefentment is not Traverfable, 
 but the party is without remedy therein, though the Pre- 
 fentment be falfe and the matter of it untrue •, and the Law 
 is fo alfd of fuch a Prefentment made in a Sheriff's Turn: 
 and herewithall agreeth the Books of 2 R. 3. 1 1. e$» 19 H.8. 2 r. 3. 
 1 1. Fitz. Ajjiz.plac. 442. & 8 Ed. ^ 5. and the reafon there- * 9 Jf' 8 * 
 of is delivered in 5 H. 7. becaufe no Procefi is there awar- 8 Ed. 4, 
 dable againft the party to call him to anfvver: Yet in the 
 fame Book of 5 H. 7. it is faid, That if a Prefentment be 
 made which toncheth a mans Freehold, he may there Traverfe 
 the fame. But I take it the party muft firft remove the Pre- 
 fentment into the King's Bench, and there Traverfe it •, for 
 in the Court Leet, in my Opinion, there can be no Tra- 
 verfe taken or tried, no more where the Prefentment touch- 
 eth Freehold*, than where it onely concerneth a perfbnal 
 wrong: Therefore the reafon alledged in 5 H. 7, cannot be 
 
 the 
 
214 LeStura Tertia. 
 
 the true caufe wherefore in perfonal wrongs the Prefent- 
 ments cannot be traverfed; but the very true reafon there- 
 in is, as I take it, becaufe thefe petty Preferments be ot" 
 fuch petty trifling matters, that in avoidance of trouble the 
 Law efteemed them not worthy of Traverfe and Trial; anc 
 Juftice Fairfax in 5 H. 7. is of opinion , That a Prefer- 
 ment made before Jujiices of Peace in a Sejfions is traversable: 
 Stanford ib$. and with this agreeth Stanford, fo. 183. and in other Court? 
 of Law there oftentimes fill out matters which one (hall no/ - 
 be admitted to take a Traverfe unto, and in fome other ca 
 fes he (hall, as by thefe fucceeding authorities may appear 1 
 In the 37 Ajjiz. plac. 7. a Presentment was taken befort 
 Green and Ingham, Juftices of the King's Bench, That J. S 
 who had killed A. had goods to the value of Eighty pound* 
 in the hands of one John Lombard^ and upon the Prefent 
 ment a Scire facias was awarded againft John Lombard, to 
 Ihew caufe wherefore thefe goods fhould not be feized to 
 the King's ufe: John Lombard came in and tendred a Plea 
 to the Prefentment, that thefe goods were not the Felons 
 but that they were delivered to him to keep to the ufe of . 
 Cardinal of Rome, and he was there admitted to this Plea 
 45 zd. 3. and with this agreeth 45 Ed. 3. fol. 26. exprefly : Yet ijt 
 that book and Mr. Stanford, fol. 183. it is holden for Law 
 That if it be prefented before a Coroner that J. S. killed A 
 B. and fled for the fame fad, and after upon his trial he is ac 
 quit, yet he (hall forfeit his goods upon the Fugam fecit be> 
 fore the Coroner, and he (hall not be received to take any 
 Traverfe to the faid Prefentment in that Point. The diffe 
 rence in which two cafes is this in my opinion, that a (han- 
 ger, as John Lombard was, in the firft cafe, (hall not be pe- 
 remptorily concluded; for it were no reafon one man'sj 
 goods fhould be forfeited in another man's default, and fit) 
 (hould have no anfwer thereunto : But in the other cafe, in 
 Terror of Felons, though he be acquitted of the Felony, 
 yet he is not acquitted of the flying, and he may be guil- 
 James Bag's ty notwithftanding his acquittal. There be other cafes in 
 cafe- the Law which admit no Traverfe, as in James Bag's cafe 
 
 Coof^ 
 
LeUura Tertia. 215 
 
 Cook, r 1 Rep- where a Writ was directed to the Major and 
 Burgeffes of Plymouth to reftore Bag to his Aldermans place 
 there, which they had put him from, and they return a 
 caufe fufficient to bar him, which notwithstanding is falfej 
 yet he (hall not be received to his Travcrfe therein 5 nei- 
 ther could a Traverfe be admitted to the Certificate of the 
 Bifhop, wherein was contained, that J. A. Paifon of Dale 
 had refufed to pay his diftnes to the King, by means where- 
 of the Parfbn loft his benefice, which cafe is in Br. cafe?, Br. Cafes. 
 temp. H. 8. pi. 332. and Dyer, fol. 1 16. and 7 H. 4. fel. 4. £>£"*• 
 and 21 H. 7. 8. and many other Books be, that no Aver- 2 , #. ' T . 
 ments (hall be taken to the returns of Sheriffs to take any 
 Iffue thereupon. 
 
 And in Dr. Bonhaniz Cafe upon a Habeas corpus, the Phy- D <". Btmham% 
 ficians returned the caufe of his imprifonment, which was Cale ' 
 falfe; yet he could not be admitted to Traverfe the fame. 
 But yet by the opinion of thefe Books, an Aftion upon the 
 cafe lteth againft the Major and Aldermen, and againft the 
 Bifliop, for their certificates, and againft the Sheriff for 
 their falfe returns 5 and if Juftifications be made by them 
 they may be traverfed : But thefe will not reduce the parties 
 to their former liberties (viz .) not the Alderman to his place, 
 nor the Parfon to his Church, but damages in thofe cafes are 
 onely recoverable. 
 
 Thefe cafes I have put as Reafons and Arguments againft 
 our cafe of Sewers; But yet I am of opinion, that a Tra- 
 verfe may be taken to a Prefentment made in this Court of 
 Sewers, and herein this Court may be refembled to a Seffi- 
 ons of the peace : And this Commiffion of Sewers gives the 
 Commiffioners of Sewers power to hear and- to determine 
 at the King's fuit, as well as at the fuit of the party ; and a 
 Traverfe lieth of a Prefentment found before Commiffio- 
 ners of Oyer and Terminer, and is triable before them by 
 the Books of 29 Ajjiz. pl.%3. and 12 Lib. AJJiz. pi. 21. and 29 #t- 
 the Earl of Leicefters cafe in Plow. Com. fol. 397. and the j*|»* 
 words of this Statute are fufficient to yield the party the 
 benefit of a Traverfe if there be caufe; and for prefident in 
 
 the 
 
2 1 6 LeUura Tertia. 
 
 Rom. Marji>. the point, Charter of Romney Marfh, pag. 23, and 24. one 
 
 Godfrey being prefented that he ought to repair a Bank or 
 
 Wall, and that he did neglect to do the fame, and he came 
 
 in and pleaded a Plea thereto before the faid Commifiioners, 
 
 19 Affiz- and in 1 9 Lib. Ajjiz,. plac. 6. there were divers Preferments' 
 
 before CommiiTioners of Oyer and Terminer for Nufances 
 
 done in the River of Lee, and the fame were there traver- 
 
 1 u. 4. fed and tryed : And the Statute of 1 H. 4. Chap. 12. doth 
 
 plainly admit of a Traverfe, wherein the words be, That 
 
 in cafe if any feel himfelf grieved by execution or otherrvife a- 
 
 gainfi right and reafon , let him purfue and he fhall have 
 
 right: But I verily fuppofe, that thofe things which the Ju- 
 
 ftices of Sewers do by their view, or by fiirvey and difcre- 
 
 tion, are fb binding that in thofe cafes no Traverfes are to 
 
 be admitted, becaufe thefe things are merely the afts of the 
 
 Court, and cf the Juftices themlelves : and if they fine a 
 
 man for his contempt in Court by a Record of their own 
 
 view, and not upon a Prefentment, the party fhall not be 
 
 Dr. Bonham's received to Traverfe this : and in Doftor Bonhams cafe it is 
 
 faid, That the a& of a Judge is not Traverfable, if he be the 
 
 abfolute Judge of the Caufe j But in cafes done or certified by 
 
 fuch as be no abfolute Judge: of the Caufe, as Commijfioners 
 
 of Bankrupts, which certifie one a Bankrupt, he may Traverfe 
 
 C l"i mi De ' ^ in an a ti? on brought, as was done in the cafe of Cut 
 
 1 j'ac. and Delaber in 7 Jac. in the coirmori place, and Vernie's 
 
 1 Afar. Cafe I Mar Dyer fol. 89. no Averment could be taken to 
 
 f#. 8 7 * tne certificate of a Judges and with this agreeth 7 H. 7. 
 
 fol. 4. 
 
 But although a Traverfe may be taken to a Prefentment 
 in the Court o/Sewers, yet times and fcafons muft be obfer- 
 ved 5 for if a Prefentment be there made, it may be Traver- 
 fed for the reafbns,caufes and prefidents formerly mentioned 3 
 Yet if the caufe have been there fb far proceeded in as the 
 CommiiTioners make a decree thereupon, I take it then no 
 Traverfe at all can be taken, becaufe a decree is the final 
 Judgment of the Court, and is an act Judicial which can- 
 not be traverfed and tryed by a Jury, for that were to re- 
 fer 
 
Letlura Tertia. 2 i 7 
 
 fer the Judgment of the Court to be examined by a Jury, 
 which may not be admitted 5 and at the Commonlaw, after 
 Judgment no Traverfe can be taken : And if one be indicted 
 at the general Seffions of the Peace, this is traverfablej but 
 if the party fuffer himfelf to be outlawed upon the faid In- 
 dictment there, no Traverfe lieth, but a Writ of Error; a Q » 
 So if in our Seffions of the Sewers, the caufe proceed to a ffaa oL Xeuevfa A. 
 decree, the party grieved is to take his way by preferring 
 a Bill of Reverfal in manner as is done in the High-court 
 of Chancery, and fo he may have the caufe here through- 
 ly examined. 
 
 Other Legal Proceedings. 
 
 TH E words of the Statute which give the legal pro- 
 ceedings be thefe (viz.) That the Commiffioners of 
 Sewers may bear and determine aU and fwgttlar the Premijfes, 
 as well at our fuit, as at the fait of any other complaining be- 
 fore them, after the Laws and Cujloms afore/aid, or otherwife y 
 by any other ways or means - ? thefe words give the party reme- 
 dy to fue before the Juftices of Sewers for fuch things as 
 are contained within thefe Laws, and which have their de- 
 pendency thereon : In Coljhih cafe in Dyer,fo. 1 75. the par- coijhiF* Cafe 
 ty preferred his Bill of complaint to the Commiffioners, con- 
 taining the effect of his Title to the Office in queftion, and 
 thefe were fpecial Commiffioners of Oyer and Terminer : 
 Juftices of the general Oyer and Terminer, may hear and 
 determine Ufury by the Statute of 13 El. cap. 8. yet if J. S. 13 e/^. c .8. 
 be bound in a Bond of Ten pounds principal debt, and for 
 Forty Shillings for Intereft, although this Bond be for pay- 
 ment for ufury, yet an Action of Debt doth not lie there- 
 upon before the faid Commiffioners, but an Information 
 may be preferred againft the Lender there to punifh him. 
 
 So by our Statute of Sewers an Action of Trefpafs lieth 
 not for a Trefpafs done within the reach of this Commiffi- 
 on 3 yet Dijlinguendnm eft*, for put the cafe a Sefi is laid 
 upon a man, and the goods of J. S. not chargeable thereto 
 
2i 8 Leffiura Tertia. 
 
 be taken and diftrained, who is not chargeable to the pay- 
 ment thereof, J. S. in my opinion ( though this cafe have 
 but the Countenance of this Comtnillion) may have his 
 Action or prefer his complaint before the Commiffioners in 
 this Court of Sewers for the recovery of his damages : And 
 although this be but a private Action, yet the diftrefs be- 
 ing taken by an authority drawn from the power of this 
 Commiffion, the party diftrained may have his remedy in 
 this Court by his private A&ion, becaufe it fprung by the 
 colour of the general power of this Court. 
 
 If A. B. have a feveral Pifcary in the River of Witbam, 
 which is a River within the Commiffion of Sewers, and the 
 laid Pifcary by thefe Laws is chargeable to the repairs there- 
 of, if C. D. diffeize him thereof, or commit a Trefpafi by 
 fifhing therein, A. B. can neither have an Affize nor A&ioh 
 of Trefpafs within this Court. 
 
 So if a Royal or Common River hath his current through 
 the Town of Dale, and one A. B. is tied to repair the Banks 
 there by Tenure, Prefcriptton or otherwife, which not- 
 withftanding in his default are broken down, and the Wa- 
 ters breaking out overflow the grounds of C. D. thereto 
 adjoining , yet C. D. hath not any remedy to recover his 
 damages againft A. B. in this Court for the lofs of his grounds^ 
 but he is put to his private Action therefore at the Com- 
 Keighk/s monlaw 5 and with this agreeth the cafe of Keigh/ey ; But 
 Cafe ' if A, B. be prefented therefore before our Commiffioners of 
 
 Sewers, they may order A. B. to repair the breach, but can- 
 not award damages to C. D. for our Commiffioners of Sew- 
 ers are herein like to Juftices of Peace r and to Stewards of 
 Leets and Law- days, which have power originally to med- 
 dle onely with the publick wrong j Yet by the power of 
 their Commiffion^ and of this Statute, they many times ac- 
 cidentally meet with private injuries, as by the infiiing ca- 
 fes may appear. 
 
 If a Townfhip be atTelTed by a Law of Sewers^ and the 
 goods of one of the Inhabitants be taken for the fefi, that 
 party upon his complaint to thefe Juftices of Sewers may 
 
 have 
 
LeHura Tertia. 219 
 
 have procefi out of this Court to call before them the reft 
 of the Inhabitants which were fubjeft to the faid fefs, to 
 caufe them to contribute towards the party's damage who 
 was folely diftrained for them all, for otherwife this Court 
 fhould fail of juftice in his own proper materials, and the 
 Statute of 1 H. 4. c. 1 2. faith, That he which is grieved, let 1 H. 4. 
 him have remedy: And if the goods of a man taken for his 
 tax or fefs be fold for the payment thereof, for more mo- 
 neys than his fefs came to, the Juftices of Sewers have pow- 
 er to caufe the Officer to reftore the overplus, Et cum hoc 
 concordat the Charter of Romneji Marjh. 
 
 If the Commiffioners of Sewers appoint the Officers to 
 take fo many Trees of J.S. at fuch a price, for the repairing 
 of a defence againft the Sea, or to make a Trench over the 
 grounds of J. D. and thereto erecl: fomething toward thefe 
 A&ions, J. S. hath remedy to come by his moneys in this 
 Court, and the other party over whofe grounds this Trench 
 is made, may be relieved in recom pence to be made to him 
 for the hurt in his grounds. 
 
 If Laborers or Workmen, as Carpenters, Mafbns, 
 Smiths, Dikers, or other perfons be fet on work by the 
 power of thefe Laws, they may by the fame power recover 
 their Wages before the Juftices of Sewers 5 for the original 
 caufe fprung out of the power of this Commiflion, and 
 this is there determinable, as incident to the authority of 
 that Court: But if the original caufe did not arife out of 
 this Coramiffion, as in fame of the preceding cafes they did 
 not, then hath this Court no Jurifdi&ion of the matters de- 
 pending thereon : And I do ground this diverfity upon the 
 reafon of the Book-cafe put in 1 R. 3. fol. 4. where it is 1 R> 3- 
 faid, That if the original caufe do belong to the Court ChrifiU 
 an, although in the proceedings therein fome matters happen 
 which depend on the principal , which do belong to the Tempo- 
 ralCourt, Yet Accejfarium Jequiturfuumprincipale, and thefe 
 matters (hall alfo be determined in the Court Chriftian: 
 And fo if in a caufe at the Temporal Law, as in a gZ»<ire 
 impedit, and in the proceeding therein, fome matter do a- 
 
 F f 2 rif* 
 
22o Lettura Tertia. 
 
 rife depending on the principal caufe, which belongeth to 
 the Court Chrtftian, yet the Temporal Court (hall conti- 
 nue his Jurifdiction thereof: And with this diverfity agre- 
 xeiewa/i eth Kel/ewa/s Report , fol. no. fo in our Court of Sewers, 
 *#• although a thing happen in the proceedings, which if it 
 
 ftood merely of it felf would not pertain ad esr' exa/»e» t 
 notwithftanding if it be but a matter accidental, and have 
 his dependance upon a principal matter which is determi- 
 nable in this Court, the other alfo (hall be here determi- 
 nable. 
 
 Juftification by the Commijjioners and Officers 
 of Sewers. 
 
 IF a man be fued for diftraining Cattel or o- 
 ther Goods, or doing any other Act by ver- 
 tue of the Commiflion of Sewers, this Statute 
 of 23 H. 8. cap. 5. hath provided, That the De- 
 fendant may juftify by alledging in his Plea, 
 that the faid diftrefs or other act was done by 
 authority of the Commiflion of Sewers for 
 lot or tax aliened by the faid Commillion, or 
 for fuch other act or caufe, as the faid Defen- 
 dant did by authority of the faid Commiflion, 
 and according to the Tenor, purport and effect 
 of the faid Act ; without any reherfal of any o- 
 ther matter contained in the faid Act, or any 
 Commiflion, Statutes or Ordinances thereupon 
 made, whereupon the Plaintiff (hall be admitted 
 to reply, thai the Defendant did take the faid 
 diftrefs, or did the faid Act of his own wrong, 
 without any fuch caufe alledged by the faid Der 
 
 fendant ; 
 
Leftura Tertia. 221 
 
 fendant ; whereupon Iflue fhall be joined, and 
 upon the trial, the whole matter fhall be given 
 on both parts in evidence , according to the 
 truth of the fame : which is a beneficial claufe 
 for fuch as act under the authority of the Com- 
 miflion of Sewers , and exempts them from 
 pleading all the fpecial matter, which would be 
 tedious, chargeable and dangerous. 
 
 Whitley brings an Action of Trover and Con- 
 verfion againft Fawfett for taking his Cattel, by 
 way of diftrefs, and felling them by vertue of 
 a Warrant of Commiflioners of Sewers, for not 
 paying of a Tax fet by them towards the re- 
 paration of Sea-walls ; the Defendant waves 
 the benefit which this Act had given him, and 
 pleads all the fpecial matter ; the Plaintiff de- 
 murs to this Plea, and it was refolved, that fee- 
 ing the Defendant had waved his benefit of the 
 Plea, given him by the Statute, by pleading 
 fpecially, he ought to make good his Plea, as 
 he hath pleaded it, at his own peril : And the 
 Plea was adjudg'd to be ill , for feveral defects^ 
 which had been avoided, if the Defendant had 
 pleaded as the Statute directed him ; Style 12,13. Style t2 * x * 
 
 In trefpafs B.R. 2 Car. 1. for taking of Bul- 
 locks,, the Defendant pleads that King James 
 granted to divers Perfons a Commiifion of 
 Sewers, to endure ten years, and juftifies the 
 taking for a fine impofed by the Commiflio- 
 
 ners, 
 
I 
 
 222 Leftura Tertia. 
 
 ners, but Ihews not whether it was in the time 
 of King James? or of King Charles ; and it was 
 refolved by the Court, that he ought to have fet 
 forth the time ; for the Statute of 23 H. 8. 5. is 
 intended onely of circumftances, but here the 
 Addition » time is matter of fubftance ; Addition to Bert- 
 
 Benlowes j 
 
 i 99 . lowes 19?. 
 
 Exemptions. 
 
 T may be a grand queftion, Whether thefe Laws of 
 Sewers will permit any Exemptions to any perfon or per- 
 lons, and by the ftridt penning of the words of this Corn- 
 million it feems to oppofe all luch privileges and difcharges, 
 as Exemptions be 5 The ancient Commiffion which is in the 
 Regiftcr. Regifter, and in Fitz. Nat. Br. are exceeding ftridr$ for 
 Fit^. A'. B. t |j e words therein be, Ita quod aliquibm tenentibut terrarunt 
 feu Tenementum feu communiam pajlur<e feu Pijcari<s haben- 
 tibua diviti vel pauperi vel alteri cujufcunque fuerit conditio' 
 nis Stat its ant dignitatis qui defenfton habere potuerint per pre- 
 diff' Wallias Gutturas Fojfata fueras pontes calceta & gurgi- 
 tes feu etiam damnum per trencheas predid? fuftinent vel pot e- 
 rint fuftinere five pterint infra libertates Jive extra non par- 
 cantur in hac partem And the words in our Statute be in ef- 
 fect, And all fitch which reap profit or f/Jiain damage, foall 
 be ajfej/edi which words fee m not to admit of discharges : 
 Yet in my opinion out of the ftricl: words of thefe Commif- 
 fions there be fotue Exemptions, though not expreffed in 
 words, yet fupplied in reafon, and are to be added in con- 
 ftruftion. 
 1. Firftj For the grounds lying betwixt the Sea-banks and 
 
 the Seas are in reafon exempted from the charge of the 
 Banks and Walls, becaule they can take no fafety thereby. 
 a. Secondly, Thole grounds which be upon an afcent, 
 
 and not on the Level, are alfo by the rule of reafon exemp- 
 ted 
 
Leftura Tertia. 223 
 
 ted from affefles to be impofed onely by the power of thefe 
 Laws. 
 
 Thirdly, Where one or more be tied to repair a Bank, 3. 
 Wall or other Defence by Cuftome, Prefcription, Te- 
 nure or otherwife, all others be in Law and reafon exemp- 
 ted. 
 
 Fourthly, A Parfon and Vicar with Cure are not to be 4. 
 affeffed for their Tythes, and divers of the Hereditaments 
 formerly mentioned in Affefles be by the rule of reafon ex- 
 empted. 
 
 Fifthly, But whether one may be difcharged and ex- 5. 
 empted from the repairs of the works of Sewers by any 
 fpecial Cuftome or Prefcription, is a great queftion of our 
 cafe, in regard both the old and new Commiffions Quod 
 nuUui in hac parte parcatur feem to toll all Prescriptions 
 and Cuftoms of difcharge, and to admit of none of them : 
 And the Charter of Romney Marjh, pag. 31, 32, and 33. ch. Romnej- 
 beareth the lame Expofition 5 for there Godfrey pleaded a Mar ^' 
 Plea to difcharge him of the repairs of the Walls and Wa- 
 tergauges, becaufe he claims bis Lands by Charter from the 
 Ring, and alio prefcribed generally in non reparando, but 
 he durft not abide his Plea; for there pag. 39. it is faid, 
 That all having Lands jkould contribute , and that none might 
 be [pared ; and alfo pag. 53, be thefe words, Quod ftarent 
 ordinationi Jvrator' prediHor' nulla confuetudine rejijientey 
 which wofds be direct in the point againft fuch general dis- 
 charges claimed by blind cuftoros : Yet I have been credi- 
 bly informed, that Sir George FitzmJIiams Knight, had s* 
 Cuftome in his Town and Manor of Mabbktborp in the 
 County of Lincoln, called Sm ft age, whereby he challen- 
 ged to be freed from being charged to the repairs of the 
 Sea-banks, becaufe in confederation thereof he and his An- 
 ceftors have ufed in regard of their Manor there to do fome 
 other repairs as beneficial for the Commonwealth 5 and in 
 my opinion, in fuch a fpecial Cuftome one may be exemp- 
 ted j like to the cafe of Tithes, wherein one could not by 
 the Common Laws prefchbe in a non decimando^ yet in a 
 
 modui 
 
224 Le&tura Tenia. 
 
 modus decimandi he may, becaufe there is fame competent 
 confideration given in lieu thereof; And (o in my opinion 
 one cannot generally prefcribe or alledge a cuftome to be 
 freed and clearly exempted from the repairs of Sewers, but 
 by fpecial cuftome he may, as in the faid Cafe of Sir George 
 Fitzvpilliams. 
 
 The Lands of the King are not exempted 
 from being taxed by virtue of the Commimon 
 of Sewers $ and therefore in the Cafe of Whitley 
 and Fawfet, Pafch. 23 Car. 1. B.R. where it ap- 
 peared, that there were 800 Acres of Land in 
 the hands of the King, which were not taxed, 
 as by Law they ought : it was held that the tax 
 laid upon the other perfons within the Level was 
 unjuft and illegal, becaufe by the not taxing of 
 thofe 800 Acres, a greater burthen was laid up- 
 on the reft of the Land within the Level, than 
 of right ought to be, for that the King's Lands 
 tykis> are taxable by the Statute, Style 13. 
 
 And therefore the Commiffioners of Sewers in my Cafe 
 did very juftly and difcreetly refufe the faid general Pleas 
 of difcharge tendred to them by A, and E. and fo I fuper 
 tot am maUriam conclude my Argument as I did my Cafe, 
 That the Commiffioners of Sewers did adminifter true Jut 
 .nice in all the parts of thefe Laws. 
 
 Finis bujus Tertioe Lefturx. 
 
 LeRura 
 
(225) 
 
 Le&ura Quarta, 
 
 IT appeareth by this Statute I read on, that the Law- 
 makers made it not the leaft part of their care to 
 have fiich perfons put in truft with the execution 
 thereof, as fhould be of great wifedomand approved 
 experience. And becaule that perfons of profound 
 wifedoms, deep experience, tried Learning, generous Dif- 
 pofition , and of good Eftate, fhould be put into thefe 
 Commiffions of Sewers, the Statute did make choice of 
 four Honorable perfons to have and take the nomination 
 of fuch as fhould for their Integrity, Learning, Wealth, 
 Wifedom and Experience, be worthy to be put into this 
 Commiffion. And therefore the Lord Chancellour, Lord 
 Treafurer, and the two Lord chief Juftices for the time be- 
 ing, have by this Statute the nomination of our Commtfli- 
 pnersj But as thefe great perfons of Honor by their high 
 places are moft commonly bulled in matters of great impor- 
 tance, they many times refer thefe matters to others, by 
 means whereof divers perfons in fome Countreys have of late 
 years crept into Commiffion, which this Statute doth not 
 allow of, which do not onely want knowledge and expe- 
 rience, but which are alio tranfported and carried away 
 with felfwill, and ferve moft commonly to make a fadtion 
 of the greater number to carry away bufineffes, when the 
 graver and wifer fort are forced (biing overladen with po- 
 pular voices) to give way to run into contrary courfes, and 
 are made to furceafe from making good and wholfbme Laws 
 and Ordinances, and fometimes are as it were forced to a- 
 gree to thofe which are worfc; even as the Roman Dicta- 
 tor Fabivt having joined to him the froward Minutlm^ was 
 by the violent ftream of his Collegue fo croffed and over- 
 
 G g fwayed, 
 
j 26 LeRura Quart a. 
 
 fwayed, not out of judgment, but felfwill, that he was 
 forced to give way to Mimttiuis frowardnefs, though it ten- 
 ded almoft to the hazard and the overthrow of the whole 
 Roman Army : And becaufe the Commiffioners are the 
 perfons through whofe hands the execution of all thefe 
 Laws muft pais, I thought it therefore very convenient to 
 take into examination thefe part9 of the Statute which touch 
 and concern them : And I intend to purge the Commiffi- 
 on of fuch of them as thefe Laws have difallowed, and to 
 that purpofe I have framed this infuing cafe, which I 
 take it will give us occafion to call them all into que- 
 stion and to fever the juft from the unjuft, the fufficient 
 from the unfufficient, and the learned from the illiterate. 
 
 The Cafe. 
 
 ADemifeth to B. and C. Land of the yearly value 
 # of Sixty Pounds cum Jiauro of the value of Two 
 Hundred Pounds for their lives, the Remainder to D. a 
 free Citizen of Lincoln, B. and D. difTeife C. of the Land 
 and take the ftock, C. releafeth to D. the goods abiblute- 
 ly, and the Land upon Condition; D. dieth in Exile, E. 
 his fon and heir enters, B. and C. who enter for the Con- 
 dition broken, E. and Francis Counters Dowager of War~ 
 ■wkk^ and three other Commiffioners of the Quorum of Sew- 
 ers, make a Law to raife a Were, erected upon a River na* 
 vigable at the cofls of the party, becaufe it hindred the cur- 
 rent of Waters. 
 
 My Conclufion is, That here be competent Commif- 
 fioners in number and in Eftate which made this Law, and 
 that this Law is well decreed within this Statute. 
 
 The cafe I do distribute into thefe points, via. Three at 
 the Commonlaw, and four upon this Statute; the points I 
 intend by the Commonlaw are thefe: 
 3. Firft, Whether the Sixty Pounds ftock can be demi- 
 
 fed and letten for life, with the Remainder over, as this 
 safe is. 
 
 Secondly, 
 
LeRura Quart a. 227 
 
 Secondly, Whereas B. and C. be two jointenants in pof- a, 
 feffion, whether one of the Jointenants and a Stranger can 
 (b diffeife the other Jointenant as to transfer thereby an in- 
 tereft and Eftate to the Stranger. 
 
 Thirdly, Becaufe the Releafe dependeth upon the d'\f- 3. 
 feifin, the queftion is, in what manner it doth innure, and 
 whether it (kail expell B. out of that moiety, becaufe it is 
 made to the Stranger ; and then what is reduced by the 
 condition, whether a poffeffion, a&ion, or a right. 
 Points upon this Statute. 
 
 Firft, Whether the Son of the free Citizen exiled is a i» 
 difabled Commiflioner, in refpett of his Perfon ; and whe- 
 ther he hath fuch an Eftate, either in Lands or Goods, as 
 will fatisfy this Law. 
 
 Secondly, Whether the Countefs may be a competent 2. 
 Commiffioner within this Statute. 
 
 Thirdly, Whether a joint intereft in Lands or Goods 3. 
 will make the Jointenant a fufficient inabled Commiffioner 
 within this Statute. 
 
 Fourthly, Whether the Were, as this cafe is, be raced 4, 
 down or not. 
 
 And hereupon I intend to lay open the whole divifion, 
 touching the Lets, Impediments and Annoyances which this 
 Statute fpeaketh of. 
 
 Argumen+Htn Lefforif. 
 
 I meant it not for a point in this Cafe, whether Goods 
 might be let with Land, nor whether a ftock might be 
 leafed with a Farm, becaufe I find the Books of 1 if. 6. 1. 1 h. 6. 1, 
 and many others full in the point that they may. And al- 
 though by the taking of them back again by the LefTor,they 
 will thereby fufpend no rent, yet in the original demife 
 they may be a caufe to increafe the rent : but my point 
 herein is double. 
 
 Firft, Whether they will pafs in remainder, as my Cafe I. 
 doth limit them. 
 
 Secondly, Whether they will inable B. and C. to be 2, 
 Commiffioners of Sewers allowed by this Statute. 
 
 G g 2 I do 
 
228 Leftura Quart a. 
 
 I do not onely find ftock let with Farm?, but alfb joined 
 in real Actions with Land : for in the Writ of Affize the 
 words be, Quod vicecomes faciat Tenement' illud rejeijiri ds 
 catallk f qua in ipfo capta fuerint & ipfum Tenement' cum ca- 
 taUk ejje in pace ujque, &c. Thefe doubtlefs were fuch 
 Goods as ftocked the Grounds, and which ufually went 
 with the fame, for in ancient times when any farmed 
 Grounds, they ufually farmed the ftock thereon going, 
 and this appears by ancient prefidents 5 Sed nunc aliud 
 tempm. 
 
 In the Writ of Ejettione firms in the Regifter be con- 
 tained 1 thefe words, Oftenfum quare vi & armis manerium 
 de Dale quod C. prefat' A. dimijtt ad terminum qui nondum 
 preteriit intravit & bona & catalla ejufdem A. ad valen- 
 tiam, &c. in eodem- manerio inventa cepit & afportavit. So 
 that in thofe Writs of Affize and Ejettione firm<e t the one 
 to recover the Freehold , the other the Leafehold : We 
 find Goods which went with the Manor or Farm made 
 parcel of the plaint $ and I take it, damages (hall be in- 
 creafed therefore 5 for thefe were fuch Goods as ftockt the 
 Wntfa 1 and Farms. And in Wrotjly and Adams'* Cafe in Plo. Com. Ex- 
 ^k si ception was taken in abatement of the Writ, becaufe the 
 words (bona. & eatalla) were left out of the fame : Yet 
 in my opinion, no Eftate, neither *'* prefenti nor in re- 
 mainder can be made of Goods or Chattels,neither (ball they 
 go with the Land in point of Eftate, but fhall pals to the 
 Leffee, and after to him in the remainder, as a dependancy 
 upon the Farm r And the Heir fhall have Heir- looms, to- 
 gether with the Manfion-houfe, as things neceffarily concur- 
 rent therewithal!, yet the Heir-looms have no defending 
 qualities, but they do go with land wait upon the Houfe, 
 as neceflary Inftruments fitting to be ufed therewith 3. nei- 
 37 h. 6. ther can it be gathered by the Book of 37 H. 6. fit. 30; 
 that the Book called The Grail (which was devifed by will 
 to lone of the Executors to have the occupation during 
 his life, the remainder thereof in like manner to B. for his 
 life, and after to be difpofed by the Executors to the Church- 
 wardens 
 
LeRura Qjiarta. q « - 
 
 ""'"tens of Dale) that it did pals to A. ar^ R fa o\nt nf 
 Eftate, but onely the ufe and occupation hVreof \vafd\C- 
 poltd to be ruled according to the faid Limitations, but ffic 
 property remained in the Executors. 
 
 And a devife of fuch ufe and occupation of 
 goods in remainder, was, Trbi. 1 7 Car. i.C.B. ad 
 judged to be good ; but otherwife it is of a de- 
 vife of the Goods themfelves in remainder, for 
 fuch devife is void 5 March 106. Roll abr. tit. De- Mara 10 
 
 .-- ., Roll abr. 6 ia. 
 
 vije, 610. 
 
 It was adjudged, Mich. 28 & 29 Eliz. C. B. 
 that where a ftock of Sheep was leafed by In- 
 denture, the property of them (till remained in 
 the LefTor ; Godbolt 1 1 3. Godkit.n^ 
 
 So in Varamore and Yardle/s Cafe in the Com. and mPuramare 
 Matthew Mannings Cafe in Cool(s Reports, a Term of years 5** **rdlqfc 
 could not be devifed to A. for life, the remainder thereof Manning'*. 
 to B. for his life, to pafs in this manner in point of Eftate 5 Ca( " e - 
 neither could thefe Eftates be made thereof, but by con- 
 struction the fame was difpofed of to go by way of execu- 
 tory devife 5 and fo the ftock in my Cafe was not transfer- 
 red in point of Eftate with the Land, but in point of exe- 
 cutory difpofition of the occupation and ufe thereof onely ; 
 and therefore if one let a ftock of Cattel or Sheep with 
 Grounds at the end of the term, the Goods as acceffory 
 with the Land as principal (hall return to the LefTor, and 
 during the term the LefTor hath the property of them, and 
 the LefTee the pofTeffion thereof, and the LefTee fhall have 
 the yearly profits thereof for his Rent 3 and. here I do end 
 this firft Point, and will proceed to the reft. 
 The fecond Point. 
 There be two Jointenants , and one of them and an 
 Eftranger do difTeife the other ; what intereft the Stranger 
 gaineth thereby is the queftion. 
 
 I am 
 
230 LeZlura Quart a. 
 
 I am clear of opinion, as many Books be , That one 
 Jointenant may diffeife his Companion by an exprefs Ote- 
 fter, but when a Stranger joineth therein, in what part 
 that doth alter the cafe is the matter j for if the Stranger 
 fliould get a joint Eftate in pofleffion with the Jointenant 
 whom he joined withall, that were to make a double Join- 
 tenancy in uno eodemqite gradu : for the Jointenant which 
 committed the difleifin, which hath the poiTeflion, and the 
 Jointenant which was diffeifed and which hath the right, 
 36 Ed. 3. do hold jointenancy ftill; for by 36 Ed. 3. a right may hold 
 jointenancy with a pofleffion, and the one may take by 
 ■9 h. 7. furvivor from the other, in 9 H. 7. fol. 23. That he in re- 
 mainder and a Stranger may diffeife Tenant for life, and 
 (hall be both Diffeilors ; but in that cafe they were both 
 Strangers to the particular Eftate : Alfo it is manifeft that 
 one jointenancy may be built upon another, As if two 
 Jointenants be diffeifed by other two Jointenants of the 
 right Jewel, but not fimul : But in our principal cafe, Whe- 
 ther one Jointenant might hold the pofleffion of a moiety 
 with his firft Companion in jointure, with his moiety in 
 right, and can alfo uno tempore hold jointenancy in poflef- 
 fion with a Stranger, of the moiety upon which the diflei- 
 fin was committed, 1 fuppofe he cannot, becaufe then he 
 (hould hold partnerfhip with both of one thing : And there- 
 fore in my opinion the Stranger getteth nothing in my cafe, 
 but is onely a Coadjutor, and no Diffeifor, which gets the 
 Tenancy. 
 
 The third Point. 
 
 But admit the Stranger did get a moiety of a moiety by 
 joining in the difleifin, then what alteration this releafe will 
 work in my Cafe is the next queftion. 
 Littleton. It is true as Mr. Littleton faith, That if there be two Di£ 
 
 feifors, and the Diffeifee releafe to one cf them, he fhall 
 hold his Companion out of all, and by iiich releafe lie 
 
 fliall have the fole pofTeiTion and itate in the Land 5 
 The like Law is in my Cafe of two Abaters and two In- 
 truders : 
 
Leftura Quarta. 2 
 
 traders : but if two DifTeifors be, and they make a leafe 
 for years, rendring rent, and then the DilTeiiee relealeth 
 to one of the Difleifors } I fuppofe this releafe (hall inure 
 to both, becaufe the Leffee for years, whofe Eftate fhall be 
 ftrengthned by this releafe, is in by the title under both of 
 them, and now they are Tenants of a reverfion onely, and 
 of a rent thereto incident, which was not got by the dif- 
 feifin, but was compofed by the legal contraft of the Parties; 
 
 But the reafon given for this in Co. i In ft. 276. a. \W.n6.<* 
 
 is grounded upon the faid words of Littleton, that 
 
 if two DifTeifors be, and the DilTeifee releafe to 
 
 one of them, he to whom the releafe is made, 
 
 (nail have the fole pofTeflion and eftate in the 
 
 Land 5 which he cannot have, where the Dif- 
 
 feifors have made a leafe for years , before the 
 
 releafe 5 for by the leafe, part of the Eftate is in 
 
 another, and therefore (faith my Lord Coke) in 
 
 fuch cafe the releafe to one of the Difleifors (hall 
 
 enure to both ; and though our Reader here 
 
 puts the cafe of rent referved upon the leafe for 
 
 years, yet the reafon given by Coke, will as well 
 
 hold, where there is no rent referved. The 
 
 like Law is , if the Difleifors make a leafe for 
 
 life , and then the DilTeifee releafes to one of 
 
 them, this fhall enure to them both, for the 
 
 fame reafon, becaufe he cannot by the releafe 
 
 have the fole PofTeflion and Eftate , for part of 
 
 the Eftate is in another, 1 In ft. i-j6. a. 
 
 So if two be admitted to a Copyhold by Tort, or to an> 
 Office in a Court of Juftice unlawfully, though their entry 
 be unlawfull, yet becaufe they came in by admittance, 
 which is at the door of Juftice, I fuppofe therefore, that if 
 
 a releafe 
 
232 Lett ura Quart a. 
 
 a releafe be made to one of them by the Diffeifee, it {hall 
 inure to both , becau-fe they had fome colour and counte- 
 nance to enter, more than expreis DilTeifors or Intruders 
 have. 
 
 But if a Son and a Stranger difleife the Father, and after 
 the Father dieth, and the right defcend to the Son, by this 
 releafe in Law, and by the acceffion cf the right by defcent 
 to the tortious polTeffion, it doth inure onely to the Son 5 
 and although this releafe was upon condition, which by the 
 breach thereof feemeth to let the ReleiTor in the lame ftate 
 he was before, yet it doth not admit the Joint dilTeifor 
 which was expelled thereby to become a copartner again 
 with his fellow : As if the Son and a ftranger diffeife the Fa- 
 ther, and the Father dieth, the ftranger hereby is expelled 
 by the defcent of this right to the Son ; yet if after a more 
 near Heir is born, as the Elder Brother died his Wife en- 
 feint with a Son, which after the deceafe of the Grandfa- 
 ther is born, whereby the Inheritance of this Land is his; 
 yet the other JointdiiTeifor which was expelled by the de- 
 fcent of the right of his fellow dilTeifor, by the departure 
 of the right with the polTeffion, cannot enter upon his fel- 
 low dilTeifor, in my opinion. 
 
 But now the queftion is farther, what is reduced by this 
 condition, the right onely which wa6 releafed, or the pof- 
 feffion together with this right ; for if but a right be redu- 
 ced, then a defcent hapning may perchance toll the entry 
 of the ReleiTor, and fo he may be put to his Writ of right 
 in Fee: And if it be a right of an inferior degree, as in 
 our cafe it was but for life, then he lhould be without re- 
 medy. 
 x-jAJi^pl.2. But in my opinion where the releafe doth inure by way 
 17 Ed. 3. f entry and Feoffment being upon condition, it may in 
 that cafe by the breach of the condition reduce the polTef- 
 fion, and give the ReleiTor a re-entry, becaufe in Intelligen- 
 tia legis the Land was pafled thereby, and not a right one- 
 BevVs Cafe. Jy : But if it had inured by way of Mitter le droit onely, I 
 4 Report. ta ^ e {t t fe n lt wou \ft Ie( j uce but a right; But in our cafe 
 
 Ifup- 
 
LeRura Quart a. 23^ 
 
 I fuppofe if it had had any working at all, it was by Entry 
 and Feoffment 3 yet I think nothing did inure thereby to 
 the (hanger, which in my cafe is called D. becaufe he wan- 
 ted the Freehold whereupon it fhould inure. 
 
 And fo I end my Common Law points, and I will now 
 in hand with my Statute. 
 
 The part of the Statute whereupon I do ground my fub- 
 fequent matters, doth contain in it tbefe words (viz.) That 
 if any per fin or perfons of what EJiate or Degree foever he or 
 they be of that from henceforth do take upon him or them to fit 
 by vertue of the faid Commijfions, not being firji foporn accor- 
 ding to the Tenor of the Oath exprejfed in the Statute $ or if 
 any perfon fo named and /worn do fit, not having Lands % 
 Tenements or other Hereditaments in Fee fimple, Fee tail y 
 or for term of life, to the clear yearly value of Forty Marks 
 above all charges to his oven ufe, Except he be Reft ant and free 
 of any City, Borough or Town Corporate, and have moveable 
 fub fiance of the clear value of One hundred Pounds, or elfe be 
 learned in the Laws of this Realm, in and concerning the fame , 
 That is to fay, admitted in one of the principal Inns of Court 
 for an utter Barrijier, [}} all forfeit forty pounds for every time 
 that he Jhall attempt fo to do, the one moiety to the King, the 
 other moiety to the party that will fue therefore, &c. 
 
 So that by this claufe it is manifeft, that every one that is 
 not qualified in one of ihefe degrees, is no competent Com- 
 mifiioner within this Statute. 
 
 Firft, That he be an utter Barrifter in one of the four r. 
 Inns of Court. 
 
 Secondly, Or have Lands, Tenements or Hereditaments 2. 
 of the clear yearly value of Forty Marks above all charges, 
 in Fee (imple, Fee tail, or for life. 
 
 Thirdly, Or be free or Reliant in fome City, Borough 3. 
 or Town Corporate, and have moveable fubftance of the 
 clear value of One hundred pounds. 
 
 And that perfon which is not within one of the faid 
 Three parts, and yet doth take upon him to fit in the 
 execution of the Commillion , incurs two penalties: 
 
 H h The 
 
2^4 Leftiira Quart a. 
 
 i .. The one, the forfeiture of his difcretion for his prefump- 
 
 tion. 
 2. The other, of Forty pounds for his contempt. 
 
 And therefore for the more clear examination of thefe 
 
 things, I will obferve that method in my Argument, which 
 
 my cafe hath formerly preferibed to me. 
 I, And firft of all, I (hall proceed to the perfbnal abilities, 
 
 and firft of the fon of the free Citizen of Lincoln, I am of 
 
 opinion, that every Commiffioner of this kind muft be in- 
 
 dowed with thefe three qualities. 
 
 I. Firft, He muft be free of r If he want any of thefe, 
 
 a City, &c. 
 2. Secondly, He muft be 
 
 there Refiant, and 
 
 then he is out of this 
 Branch of this Sta-< 
 tute. 
 
 WItiv iw.uam, rail ^ iun. 
 
 3. Thirdly, He muft have 1 Therefore what perfon 
 
 in clear moveable! is fuch a Freeman, 
 Subftance, One hun- is now to be han- 
 dred pounds; and \_ died. 
 
 I am of opinion, that every Subjeft born within the 
 King's Dominion is a Freeman of this Realm, as appear- 
 eth by the Grand Charter, Chap. 14. yea though he be a 
 Bond-flave to a Subject ; but a ftranger born is no Freeman 
 of the Kingdom, till the King have made him Denizen, by 
 whofe power alone, without the help of any other, one 
 may be made free : And to be a Freeman of the Realm, the 
 place of his birth is held more material than the quality of 
 his Parents; for if Aliens have a child in England, it is free of 
 the Kingdom : yet by the opinion ofHuffej Chief Juftice in 
 1 r. 3. 4. 1 JR. 3. fol.\. and in Calvin's cafe of the Poji Nati, it is hoi-- 
 cahitti d en f or L aWj That if AmhafTadors of this Realm have chil- 
 dren born in France, or elfwhere where the Father and Mo- 
 ther be natural born Subject the Children are free of the 
 Realm of England -•> but if either the Father or the Mother 
 of fuch Children were an Alien, then are not thofe Chil- 
 dren free. One out of the King's protection, is, as I take 
 
 it* 
 
r, 
 
 LeSlura Quart a. 23$ 
 
 it, for that time no Freeman of the Realm : But in what 
 Cafe a Man Exiled is in, foiteth the neareft to our Que- 
 stion. 
 
 "l. Damnum. 
 
 2. lmprifonamentum. 
 
 3. Plaga. 
 
 4. Compenfatio. 
 
 5. Jgnominia. 
 
 6. Exilium. 
 
 7. Servitudo. 
 
 8. Mars. 
 
 Exile is one of the Eight 
 Punifhtnents which the 
 Roman Laws did inflift 
 upon Strangers, which 
 be, videlicet^ 
 
 Mr. Brafton doth in this manner defcribe Exile, that is, 
 Certi loci interd0io } and doth diftribute it into Four heads} 
 That is to fay, 
 
 1. Special**, hoc eft inter didio talk provinci<e Civitatfc 
 Burgi out viU<e. 
 
 2. Generate, Inter did io totius Regni & aliquando eft, 
 
 3. Temporaria, pro duobua tribm quatuor ant pluribus an- 
 nis out, &c. 
 
 4. Perpetua, pro termino vit£ & Exilium eft aliquando ex 
 arbitrh principh (tcut in exiliando Duces Hertfordi<e & Nor- 
 folcis per Regent Ricardum fecundunt, Et aliquando per Ju- 
 dicium terre ut fit in cafu Piers de Gavefton & etiam in ca- 
 fu Hugonis de le Spencer junioris qui ambo fuerunt exilii per 
 Judicium in Parliament 0. 
 
 Abjuration arfo was a legal Exile by the Judgment of 
 the Commonlaw, as alio by the Statute Law; and in the 
 Statute of Weflminfter the Second, Cap. 35. He which ta-Weftm.*. $$. 
 vifheth a Ward, and cannot render the Ward unmarried, 
 or the value of his Marriage, muft abjure the Realm; and 
 this is a general Abjuration : And by a Statute made in 
 3 1 Ed. 1. Butchers are to be abjured the Town, if they of- 31 Ed. u\ 
 fend the fourth time in felling meafled Flefibj and this is a 
 fpecial Abjuration. 
 
 H h 2 Bus 
 
2%6 LeSlura Qjiarta. 
 
 But Tmuft put this Cafe to a farther Queftion, which is, 
 Whit' a man Exiled doth forfeit thereby ? And in my opi- 
 nion he forfeits thefe things following; 
 
 1. Firft, He lofeth thereby the freedom and liberty of the 
 Nation out of which he is Exiled. 
 
 2. Secondly, He forfeits his Freedom in the Borough or Ci- 
 ty where he was free; for he which forfeits the Freedom of 
 the whole Realm, by confequence forfeits his Freedom in e- 
 very part thereof. 
 
 3- Thirdly, He is of as little efteem in our Law as if he were 
 
 dead, for his Heir may enter, and fo may his Wife enter in- 
 to her own Land?, and may fue an Adtjon as a Woman fole, 
 
 31 Ed. i. by 31 Ed. i. &\ H.4. 
 
 1 h. 4. 1. ^ nc j F ovm hiy ? in my opinion he (hall forfeit thofe Lands 
 *' to the King, which he (hall purchafe in the Realm during 
 
 Kt$ ah. his Banifhment quod vide 15 Ed. 3. Fitz,. Petition' plac. 2. 
 But there in that cafe Hugh Spencer was banifhed by a Judg- 
 ment in Parliament, which gave a forfeiture of his Lands; 
 howfbever I take him as ftrongly barred from purchafing in 
 the Realm during his Banifhment, as an Alien is, for fit alie- 
 nigena by his Banifhment, and he is in a worfe cafe than an 
 Alien , becaufe he taketh with him Indignatio principh : 
 But a banifhed man forfeits neither Title/ of Honor, as 
 Knighthood, which is de jttre gentium, nor the Lands he 
 had before he was Exiled, unlefs by fpecial Judgment given 
 in a legal courfe they be fo decreed. 
 
 Then our cafe goes farther, That E. is not, Exiled him- 
 felf; but D. his Father was Exiled,* whofe Heir E. is: now 
 whether by the Exilement of the Father, the liberty and 
 Freedom which E. might claim in the City of Lincoln by 
 being the Son and Heir of a Freeman, be forfeit for his 
 Father's Banifhment, or not, is the matter of my cafe. 
 
 A Freeman of a City or Borough may be made di- 
 vers manner of ways, as appeareth in the Cafe of the Ci- 
 
 chy of ion- ty of London in Sir Edward Cool(s 8th Report, fol. 126. 
 
 Aiscafc. That is to fay, 
 
 Firft, 
 
Leftura Quart a. Q37 
 
 Firft, By Service in his Apprenti(hip. 1. 
 
 Secondly, By Birth, by being the Son of a Freeman. 2. 
 
 Thirdly, By Purchafe, and that is by theCommon-coun- 3. 
 cil of the City : And at Brijiol by Marriage. 
 . In the Chronicles in the Reign of Richard the 2d it isfaid,. 
 Freedom was obtained but by two means, videlicet, By Ser~ 
 vice, and by Birth $ yet it feems it may be obtained by pur- 
 chafe, becaufe the Centurion chimed his Freedom thereby, 
 in the 2 2d Chapter of the Acts of the Apoftles. In the Irijh Atis 22.28. 
 Reports, fol. 12. it is faid, That one may be a Freeman by Davj,s Re ?' 
 Birth, Marriage and Service: Saint Paul indeed was born 
 at Tarfm in Cicilia which was under the obedience of the 
 Romans', he challenged therefore to be a Citizen of Rome-, 
 but I take it the Text there took it but to be National Free- 
 dom, which is fuch a general Freedom, as Calvin being Calvin's 
 born in Scotland claimed and had in England, becaufe he Cafe « 
 was born under the obedience of the King of England 5 
 But that made not St. Paul free of the private Cuftoms, Pri- 
 vileges and Franchifes of Rome, no more tlunCalvin's birth 
 made him a free Citizen of Lincoln to the peculiar Cuftoms - 
 of that City. 
 
 If one be born in a City of Parents that are not free, 
 the Child hereby is no Citizen by birth; and if one be 
 born of free Parents out of the place of Privileges, as out 
 of Lincoln, he yet is a Freeman by Birth 5 Yet in the Char- 
 ter Grant of Yarmouth the words were, Concejjiwus Bur- 
 genflbui de Magna Termutha de villa predict' oriundff, that 
 they (hould have fuch liberties and fuch } fo that it may be 
 the fpecial words of the Charter may alter the cafe : yet in 
 the cafe of the City of London, Cook's 8th Report, the King cool's 8th 
 by his Letters Patents could not make one a Freeman of Report. 
 London, yet he may thereby make him a Freeman of the 
 Kingdom. 
 
 But whether thofe that are Free by Birth, Service or Ma- 
 nage be Freemen within my Statute, or not, is aQueftion: 
 becaufe the words thereof be abfolute pofita to all purpofts; 
 And therefore I take it, that this Statute intends it of fuch 
 
 as have 
 
238 Leftura Quart a. 
 
 as have challenged their Freedom, and which have taken 
 the Freeman's Oath, and are admitted into the Society and 
 fellowlhip of the Freemen, Citizens and Burgefles ; for in 
 Jamts Bafr James Bags Cafe in the 1 ith Rep.fadx a one is taken for a 
 perfeft Freeman, and no other : So in my opinion E. the fon 
 of D. is no competent Freeman of the City of Lincoln with- 
 in the Branch of this Statute; But admit he were, then it 
 may be objefted to me, that by the Exilement of the Fa- 
 ther the Freedom of the fon was forfeit, by reafon he was 
 by this Exilement become no free Citizen. But in anfwer 
 thereunto I fay briefly, That if the fon had attained this 
 Freedom by the death of his Father, as a thing defcendible, 
 then it had been forfeit by his fathers Banifhment, but the 
 fon had this Freedom by his own birth, as a purchafe, and 
 not by the death of his Father by defcent, Ergo, it was not 
 forfeited by his Fathers Exilement. Like to the cafe where 
 J.S. hath many Children, and then he confeffeth himfelf 
 Villain to J. D. in a Court of Record, yet his Children for- 
 merly born are Freemen and no Villains, becaufe they were 
 free by their own births, but the Inheritance is inthralled, 
 becaufe it is to come to the Heir by defcent : So that I am of 
 opinion, that if E. had other wife been a competent Free- 
 man, as he was not, then the Exilement of his Father could 
 not have disabled him. 
 
 Our Freeman which this Statute fpeaketh of, muft not 
 onely be free of the City or Borough, but he muft alfo 
 there be reliant 5 for thefe words are materially placed in 
 the faid Law, and here E. was the fon of Z>. a free Citizen 
 of Lincoln, who did there refide and dwell, and every 
 Child is part of the Fathet's family, for the Husband and 
 Wife, Father and Children, Matter and Servant are of a 
 Family; and a Ward is part of his Gardians Family: But 
 in our cafe when D. was Banilhed, he then forewent his lo- 
 cal Habitation, and fo his faid fon could not then be of his 
 Family, nor could be intended to dwell with him who had 
 no Habitation in the Realm: And I am of opinion, that 
 this Statute reguireth an actual Habitation or Refiancy, 
 
 .and 
 
LeRura Quartet. 239 
 
 and not a Mathematical or Imaginary Refiancy, fuch a one 
 as was in Jeffreys Cafe in Cook's 5th Rep. 5 for there the cafe ftffiefsCiCc. 
 was, That one did perfonally and locally dwell and re fide at 
 Dale, and occupied Lands in Sale ; here the party was in Law, 
 but not in faft, an Inhabitant in Sale, and was there afltf- 
 fed as an Inhabitant to the repair of that Church $ But this 
 Commiffioner of ours is bound to fuch Refiancy as a Mini- 
 fter is to his Refiancy, which in Butler and Goodale's cafe Butler and 
 in Cool(s Report ought to be locally and personally abiding ^ ale ' s 
 in the Parifli where his Parfbnage or Vicarage houfe is, for 
 refiancy or refidency have a like fignification, and be both 
 of them words of that efficacy, as they tie a man to his per- 
 fonal and actual abode and habitation with his Family : 
 But put the cafe that in Lincoln there be places exempt out 
 of the Freedom of the City, and yet within the Circle of 
 the Walls, as St. Martins doth in London, I take it if a Free- 
 man dwell there, this is no refiancy intended within this 
 Statute, becaufe the words of our Law be, That he be Re- 
 fiant and free of the City, which going together draweth 
 his Habitation to the place where his Freedom is : And with 
 this agreeth the Decree made for London touching Tithes in 
 Anno'Dom. 1535. which did no extend to St. Martins, be- 
 caufe it was In but not Of London, Dr. Grannt's cafe, Cool(s Dr. GramS 
 lu\\Rep. Cafe. 
 
 Our Freeman muft alio have in clear moveable fubfrance 
 to the value of a hundred pounds; this word (Subjljnce) 
 would have extended as well to ones real Eftate as to his 
 perfonal, if it had gone alone; but being coupled with the 
 word Moveable, declares plainly that it onely extends to the 
 perfonal Eftate : And I take it, that thefe words (Moveable 
 fubjiance) do not onely contain and extend to fuch things 
 Qu£ de fe mover e pojjlnt, as live Goods, Horfes, Oxen,, 
 Sheep, and fuch like, but alio to fuch things qu£ de femo- 
 vere non pojjint, as Plate, jewels, ready Money, Utenfils of 
 Houfe, Mercery, Drapery, and other Wares and Goods of 
 value, Hay, Corn, Goods of Husbandry, and Houfewifery 5 
 but Birds and Beafts of Parks and Warrens, and Doves in 
 
 Dove-- 
 
240 Lettura Quart a. 
 
 Dovehoufes, be not valuable fubftance} a Hive of Bees, 
 and a Villain for years, and a Captive taken in the Wars 
 be, for there (hall be paid for him a Ranfom, as is mentio- 
 ned in the Regijler^f. 102. Moneys due upon Statutes, Judg- 
 ments, Recognizances, Bonds, Bills or Contracts, be not 
 valueable fubftances within this Statute j for by this Statute 
 it muft be clear and not doubtfull or accidental, as Moneys 
 out of hand be, which is like to a Bird in the Bufhj yet 
 thefe be all valueable, and are valued in Inventories taken 
 in the Ecclefiaftical Courts: But yet the Executors or Ad- 
 miniftrators fhall not be charged for aflets for them, till they 
 25 h. 8. have received them : And in 25 H. 8. in Djer, fol. 5. Ob- 
 *>}&' ligations are not held valueable, but things in action 5 and 
 
 if one have got Goods by tort and wrong to the value of 
 One hundred pounds, yet this is clear valuable fubftance 
 within this Law 5 for although the word clear be inferted 
 into the Statute, yet that relates to the value, and not to 
 the Title of thofe Goods : And if one have Goods as Ex- 
 ecutor or Adminiftrator, thefe are not his own , and 
 therefore do not inable him to be a Commiffioner within 
 this Law. 
 
 Neither do the Goods of the Church inable the Parfbn, 
 Vicar or Curate, nor the Goods of a Corporation do not 
 inable the Major and Aldermen, or Citizens of a City, 
 or Town Corporate, for thefe do not belong to their par- 
 ticular perfons, neither did this ftock in my Cafe, which 
 is demited to B. and C. make them competent Commif- 
 fioners within this Statute, becaufe they had not the pro- 
 perty therein, but onely the ufe and occupation thereof 
 
 And although in this Statute it is not declared in what 
 place thefe goods which fhould inable a man to be a Com- 
 miffioner of Sewers fhould be in, it will fuffice if the par- 
 ty have them in any place within the Realm 5 for this very 
 Law calls them Moveable fubftance: And herein I end my 
 free Citizen, and in my opinion E. had neither Freedom in 
 his perfbn, nor real Eftate in Land, nor moveable fubftance 
 in any fort to make him a competent Commiffioner within 
 
 this 
 
LeRura Quart a. 241 
 
 this Law 5 yet if a Freeman be deftitute of Goods, or want 
 perfection in his Freedom, if notwithftanding he have 
 Lands to the value of forty Marks per annum, then he fliall 
 be allowed a Commiffioner within this Statute : Touching 
 which point of Lands I now intend to proceed in. 
 
 In the handling of this matter it is to be confidered , 
 which be Hereditaments within this Law 5 for the other 
 two words Lands and Tenements need no expofition^ 
 wherein I am of opinion, That Meffuages, Cottages, 
 Tofts, Crofts, Houfes, Land, Meadow, Pafture, Feed- 
 ings, Moors, Marifhes, Heaths, Furs, Mills, Orchards, 
 Gardens, Hopyards, Rents, Annuities, Prima vefiura 
 ierrt, Pifcaries, Tythes, Penfions, Portions, Proxies, 
 Parks, Warrens are all of them Hereditaments within this 
 part of this Law, for the word Hereditament is a word of 
 the larger fize and largeft extent in our Law, being Omne 
 quod H<ereditari poteji j and yet every Hereditament is not 
 within this Branch, for it hath two other words joined 
 therewithall (videlicet) yearly value: And therefore Fran- 
 chifes and Liberties, as Waifs, Strayes, Felons Goods, 
 Deodands, Fines, Amerciaments, Profits of Courts, Fairs, 
 Markets, Ferries, Hundreds, Leets, and fuch like, are all 
 of them out of this Statute in this point, becaufe they be 
 not of a certain yearly value, but be accidental and depend 
 in contingency, by the opinion in Butler and Baker's cafe Butler and 
 CooKs 3d Report 3 But as it is there faid, If tkefe things have B 4 er ' s Cafc - 
 heretofore been ufually letten and demijed for certain yearly 
 Rents , then they may be Hereditaments of clear yearly va- 
 lue within this Lave. All Offices and Vocations, as Phyfi- 
 cians, Chirurgions, or Trades, as Merchants, Mercers, 
 Grocers, Drapers, and fuch like, be neither Hereditary, 
 nor of certain yearly value, and therefore they be not with- 
 in this Law, though perhaps one gain thereby Five hun- 
 dred pounds per annum. Alfo dry reverfions or remainders 
 depending upon Eftates for lives are out of this Branch, for 
 the words of the Statute be (having) which is in prxfenti 
 
 and not futuro. 
 
 I i Neither 
 
Leffura Quart a. 
 
 Neither is an Advowfon of force in this point, though 
 it be atlets in a Formedon, yet it is no atTets in an Action of 
 debt brought againfl: Executors 3 Homages, Fealties, Ef- 
 cuages, Heriots, Reliefs, No wine panes, and fuch like, be 
 Hereditaments 3 but becaufe they are not of yearly value, 
 they are not therefore within this Law. 
 
 Alfo if a Commiffioner of Sewers be feifed of a Rent or 
 Annuity payable every fecond year, it doth not inable him 
 to fit becaufe it is not Annual, which is intended yearly, 
 and every year, as the Prior of Plymton's Cafe in Dyer, 
 O/ff 123. fol. 1 2 3 . is, but if one do grant to J. S. an Annuity or Rent 
 of forty Marks in fee, payable at the Feaft oiEajier yearly, 
 if the Grantee will then come for it to fueh a Place, that 
 is of certain yearly value within this Law. 
 
 But put the cafe that A. is feifed of Land in fee , and 
 grant to B. forty Marks per annum for his life onely 3 I am. 
 of opinion that B. is no iufficient qualified Commiffioner 
 within this Law. 
 
 But if A. be feifed of a Rent of forty Marks per annum in 
 lee, and he grant the fame to ft for his life, he is a compe- 
 tent Commiffioner within this Law : differentia apparet. 
 
 Our Statute goeth on in thefe words, That the Commif- 
 fioner which would fit without exception^ mufi have in Lands, 
 Tenements or Hereditaments of the clear yearly value of forty 
 Marks to his own nfe 3 Therefore a Man feifed of Lands to 
 that value in the right of his Wife, although he take the 
 Rents and Profits to his own ufe, yet this will not inable 
 him to be a Commiffioner within this Law, but he muft 
 have them in ejus ufu & ad ejus ufum. 
 
 A Feoffee to a ufe before the Statute of 27 H. 8. of Ufes, 
 was no competent Commiffioner within our Statute, for he 
 had the Land then to another Man's ufe 3 Neither was Ce- 
 fiuy que ufe fufficiently qualified to be a Commiffioner. 
 
 Two Tenants in Common , or Coparceners of forty 
 pounds Lands per annum are neither of them of fufficiem 
 ability to be Commiffioners within this Law. 
 
 And 
 
 
IjSiuYi. Quart a. 243 
 
 And the like law ( . i«o Jointenants of Land of that 
 yearly value, for though they be fated per my and per tout, 
 yet in truth, and in a legal conftru&ion, either of them be 
 feifed but of a moiety : So that if two Jointenants, Tenants 
 in Common, or Coparceners be feifed of Lands of the year- 
 ly value of threefcore pounds, either of them may Gt by 
 this Commifiion. 
 
 A Dean and Chapter, Major and Commonalty, Matter 
 of a College and Fellows , which be feifed of Lands and 
 Tenements of the yearly value of a hundred pounds per an- 
 num, are not in refpeft thereof to fir. 
 
 If a Bifhop, Dean, Chancellor, Archdeacon, Prebend, 
 Parfon or Vicar be feifed of Lands in Jure Ecckfa of the 
 clear yearly value of forty Marks, I fuppofe thefe may fit 
 Commifiioners by this Statute, for they have thefe Lands in 
 •eorum ufit during the time they continue in their places, 
 which in intendment of Law is for their lives 5 but yet by 
 the intendment of Law they are not to fit in the execution 
 of any humane Affairs 5 and therefore feeing their Perfons 
 are out of the intendment of this Law, fo likewife fhould 
 their Church- livings be : but this is but a conceit, for al- 
 though they be not Perfons having thefe Lands within the 
 Statute of 32 H. 8. of Wills, which is a having to difpofe, i2 ff. 8. 
 yet they may be within our Statute, which is a having to 
 retain. 
 
 If an Executor have a Villain for years which purchafeth 
 Land of forty Marks per annum, he may fit in the execu- 
 tion of this Commifiion, for till his Lord enter he hath 
 them to his own ufe 5 but if the Executor enter, then nei- 
 ther the Villain nor Executor can fit a Commiffioner by 
 this Law. 
 
 If an Alien purchafe Lands of fufficient value in fee , he 
 in refpect of his Perfbn is a difabled Perfon to fit, neither is 
 he a Perfon having Lands, becaufe he is not feifed thereof 
 to his own ufe, but to the ufe of the King 5 But if he be 
 made a Denizen, then in his perfon he is made capable. 
 
 Ii 2 The 
 
244 Leffura Quart a. 
 
 The Warden of the Fleet who hath Lands belonging to 
 his Office, may in refpecl: thereof fit a Commiffioner by 
 this Law. 
 
 But (hall a Termor or LefTee for years of Land of good 
 value be thruft out of Commiffion, and be counted neither 
 a fufficient Landed man, nor his term and leafe to be accep- 
 ted moveable fubftance, and not onely fo, but that his 
 Farm fhall be a farther difablement unto him, as the Statute 
 &3 &k- 9- of 13 EL cap. 9. feemeth to purport j the words of which 
 Statute be, That no Farmer or Farmers for term of years ; of 
 any Manors, hands or Tenements, lying or being within the- 
 PrecinEis or Limits of any fitch Commijfion of Sewers, which 
 Be or which hereafter may be ordered and chargeable by any 
 Laws, Ordinances and Conjiitutions made or to be made by 
 virtue of any fuch Commijfion wherein he or they fliall be named 
 er appointed Commiffioner or Commiffioner s, not having Ejiate- 
 in Freehold within the Realm; of or in Manors, Lands or Te- 
 nements of the yearly value of forty pounds, Jh all any time here 
 after have power to Jtf, or in any-wife intermeddle with the 
 execution of fuch Commijfion or Commijjions, during the time 
 he or they jlyall continue or be fuch Farmer or Farmers of any 
 fuch Manor, Lands and Tenements, and fhall not have Efiate 
 of Freehold as afore faid 5 but that every Jmh Commijjion, ha- 
 ving refpeS onely to every fuch < Per fon or Perfons for fuch and 
 fo long time as. he or they jhall be or continue Farmer or Far* 
 mers of any fuch Manors, Lands or Tenements, fhall be dee- 
 med and judged in Law as void. 
 
 But yet in the clofingup of that Statute of 13 Eliz. there 
 is a Provifb to this effeci, Ptovided always, that it jjjall be 
 IdwfuU for any Commiffioner, being alfo a Farmer, and not 
 having Lands or Tenements to the clear yearly value of forty 
 pounds of Freehold, to fit by virtue of the faid Commiffion, 
 and have his voice and full authority with others to make and 
 tftablijli Ordinances for Sewers, according to the Tenor of the 
 Commijjion touching and concerning all Lands and Tenements 
 within the PrecinU of every fuch Commijfion, other than fuch 
 hands and Tenements as he or they for the time hold and 
 
 1 9n j y 
 
Leftura Quart a; 245, 
 
 enjoy as Farmer, as be or they might have done before the ma- 
 k'"g °f that Statute ; but he could not have fitten in execu- 1 
 tion of this Commiffion before the making of this Statute, 
 unlels he had befides his leate Lands to the value of forty 
 Marks per annum : And therefore a leafe for years is no ina- 
 blement at all, but a difablement, as this Statute declares. 
 
 But the times when this having of Lands, <&c. will Suf- 
 fice to qualify a Commiffioner to fit within this Law, is 
 now to be confidered of, wherein I am of opinion, that 
 the When having muft be referred to the Then fitting : For 
 the words of the Statute be, That nons take upon him to fit y 
 not having hands to the yearly value of forty Marks 5 fo that 
 if he have not Lands of that value when he is firft made a> 
 Commiffioner, yet if he have fo much when he fitteth upon 
 the Commiffion, it will fatisfy this Law 5 and if once he 
 have Land of that value and fitteth, and after fell the Land 
 away, or if they be evicted from him, he is then difabled 
 to (it as a Commiffioner by this Statute : And fo if he were 
 but Tenant for the life of J. S. and J.S. dieth, he ought, 
 not to fit : In 12 H. 7. 4. a Juror which was to pais upon ia h. 7. /;, 
 trial of Land was to have forty (hillings per annum of Free- 
 hold , and after he was impanelled , and before he was" 
 fworn, he fold away his Land, and when he came to be 
 fworn, he was challenged for want of Freehold, but the 
 challenge was dilallow'd, for after he was impanelled, his 
 Land ( though after fold awa}) was chargeable with the 
 Iffues which he after might lofe in that matter 5 and with- 
 this agreeth 14 H, 7. 2. by Frovpick^i But our Statute h 14 #.7.2: 
 more precifely penned, which is, That none do prefume to 
 (it, unlefs be have Lands of that value, or be, &c. therefore 
 when he fits he muft have the Lands. 
 
 And if A. do bargain and fell his Lands to B. by Deed 
 intended of that value, and before the inrollment of the 
 Deed JB. do fit as Commiffioner, and after the Deed is h> 
 rolled, yet this doth not qualify his offence, and the rela- 
 tion of the working of this Beed doth not affift him to take 
 off the penalty of this Law. - - 
 
 Alfo 
 
246 Left ura Quart a. 
 
 Alfo a man diffeifed is during the DiiTeifin di fabled to fit, 
 for he had not then power to devife the Lands by the Sta- 
 32 ft. 8. tute of 32 H. 8. of Wills, for that Statute doth as ours 
 doth, ufe the word Having in prefinti, and not in futuro. 
 
 And thus much I thought convenient upon this occafion 
 to deliver my opinion, when the Commiffioner muft have 
 Lands of forty Marks per annum, to inable him to fit as a 
 Commiffioner within this Statute. 
 
 To treat of the utter Barifter I need not, for when he 
 hath taken the Oath mentioned in the Statute, he is an ab- 
 folute and compleat Commiffioner within this Law, to all 
 purpofes, although he have neither Lands or Goods, ac- 
 cording as the Statute appointeth others to have. 
 
 It is enacted likewife by this Statute of 23 H. 8. 
 5. that if any Perfon not qualified as aforefaid, 
 do fit by virtue of the Commiffion of Sewers, 
 he (hall forfeit forty pounds for every time that 
 he fhall attempt fo to doe, the one half thereof 
 to be to our Sovereign Lord the King, and the 
 other half thereof to the ufe of him or them, that 
 will fue therefore by action of debt, bill, plaint 
 or information, in any of the King's Courts, in 
 which action or fuit no wager of Law fhall be 
 admitted, nor any effoin or protection fhall be 
 allowed. 
 
 In this cafe when the Perfon who fits con- 
 trary to the Statute hath forfeited one forty 
 pounds, he may forfeit another forty pounds 
 tor fitting a fecond time, though there be no 
 conviction of him for that flrft time, becaufe 
 the penalty is equal and alike for every offence : 
 But otherwife it is where there are fteps or gra- 
 dations 
 
Letlura Quart a. 247 
 
 dations in a penal Law, to double or increafe 
 the penalty ; for there he mufl: be convicted for 
 the htit offence, before he can forfeit any thing 
 for the fecond offence, which prior conviction 
 not being, neceflary here, the Party who fits two 
 feveral times by virtue of this Commiflion, may 
 be fued for the whole eighty pounds together, 
 and the like for as many more times as he (hall 
 fit, not being qualified, as the Act requires. 
 
 By the Statute of 1 8 Eliz,. cap. 5. It is enacted, tarn $. 
 That none fhall be admitted or received to pur- 
 fue againfl any Perfon, upon any penal Statute, 
 but by way of information, or original action, 
 and not otherwife : See Co. 6. 19, 20. Moor 412.^- g-w*. 
 cafe 565. and 600. cafe 827. Cro. Hil. 39 Eliz^ 544. 
 
 600. 
 
 And no Profecutor Qui tarn, &c. can now fue c " ,£ 54 -' 
 by Bill upon any Statute precedent to that of 
 1 8 Eliz. as was refolved in Woodjon and Clarke's 
 Cafe , in a popular fuit brought by Bill in the 
 Kings Bench upon the Statute of 2 3 H. 6. cap. 1 o. 23 « & w{ 
 of Sheriff's, Co. 3. hji. 194. and in Vdefon ands 7 ^ *9¥ 
 the Mayor of Nottingham's Cafe, Moor 248. cafe Mm 248. 
 390. contrary to the opinion in Style 381, 382.^ &> 
 So that although this Statute of 23 H. 8. 5. gives 382 ' 
 the Profecutor power to fue by Bill, yet that is 
 taken away by 1 8 Eliz,. 5. and he can fue by way 
 of information or original action onely. 
 
 The Informer or Profecutor who fues a Com- 
 miffioner (not qualified) upon this Statute for 
 
 the 
 
248 Leclura Quarta. 
 
 the forty pounds muft begin his fuit within one 
 year after the offence committed, otherwife he 
 (hall not have any part of the penalty $ For the 
 • 3 i £//>:. 5. Statute of 31 Eliz. 5. reftrains the Profecutor, 
 Qui ta?n> <sc. upon all penal Laws (except the 
 Statute of Tillage ) to that time : But if he doth 
 not profecute within a year after the offence, yet 
 the King may at any time within two years after 
 that year ended : And therefore it was refolved, 
 Hit. 1 2 Jac. That where an Information was 
 brought in the Court of Exchequer, tarn pro Do- 
 mino Rege quam pro feipfo upon the Statute of 
 3 Jac. cap. 4. for three years forbearance to re- 
 . ceive the Sacrament, although it was not good 
 for the Informer, yet it was well enough as to 
 
 crnjac. 166. i\ic King, Cro. J Ac. 1,66. Syvedak verfa Sir Ed- 
 ward Lentball. • 
 
 By the King's Courts, The four ordinary 
 Courts at Weftmi?ifter feem to be here onely in- 
 tended ; For they are the King's general Courts, 
 where the King's Attorney may acknowledge or 
 deny : And the words of this Statute being ge- 
 neral (fcil. in any of the King's Courts ) are 
 left to the conftrucftion of Law, where the Rule 
 is, verba aquivoca, <3> in dubio pofita intelliguntur 
 in digniori iy potentiori fe?ifu: And in this fenfe 
 fhall thefe words ( the King's Courts ) be con- 
 ftrued in all penal Statutes where the penalty is 
 
 >«ip3. to.be recovered in a popular fuit, Jones 193. 
 
 Co. 6. 
 
LeSIura Quart a. 2 42 
 
 Co. 6. 1 5?, 20. Moor 421. cafe 581. Cro. Mich. 4 Car. co.6. 19. ao. 
 1 46. Cro. Trin. 4 C rfr. 112, 113. Hut ton $<?. (o that crTctlltf. 
 the Commiflioner , who fits by virtue of the.J^;,"|j. 
 Commiflion of Sewers, without being qualified, 
 can be fued onely in thofe Courts for the forty 
 pounds, and not in any inferior Court. 
 
 And, asitfeems, the Commiflioner fo fitting 
 contrary to this Act cannot be indicted for fuch 
 offence ; For it hath been held for Law, that 
 when a Statute appoints a penalty for the doing 
 of a tiling which was no offence before, and 
 appoints how it (hall be recovered, it fhall be pu- 
 nifhed by that means, and not by indictment ; 
 and fo it was refolved in the Cafe of Innocent 
 Caft/e, who was indicted for acting as a Juftice 
 of Peace, not having Lands to the value requi- 
 red by the Statute of 18 H. 6. cap. 1 1. but was 18 h.6.iu 
 difcharged of the Indictment , for that the Sta- 
 tute had prefcribed another way of punifhment, 
 viz,, by an Action of Debt, tarn fro Domi?to Re- 
 ge, istc. Cro. Mich. 20 Jac. 6 43. And confonant c™. j<k.6^. 
 to this was the opinion of all the Judges of En- 
 gland, fave three, Mich. 6 & 7 Eliz. Dyer 236. 6&jeb<. 
 And yet fee Croftons Cafe in Modem Reports 94. j£j^ 
 where there is related an opinion of two Juftices^"' a- 
 to the contrary, and that the Party may in fuch 
 cafe be punifhed by Indictment. 
 
 Kk Th 
 
25<3r Lefiura Qiiarta. 
 
 The Second quejiion. 
 The fecond queftion in my cafe touching this Statute, is, 
 Whether the Countefs of Warwick^ be a compatible Com- 
 miffioner within this Statute. 
 
 Although it is uncouth in our Law to have Women Ju- 
 ftices and Commiffioners, and to fit in places of Judicature, 
 yet by the Authorities enfuing you (hall find this a point 
 worth infifting upon, both in Humane and in Divine lear- 
 nm. cap. i. ning •-, for in Genefts, Chapter the firft, after the Creation 
 of all' other Creatures being finifhed, the Heavens adorned, 
 and the Earth replentthed, God faid, Let us make man in our 
 own Image, after our likgnefs, and let him have dominion over 
 the fifi of the Sea, and over all the Earth , and every creeping 
 thing that creepeth upon the Earth: So God created man in 
 his own Image, in the Image of God created he him, Male and 
 Female created he them'-y and faid unto thbm, Be fruit full 
 and multiply, and replenifh the Earth , and fitbcfoe it , and 
 have dominion over the fifh of the Sea, and over the fowl of 
 Heaven, and over every living thing that moveth upon the 
 Earth : This was the firft Commifiion that ever was granted, 
 and it paffed under the divine immediate Seal of the Almigh- 
 ty, and extended over the whole world 5 and by the virtue 
 of the word Dominamini in the Plural number, God cou- 
 pled the Woman in Commiffion with the Man. But in the 
 gswdus 18, 18th Chapter of Exodus, Ver. 2 1. Jethro advifeth and coun- 
 felleth Mofes his fon in law to provide out of all the people men 
 of truth, hating covetoufnefs, and place fuch over them to be 
 Rulers of Thoufands, Rulers of Hundreds and over Fifties 
 andTensj where by the word Men twice repeated by Je- 
 thro, this place of Scripture leemed to exclude Women whol- 
 ly from Government, and the former Commiffion extended 
 over Fifties, Birds and Beafts, and neither over men nor wo- 
 men: And in the firft of the Corinthians, Chapter 14. it is 
 I £ot< 14. faid by St. Paul, Let the women k$ep filence in the Churches, 
 for it is not permitted to them to fpeak. And in Gren- 
 don's cafe in the Comment, fol. 497. Dyer faith, That wo- 
 men couJdnot adminijier the Sacrament s t nor were they per- 
 mitted. 
 
LeUura Quart a. 251 
 
 milted to fay Divine Service. And in the fecond Chapter 
 of Timothy, V. 12. he faith, We fuffer not the woman to rule i Tim. a. 
 over the man j but this laft of Timothy may be moft aptly 
 applyed to husband and wife. 
 
 I remember out of the Abbey Book of Evejham this 
 Note worthy of obfervation, Quod Alicia Peeres Regis mi~ 
 niona fupra modum mulierum ninth f»pergre(fa, fui etiamfex- 
 ut & fragilitatk feminize Immemor, nunc Jujiiciarios Regff, 
 nunc in foro ecclejiaftico juxta doftores fedendo, & pro de- 
 fenftone caufarum fuadere e^ etiam contra jut pofiulare mini- 
 me verebatur, unde propter fcandalum petierunt a rege in Par- 
 liament' tent' An. 50 Ed. 3. penitus amoveri, but hereby I 
 collect, that fhe was not in Commiffion with the Judges 
 Temporal or Spiritual, but was a favorite of the King's, 
 and took upon her to intermeddle in bufineffes nothing 
 concerning her : But whether the Text meant it,for a Woman 
 to fit Judgejn a Court of Juftice, was contra modum mulie- 
 rum, or becaufe (he fate there to wreft righteous Judgment, 
 I refer to the Readers of that Hiftory 5 For Debora was 
 Judge of Ifrael, and Judged the people as the fourth of judges 4. 
 Judges hath it. Dyer indeed faith in Grendon's cafe, That 
 divers Churches were appropriated to Prior effes andNunneries t 
 whereof women were the Governeffesj whereby and by the 
 faid Chapter of the Corinthians it appears, that women 
 might be admitted to have Rule and Government over 
 the poffeffions and perfons Temporal and Ecclefiaftical , 
 but were not admitted to have curam animarum, nor to 
 meddle with the Adminiftration of the Service or Sacra- 
 ments. 
 
 And for Temporal Governments, I have obferved wo- 
 men to have from time to time been admitted to the higheft 
 places \ For in ancient Roman Hiftories I find Eudochia and 
 Theodora admitted at feveral times into the fole Govern- 
 ment of the Empire : and here in England our late famous 
 Queen Elizabeth whofe Government was moft renowned: 
 And Semiramk governed Syria : and the Queen of the 
 South which came to vifit Soloman, for any thing that ap- 
 
 K k 2 pears 
 
2%2 LeSlura Quart a. 
 
 pears to the contrary, was a fole Queen : And to fall a de- 
 gree lower, we have prefidents that King Richard the firft, 
 and King Henry the fifth appointed and deputed by Com- 
 millions their Mothers to be Regents of this Realm in their 
 abfence in France: And the wife and renowned Lady Mar- 
 garet Gountefs of Richmond was put in Commiffion, and 
 Humfrey de Bohune Earl of Hereford was by Tenure Con- 
 ftable of England, which is a Judge in Martial affairs, and 
 he died without iffue Male, by reafon whereof the Office 
 (amongft other things) defcended to his two Daughters 
 iiEii^Dyer. and Co-heirs : And in the 1 1 of Elizabeth, in Dyer, it is 
 liolden for Law, That although this was an Office of Juftice, 
 yet they might execute the fame by deputy; for in truth 
 women were unfit Martialifts to judge of matters of that na- 
 ture 5 and yet it is clear, a deputy doth nothing in his own 
 name, but in the name of his Mafter or Miftrefs, therefore 
 the. Martial Court was to be kept in their names: But yet 
 I will defcend a ftep lower 3 It was adjudg'd in B. R. 
 5 Car. 1 . That the Office of Marfhal of that Court 
 well defcended to a Feme, and that (he might 
 
 execute it by her Deputy ; See Hems Reading 4. 
 And doth not our Law temporal and fpiritual admit of women 
 to be Executrixes and Adminiftratrixes? and hereby they 
 have the rule or ordering of great Eftates, and many times 
 they are GardianefTes in Chivalry, and have thereby alfb 
 the Government of many great Heirs in the Kingdom, and 
 of their Eftates. 
 ko H. 7. And in 10 H. 7. a man devifed his Lands to be fold by a 
 woma% and died, and fhe fold the fame to her husband : 
 So by thefe cafes it appeareth, that the Commonlaw of 
 this Kingdom fubmitted and committed many things to 
 their Government 5 yet the Statute of Juftices of the Peace 
 is like to Jethro's counfel to Mofes, for there they fpeak of 
 men to be Juftices, and feemeth thereby to exclude women ; 
 But our Statute of Sewers is, Commiffion of Sewers Jhall 
 h granted hy the King to fitch per fin- and per Jons as the faid 
 
 Lord: 
 
Leftura Quart a. 253 
 
 Lords fiould appoint 5 So the word perfons ftands indiffe- 
 rently for either Sex ; And therefore although by the weak- 
 ness of their Sex they are unfit to travel, and they be for the 
 moft part uncapable of learning todireft in matters of Ju- 
 dicature, for which caufes they have been difcreetly fpared, 
 yet I am of opinion, for the authorities, reafbns and cau- 
 fes aforefaid, that this honorable Counted being put into 
 Commiffion of the Sewers, the fame is warrantable by the 
 Law 5 and the Ordinances and Decrees of Sewers made by 
 her and the other Commiffioners of Sewers, are not to be 
 impeached for that caufe of her Sex. 
 
 And I conclude here, that although in difcretion women 
 have been fecluded as unfit, yet they are not in Law to be 
 excluded as uncapable. 
 
 If an Infant above the age of Fourteen, and under the 
 age of One and twenty be made a Commiffioner, his Infan- 
 cy fhall be no caufe to difable the Laws made by him 5 
 young Daniel was Judge over both the Elders. And in Lit- 
 tle Brool^ fol. The cafe is, a Parfbn or Prebendary 
 being within age made a Leafe for years of his Benefice, and 
 would but could not after avoid it for his Nonage, for fee- 
 ing the Church had made him of full age to difcharge the fpi- 
 ritual Office, our Commonlaw thought it fit to inable him 
 to difpofe of his Temporalties : and in 2 1 H. 7. fol. 12. and 2I H - 7* 
 1 3. the cafe is put by Bridges, and confirmed by Juftice «!??/■* 
 Hard, and was not denied by any, that an Obligation made 
 by a Major and Commonalty, Dean and Chapter, Abbot 
 and Covent, fhall not be avoided for the Nonage of the 
 Major, Dean or Abbot j yet all thefe ferve in place of Go- 
 vernment, howbeit in the faid matters their Nonages fhall 
 not impeach them : And in the third of Ifaiah it is faid, lid. 3. 
 will give them Children to their Princes, and Babes to rule 0- 
 ver them--, noting thereby an unfitnefsin them to govern, 
 but that debarred them not of the place : and of this matter 
 this fhall luffice. 
 
 But now admit, as oftentimes it falls out, that Commifr 
 fioners fhall fit in the execution of this Comaiiflion of Sew-- 
 
 ers. 
 
 '5 
 
2 54 Leftura Quart a, 
 
 ers, which have not taken the Oath, which have not Lands 
 of value, or which is not a free Citizen, and yet there be 
 Ordinances, Decrees and Laws made at thofe times 5 Now 
 whether thofe Laws and Ordinances fo made by a difabled 
 Commiffioner be void or not, is the queftion 5 or whether 
 the difabled Commiffioner {hall onely undergo the penalty 
 of forty pounds. 
 6 h. 8. • There was a Statute made in 6 H. 8. cap. 10. whereby 
 it was enacted, That the Chancellor of England for the time 
 being fhould make no Commijfion to any Per/on or Perfons 
 (except he had Lands and Tenements ofEjiate of Freehold to 
 the yearly value of twenty pounds ; or elfe be Jujiice of the 
 Quorum) within any of the Shires where he fhould be made a 
 Commiffioner ; and if any fuch Commijfion were dire&ed to 
 any Per/on or Perjons not having Lands or Tenements to the 
 yearly value of twenty pounds ; or not being one of the Jujiices 
 learned of the Quorum, as aforefaid, That then every fuch 
 Commijfion, and all Preferments and Accufations had and 
 prefented before any fuch Commiffioners, be utterly void and 
 of none effeU. 
 
 But this Statute is in time expired long ago, and there- 
 fore it is no interruption to our Commiffioner 5 for al- 
 though the Statute of 23 H. 8. which I read on hath a 
 Claufe tn it in effect, That all and every Statute and Ordi- 
 nance heretofore made concerning the Premises, made in the 
 time of the j 'aid King, or of any of his Progenitors, not being 
 contrary to that Statute, fhould fiand in force j yet thefe 
 words do not fet on foot a Statute expired in time, as that 
 of 6 H. 8. is : Alfo in the faid Statute of 13 Etiz. if a Ter- 
 mor or Leflee for years be in Commiffion, all Laws made 
 which concern Lands whereof he is a Farmer are void as to 
 him, vide antea. 
 2 j h. 8. But to relie on our Statute of 23 H. 8. in my opinion it 
 
 doth not avoid any of the Laws and Ordinances made by 
 difabled Commiffioners, but doch onely inflict the punifli- 
 ment and penalty of Forty pounds a piece upon every of 
 them, for every time they or any of them (hall fit in or a- 
 
 bout 
 
LeStura Quarta. 255 
 
 bout the execution of this Commiffionj yet it feemed in 
 the cafe de "jure Regis Ecclejiaflko, That whereas the Sta- cafe de jure 
 tute of firft of Elizabeth authorized the Queen to grant *«? E " le - 
 Commiffions to natural born Subjects, that if (he had gran- ' 
 ted the fame to an Alien , the a&s done by him had been 
 void. 
 
 But now my cafe proceeds to the next point or ftep, and 
 that is touching the Law and Ordinance made to rale the 
 faid Were 5 I inferted this claule in my cafe, becaufe I had 
 not formerly occaGon or fit opportunity to treat of the Lets, 
 Impediments and Annoyances which be contained within 
 this Statute of 03 H 8. and therefore I took this occa- 
 sion to clofe up this daies Exercife with the Difcourfe of 
 them. 
 
 Thefe by name 
 are fuch Impe- 
 diments and An- 
 noiances as this 
 Statute fpeaketh 
 of, 
 
 Y. Streams. 
 
 2. Mills. 
 
 3. Bridges 
 
 4. Ponds. 
 
 5. Fifhgarths. 
 
 6. Mildams. 
 
 7. Locks. 
 
 8. Hebbingweres. 
 
 9. Hecks, and 
 \\o. Floudgates. 
 
 And the reft muft 
 be comprifed with- 
 in thefe general 
 
 ! words (videlicet) 
 Other li\e Lets and 
 Impediments, 
 
 And the difcourfe upon all thefe will reft moft upon the 
 Statutes heretofore made touching the fame. 
 
 And the firft Statute thereof made is in Magna Charta, Magn. chart, 
 cap. 23. Qmnes hjdelli dtponantur de cetero petiitus per Thame- ~t 2 ** v 
 flam & Medveeyan & per totam Angliam nifiper cojleram ma- not to the 
 rtf } what this word kjdelJum fignifieth ap'peareth by the ti- ^ in 8' s > *"*■ 
 tie of that Statute, which is Weres. &Hif r 
 
 The next Statute to this is, 25 Ed. 3. cap. 4. which doth '3 #£• 3$r 
 enaft.T&rt all Mills, Weres, Stands, Stakes andKiddels which 2S Ed ' * 
 were levied and Jet in the time of King Edward (that King's 
 Grandfather ) and after, whereby Ships and Boats were di- 
 
 fturbedy 
 
2 5 6 Leftura Quart a. 
 
 Jiurbed, that they might not pap the River J at they were trout, 
 Jljould be cut and pilled down without being relevied. 
 
 The faid firft Statute is general, that all Weres (hould be 
 put down but by the Seacofts, yet this word (All) are in- 
 tended of fuch onely as were erected without lawfull War- 
 rant j and the did Statute of 25 Ed. 3. doth explain the 
 generality of the faid former Statute 3 For thereby it ap- 
 pears, That Weres erefted in Navigable Rivers where 
 Ships and Boats were wont to fail, (hould be extirped, be- 
 caufe they were a hinderance to Navigation } but this ex- 
 tends onely to navigable Streams which have been navi- 
 gable by ufe and cuftome 5 and it is manifeft by this Statute, 
 that thefe Weres which were fo to be put down muft be 
 onely fuch as were ere&ed in the time of Edward the Firft, 
 and fithence, becaufe thole feemed to be ere&ed without 
 lawfull authority 5 and being but erected in thofe times, 
 they had not the countenance of cuftome and prefcription 
 to ftrengthen them. 
 
 The next Statute in time is that of 45 Ed. 3. cap. 2. 
 which confirms the faid Statute of 25 Ed. 3. and then ad- 
 ding thereto, that if any fuch annoiance be done, it (hall 
 be pulled down 3 and that he which (hall relevy fuch an- 
 noiance, and be thereof duly attainted, he (hall incur the 
 penalty of one hundred Marks to the King, to be levied by 
 the Eftreats of the Exchequer -, and the penalty is thereby 
 given for the inhauncing of fuch Weres , Mills , Stanks , 
 Stakes and Kiddels : This Statute is in part a confirmation 
 45 Ed. 3. of the faid Statute of 25 Ed. 3. and in other part thereof it 
 is a new A& in thefe Points. 
 
 1. Firft, In the forfeiture of a hundred Marks. 
 
 2. Secondly, This is the firft Statute in my opinion made 
 againft inhauncing of fuch things which are counted an- 
 noyances. 
 
 3. And thirdly, It gives the like penalty againft him which 
 (hall relevy the.annoyance, as againft the Inhauncer : And 
 becaufe this Statute depends upon the faid Statute of 
 25 Ed. 3. it extendeth therefore but to navigable Streams. 
 
 The 
 
LeBwa Quart a. 257 
 
 The Statute of 1 H. 4. cap. 12. is a Statute in thefe 
 Points of great confequence, and it doth alfb confirm the 
 (aid two former Statutes of Ed. 3. and doth thereto alfo 
 make additions in thefe infuing Points : 
 
 Firft, That Juftices Ihould be affigned to furvey and 1. 
 keep the Waters and great Rivers, and to correc} and amend 
 the defaults, as well by furvey, advice and difcretion, as 
 by inqueft. 
 
 Secondly, To furvey the Weres, Mills, Stanks, Stakes a. 
 and Riddels in old time made and levied before the time 
 of Ed. the Firft , and them which they (hould find too 
 much inhaunced or ftraitned, to correct, pull down and 
 amend 5 faving always a reafonable fubftance of Weres, 
 Mills, Stanks, Stakes and Kiddels (b in old time made and 
 levied. 
 
 Thirdly, And if any fuch annoyances of Weres, Mills, 5. 
 Stanks, Stakes and Kiddels of Paflages, and ftraitning in 
 old time made and levied, be adjudged and awarded by 
 the (aid Juftices to be pulled down and amended, he that 
 hath the Freehold of the lame (hall make thereof execution 
 at his own cofts within half a year after notification thereof 
 made, upon pain of a hundred Marks 5 and he which (hall 
 televy, or inhaunce or ftraiten them againft the faid judg- 
 ment, (hall forfeit one hundred Marks to the King, to be 
 paid into the Exchequer. 
 
 Fourthly, And he which (hall find himfelf grieved by ^ 
 execution or otherwife in this behalf againft right and rea- 
 fon, he may purfue and have right. 
 
 Firft, by this Statute I collect thefe matters 5 Firft if that N #. 
 a Were, Mill, €tank, Stake or Kiddel.be newly or of late 
 years built and erected in any Streams without warrant or 
 lawfull authority , the f&me mav be cau(ed to be pulled 
 down by Order of the Commiffioners of Sewers, at the 
 cofts of the Party which erefted the fame. 
 
 Secondly, If Weres, Mills, Stanks, Stakes or Kiddels 2. 
 have ftood and been time out of memory in Rivers or 
 Streams, and fo have warrant from cuftome and prefcrip- 
 
 L 1 tion, 
 
258 Leffura Quart J. 
 
 tion , thefe may not be cut up or pul!ed down by the 
 Commiffioners of Sewers, becaufe long ufe and cuftome , 
 which is a Law cf this Kingdom, hath eftabhfhed them. 
 3. Thirdly, If there have been Weres, Mills, Stanks, Stakes 
 
 or Riddels time out of memory in Rivers or Streams, which 
 pf late years have been inhaunced, inlarged, or otherwife 
 exceeded the ancient fize and accuftomed compafs, the ex- 
 cels in thofe cafts is onely to be abated and pulled down j 
 but lb far as the ancient fire did extend to is not to be im- 
 peached : For the words of the faid Statute be, That there 
 be refcrved always the reafonable fubftance thereof in old times 
 accujiomed. 
 
 And in my opinion the generality of the faid Statute of 
 Magna Charta, cap. 23. is retrained by the fucceeding Sta- 
 tutes, if the exposition should have been as large as the let- 
 ter is; 
 
 And thefe three diftin&ions do fully declare the true ef- 
 feci: of the faid preceding Statute-. 
 
 4 h, 4. Then next in order of time is the Statute of 4 H. 4. c. 11. 
 
 which reciteth, That by Weres, Stakes and Kiddels in the 
 water of Thames , and in other great Rivers through the 
 Realm, the common paffage of Ship and Boats be dijlurbed, 
 and much People perifoed j and aljo the young fry of Fijh de- 
 stroyed, and againji reafon tvajied and given to Swine to eat $ 
 Therefore this Statute.enadts, That al/ former Statutes thereof 
 taade be holden, kfpt and put in execution. 
 
 Here be two things which none of the former Statutes 
 took order for 5 
 t. The one is the perifJhing of the King's People 3 
 
 2„ The other the deftroying of the fry of Fifh which were 
 
 ©ccafioned by the erecting of thefe Weres, Mills, <&e. Yet 
 thefe are bufinelles which are otherwife provided for, and 
 be not pertinent to thefe Laws of Sewers : And therefore 
 I (hall pafs them over without any other farther explanation 
 thereof 
 
 i&Ed. 4. The Statute of 12 E. 4. cap. 7. doth confirm all the faid 
 ibrraer Statutes made againffc. Lets, Impediments and An- 
 noyances 5 
 
LeRura Quart a. 2^ 
 
 noyances} And cloth farther emfr, That if contrary to the 
 award, rule or judgment of the Commrjfioners made according 
 to the Statute of I H. 4. it be found, that any Weres, Fiji). 
 g<rths, Mills, Mildams, Locks, Hebbingweres, Stakes, Kid- 
 dels, Heck/ or Floudgates be made, levied, inhaunced, Jirait- 
 ued or inlarged again fl the /aid Statute, the Offenders therein 
 contrary to the aforejaid award, rule and judgment being war- 
 ned by the Sheriff or U ndcr- fjeriff of the County upon a Scire 
 facias to that purpofe dire&cd where thoje Annoyances be, and 
 within three months after fuch garnifhment do not wholly a* 
 mend, breal^ down and avoid the faid makjng, levying and 
 inhauncing, jiraitning or inlarging, That the Party being de- 
 ft dive in that behalf full forfeit one hundred Marks to the 
 King, to be levied by EJireats out of the Exchequer j and if 
 the Offender, his Heirs, Affignee or AJjigns, or any of them 
 do defer or continue the J'ame default, contrary to the award, 
 rule and judgment of the Commiffloners, he or they fh all for- 
 feit one hundred Marks, the one moiety to the King, the other 
 moiety to the Party that will fue for the fame. 
 
 And alfo it was farther enacted, That if any Perfon or Per- 
 Jons, other than fuch again fl whom fuch award, rule or judg- 
 ment Wits made, or any of them, do prefume to occupy or con- 
 tinue any of the Weres, Fijligarths and Impediments aforejaid, 
 or other Incumbrances, he Jliatt forfeit for every default for 
 every month one hundred Marks, the one half to the King, 
 the other half to the Party that will fue. 
 
 It appeareth th.it this Statute fpeaketh of Milldams, 
 Locks, Hebbingweres, Hecks and Floudgates, which the 
 other Statute never fpeaketh of 5 fo in extent thereof it hath 
 more inlargment : And in my opinion all the forefaid Sta- 
 tutes did extend onely to navigable Stream? and Rivers, 
 with Ships and Boats. 
 
 If a LelTee for years of Lands or Tenements 
 where any fuch Nufance or Annoyance is doth 
 continue it, he is within the latter claufe of this 
 
 L 1 2 Statute, 
 
2^o Leftura Quart a. 
 
 Statute, though it was ere&ed before his time ; 
 for a Leffee tor years may lawfully abate any 
 fuch Nufance, as was lefolved in the Cafe of 
 cro.jac.a$. Brent and Haddon-, Cro. Mich, ijjac. 555. And 
 Leon. 2. 103. may be punilhed for the continuance of it, Leo- 
 nard 2. 103. Wafhbourn verfii6 Mordant. 
 
 In the Tenth Report of Sir Edward Cooh^ the cafe of Che- 
 Jler Mills upon the River of Dee, was as infueth, That a 
 Caufey or Milflanh^ of Stone in the River of Dee, in the City 
 0/"Chefter, was made anderefted for the necejfarj/ maintenance 
 ef certain Mills, fome of the Kings, others of the Subje3s, 
 which flood at the end of the Caufey $ were of late by the 
 Decree of the Commiffioners of Sewers ordered, That a 
 breach therein of Ten Roods or Pearches Ifiould be made, 
 which Caufey or Milftank was by the agreement of all par- 
 ties erected before the time of Ed. the firft, and fo had con- 
 tinuance without any inhauncing or exaltation : And whe- 
 ther this Decree was warranted by any of the faid Statutes 
 or not, was the queftion, which was referred by the Lords 
 of the Counlel to the two Chief Juftices, Fleming and Cook, 
 and to Tanfield the Lord Chief Baron, to be confidered on 5 
 and the faid Chief Juftices and Chief Baron declared their o- 
 pinion, That the faid Decree was not warranted by any of 
 the faid Statutes 5 for they faid that the two Statutes of 
 25 Ed. 3. and 45 Ed. 3. extended but to fuch Impediments 
 as were fet up and eretted in the time of Ed. 1. and after 5 
 and that the generality of the Statute of Mag. Char. ca. 23. 
 was reftrained by theie two Statutes 5 And that the Statute 
 of 1 H. 4. extended to fuch Weres, Kiddels, &c. and other 
 Lets as were ere&ed before the Reign of King Ed. the firft, 
 and which have been inhaunced and exalted fithence, and 
 fo was out of all thofe Laws, becaufe there was no fuch in- 
 hauncing. 
 
 And the Statute of 23 H. 8. which I now read on, did 
 not alter the former Statutes in thefe points^ But provided, 
 
 That 
 
Lefiura Qiiarta. 261 
 
 That all and every Statute, Aft and Ordinance heretofore 
 made concerning the PremilTes in that Aft recited, not be- 
 ing contrary nor before then repealed, fhould ftand then 
 in force : But the faid Judges did hold opinion, that all the 
 faid Statutes flood unrepealed, and accordingly made their 
 Report to the Lords of the Council. 
 
 The Commiflioners of Sewers ordered that 
 J. S. who had a certain Mill (hould make the 
 holes of his Floudgates of a lefs lize, than they 
 were before ; and the order being removed by 
 Certiorari into the King's Bench, it was moved 
 to be quaflied, for that 1. It did not appear by 
 the order, what Eftate J. S. had in the Mill. But 
 the Court held it to be well enough, for that e- 
 very one who is owner of a Mill, ought to re- 
 pair the Floudgates, whatever Eftate he hath in 
 the Mill. 2. Another objection was, that the 
 Commiffioners had no power to make any fuch 
 alteration in an ancient Mill, as this (hall be 
 prefumed to be ; and it doth not appear that 
 there hath been any inlarging of the Floudgates 
 fince the Mill was firft erected 5 But it was an- 
 fwered by the Court, that it fliall not be inten- 
 ded to be a Mill before the time of E. 1. and if 
 it were not, the CommiiTioners had power to 
 ftraiten or inlarge the Floudgates, according 
 to the cafe of Cbefter Mills , and the Court con- 
 firmed the order, as to that Point $ Siderfin i^suufaw 
 
 145- 
 
 There be many private Statutes made for the abating pri- 
 vate Weres in fbme Streams which are not within my intent 
 
 to 
 
; 2^2 Ltciura Q^arta. 
 
 to recite, farther than by naming of them, becsufe I take 
 it they are not confirmed by the Statute I read on j As nH.y. 
 cap.$. Southampton : 14H.8. cap.13. 23 H. 8. cap. 18. Havens: 
 25 H.8. Cap, 7. for killing Fry of Salmons , 27 H. 8. Rafial 
 Havens 9, 10, II. 
 
 In 19 Jacobi Regis there was a great Caufe depending in 
 the Courc of the Dutchy at Wejlminjler, between Benedift 
 Hall Efq;, Plaintiff, and John Majon, George Warrel, and 
 Thomas Potvel, Defendants 5 which was in effect asfollow- 
 eth, That Queen Mary vpasfeifed of the Manor ^/Monmouth, 
 with the Appurtenances in that County , and of a Free fiflnng in 
 the River of Wye, and of a Were and a Fifli-yard there , 
 which were ere&ed in thetime of the faid Que en , in the place 
 where an old Foundation of an ancient Were did jland: This 
 Were had been letten by the faid Queen, and alio by Qiieen 
 Elizabet hinder the Seal of the faid Dutchy by yearly Rents, 
 and fo there were ancient Prefidents (hewn in that Court, 
 whereby it appeared, that the ancient Were there had 
 been letten to Farm by the Earls and Dukes of Lancajler, 
 and by the Kings and Dukes for a long time for yearly 
 Rents: So that it was mamfefr. that it was an ancient Were 
 time out of memory: And this Were and Fifh-yard, and 
 the profits of fifhing were letten by the King's Majefty that 
 now is under the Seal of the Dutchy of Lancafier, in the 
 Tenth year of his Reign , to one John Abrahall Elquire, 
 for One and Thirty years, for and under the yearly Rent of 
 Six Pounds thirteen Shillings and four pence paiable to his 
 Majefty his Heirs and Succellbrs; And the faid Abrahall be- 
 ing lb thereof poiTeiTed, did afterwards in the Tenth year 
 altign the lame to one William Hall t Efq} by reafon whereof 
 the laid William Hall was thereof polTefled 5 and in the 1 2th 
 year of this King, made his laft Will and Teftament, and 
 did thereby ordain the complainant his Executor, and af- 
 ter died j by and after whole deceafe the Complainant came 
 to be poiTeiTed of the laid Leafe and Term therein to come 5 
 and in the Nineteenth Jacobi Regis % the Commiffioners of 
 Sewers in thole parts caufed a Jury to be impanelled and 
 
 fworn, 
 
LeElura Quart a.- 263 
 
 fworn, touching this Were and Fifh yard and gave therein 
 a Verdict to this ifftc't} that is, That Benedict Hall the Com- 
 plainant w k pofftffed of the [aid Were, called Monmouth Were, 
 upon the River of Wye, which was excefflve high and hurt full, 
 and wa* an Impediment to the common paffage of Boats, Barks 
 and Ballangers up and down the faid River, and by means 
 thereof thy could not pifs but in great dinger, which if the 
 faid Were were not, Boats of two cr three Tuns might pafs the 
 River j and that the faid Were had been the death and drown- 
 ing of one of the King's Subjtffs, and is the caufe of the fear- 
 city , dearnefs and want of Salmons, and other F if j within 
 the faid River, by reafon many of them were taken in Gins 
 of the faid Were, when they were out of feafon, and that the 
 fame was a great abuje, wrong, enormity and annoiance to the 
 whole Count rey. 
 
 Whereupon the faid Commiffioners made an Ordinance 
 or Decree,, fetting forth thereby in effeft a&fallovveth, That 
 whereas it did appear to them, as well by the examination of 
 Witneffes, as fy the faid Verdift of the furors, and by their- 
 view, that the faid Were was a great Let and hinderance to 
 the common paffage of Boats and Ballangers up and down the 
 River, indangering of the lives of the King's Subje&s, and 
 to the dejiruclion of F if J, as the Salmons and Fry thereof.^ 
 They therefore ordered, That the faid W<.re f)suld be over- 
 thrown, and that the Timber and Stone thereof fliJtild be re- 
 moved, whereby the Chanel fhould be cleared for paffige of 
 Boits $ And accordingly did direct their Warrant under 
 their Hands and Seals to the Defendants, authorizing them 
 thereby to overthrow the faid Were, which they perfor- 
 med accordingly : and all this matter of the verdid of the? 
 Jury, and Decree of the CommilTioners were fet forth at 
 large in the Defendant's Anfwers ; and after examination 
 and publication of Whnefles, the Caufe came to be heard 
 in the faid Dutchy-court before Sir HumpLny May, Knight, 
 Chancellor of the Dutchy, fix John Dtnham, Knight, ons 
 of hi« Highnefi's Borons of the Exchequer, an Affiftant to 
 that Court, and Sir Tko. Chamhrlaw, Knight, one of the 
 
 Kir. • 
 
2'^4 LeUura Quarta. 
 
 King's Juftices of his Bench, another Affiftant of the faid 
 Court, and Sir Edward Mojley, Knight, Attorney of the 
 faid Court, who were of opinion, That the laid Were be- 
 ing an ancient Were by prefcription and cuftome, it ought 
 not to have been overthrown by the Decree of the Commit 
 fioners of Sewers, and that the laid verdift of the Jurors was 
 defe&ive, becaufe though they prefented the faid Were to 
 be over high and inhaunced, yet in regard they did not 
 prefent in quanta nor in qua parte, the faid Were was in- 
 haunced above the ancient affize, therefore they efteemed 
 the faid Verdict of no validity. 
 
 But now it comes next in time and turn to declare my 
 opinion touching and concerning Bridges, Mills, Mil-dams, 
 Mil-flanks, Floudgates, Hecks, Locks and Hebbing weres, 
 which in the faid Statutes be fet forth for Lets, Impediments 
 and Annoiances, wherein they are to receive their Expofi- 
 tion according to the faid cafes of Weres, without other 
 diftin&ions 5 for if they have had continuance time out of 
 memory, then are they the proper and peculiar Inheritances 
 of the King, or of his Subjects, allowed by ancient Cu- 
 ftome, confirmed by long ule, and to remain efttblifhed 
 without overthrowing or deftroying : But if they have 
 been inhaunced or inlarged over their ancient and accufto- 
 med affize, then the inlargement and excefs is onely to be 
 abated, and no more } for the Statute of 1 H. 4. faith, That 
 there mujl be left fufficient fnbjiance of the ancient : And 
 if any new Were, Stank, Stake, Floodgate, Kiddel, or o- 
 ther thing have of late been ere&ed on the Rivers, which 
 is an annoiance or hurtfull, then the fame may be ordered 
 by the Commiffioners to be abated, overthrown, deftroy- 
 ed and pulled down, becaufe the fame was erected without 
 lawfull warrant or authority : And fo as I take it, thefe few 
 diftinftions do fully declare my opinion touching thofe mat- 
 ters. 
 
 The Statute of 23 H. 8. which I read on touching and 
 concerning Lets, Impediments and Annoiances, hath thefe 
 words in it in effect, And the Qommiffion giveth authority to 
 
 Edmond 
 
LeSlura Quart a. 26$ 
 
 Edmond Lord Sheffield, Sir Philip Tyrwhit, Sir Nicholas 
 Sanderfon, Knights and Baronets, Sir Richard Aurcots, 
 Sir John Thorold, Sir John Read, Sir Charles Bouls, Sir 
 Ralph Maddifon, Sir William Hanford, Sir Francis South, 
 Knights, Thomas Tyrwhit, John Bolles, and Nicholas Ha- 
 merton, Enquires, whereof the /aid Baronet and Baronets 
 were oj the Quorum, to furvey the Walls, Streams, Ditches, 
 Banks, Gutters, Sewers, Goats, Calceys, Bridges, Trenches, 
 Mills, Mildams, Floudgates, Ponds, Locks, Hebbingweres, 
 and other Impediments, Lets and Annoiances, and the fame 
 to caufe to be made, corre&ed, repaired, amended, put down 
 or reformed, as caufe fhall require, after their wifedoms and 
 difcretions 3 and therein to ordain and do after the form, tenor 
 and effe& of all and flngular the Statutes or Ordinances made 
 before the fir jl day of March, in the 7%d year of b\. 8. tou- 
 ching the Premiffes, or any of them ; as alfo to inquire by the 
 Oaths of honeft and lavefull Men of the faid Shire or Shires, 
 Place or Places, where fuch defaults or annoiances be, as well 
 within Liberties as without, by whom the truth may rather be 
 known through whofi default the faid hurt and damages have 
 happened , and who hath or holdeth any Lands or Tenements, 
 or Common ofPajlure, or profit offiflnng, or hath or may have 
 any hurt, lofs or difadvantage by any manner of means in the 
 faid Places, as well near to the faid Dangers, Lets and Im- 
 pediments, as inhabiting or dwelling near about the faid Walls, 
 &c. and Impediments afore faid, and all thofe Perfons to 
 tax, affefs and difirain. 
 
 In a former claufe of this Statute, the Commiffion gi- 
 veth power to furvey the Walls, Banks, Ditches, Gut- 
 ters, Sewers, Goats, Calceys, Bridges, Streams 3 In which 
 Claufe thefe as neceffary Defences are ordered to be re- 
 paired. 
 
 Then comes another Claufe, wherein thefe things are re- 
 cited as Lets and Impediments, videlicet, Streams, Mills, 
 Bridges, Ponds, Fiftigarths, Mildams, Locks, Hebbing- 
 weres, Hecks and Floudgates, So that by thefe two Clau- 
 fes, the firft fort were to be maintained and not deftroyed, 
 
 M m and 
 
266 Leftura Qitarta. 
 
 and the fecond fort fhould have been deftroyed and not re- 
 paired. 
 
 And if theft two firft Claufes had been alone, then the 
 Commiffioners had been bound to maintain the one and 
 deftroy'the other, without any toleration; but then came 
 in the faid third Claufe, which is the Claufe of moderation, 
 and therein as well the Defences, as the Lets and Impedi- 
 ments, come all in one claufe promifcuoufly put together 5 
 andfo the words (amende com Ef t repair and put down) are 
 therein referred to them all 5 10 as in my opinion all De- 
 fences, as Walls, Banks, Sewers, Calceys, Goats, &c. be not 
 to be maintained, becaufe in traft of time fome may prove 
 unnecefTary and unulefull, which for that caule may be pul- 
 led down: fo all Mills, Mill-dams, Floudgates, Weres, 
 Stanks, Stakes, Kiddels, and fuch like, are not to be put 
 down and overthrown, but fuch as are ancient and are there- 
 by grown to be the proper Inheritances of men, and fuch al- 
 fo which are ufefull and neceffary are to be maintained 
 kept and repaired; for in fome great Havens and Ports, 
 great abundance of Piles and Timberpofrs are fet in the 
 Waters to ftay the rage, force and violence of the Waters 
 for the fafegard of the Port and Haven. 
 
 It were a very ridiculous expolition of this Law, to urge 
 the Commiffioners to overthrow thole things which are 
 helpful!, and not hurtfull ; for this Statute did forefee, that 
 thefe Mill-dams, Stakes, Stanks, Floudgates, Weres, &c. 
 were not at all times and in all places hurtful], and there- 
 fore was the faid Claufe of the Statute inferted, which gave 
 the Commiffioners power to put down fuch as were Lets 
 and Annoyances in truth, and where they were ufed for 
 ftrengths and were of good ufe to maintain the fame : And 
 this conftru&ion I take it is fully maintained by thi9 Statute, 
 1 Jac. Reg. but more efpecially by the Statute of 7 Jacabi, c. 20. where 
 «p- 20. p ereg p i]eSj j ett j eSj an d tne jj^ f et f or fortifications and 
 ftrengths, are exprcfly ordered to be maintained. 
 
 And upon this part of this Law I do colleft thefe infuing 
 matters : 
 
 Firft, 
 
Leffura Quart a. 267 
 
 Firft, That if one do erett and build a Were, Mill, 1. 
 Mildaro, or other thing on a River navigable, to the hin- 
 drance of Navigation $ or if there was an ancient Were 
 which was inhaunced of late years, the Commiffioners of 
 Sewers are to order him that did ereft the one, and he which 
 did inhaunce the other, to pull down the firft, and to abate 
 the excels of the other at the cofts and charges of the Owner : 
 and if he or his Affigns or Heir, (hall contrary to the De- - 
 cree, Order or Judgment of the Commiffioners, after the 
 fame hath been reformed, relevy the fame again, or do con- 
 tinue the fame contrary to order, the punifhment of one 
 hundred Marks is to be impofed upon the Offenders, as 
 by the Statute of 1 H. 4. and 1 2 H. 4. formerly appeareth. 1 h. 4. 
 
 And if one which is a Stranger of his mere malice or own I2 H - 4- 
 wrong doth pitch down Piles, or fet down Stakes in the 
 Rivers and Streams, he is to be fined or amerced for this 
 offence, as the cafe (hall require, and he is to be ordered 
 to remove the Nufans at his own cofts and charges 5 and if 
 it cannot be found out who did the Nufans, then the Com- 
 miffioners of Sewers are to order thofe to remove that An- 
 noyance which in all likelihood are to fuftain moft damage 
 thereby, Et it a faftum frit, in 42 lib. Ajjiz. plac s 15. and 42I& /jfa" 
 this Statute extendeth to Rivers and Streams navigable, as 
 well as to fuch as be not navigable, for Nufances ei- 
 ther in the one or the other are within the co- 
 nufance of the Commiflioners ; as was refolved 
 in Hide's Cafe, Style 60. But a Nufance in the st y k 60. 
 High-way, though occafioned by the penning 
 up of water is not within their conufance, nor 
 have they any power to meddle therewith ; or 
 with any Nufances in the way 5 And this was the 
 Cafe of Hide, who was indicted before Commif- 
 fioners of Sewers for that by reafon of the pen- 
 ning up of the water in the River at his Mill, 
 
 M m 2 the 
 
26$ Lettura Quart a. 
 
 the Banks were overflown, and the High- way- 
 annoyed ; And the Indictment being removed 
 into the Kings Bench, was there quafhed for that 
 reafon. 
 
 «*y And touching the removing of Nufances, I (hall put the 
 
 Commillioners fome prefidents ruled and adjudged in our 
 Books of Law which come fully to the purpofe of the mat- 
 ters and things I now treat of 
 32 Ed. 3. In 32 Ed. 3. fol. 8. an Affize of Nufans was brought by 
 A. againft B. for that B. had made a Trench over a River, 
 and drew away thereby part of the Waters and Stream ano- 
 ! ther way than that which it did formerly ufe to run 5 and 
 
 \ * thereby furrounded the Grounds of A. and the Affize paffed 
 
 for the Plaintiff 5 and it was adjudged, that the Waters 
 fhould be removed into the ancient Current and Chanel 
 at the Cofts of the Defendant, and the Plaintiff recovered 
 his damages Et quod defendens capatur: out of which cafe I 
 obferve thefe things: 
 
 Firft, Though an Affize was a private A&ion, yet the 
 Nufans was tcwt querenti quam populo to the Plaintiff, for 
 drowning and furrounding of his Grounds, to the people, 
 in changing or diverting the ancient courfe of the Waters, 
 fo that for the people the offender was ordered to reform 
 the Nufans, to the King he was fined, and the Plaintiff for 
 his own private wrong recovered his damages. 
 19 Ed. 3. In 19 Ed. 3. lib. AJJize, plac.6. A Prefentment was found 
 by Jury before Commiffioners, that certain perfbns by name 
 had turned the courfe of the River of Lee, which is there 
 termed the Rings Stream, and runs from Ware to Waltham^ 
 and fo to London, and had fixed and pitched Piles and 
 Stakes therein, by means whereof Boats and Ballangers were 
 hindred in their pafTages up and down the River, and upon 
 this Prefentment it was awarded, that thofe perfbns which 
 were prefented by name, and which had done part of the 
 Nufans, fhould reform the fame 5 and becaufe fome of the 
 parties names could not be difcovered which had done o- 
 
 ther 
 
LeRura Quart a. **9 
 
 ther part of the faid Nufans, It was ordered that the She- 
 riff fhould be commanded by Writ to him to be directed to 
 reform that part of the Nufans, taking therein to his affi- 
 ftence thofe perfons who had Grounds next adjoining 3 And 
 quod defenders fi»t in miferecordi* dori Regk, becaufe the 
 Nufans was not found to be done by force. / 
 
 In 19 Ed. 3. foi 23. in the Aftion upon the Cafe tor a J^ 
 Nufans done, the Judgment in part was, That the Nufans 
 (hould be removed & mm hoc concordat^ 7 H. 4. 8. upon 7 h. 4, 
 thefe three cafes I obferve. 
 
 That be the Aftion private or popular, always one part 
 of Judgment was, That the Nufans fhould be removed at 
 the cofts and charges of him or them which did it. 
 - Therefore thefe Cafes do fully maintain my ©pinion for- a a 
 T merly delivered : And although in all the faid Cafes it ap- f T 
 1 peareth, that there was a legal courfe taken to remove the 
 NuCances, yet there is another courfe allowed of by the 
 Law, and that is by abating of the Nufance, in pulling or 
 cutting the fame down \ and the Law is exprefs fo in the 
 point in 9 Ed. 4. fol. 3 5- as if it be a Nufance done to J.S. 9 Ed. 4. 
 he or fome other by his directions may overthrow the Nu- 
 fans ; but if it be done adtiocumentum populi, as in the high 
 or royal Streams, then any Perlbn prejudiced thereby may 
 abate the fame. 
 
 The Statute of 23 H 8. 5. doth not extend, 
 nor o^ive authority to the CommifTioners of Sew- 
 ers to reform the'great hurt and nufance by rea- 
 fon of the fand rifing out of the Sea, and dri- 
 ven to Land bv Storms and Winds, as was de- 
 clared bv Parliament Stat. 1 Mar. Chap. 11. and ^ «•• 
 therefore by that Statute, there was a fpecial pro- 
 vifion to enable the Commiflioners of Sewers 
 for the County of Glamorgan to reform the fame, 
 Co. 4. hfi. 275, 276. But for all other Counties 4 if.*?* 
 
 in 7 
 
270 LeRura Quarta. 
 
 in England and Wales , the Commiilloners of 
 Sewers have no power to meddle therein. 
 
 To make a Stream navigable. 
 
 BUT it hath been objeded to me by way of Intero ff a- 
 • "??' „• the Comn "ffioners of Sewers make an un- 
 nav.gable River or Stream to become or to be made navi- 
 gable by thefe Laws of Sewers, yea or no I Touching which 
 I ihall deliver my Opinion as followeth : 
 
 If this could have been done by the Commiffioners of 
 
 AT er > n the , n What ? ou,d '* bave needed to have procured 
 Acts of Parliament for the doing thereof, as 9 H 6 cap a 
 
 to make the River of Lee navigable, and 6 H. 8 cap 17 
 a Statute to make the River at Canterbury navigable -and 
 in 31 H. 8. cap. 4. to make the River of Ex near Exeter 
 navigable: and 27 Eliz. cap. 20. to make a River navi- 
 gable at J lymouth 5 and in 3 Jac. cap. 10. for making Thaws 
 navigable m the Counties of Oxford, Berks, Wiltsand Glo 
 cejier: Thefe in truth are good Arguments, but not con- 
 vincing Proofs j for I am of opinion, that if Streams can- 
 not be made navigable unlefs there were certain Mills 
 Weres, Stanks or Kiddels removed which be the Inheri- 
 tances of private Perfons, and have had continuance time 
 out of memory, then directly the Commiffioners of Sewers 
 have not power to raze or impair thefe by the removing 
 thereof, to make the Stream navigable : but in thefe Cafes' 
 Sgg? P" vate £ ft of Parliament mud be obtained for the 
 effecting .thereof, which was the occafion many of the faid 
 private Statutes were obtained : But if none of thefe inhe- 
 ritable Incumbrances ftand in the way, but that by the 
 cleanfing or deeper cafting of the Chanel the fame may be 
 made navigable, Then I am of opinion, the Commiffioners 
 of Sewers have power to doe the fame, and there be words 
 in our Statute will bear this Expofition (videlicet) And to 
 chanfe and purge theTrenches, Streams, Sewers, Gutters and 
 Ditches, m all Places necejfary. 
 
 And 
 
Leftura Quart a. 271 
 
 And herewithall I intend to clofe up this day's Exercife 
 with this ftiort Gonclufion ; that is, That E. was no fuffi- 
 cient Freeman, nor wa.-. refiant, nor had Goods of value to 
 make him a competent Commiffioner s, That notwithftan- 
 ding B. and C. and the Countefs of Warwick were compe- 
 tent Commiffioners, and they joining with three of the Quo- 
 rum had power to make and ordain Laws of Sewers 3 and 
 becaufe this Were was newly ere&ed, therefore the Law 
 and Ordinance made to raze it and to pull it down was a 
 good Law, and warranted by this Statute, &c. 
 
 Firm hujus Quart* Leflurx, 
 
 LeUura 
 

C^73) 
 
 Le&ura Quinta. 
 
 Enerous Auditors, my Fellows and Friends of 
 this mod famous and renowned Inns of Court, 
 I have failed fo far within the Land, that my 
 Ship hath taken up her Harbor in the Inland 
 Streams, and I my (elf am got up to the higheft 
 Mountains, to the end I might take the view and furvey of 
 all my former days labours ; and this being the laft day of 
 my reading, I muft now make my accompt to you of my 
 Stewardship : The Talent which was delivered me when 
 I entered upon my firft day's Exercife, was this worthy Sta- 
 tute of Sewers, which I have put forth to the beft ufe I 
 could in my poor skill and underftanding 5 But in the ca£ 
 ting up of my Accompts, it may be it will come thort of 
 your expectations ; if it do, I pray you help to increafe it 
 out of your abundant ftorej and confider with your felves, 
 that your Reader took in hand to read upon a Maiden- 
 law, which never before this time abode his Exposition in 
 any' Inns of Court, and our Law-books are exceeding 
 fcarce in the handling of matters of this kind and nature j 
 and fo I wanted thofe means and helps which many other 
 Readers have had , who have taken upon them to make 
 their readings of Statutes formerly read on , and which 
 have received a more plentifull Expofition in our Books 
 and Terms of the Law than this of mine hath done. 
 
 It hath been the ancient cuftome of this Houfe, for the 
 Reader in his laft day's Exercife to make a brief repetition 
 in the manner of an Index, of the moft fubftantial heads of 
 his Statute, and of his divifions : And becaufe every pro- 
 feffion is moft graced when it is followed and trode out in 
 the fteps of learned Predeceffors, I intend therefore to be 
 r Nn no 
 
2 yA Leftura Quintet. 
 
 no Changling, nor mean I to produce or bring up new ufa- 
 ges, left old Cuftome fhould forget what her felf had been : 
 In this manner therefore do I make my Repetition 5 
 
 Firft, I delivered my opinion touching the extent of this 
 Statute, which was as large as the Realm of England $ and 
 that the Englifh Seas were within the Realm. 
 
 I made it to appear, that the Dominion and Empire of 
 thefe Seas, The legal power of adminiftration of Juftice, 
 The property, profit and poffeffion thereof, doth apper- 
 tain to the King. 
 
 Aad that thefe Profits C Real and 
 were of two kinds, (Perfonal. 
 
 The Real profits were the Grounds relinquifhed by the 
 Sea, which were always fuch Grounds as had been always 
 before covered with Waters : But Shores and fuch Grounds 
 which Alternif vhibus , were wet and dry , were not ac- 
 counted relinquifhed Grounds , and that relinquifhed 
 Grounds belonged to the King; but the Shore andcafual 
 drowned Grounds might belong to a Subject. 
 
 f Wreck. 
 The Perfonal Profits ofjFlotfan. 
 the Sea did confift in "Metfan. 
 
 £ Ligan 5 and 
 great Fifhes, which are due to the King by the Royal Pre- 
 rogative of his Crown ■> But Subjects might have the Inhe- 
 ritance of the firft four by Prefcription, and of the laft by 
 Charter from the King. 
 
 Thtn I defcended into Iflands } Which are of two forts: 
 Fnft, On the Sea, old ones and new ones, That both 
 were within the King's power, and the new ones His in 
 property. 
 
 Frefh Iflands in the Land might belong to Subjects 5 The 
 nature of them all were, that they were nndique circHmdat* 
 aquif. 
 
 I then 
 
Leftura Quint a. 275 
 
 I then landed at the Shore, which in definition con- 
 tained thofe Grounds which extend from the loweft Ebb 
 to the higheft Floud ; That the King had the property 
 thereof de Jure, a Subject might have it ex pcrqitifito, and 
 the People had their ufum tiecejfarium. 
 
 I proceeded farther to the Coafts, whofe content and 
 contingent I defcribed fo near as by Hiftories I could inform 
 my (elf 3 And Shores and Coafts I held them to be Mam 
 accejforia. 
 
 From thefe I proceeded to Creeks, Havens and Forts, 
 and thefe I fet forth in their feveral kinds. 
 
 And I concluded with the compali of my Statute and my 
 Commiffion, and with the diverfity thereof, That within 
 the circle of my Statute, Seas, Ifles, Shores, Coafts, Ports, 
 Havens, Creeks gained, and relinquiftied Grounds were 
 comprehended, becaufe that might depend (inpoffe) but 
 yet the Commiffioners which was (in prefenti operative ) 
 did extend but to the utmoft Banks and Walls towards the 
 Seas : And I concluded the points of my Cafe with the dif- 
 ference between Grounds left and Grounds gained from 
 the Seas 5 and thus I ended my Firft Lecture. 
 
 The Second Lefture. . 
 
 IN my Second Le&ure I came on Land, and took upon 
 me to fet forth her Friends from her Foes 5 her Friends 
 I counted luch as had defended her from the violence of the 
 Seas, and from inundation of Salt- waters. 
 
 And thefe were her Friends (viz.) Banks, Sewers, Goats, 
 Calceys and Bridges 5 thefe are to be maintained and re- 
 paired, and are the Defences which I fully treated of 
 
 And thefe were the Enemies, Streams, Mills, Ponds, 
 Filhgarths, Milldams, Locks, Hebbingweres, Hecks and 
 Floudgates. 
 
 Thefe are Lets and Impediments which this Statute fpea- 
 keth of, and are to be corrected, reformed or put down as 
 caufe (hall require. 
 
 N n 2 I ftiewed 
 
27^ LeSlura Quint 4. 
 
 I fhewed then that Rivers were of two kinds, Royal 
 and Common Rivers 5 That there were other inferior kinds 
 of thoie watery inftruments which might take place after 
 Rivers, as Ditches, Gutters, Sewers, Pools, Ponds, 
 Springs. 
 
 That Water is the fubftantive of all thefe, and if it be a 
 running Water at random, then it is a Stream ; if it be a 
 running Water, and pent within Walls or Banks, then it 
 is a River, Gutter, Ditch or Sewer 5 Thefe in their feveral 
 kinds I did diftinguilh } And Springs I held to be the vital 
 fpirit of them all. 
 
 f By view and furvey , and 
 I wherein they confifted. 
 I then defcribed the Commif- j 
 
 fioners manner of procee- 1 By Jury, and on what parts 
 
 dings , which might be* 
 three manner of ways 5 
 
 that flood. 
 
 By difcretion, and the diver- 
 sities and definition thereof 
 
 1. Frontage. 
 
 2. Ownerihip. 
 After thefe I took upon me, 3. Prefcription. 
 
 by how many feveral ways 1 4. Cuftome. 
 
 the Defences might be mai n-< 5. Tenure. 
 
 tained, which were nine inl 6. Covenant.. 
 
 number, 1 7. Dfut Ret. 
 
 j.8. A,Townlhip3 and 
 [9. By the Laws of Sewers* 
 
 All thefe I proved by Reafbns, Presidents and Authori- 
 ties, and did at large difeourfe of them. 
 
 Then I came by the courfe of this Cafe to treat of SefTes, 
 Taxes and Lays fet by Commiffioners of Sewers, whereby 
 1 found fbme Inheritances there were which were fiibjecl: 
 to thefe SefTes * as thofe that follow Houfes, Land, Mea- 
 
 dow> 
 
Leftura Quint a. 277 
 
 dow, Pafture, Woods, Heaths, Furs, Moors, Marifhes, 
 Rents, Ferries, Pifcaries, Commons, Free paffage, Parks, 
 Warrens. 
 
 And many Inheritances I found in reafbn freed from thefe 
 Taxes and Lays, as Tythes in Spiritual Hands, Annuities, 
 Chafes, Penfions, Proxies, Portions, Marts, Fairs, Mar- 
 kets, Offices, things in Aftion, Conditions, Contingents, 
 Ufes, Prefcntations, Founderfhips. 
 
 "Cuftonjary, and then they may 
 bind the Mountains as well as 
 the Valleys. 
 
 Hereditary, and then the pai- 
 
 I alfo found thefe SefTes I ticular Tenant and the Re- 
 
 of three kinds, viz, verfion muft both contri- 
 
 bute. 
 
 Temporary, which bound the 
 .. PolTeffor. 
 
 And here I ended my fecond day's Le&ure. 
 
 The Third Leffure. 
 
 MY Third Lecture I did diftribute into three general 
 Heads, which were merely the grounds of the exe- 
 cution of thefe Laws. 
 
 Which confided either in pu-f 1. Imprisonment. g x 
 
 nifliing the Body and Per lbn < 2. Fine : and 
 of the Delinquent with (,3. Amerciament. 
 
 Or in doing execution upon fl. By diftrefs : or ft. 
 
 the Offendor's Eftate, \2. By fale thereof. 
 
 Or 
 
278 Leftura Quint a. 
 
 j" 1 . Charging of the Land 
 Or otherwife in extending it perpetually : or 
 upon a Man's perfonal E-< 
 Rate, by I 2. By the abfolute fale 
 
 t thereof! 
 
 And under thefe general Rules I comprifed thefe parti- 
 culars which follow : 
 
 Firft, For the Honour of this Commiffion, and for the 
 more neceflary execution of thefe Laws, I found them out 
 a Court, wherein I fet forth in what Cafes Commiffioners 
 might imprifon the Bodies of Delinquents, and in what 
 Cafes they might impofe a fine, and when amerciaments be 
 due 3 and then I (hewed that for fome tranfgreffions nei- 
 ther imprifonment , fine nor amerciament was to be ira- 
 pofed. 
 
 1. Judicial, and iflued out of 
 the Judicial Records of this 
 Court. 
 
 I then came to Di- 
 ftrefTes, and held a 
 treble diftin&ion of< 
 them (videlicet) that 
 fome were 
 
 2. Other Minifterial. 
 
 3. The third Legal 5 where- 
 in all thefe Diverfities I 
 (brewed out by proved Au- 
 thorities. 
 
 Then I (hewed in what places thefe Diftrefies might be 
 taken, when upon the Land charged, when within any 
 place within the extent of this Commiffion, and fometimes 
 within any place of this Realm 5 And when the proper 
 Goods of the Party might be taken, and when the Goods 
 of Strangers, and when Goods may be fold by this Law. 
 
 Afterwards according to the order prefcribed me by my 
 Cafe, I declared that there were fome Interrupters to the 
 execution of thefe DiftrelTes. 
 
 The 
 
Leftura Quintet. 279 
 
 The one was by firing Replevins, wherein I took thefe 
 diverficies. 
 
 That a Sheriff being an inferior Officer could not of his 
 own power deliver a diftrels taken by warrant of Sewers 5 
 But that the Commiffioners of Sewers are bound to obey a 
 Replevin coming out of the King's Courts at Weftminjler, 
 Quia de altiori natural Thus yet notwithftanding Goods ta- 
 ken by a judgment were exempted from that Replevin. 
 
 Then I proceeded to the charge of Lands, whether a 
 perpetual charge might be impofed, or not. 
 
 , _ , -ft. For what caufe. 
 
 And from thence 1 1 What Und& 
 
 came to Sales and I Whofe Ljmd( , 
 
 thofe I Attributed , To whom thefe Ljm<fa 
 
 into four points j j; might be foH 
 
 I after came into the Traftate of Legal Proceedings, 
 which may be ufed in our Court of Sewers 5 and firft when 
 and which Presentments of Sewers are traverfable, and 
 which not. 
 
 And then wherein a Party wronged may have his juftice 
 in this Court, and in what cafes not. 
 
 And whether the ftrict words of the Statute would ad- 
 mit of Exemptions, and the difference of them, that (brae 
 were general, others fpecial 5 and therein I ended the 
 Third day's Exercife. 
 
 The Fourth Lefiure. 
 
 THE fourth day I treated of the Ability and Non-abi- 
 lity of the Commiffioners, either by reafon of lome 
 perlbnal defeft, whether it confifted in Sex, Exile or other 
 Impediment that way. 
 
 And what Eftate and value of Lands made one a com- 
 petent Gommiffioner, and what did the contrary 5 and the 
 times when the Gommiffioner rauft have this Eftate. 
 
 Then 
 
280 LeRura Quint a. 
 
 Then I delivered my opinion upon the words of the Sta- 
 tute, which be valuable Hereditaments to inable a Comrnif- 
 fioner, and which were not. 
 
 Then I proceeded to intreat of a Commiffioners Ability 
 in Goods and moveable fubftance, and which were movea- 
 ble fubftances within this Statute, and which not. 
 
 And becaufe in the Citizen- Commiffioner Three things 
 were required to make him able (viz,.) Freedom, Eftate in 
 goods, and ReGancy, I therefore handled fully all thefe 
 parts thereof. 
 
 After all which, becaufe 1 had before this time no fitting 
 opportunity to treat of Lets and Impediments, I therefore 
 in this Ledure difpofed my cafe in fuch fort as it took hold 
 of them all. 
 
 And Firft, Becaufe the Statute I read on confirmed all 
 other former Laws concerning the fame, I therefore re- 
 peated them all from Magna Charta to this very time, and 
 gave an Explanation or Declaration of -them all. 
 
 I then distributed the learning of thefe Laws into three 
 Heads : 
 
 a. Firft, That thefe which had the ftrength of a Cuftome, 
 
 and were grown to be particular Inheritances of private per- 
 fbns, could not be extirped. 
 
 a. Secondly, And whereas fbme were newly ere&ed with- 
 
 out Authority, they might be overthrown. 
 
 3. Thirdly, And whereasforne were ancient, and were ex- 
 
 alted above or beyond the ancient Affize, the excels might 
 onely be abated 3 with thefe differences I fatisfied thefe Sta- 
 tutes. 
 
 Then came I to our Statute I read on, and therein I took 
 new diverfities that was upon the Three Claufes of my Sta- 
 tute. 
 
 1. The Firft did maintain the Defences. 
 
 a. The Second deftroyed the Offences. 
 
 3. And the Third was a general Claufe, reciting the Defences 
 
 and Offences together, and did give the Commiffioners pow- 
 er to reform or amend, repair or nut down, as caufe fhould 
 require. Wherein 
 
Leftma Chant a. 281 
 
 Wherein I publifhed this learning thereupon, That if an 
 old Wall, Bank, Bridge or other Defences, were found to 
 be out of ufe, it might be extirped. 
 
 And if a Were, Mill, Milldam, Stanks, Stakes, Piles, or 
 Floudgates were found beneficial to the publick good, they 
 might be preferved and maintained. 
 
 And I vouched fome presidents, at whole charges the 
 laid Lets and Impediments (hould be removed, and I ended 
 my Argument with this, In what cafes Commiffioners of 
 Sewers might make unnavigable Rivers navigable, and 
 where not 5 and in that I concluded my fourth Exercile. 
 
 This is the extent of my accompt, wherein I think I 
 have done myfelf fome wrong in making lb fhort a Breviate, 
 in omitting many things which I truly took pains in; but 
 becaufe you were all prefent and privy to my layings out, I 
 hope though I have omitted them in my extreats, you will 
 gIIow me them in Summa totalis. 
 
 But by your good favors I intend not to break Guftome 
 or Promife in any thing; for I have fome ftock more left, 
 which I told you when I began I had caft under hatches, 
 which now alfo I mean to diftribute amongft you; And 
 becaufe there is fome part of this as yet left untreated of, 
 I will now therefore proceed to the unfolding thereof. 
 
 And the fame confifteth in thefe words of the Law, That 
 the Commiffioners hereafter named in any Commiffion, accor- 
 ding to the purport of the fame, have full power and autho- 
 rity to make, confiitute and ordain Laves, Ordinances and 
 Decrees, and the fame Laws and Ordinances Jo made to re- 
 peal, reform, amend and ma^e new, as the cafes neceffary fljall 
 require in that behalf. 
 
 So that whereas other Judges have power onely Jvs di- 
 cere, thefe Commiffioners have alfb power Jus facere _> yet 
 this Statute gives not the Commiffioners of Sewers aDfb- 
 lute power and authority to make and ordain Laws but fe- 
 cundum quid ; for thefe Laws which they are to make, 
 muft be for the fafegard, confervation, redrefs, correction 
 and reformation, and more than thefe, they muft be necef- 
 
 Oo iary 
 
282 Leffiiira Quint a. 
 
 fary and behovefull} fo they muft not be made out of (elf- 
 will, and affection, but after their Wifedoms and Difcre- 
 tions. 
 
 Wherein I conceive, that never a Sentence in this Sta- 
 tute is feafoned with more variety of Caveats and grave di- 
 rections than this Statute is in this very claufe of making 
 new Laws 5 io that thefe Laws ought to be made to amend, 
 not to make worfe; they muft be neceiTary, not nugatory, 
 they are to be compofed with Wiledom, and difpofed of 
 with good Difcretion, and they ought chiefly to be made pro 
 bono publico, and not Pro privato alicuju*. 
 
 New Laws are to be ordained for thefe purpofes onely, 
 that is, either for making and erefting of new neceiTary 
 Defences , or for the overthrowing of fome unneceflary 
 Lets and Annoiances, or for the continuance of the An- 
 cient. 
 
 And in alteration, new addition, or diminution of a 
 Wall, Bank, Sewer, Goat, Calcey or other Engine, a new 
 Law is to be made for the effecting thereof 
 
 Alio if an ancieHt Wall, Bank or other Defence be 
 worn out of ufe, and is altogether unnecelTary 5 but in the 
 Wifedom and Difcretion of the Commiffioners, and that 
 a new one in another place were more convenient for the 
 fafety of the Countrey; this muft be all done by a new 
 Law. 
 
 But here a matter of Law will arife, and another matter 
 of great caution : The matter of Law will reft in this, Whe- 
 ther an ancient Wall, Bank or other Defence which is 
 grown out of ufe, may be overthrown and pulled down ^ 
 and in my opinion it may, by the faid third claufe of the 
 Statute, wherein power is given either to maintain them or 
 to put them down. » 
 
 But becaufe I have formerly handled this point, I will 
 therefore proceed to the caution which is of great weight 
 and importance 5 for whereas one or more perfons are by 
 Tenure, Covenant, Cuftome, Prefcription or otherwise 
 bound and tied to repair and maintain the faid ancient Bank, 
 
 Wall, 
 
Leflura Quhita. 283 
 
 Wall, Sewer, or other Defence at their feveral and pecu- 
 liar charges; if then the Commiffioners of Sewers (hould 
 make a Law to overthrow or remove the fame, and fhould 
 execute the fame accordingly 5 and then (hould make a Law 
 to erect and build a new Wall, Bank or other Defence in 
 another place more convenient, yet the parties which were 
 bound to maintain and repair the former old Defences, 
 fhould not Co be tied and bound to repair and maintain 
 thefe new erected ones, becaufe by the deftroying of the 
 ancient Walls and Banks, the Prefcriptions, Cuftoms, Te- 
 nures and Covenants were either utterly diiTolved, or o- 
 therwife fufpended •-, and the charge for the erecting and 
 maintaining of the new ones are to be laid on the Level: 
 So that it behoveth Commiffioners to be carefull in thefe 
 affairs, elfe things in the Conclufion may fall out contrary 
 to their expectations •-, for it is well faid, That Rerum pro~ 
 grejjm ojiendunt multa qu<e in initio nee pr<ecaveri ant provi- 
 der! poffunt. 
 
 In making new Laws and Ordinances thefe things are alfo v 
 confiderable; 
 
 Firft, What'the matter of the Law is which is to be en- 5. 
 acted. 
 
 Secondly, When the matter is known, then to weigh it 2. 
 well, whether if it be made, if then it will prove necef- 
 fary and behovefull for the good of the people; and this 
 necefTary point is to be fcanned by the Counfel and advice of 
 the mod difcreet and experienced perfons, and of the beft 
 tried judgments in matters of this nature. 
 
 And Thirdly, to confider what charge the work will coft, 3° 
 for the which this Law rauft be made; for in Scriptures he 
 is not counted fapient that before he build a houfe will not 
 firft count the charge of it. 
 
 And Fourthly, What perfons muft bear this charge, left 4. 
 it prove too burthenfome; and this muft be direfted by 
 the ability of the people which are to be charged, and 
 by the fafety and commodity they are to have by the work. 
 
 O o 2 I ob- 
 
2 3 a LeRura Quint a. 
 
 I obferve alfo that this Statute ufeth three words, whicti 
 are all powerfull in fignification and operation, videlicet, 
 Laws, Ordinances and Decrees $ and I think it fitting for 
 me, lb near as I can, both to deliver the definitions of them$ 
 and the differences between them. 
 
 A Law. 
 
 A Law is properly a matter which hath taken his eflencs 
 and power by a Gultome time out of memory, as the 
 Commonlaws have done ; Or elfe is a matter acted and en- 
 acted in Parliament by the Ring and the great Gounfel of 
 the Realm, and by the Authority thereof, for the order* 
 ing of mens Bodies, Lands and Goods ; and fiich a Law is 
 hereby intended, becaufe the Laws which the Commiffio- 
 ■ners (hall make have the power of an Act of Parliament to 
 Strengthen and affift them, and they are to receive life and 
 perfection from this Statute I read on. 
 
 ■A' 
 
 Ordinance. 
 
 *, N Ordinance is a word having a more private and feS 
 powerfull fignification than the word Law hath; for 
 it is a- Law but of a fecundary power, enacted by a Corpo- 
 ration, Company or Commiffion , proceeding meerly out 
 of the Power and Prerogative of the King by Charter, 
 Grant or Commiffion warranting the fame, as thofe Cor- 
 porations, Societies and Companies which have power by 
 Charters or Patents to make the lame; as is let forth in the 
 
 cafe of the ca (es of the City of London, and of the Chamberlain ofLon- 
 
 ckj of Lon- ^„> s Cafe in sir Edward C00K} Reports. 
 
 c»fe of the Alfb Ordinances may be made by the power of a Gourfj 
 
 rfLMnfafc" 1 as * n a Court Baron to ma ke Orders, or by the Inhabitants 
 of a Town by Cuftome, for the ordering of their Com- 
 mons, repairing of their Churches and Highways: And 
 thefe are more properly By-laws than Laws} for a Law is 
 either the Commonlaw, Cuftomary-law, or an Act of Par- 
 liament 3 
 
Letlura Quintal 285 
 
 liament 5 all which are of greater force than any Laws made 
 by thefe fecundary means, which of themfelves are of lit- 
 tle or no ftrength but as they are affifted by other primary 
 powers. 
 
 Decree. 
 
 A Decree is neither a Law nor Ordinance in proper de- 
 finition, but is onely a Sentence or Judgment in a 
 Court of Juftice, delivered or declared by the Judges 
 there, by and through the power and ftrength of a ge- 
 neral former Law, for Decretum eft Sentcntia lata fuper 
 Legem. 
 
 So that a Law is a general direction for a multitude. 
 
 An Ordinance is a fubordinate direction, proceeding out 
 of a more general power. 
 
 And a Decree is a Sentence delivered for or againft a 
 particular perfon, grounded upon the faid Laws and Ordi- 
 nances. : - - 
 
 Continuance of Laws, 
 
 IT comes now fitly for me in turn and courfe to declare 
 the continuance of thefe Laws, Ordinances andDecreesj 
 for it is to be obferved that fbme of them be but tempora- 
 ry, though others perpetual. 
 
 The words in our Statute are, That every Statute and Or* 
 dinance made before the Statute of 23 H. 8. concerning the 
 things and matters therein mentioned, as well in the time of 
 H. 8. as of any of his Progenitors, not being contrary to this 
 Statute, or heretofore repealed, /hall jland in force for ever , 
 and are commanded to be put in due Execution: But this 
 claufe is intended of all Afts of Parliament made touch- 
 ing the Sewers, and be not intended or meant of Laws and 
 Ordinances made by the Commiffioners of Sewers them- 
 fdves.. 
 
 Laws 
 
2 8£ LeSlura Quint a. 
 
 Laws and Decrees made for fale of Lands by the Pow- 
 ers and Authorities of this Statute, are to be made and in- 
 grofled into Parchment, and certified under the Seals- of 
 the Commiffioners into the Chancery, and the King's Royal 
 AlTent had thereto, under the Privy Seal, (hall alfo ftand 
 good and effe&ual. 
 
 And all Laws and Ordinances written in Parchment, and 
 indented , and under the Seals of the Commiffioners 9 
 whereof the one part (hall remain with the Clerk of the 
 Sewers, and the other part to remain in fuch places as the 
 Commiffioners fhould appoint (notwithstanding the fame 
 be not certified into the Chancery, nor the King's Royal 
 13 ■£/. cap.9. Aflent be had thereto) fhall continue in force till the fame 
 lhall be altered, repealed or made void by another Com- 
 miffion of Sewers, although the former Commiffion by the 
 which thefe Laws were made were determined by Super- 
 fedeas. 
 
 The Commiffion is to continue for ten years from the 
 13 EU%. date thereof by force of the Statute of 13 Eliz. yet not- 
 withftanding all Laws and Ordinances which are written in 
 Parchment, indented and fealed by the Commiffioners of 
 Sewers, without certifying into the Chancery, or the 
 King's Royal AlTent had thereto, (hall notwithftanding the 
 determination of the Commiffion by the Expiration of the 
 faid ten years, continue in force for one whole year next 
 enfuing, to be put in Execution for that time by fix Juftices 
 of the Peace, whereof two to be of the Quorum, but then 
 the power of the Juftices of the Peace is ceafed by the co- 
 ming of a new Commiffion of Sewers. 
 
 All other Laws and Ordinances of Sewers which are 
 but made and writ in Paper, or which be but in Parch- 
 ment, and not Indented, or which be Indented alfo, if 
 not fealed , continue in force no longer than that Com- 
 miffion continueth by the Power whereof they were made. 
 And fb by this fhort Declaration I have made, the Com- 
 miffioners may the better obferve how long time Laws and 
 Ordinances of Sewers are to continue in forcej yet though 
 
 they 
 
Leftura Quint a. 287 
 
 the}' lo r e their vigor they may notwithftanding be revived 
 by the power of a new Commiffion, or remain for prefi- 
 dents for after Ages to imitate. 
 
 Repealing of Laws. 
 
 IN this laft Place I intend to deliver my Opinion, what 
 Laws, Ordinances and Decrees may be repealed , alte- 
 red or made void by the Commiilioners of Sewers. 
 
 Therefore it is fnft to be confidered, what Grounds are 
 to be obferved in repealing or altering former Laws. 
 
 It appears in Efiher, that the Laws of the Medes and 
 Perfians were fb perdurable, as they could never be chan- 
 ged : And in my Opinion there is required as great fore- 
 light, Judgment, and as found difcretion and mature delibe- 
 ration in repealing of old Laws, as in making new ones -3 
 For Qu& prefer confuetudinem & morem major' fiuttt tieque 
 placent neque re&a. videntur. 
 
 I have noted how carefull and conftant the Lords of the 
 Parliament houfe were in the 20 year of H. 3. when they 
 all cried out aloud Nolumw leges Anglia mutate. 
 
 Seeing therefore there ought to be great care in ma- 
 king Laws, fo muft there be great heed taken in repealing 
 of Laws. 
 
 And becaufe Commiffioners of Sewers have power here- 
 in, I will therefore deliver my Opinion how far that power 
 will extend : And if one note this Branch of the Statute 
 well, he (hall well perceive the Judicious care taken by 
 the Parliament in penning of it 5 For the words be, That 
 the Commiffioners of Servers fhould have power and authori- 
 ty to make, conjiitute and ordain Laws, Ordinances and De- 
 crees, and the fame Laws andOrdinances (omitting the word 
 Decrees') to alter, repeal and make voidj for a Decree is a 
 Judgment, and is Fmk operis, and a Judgment cannot be 
 reverted without a Writ of Error: Neither can a Sentence 
 or a Decree in Chancery be reverfed without a Bill of Re- 
 view, neither can the Commiffioners of Sewers reverfe a 
 
 
a 88 Lettura Quintd. 
 
 Judgment or Decree of Sewers Judicially pronounced, 
 which is a Judgment upon a Tryal betwixt the Ring and 
 the party, or betwix ; : party and party, without a Bill of 
 Reverfalj for it is truly faid, Quod naturale eji unumquod- 
 que t dijjblvi eo Ugam'we quo ligatum eji. 
 
 A Writ of Error lay at the Commonlaw for to reverfe a 
 Judgment given by Commiffioners of Sewers when the Com- 
 miffion was in Latine, as is fet forth in the Regifter, being 
 then one of the fpecial Commiffions of Oyer and Terminer ; 
 but fince the Commiffion was put into the Englilh Frame, 
 the Writs of Error ceafed. 
 
 A Law for fale of Lands ingroiTed into parchment, and 
 certified into the King's Court of Chancery, with the 
 Kings Royal Affent had thereto, is not reverfable without 
 an Aft of Parliament ; but then the faid Sale muft be made 
 according to the Form, Frame and Power of this Statute. 
 
 For put the Cafe that A. B. holdeth his Lands of J. 5. by 
 the payment of Twenty Shillings yearly towards the repair 
 of fuch a Bridge Bank, or Wall, it fortuneth that A. B. paid, 
 the Twenty Shillings yearly to his Lord for that purpofe, 
 who negle&eth to pay it, though he be thereto ordered 
 and aflelTed to pay the fame to the faid repairs by the Com- 
 miffioners of Sewers, the Seigniory of Twenty Shillings 
 yearly is to be decreed, and not the Land, for that the fault 
 was in J. S. and not in A B. the owner of the Land. 
 
 Ifanyperfbnsbebyprefcription, Cuftome, Tenure, Co- 
 venant or otherwife, bound to repair Walls, Banks or other 
 Defences of Sewers, the Commiffioners have not any power 
 by their Commiffion to repeal, alter or make void any of 
 thefe, becaufe thefe are eftabliftit by the Commonlaw, and 
 Cuftoms of the Realm, and not by the power of the Com- 
 miffion of Sewers : But their power is to repeal, alter or 
 make void Laws and Ordinances made by themfelves, or 
 by the power of their Commiffion : And fb the words of 
 their Commiffion plainly defcribe it ; For thereby they 
 have power to make Laws and Ordinances, and the fame 
 to repeal, alter and make void, fo they i,_uft be the fame 
 
 and 
 
LeUura Quart a. 2S>> 
 
 and no other : And herein I end all my arguments and di£ 
 courfe upon this Statute, for I accompt all the reft which 
 remaineth unfpoken of not to be worthy of a Reader's di- 
 aled, becaufe I have fully handled all the Materials of this 
 worthy Law $ And therefore Imay juftly conclude my ar- 
 gument with this, That Finitum f opu* & confumraitHm. 
 
 Certiorari 's and Returns. 
 
 ALthough by the Statute of 13 El. cap. p. it »3#'* c 9 . 
 is enacted, That tht. Laws and Ordinan- 
 ces of the Commiflioners of Sewers (hall conti- 
 tinue in force as therein is appointed, and that 
 the faid Commiflioners, or any of them (hall 
 not be compelled or compellable to make any 
 certificate or return of any their ordinances, 
 Laws, or doings by the authority of any the faid 
 Commiilions, nor (hall have any Fine, Pain or 
 Amerciament fet upon them or any of them, 
 or any ways be molefted in Body,Lands or Goods 
 for that caufe ; yet the Court of King's Bench 
 do not take themfelves to be reftrained by thofe 
 general words. And it was faid by the Judges 
 there, in the cafe oiS?nitb and others, Hil. 2 1 & 
 22 Car. 2. that it was never doubted but that the 
 Court of King's Bench might queition the le- 
 gality of the Commiflioners of Sewers orders 
 notwithstanding that Statute ; for it (hall not be 
 oulted of its junfdiclion, by general words in an 
 Act of Parliament, without exprefs and parti- 
 cular words; Modern Reports 44,45. And in MdmRc- 
 
 P P the*" 44,4S> ' 
 
 
2^o Leftura Quintal 
 
 the Cafe of Commins and Mafam, Pafch. iSCa.il 
 B. R. If the Commiflioners of Sewers proceed 
 • where they have no jurifdiction , or without 
 Commifhon, or contrary to their Commiflion, 
 or not by Jury ( where a Jury is requifite ) iffc. 
 their doings may be examined and corrected in 
 Manb 197, a fu peri or Court, March 197, ip8. 
 
 And accordingly Writs of Certiorari have been 
 from time to time as well fince as before the 
 faid Statute of 1 3 Eliz^ granted to remove into 
 the Kings Bench, their Orders and Proceedings, 
 and Presentments taken by them ; and fuch Or- 
 ders, Preferments and Proceedings have been 
 stik. quaflied there. See Stile 13, 60. 85. 185, i^r > 
 siderf.i.itf.192. Siier fin 1. 145. And the Commiflioners 
 of Sewers have been brought into that Court 
 by Attachment, and there fined, for proceeding 
 to fine a Perfon, after a Certiorari was delivered 
 Modem Re- to them, Modern Reports 44, 45. And that Court 
 pens 44,45. j iave ta k en U p 0n them to confirm a Decree of 
 
 March 201. the Commiflioners of Sewers ; March 201. And 
 have confirmed their Order for part, and 
 
 suerf. 1.145- quafhed it for other part, Siderfin 1. 145, And 
 may moderate a fine fet by the Court of Sewers, 
 
 March to2. March 20 2. 
 
 And whereas it hath been objected, that the 
 
 a 3 h. s. c.5. Statute of 23 H. 8. 5. hath appointed the Orders 
 
 and Proceedings of the Commiflioners of Sewers 
 
 to be in Englilh, and confequently hath- taken 
 
 away 
 
Letlura Quint a. 291 
 
 away the Certiorari, for that the Court of Kings 
 Bench can judge onely of Proceedings in Latin $ 
 to which Opinion Mallet, Juftice B. R. kerns to 
 incline in the Cafe of Commins and Majfam, Pafch. 
 18 Car. 1. It was refolved, that a Certiorari to 
 the Commiflioners of Sewers lies fince that Sta- 
 tute, and is not taken away thereby, March 197, March r 97 , 
 iptf, 199. 
 
 In Apjleys, Cafe, 17 Car. 1. B.R. where cer- 
 tain Orders made againft him by the Commif- 
 fioners of Sewers at Weftminfter were removed 
 by Certiorari into the Court of Kings Bench, 
 thefe Exceptions were taken to the return. 1. It 
 doth not fay, that the Commiflion of Sewers 
 was under the Great Seal. 2. It appears not 
 that three of the Commiflioners who made 
 the Orders were of the Quorum, as the Statute 
 of 23 H. 8. 5. appoints. Nor 3. That the Place 2 ?*-8- 5. 
 touching which their Orders were made was 
 within Weftminfter, and fo it cannot be known 
 whether it was in their power by virtue of their 
 Commiflion to make any Orders touching that 
 Place ; And for thefe defects, the return was ad- 
 judged ill, and the Proceedings of the Commif- 
 lioners were quafhed : And though Hales mo- 
 ved for liberty for the Commiflioners to amend 
 their return, it was denied by the Court, becaufe 
 the Return was made the term before, Stile 85. suh 2$. 
 
 Pp 2 
 
 THE 
 
THE 
 
 TABLE. 
 
 A. 
 
 Abjuration. 
 
 WHERE he that ravijheth a Ward, tttuft abjure 
 the Realm by W. 2. cap. 35. 235 
 
 Butchers to abjure the Town, by the Statute of 
 31 E. I. for felling meafled Flejh ibid. 
 
 Accompts. 
 
 Accompts of the Officers of Servers 5 See Stat. 23 H. 8. cap. 5. 
 
 Adion upon the Cafe, 
 See Judgment. 
 
 Lies for a falfe Return 2:15, 
 
 Admiralty. 
 
 Toe Charter of the Admiral of England 39, 40, 
 
 His 'jurifdi&ion upon the Sea 40 
 
 Execution oui of the Admiralty^ may be done on theLand 183, 
 
 Advowfon. 
 
The TABLE. 
 
 Advowfon. 
 
 An Advowfon will not enable a man to be a Commijfioner of 
 
 Sewers 242 
 
 Where Ajfets, and where not ibid. 
 
 Alien. 
 
 Cannot fit as a Commijfioner of Sewers nnlefs made Denizen 
 
 243 
 Nor could have been a Commijfioner by the Statute of 1 Eliz. 
 cap. 1. 255 
 
 Alienation. 
 
 What Lands may be aliened, and what not 157 
 
 Ambafiadour. 
 
 Ambaffadonrs Children born out of the King's Dominions, in 
 what cafe free of the Realm of England, and where not 234 
 
 Amendment 5 See Return. 
 
 Amerciament. 
 
 See Stat 
 
 £Mag. Char. cap. 14. 
 X23H. 8. cap. 5. 
 (.13 Eliz. cap. 9. 
 
 How, and by whom to be impofed 109, 1 10, 1 29, 177, 179 
 Where a Townjhip may be amerced 1 24 
 
 What Courts may amerce, and what not 169 
 
 Where, and whom the Commiffioners of Sewers may amerce, 
 and where not 174, 178 
 
 Where a man fhall be amerced for a Nufance, and where not 
 
 178,267,269 
 In 4 nonfuit, the Plaintiffs to be amerced, and by whom 1 y^ 
 
 Annoy- 
 
The TABLE. 
 
 Annoyances. 2$-$-^ 
 
 Impediments. 
 
 c Jew J 1 H - 4- cap. 12. 
 5 "V tat, i2 3 H.8. cap. 5 . 
 Weres. 
 
 Annuity. 
 
 Where an Annuity fhall not be charged by the Laws of Sewers 
 
 136 
 An Annuity to maintain a Dignity, cannot be fevered there- 
 from 157 
 Nor an Annuity for the exercife of an Office, from the Office 
 
 ibid. 
 
 Where an Annuity will enable a man to $t at * Comrniffioner 
 
 of Servers, and where not 342 
 
 Arreft. 
 
 Where a man arrejied in an inferiour Court, fhall be delivered 
 by the power of ihe fuperiour Court, to which he was At- 
 tendant 195 
 
 Affeffraent. 
 
 f ' Charge. 
 
 e Je» * J 2 3 H - 8 - ca P- 5 
 ^< Stat l 3 &4E.6. cap. 8. 
 ^ Taxes. 
 
 A whole Townfiip or Hundred may be affeffed by the haws of 
 
 Sewers 122 to 129 
 
 Tenants in Common may be affejfed jointly 210,211,212 
 
 If two Tenants in Common be affejfed Ten pounds, the Sefs 
 
 Jh^U not double 211,212 
 
 Exemptions 
 
The TABLE. 
 
 Exemptions from being ajfiffed by the Lam ofSemrs a 9 2, 
 
 223,224 
 The King not exempted 224 
 
 Aflets 5 See Advowfbn. 
 
 Affile of Nufance 5 See Judgment. 
 
 Attorney 3 
 
 See Livery of Seifin. 
 
 A furrender of a Copihold, may be given or takgn by Attornies 
 
 35 
 
 Attornment. 
 
 If a Feoffment be made of a Manor lying in demefn in one 
 County, and in fervices in another County , the Services 
 will pafs by Attornment of the Tenants 3 1 , 3 2 
 
 Upon what Feoffment the Rents, Services, &c. of a Manor 
 will pafs by Attornment, before Livery ofjeijtn of the de- 
 meajhs, and upon what not 3 2 
 
 Audita Querela 5 See Plea. 
 
 Averment. 
 „ j Certificate. 
 6ee i Sheriff. 
 
 Authority. 
 
 An Authority tied to a man's per/on, cannot be transferred to 
 another 3 5 
 
 Authorities mtjl be duly purfued, and are not to be fallen by im- 
 plication or colleSions 201 
 
 Axholme 5 See Iflands. 
 
 Banifh- 
 
The TABLE 
 
 B. 
 
 Banifliment 5 See Exile. 
 
 See Stat. < 
 
 Banks. 
 
 Mag. Char. cap. 16. 
 3 Jac. cap. 14. 
 
 A Bank or Wall may be raifed on the Grounds left, to de- 
 fend the Countrey, but not to defend the Grounds 
 themfelves 61 
 
 Banks, fome natural, fome artificial 72, 
 
 Who have the property, and who the ufe of Sea-banks, and Banks 
 of Rivers 73>74 
 
 What mul&s the Party who cuts them, incurs 74 
 
 New Banks may be made by the Commiffioners of Sewers 9 2 
 
 *° 96) 99t 1 o°» I oij 103 
 
 Some Opinions feeming to the contrary 1 04 
 
 An ancient Sea- bank, ma y be pulled down by the Commiffioners 
 
 of Sewers 282 
 
 They who were bound to maintain the ancient Bank,, are Mc t 
 
 bound to maintain a new one, ere&ed in another place 282, 
 
 283 
 
 Bankrupt. 
 
 If Commiffioners certify one a Bankrupt, he may traverfe this 
 in an A3 ion brought 216 
 
 Bargain and Sale. 
 
 The Bargainee not fejj able by the Laws of Sewers, till the Deed 
 be inr oiled j^a 
 
 A Bargain and Sale of Lands before inrollment doth not enable 
 a man to fit as a Commiffioner of Sewers 245 
 
 Q.q Baron 
 
The TABLE. 
 
 Earon & Feme; 
 See Sale. 
 
 Lands in right of a Mans Wife enable hint not to Jit a* & Com- 
 
 mijjioner of Sewers 242 
 
 Where a Woman fold Land to her Husband, and good 252 
 
 Barrifter. 
 
 Utter Barijier may fit as a Commffioner of 'Server /, though he 
 hath neither Lands or Goods 9,246 
 
 Baftard. 
 Where a Baftard may inherit ; , and where not 160 to 163 
 
 Bill. 
 Bill of Reverfal or Review ; See Decree. 
 
 Bridges. &cfcfr* "feci*uh* — 
 
 Mag. Char. cap. 15. 
 „ _ )22 H. 8. cap. 5. 
 SwStat <x 3 H.8. cap. 5. 
 
 3 Jac. cap. 14 
 
 Calcey,. 
 
The TABLE. 
 
 Calcey, Caufey./.*.^- 
 
 Callis 5 See Stat. 25 H. 8. cap. 10. 
 Cafes. 
 
 >' 1 * HE Readers firfl Cafe 
 \ Points at the Common-law 
 
 29,30 
 30 
 
 Points upon the Statute 
 
 30,31 
 
 The Reader's fecond Cafe 
 
 64 
 
 Points at the Common-law 
 
 65 
 
 Points upon the Statute 
 
 ibid. 
 
 The Reader's third Cafe 
 
 i55 
 
 Points at the Common-law 
 
 ibid. 
 
 Points upon the Statute 
 
 156 
 
 The Reader s fourth Cafe 
 
 226 
 
 Points at the Common-law 
 
 226, 227 
 
 Points upon the Statute 
 
 227 
 
 Caufey 3 See Calcey. 
 
 
 Certificate. 
 
 
 Certificate of the Laws, Decrees and Ordinances of the Com- 
 miffioners of Sewers, and of the King's affent thereun- 
 to , where neceffary 12,213,28(5 
 Where not neceffary 17, 286 
 Certificate of a Bifhop, where not tr aver fable 2 1 5 
 No Averment to be taken againfl the Certificate of a Judge 
 
 zi6 
 Qq 2 Certiorari, 
 
The TABLE 
 
 Certiorari. 
 
 A Certiorari lies to the Commijfioners of Sewers 167, 290,289. 
 
 291 -/ 
 A Certiorari doth not remove the Commijfion of Servers 172 
 
 Challenge. 
 
 Where a furors not having forty Jhillings per annum at 
 the time of his being Jworn, is no good caufe of Challenge 
 
 245 
 
 Charge and Difcharge. 
 
 c 5 Chafe. 
 6ee i Copiholds. 
 
 To what charges Ecclejtajiical or Spiritual Perfons are liable, 
 
 and to what not 129,130,131 
 
 With what payments Tythes fhall he charged, and from what 
 
 difcharged 1 30 
 
 What Commoners may he charged by the Laws of Sewers, and 
 
 what not 137 
 
 To what charges the Leffor, and to what the Lejfee if fubjeft 
 
 140 to 143 
 Where the Level is to be charged, and where not 144/0 
 
 148 
 The Commijfioners of Sewers may impoje perpetual charges to 
 
 repair 201, 202 
 
 Such perpetual charges may be by Cujiome 201 
 
 A Juror s Lands are chargeable with Jjffues, from the time he 
 
 was impanelled 245 
 
 Chafe. 
 
 Chafes are not chargeable by the Laws of Sewers- 138 
 
 Chattels j 
 
The TABLE. 
 
 Chattels 5 See Goods. 
 
 Chefter ; See County Palatine. 
 
 Cinque- Ports. 
 
 Five in number 57 
 
 Commiffion, Commiffioners. 
 
 Inquifition. 
 
 \ Laws. 
 
 1 ^ 
 
 ~ J C 23 H. 8. cap. 5. 
 '\ J25H. 8. cap. 10. 
 " 3&4E. 6. cap. 8. 
 1 Eliz. cap. 1. 
 
 I 
 
 Oath to be taken by the Commiffioners of Sewers, and before 
 
 whom 6, 7 
 
 The form of the Commiffion of Sewers 2, 3, 4, 5, 6 
 
 Commiffioners of Sewer s, how to be qualified 9, 233 to 253 
 Ancient Commiffion s of Sewers 24,25,222 
 
 The Statute of 6 H. 5. cap. 5. the firfl Statute wherein the 
 
 form of a Commiffion of Sewers is fet down 24 
 
 The Shore and Grounds gained from the Sea, are within the 
 
 Commiffion of Sewers , but not Grounds left by the Sea t 
 
 till put in Gaynage 61,62 
 
 The Seas, Creeks and Bays are all out of this Commiffion 6 1 
 Ports and Havens, the Waters as well as Walls and Banks ^ 
 
 are totally within this Commiffton 62 
 
 The Banks and Walls of navigable Rivers, are within thh 
 
 Commiffion 7 '5 ,7 '6 
 
 An Order of the Council-table concerning the power of the 
 
 Commiffioners of Sewers 98 to 102 
 
 The Commiffioners may furvey by the examination of others 
 
 106 
 What things they may doe by view and furvey 107, 199 
 
 A blind. 
 
The TABLE. 
 
 A blind man cannot be a. Commifioner of Servers, and why 
 
 1 08 
 
 How, and in what things and refpeffs they are to proceed by 
 
 their difcretion 112,113 
 
 Their power to relieve the vifible Poffeffours of the Land 
 
 charged , 1 43 144 
 
 The Commiffioners of Sewers have a Court of Record 1 64, 165, 
 
 166 
 They are called Jujiices in two Statutes 165 
 
 Of what Court they are a Member 166 
 
 They may fit and inquire by a Jury on a Sunday ibid. 
 
 All Proceedings upon the Commiffion of Sewers muji be in En- 
 glifh 166,290 
 
 There need: no adjournment of this Commiffion i6y 
 
 In what cafes the Commiffioners of Sewers may imprifon, fine, 
 amerce or dijirain 1 69 to 1 8 1 
 
 Who are to nominate them 225 
 
 What Freeman of a City, Sec. may fit as a Commifftoner of Sew- 
 ers, and what not 234 to 24 1 
 No head of a Corporation aggregate can fit as a Commifioner 
 of Sewers, in rejpetf of the Lands belonging to the Corpo~ 
 ration 243 
 He who hath Lands to retain of the value required by the Sta- 
 tute of 23 H. 8. cap. 5. may fit as a Commifioner ofSiwers, 
 though he hath not Lands to difpofe ibid. 
 Where a Commifioner of Sewers muji have Lands to the value 
 of forty marks per annum, at the time of his fitting 245 
 Where the Laws made by a di fabled Commifioner of Sewers 
 (hall be void, and where not 19,2445 254 
 The power of the Commiffioners of Sewers for the County of 
 Glamorgan, in relation to the fan d arifing out of the Sea 
 
 269 
 Where the Commiffioners of Sewers have power to make a Ri- 
 ver or Stream navigable, and where not 270 
 They have power jus facere 281 
 Their Orders may be examined and corre&ed,and they punifhed 
 for their mif doings by the Court of Ring's Bench, notwith- 
 
 Jianding 
 
The TABLE. 
 
 jlanding the general words of the Statute of 13 Eliz. cap. 9. 
 which Jeem to the contrary 289, 290, 291 
 
 Common. 
 
 What Commoners may be charged by the haws ofSiWers, and 
 what not 137 
 
 Condition. 
 
 Where one Condition , contingent or poffibility may depend 
 upon another, and where not 66, 6 J, 68, 70 
 
 An Efiate may as well decreafe as increafe by a Condition 69 
 
 Lands are granted to one in tail upon condition to have the 
 reverfton in fee 5 The reverjion in fee fhali increafe to the 
 Grantee, and not alter or drown the Ejiate-tail 69^ 70 
 
 If it had been upon condition , to have the Lands in fee 5 
 Quere, whether by performance of the Condition, the £- 
 fiate-tail be not changed into a Fee-jiwple £ ibid. 
 
 Where, if the Dijfeifee releafes to one of the Diffeifor's upon 
 condition, and the Condition is broken, it fhall reduce the 
 Poffeffion, and give the Relejfor a reentry 232 
 
 Conqueft. 
 
 To what Laws a conquered Nation fhall be Jubjecl 46 
 
 Contingent 5 See Condition. 
 Contribution. 
 
 Where on a tax of a whole Townfhip , contribution fhall be 
 granted^ and how 125,218,219 
 
 Convi&ion. 
 
 Where a man may forfeit for the fecond offence, before he is 
 convicted of the fir fl offence 246, 247 
 
 Copiholch 
 
The TABLE 
 
 Copihold. 
 See Surrender. 
 
 Where the Lord of a Manor may take advantage of a forfeiture 
 of a Copihold, though his EJiate in the Manor be altered be- 
 fore fei fur e 7 J .72,73 
 
 What duties and fervices a Copihold yieldeth to the Lord 
 
 132, 133 
 
 The Lord holdeth copihold Lands in tenure , though not in 
 culture 133 
 
 How the Lord is feijed of the Freehold of a Copiholder's Land 
 
 ibid. 
 
 Copiholders fjall be affeffed, but their Lands may not be fold 
 by the Statutes of Sewers 133, 134, 135, 206 
 
 What Laws and Statutes extend to Copiholds, and what not 
 
 133,134,206 
 How and with what Copiholds may be charged 1 34, 135 
 
 (oroutf Lvtart (lis pH$eurw,i$uafwait*Y'Sa.6& 2-lf 
 
 Corporation. 
 
 C Commiffioners. 
 Sees Fines. 
 (.Sale. 
 
 A Corporation is confined to the circle prefcribed them by their 
 charter 53 
 
 Covenant. 
 
 Where a Covenant Jloall bind a mans Heirs, and where not 
 
 117, u8, 120 
 
 A Covenant by the Leffee to pay all taxes and charges towards 
 
 the reparation of the Premiffes, fhall extend to a Sea-wall 
 
 in defence of the Level where the Land lies, and the Com- 
 
 . miffioners of Sewers may tax him totally for the Land 118, 
 
 119 
 If 
 
The TABLE. 
 
 If the old Sea-wall was fir eight, and a new one be built in 
 thejorm of a Horfejhoe, yet the Covenant fi all extend to it 
 
 ibid. 
 
 But if a Jlranger to the Land Covenants to pay charges to- 
 wards repairing fitch a Wall, the Commijfioners have no ju- 
 rifdi&ion thereof 119 
 
 Where the Executor of the Lejfee, who enters into the Land, 
 fliall be bound by fitch a Covenant, and may be compelled there- 
 unto by the Commijfioners 1 19, 120 
 
 Where the Covenant of the Lejfee to fufiain the Banks of a Ri- 
 ver, fiall be broken by the irruption of the Waters, and 
 where not 146 
 
 County ; See Stat. 22 H. 8. cap. 5. 
 
 County Palatine. 
 
 See Error. 
 
 Commijfioners of Sewers for a County Palatine j 3 
 
 A Count Palatine cannot take or grant Lands in his County, 
 
 but by Record 3 I 
 
 The Prince hath jura & efcheta regalia within the Palatinate 
 
 of Chefter 5 2 
 
 See< 
 
 Courts.. 
 
 JurifHi&ion. 
 Kings Bench. 
 
 The Commiffioners of Sewers have a Court of Record 1 64, 
 
 165, 166 
 
 What Perfons have a Court, and who not 164, 165 
 
 How many ways Courts have had their beginnings ibid. 
 
 The Court of Firji- fruits and Tenths erected by 32 H. 8. 
 
 cap. 45. and that of Wards and Liveries by 3 3 H. 8. c. z 2. 
 
 165 
 
 The Courts of Wards and Firft-fruits primarily belonged to 
 
 the Chancery 1 66 
 
 K r Which 
 
The TABLE. 
 
 Which Courts may imprifon, fine or amerce; and which not 
 
 169 
 
 A fuperiour Court may remove a Caufe out of an inferiour, hut 
 
 not e contra , nor can the inferiour Court fuperfede the fit- 
 
 peri our 195 
 
 Goods lying under the power of a Procefs in one Court, may 
 
 not be taken out thence by the power of another Court 
 
 196 
 Court of Sewers • See Sewers. 
 By the King's Courts , what Courts are meant 248, 249 
 
 Creek. 
 
 n o f 4 H. 4. cap. 20. 
 5 " Stat -l?8H.8. cap. 15. 
 
 Cuftome. 
 
 What things Subjefts may claim by Cuftome , and what nof- 
 
 48,49 
 The difference between Cuftome and Prefcription 116 
 
 Where Cuftome fiall tic one to repair , and where not ibid. 
 
 Cuftome to repair in Perpetuity, good 20 1 
 
 Cuftome to be exempted from being afjeffed by the haws of 
 
 Sewers % 2 3, 224 
 
 T 
 
 D. 
 
 Damages. 
 
 Reble Damages , where recoverable by the Defendant 
 
 10 
 
 Debt; 
 
The TABLE. 
 
 Debt j See Stat. 13 Eliz. cap. 9. 
 
 Decree. 
 
 c /523H. 8. cap. 5. 
 SwStat -ii3El«. cap. 9. 
 
 Decrees grounded on ancient Laws or Precedents, fafefl 128, 
 
 129 
 Decree for fate, See Sale. 
 What EJiates may be granted by the Commiffloners of Servers, 
 
 by their Decrees for fale of hands 212 
 
 Such Decrees bind the Land ibid. 
 
 They may not decree Land in mortmain ibid. 
 
 Their Decrees for fale of Lands mufi be certified into the 
 
 Chancery, with the King's royal affent thereto 2 1 3, 286 
 They are judicial Acls, and not traversable 21 6, 217,287 
 A Bill of Reverfal of a Decree, lieth in the Court of Sewers 
 
 217, 287,288 
 The Commiffloners of Sewers cannot decree a breach to be made 
 
 in an ancient Caufey or milfiank, 260 
 
 Nor the overthrowing or removing of an ancient Were 263, 
 
 264,265 
 A Decree in Chancery cannot be reverfed there without a Bill 
 
 of Review 288 
 
 Decree of the Commiffloners of Sewers confirmed by the Court 
 
 of Kings Bench 290 
 
 Defeafance. 
 
 If a Defeafance made of a. Statute be broken, a new Defea- 
 fance may defeat the forfeiture 68 
 
 Defences. 
 
 New Defences may be made by the Commiffloners of Sewers 
 
 92 to 96, 99, 100,101,103 
 R r 2 Some 
 
The TABLE. 
 
 Some Opinions feeming to the contrary 93, 94, 104 
 
 An ancient Sea- defence may be pulled down by the Commiffw- 
 
 ners of Servers 282 
 
 They who were bound to maintain the ancient , are not bound 
 
 to maintain the new one, if ere£?ed in another place 282, 
 
 283 
 Demand. 
 
 Where there muji be a demand, before dijirefs 181 
 
 Devife. 
 See Stat. 32 H. 8. cap. 1. 
 
 A devife of the ufe and occupation of Goods in remainder is 
 good, but not of the Goods themfelves in remainder 228, 
 
 229 
 A term may pafs in remainder , by way of executory devife 
 
 229 
 
 Dignity 5 See Annuity. 
 
 Difcharge 3 See Charge. 
 
 Difcretion. 
 
 Three fever al forts or degrees of difcretion, by which the Com*- 
 
 miffioners of Sewers ought to proceed u 2 
 
 In what things they are to be guided by their difcretion 1 13 
 
 Difleifor, Diffeifee, 
 , See Releafe. 
 
 One Joint en ant may diffeife hi? Companion 230 
 
 If one Jointenant and a Stranger diffeife the other Jointe- 
 
 nant, the Stranger gains no interejl, but is onely a Coau^ 
 
 jutor in the diffeifin ibid. 
 
 He 
 
The TABLE. 
 
 He in remainder and a Stranger may dijfeife Tenant for life 
 
 ibid. 
 Where a Releafe to one Diffeifor jliall enure to his Companion, 
 
 and where not 231, 232 
 
 A Dijjeifee during the dijfeifm cannot Jit as a Commifioner of 
 
 Servers 246 
 
 Nor can devije his Lands by the Statute of Wills ibid. 
 
 Diftrefs./yy — 
 
 r Sale. 
 See< . J23 H. 8. cap. 5. 
 C Mat, l3&4E. 6. cap. 8. 
 
 The Dijirainer muji at his peril looh^ well that he whom he di~ 
 
 jirains is fubjeS to the charge 125 
 
 Three forts of Difirejfcs 1 80 
 
 Where a judicial Dijirefs ijfues, and in what cafes it fhall be 
 
 awarded ibid. 
 
 Where a Dijirefs may be taken without any exprefs warrant 
 
 180,181 
 iVhere a Rent-charge may be dijirained for, though dijirefs if 
 
 not exprefly granted ibid, 
 
 Where a Dijirefs may be taken of common right 18 1, 182, 
 
 183 
 A Tax muji be demanded, before a Dijirefs takgn 1 8 1 
 
 In what place a Dijirefs may be taken 182 to 1 8 5. 
 
 A Dijirefs out of the Admiralty may be taken on the Land 183 
 Where the Goods of a Stranger, and where thofe of the Owner 
 
 onely may be dijirained 185, 186, 187, 192, 193 
 
 Ditches. # I —4>J- 
 
 5 e , Stat. 4 ! 3 T H * 8 * Ca P' 5 ' 
 
 i 3 Jac. cap. 14. 
 
 Several famous Ditches 81,82 
 
 Drain, 
 
The TABLE 
 
 Drain. 
 
 A New Drain may be made by the Commijfioners of Servers 
 
 92 ^96,99,100,101,103 
 
 Dutchy. 
 
 Commijfioners of Servers for the Dutchy of Lancafter 10, 11 
 
 See Stat. 3 & 4 E. 6. cap. 8. 
 
 Ecclefiaftical Perfons. 
 
 T Infant. 
 j tvefidence. 
 ^ e <Sale. 
 
 ( Stat. 43 Eliz. cap. 2. 
 
 HOLD not their Churches in free Alms 129 
 
 The Privileges of Ecclefiajiical and Spiritual Perfons 
 
 129,130,131 
 
 To what charges liable, and to what not 1 29, 1 30, 1 3 1, 209 
 
 They are not to be fummoned on their Spiritualities 130 
 
 The Statutes of 1 Eliz. 13 Eliz. cap. 10. and 14EHZ. cap. 1 1. 
 
 which rejirain Alienations by Ecclefiajiical Perfons, are not 
 
 difpenfed with by the general Statute of 23 H. 8. cap. 5. of 
 
 Sewers 209 
 
 Ecclefiajiical Perfons may fit as Commijfwners of Sewers, in 
 
 refpe& of the Lands whereof they are feifed in Jure Ec- 
 
 ckfiae 243 
 
 Engines ; 
 
The TABLE 
 
 Engines, See Stat. 23 H. 8, cap. 5, 
 
 Equity. 
 
 Equity defined 96 
 
 Error. 
 See Plea. 
 
 Error lieth in the Ring's Bench of a Judgment in the County 
 Palatine of Chefter 5 2 
 
 No Writ of Error lieth upon the proceedings of the Commiffw- 
 ners of Servers, but the Party may difcharge himfelfby Plea 
 
 167,287 
 
 Eftate. 
 
 C Condition. 
 See< Frankmarriage. 
 C Goods. 
 
 What Eftate a Commijjioner of Servers muft have 9, 19, 20, 
 
 239/0245 
 
 Every decreajing and increajtng Eftate depends upon the firfi 
 Eftate which receives the Livery 67, 70 
 
 Where a Fee may decreafe into an Eftate for years 6 8 
 
 A Leaje to B. for his life, on coudition to have it for the life of 
 C. In that cafe on performance of the Condition, B'/. Eftate 
 is decreafed from his own life to the life of C. 69 
 
 A Grant to the eldeft Son, and the Heirs of the Body of his 
 Father, is a good Eftate-tail : Secus, if to the younger 
 Son 70 
 
 If fiuh Grant be to the eldeft , and he die -without iffne 5 
 Quaere, Whether his younger Brother fiall inherit by force 
 of this Intail, or the Lands fhall revert to the Donor £ 
 
 70 
 
 If Lands be granted to the Wife and the Heirs of the Husband 
 of her body begotten, and the Husband die, the Son may 
 
 take 
 
The TABLE. 
 
 take jointly with his Mother, but fhall never tah$ by defcent 
 
 from her. yi 
 
 What Ejiates the Commijjioners of Sewers may grant in hand 
 
 211 
 
 Exchange. 
 Exchange of Lands in two fever al Counties by deed , good 
 
 Execution. 
 See Admiralty. 
 
 // the fruit, ijfue and end of the Law 153 
 
 Where goods may be fold upon a Levari facias, and where not 
 
 190 
 Executor. 
 
 See Livery of SeiGn. 
 
 Where the Executor of a Leffee fhalt he chargeable towards the 
 Repair of a Sea- wall, &c. 1 1 9, 120 
 
 Exemptions. 
 
 What Perfons and Lands are exempted from being affejfed by 
 
 the Laws of Sewers 222,223 
 
 Such exemption may be by a fpecial, but not by a general cu- 
 
 fiome 223, 224 
 
 The King not exempted 224 
 
 Exile. ^ 
 
 The fever al forts of Exile 235 
 
 What a man exiled forfeits, and what not 236 
 
 His Heir may enter, and his Wife may enter into her own Lands 
 
 and fue as a Woman file ibid. 
 
 V 
 
The TABLE 
 
 If he pur chafes during hk banijhment t the King fiall have the 
 Lands ibid. 
 
 The Freedom of the Son is not forfeited by the exilement of the 
 Father 238 
 
 Expofition of Words. 
 
 Incrementum 8c decrementum Maris S3 
 
 Shore 54,55,57 
 
 Coajis and Sea-Coajis, the divers fignif cations thereof 55, 
 
 56,57 
 
 Creek. 56, 57, 58 
 
 Arm of the Sea ibid. 
 
 Port 57, 58 
 
 Bay 57 
 
 Mere ibid. 
 
 Fleet ibid. 
 
 Portgreve 58 
 
 Haven ibid. 
 
 Difference between a Creek^ Haven and Port ibid. 
 
 Heretofore and Hereafter 5 8, 59 
 
 Bank^ and WaU, and the difference between them 75 
 
 River J J 
 
 Fluvium & Flumen, the difference 79 
 
 Sewer 80 
 
 Gutter ibid. 
 
 Ditch 81, 82 
 
 PW 82 
 
 PW ibid. 
 
 Stream 83 
 
 Facer e Pontes 86 
 
 Calcey 90 
 
 Ga 4* 9 f 
 
 Nova conftruere, & de novo conftruere, the difference 92, 
 
 93 
 F/'em <«»d Survey, and their difference 106 
 
 Frontage i\$ 
 
 S f Prefcrip- 
 
The TABLE 
 
 
 Prefcription and Cujiome 
 
 116 
 
 Refiantia 
 
 116,117 
 
 Tenements 
 
 139 
 
 Lands 
 
 ibid. 
 
 Purprejlnre and Nnfance, their difference 
 
 J 75 
 
 Amerciament 
 
 J 77 
 
 Traverfe 
 
 213 
 
 Exile 
 
 235 
 
 A Law 
 
 284, 285 
 
 Ordinance 
 
 ibid. 
 
 Decree 
 
 ibid. 
 
 Expofition of Sentences. 
 
 Ad ea qua? frequentius accidunt, jura adaptantur 82 
 
 Accefibrium fequitur fuum principale 158, 2 19 
 
 ExcelTus in re qualibet jure reprobatur commuoi 176 
 
 Verba aequivoca & in dubio pofita intelliguntur in dig- 
 
 niori & potentiori fenfu 248 
 
 Rerum progreffus oftendunt multa, quse in initio nee pra> 
 
 caveri aut praevideri poffunt 283 
 
 Qua* preter conluetudinem & morem majorum funt, neque 
 
 placenr, neque refta videntur 287 
 
 A 
 
 F. 
 
 Fairs and Markets. 
 R E not chargeable by the Laves of Servers. 1 38 
 
 Family. 
 
 Who are Members of one Family 238 
 
 A Ward is part of his Guardians Family ibid. 
 
 Farmer 3 
 
The TABLE. 
 
 Farmer ; See Stat. 13 Eliz. cap. p. 
 
 Fees. 
 
 c e . 'f 23H. 8. cap. 5. 
 ^ Stat 'i 3 & 4 E.6.cap.8. 
 
 Feoffment. 
 
 c Attornment. 
 bee \ Livery of feifin. 
 
 Ferry. 
 May be charged by the Laws of Sewers 137 
 
 / 
 
 2 J — 
 
 34 E. 3- cap. 1. 
 «See Stat. -^ 23 H. 8. cap. 5. it 
 
 3 Eliz. cap. 9. 
 
 
 What Courts may fine, and what not 169 
 
 Where the Commiffioners of Sewers may fine, and where not 
 
 170,171,174/0177 
 Where one is imprifoned, he may be fined 171 
 
 A Fine ought to be reafonable 171, 176 
 
 The remedy, if Commiffioners of Sewers impofe excejfive Fines 
 
 171,290 
 A Fine, its qualities 1 7 5, 1 76 
 
 Where the caufe of a Fine is traverfable, and where not 1 y6 
 Fines are to be affeffed, abated or increased in plena curia 
 
 ibid. 
 
 Where the fine fhall precede the imprifonment^ and where the 
 
 imprifonment the fine ibid. 
 
 S f 2 Lorn- 
 
The TABLE. 
 
 Commiffioners of Servers cannot levy a fine when impojed 
 
 ibid. 
 Where a man is to be fined for a nufance 268 
 
 Fines of Lands. 
 
 A fine and nonclaim by five years will bind a Corporation 
 Fifh-days ; See Stat. 5 Eliz. cap. 5. 
 
 Forfeiture. 
 C Penalty. 
 
 .,<*&*ire.*(k t *4 Cv ' a j9 t 43-^ o ) (23H.8. cap. 5. 
 ^J^ ^W*^J °"SStat.«{ 25 H. 8. cap. 10. 
 
 C C 1 3 Eliz. cap. 9. 
 
 A grant from the Crown of Lands forfeited for Treajbn, made 
 
 before the Statute which gives the forfeiture of intailed 
 
 Lands, fhall not extend to intailed Lands 60 
 
 Who may take advantage of the Forfeiture ofCopihold or other 
 
 EJiate, and who not yi, 72, 73 
 
 What Lands are not forfeited by a Premunire 207, 208 
 
 Intailed Lands forfeitable for Treafon 208 
 
 Where upon a fugam fecit found before the Coroner, the Party 
 
 fhall forfeit his Goods, though afterwards acquitted, 214 
 
 Forfeiture by a man exiled 236, 238 
 
 Where a man may forfeit for the fecond offence, before he is 
 
 convi&ed of the firjl offence 246, 247 
 
 Frank- marriage. 
 
 Five things incident to a Gift in Frank: marriage 158 
 
 What Gifts fliall be taken to be in Franl^marriage, and what 
 
 not 159, 160 
 
 By a Gift to the Heirs Males and Females of their Bodies in 
 
 Frmk^ marriage , the Heirs Jloall inherit fimul & femel as 
 
 Tenants 
 
The TABLE. 
 
 Tenants in common, and 'tis an EJitte Tail, and no Frank? 
 
 marriage ibid. 
 
 A Bajiard cannot inherit in Frank^marriage \6o 
 
 Freeman. 
 
 What Freeman may jit upon the Commifion of Sewers, and 
 What not 9, 237 to 240 
 
 Who is a Free- man of this Realm, and who not 234 
 
 How many ways a man may become a Freeman of a City or Bo- 
 rough 236, 237 
 Where a mans birth makes him free, and where not 237 
 The King could not make a man a Freeman of London, though 
 he can of the Kingdom 237 
 The Freedom which the fin had by birth, is not forfeited by 
 the Father's exilement 238 
 
 Frontage. 
 
 Where Frontage fhall tie a man to repair, and where not 115, 
 
 121,122 
 
 G. 
 
 Gernfey; See ; Iflands. 
 Goats. 
 23 H. 8. cap. 5. 
 
 T 
 
 5eeStat {3 2 Jac.*cap. 14. 
 
 HE ufe and ufefulnefs of them 91 
 
 New Goats may be made by the Commijjioners of Sewers 
 
 97, 98, 103 
 
 Goods. 
 
The TABLE. 
 
 Goods. 
 
 „ C Leafe. 
 See i Property. 
 
 Goods, Chattels and fioch^ joined with Land in writs of Af- 
 file, and Eje&iore Firms 228 
 
 No EJiate can be Made of them in remainder but they may pafs 
 as a dependancy upon a Farm 228 
 
 The ufe and occupation of Goods, devifable in Remainder 
 
 228, 229 
 
 Goods as Executor or Administrator, the Goods of the Church, 
 or of a Corporation, or the ufe or occupation of Goods, will 
 not enable a man to fit as a Commiffioner of Sewers 
 
 240 
 
 1/ fujjices, if the Commiffioner have Goods of his own in any 
 part of this Realm ibid. 
 
 Grants. 
 See Eftate. 
 
 A Count Palatine cannot Grant Lands in his County, but by 
 Record 3 1 
 
 Where the Grantee flmll have the fame advantages the Gran- 
 tor had, and where not 71,72 
 
 Grant of a Rent-charge by two Tenants in Common, how itfiall 
 be taken 3 1 1 
 
 Grants of the King. 
 
 See Forfeiture. 
 
 The King cannot grant Lands, but by Record 3 1 
 
 Whether Grounds before they are relinquifhed by the Sea, can 
 
 be granted by Charter from the Crown 5 Quaere .<? 53 
 
 Grounds. 
 
The TABLE. 
 
 Grounds. 
 
 The difference between Grounds gained front the Sea, and 
 Grounds left by the Sea 6 I, 61 
 
 What Grounds may be charged with repairs, &c. updn the Com- 
 mijjion of Sewers, and what not 1 35, 136, 222,123 
 
 Gutters. <b 6 — 
 
 „ < 22 H. 8. cap. 5. 
 ^ Stat 'i 3 Jac. cap. ,4 
 
 T 
 
 H 
 
 Habendum. 
 HE Force of it 159 
 
 Haven. 
 
 c f Ports. 
 
 ^tStat. 28 H. 8. cap. 15. 
 
 Heir. 
 
 Where defcending charges or Ajjets foall bind an Heir, and 
 
 where not 117,118,120 
 
 Where the Heir (hall be bound by the Covenant of hn Ance- 
 
 fior, and where not ibid. 
 
 Heirloome& 
 
 Have not defcending qualities, but go with and wait upon the 
 houje 228 
 
 Herbage, 
 
The TABLE. 
 
 Herbage. 
 
 Herbage of Grounds may be charged by the Laws of Sewers 
 
 "37 
 Hereditaments. 
 
 What Hereditaments will enable a man to be a Commiffioner of 
 Sewers t and what not 241, 242 
 
 High-ways. 
 
 See Repairs. 
 
 In whom the property of Highways is, and the punijhment of 
 htm who in damages them 74 
 
 Hundred. 
 
 Where a Hundred may be taxed or amerced 122 to 125 
 
 I. 
 
 Jerfey 3 See Iflands. 
 
 Impediments. *l$fr 
 
 1 H. 4. cap. 12. 
 J Stat. <^ 12 E. 4. cap. 7. 
 
 8. cap. 5. 
 Weres. 
 
 WHAT Impediments and Annoyances in Rivers and 
 Streams are to be overthrown, and what not, and 
 where the inlargement or excefi onely is to be abated z$6 
 
 to 265 
 In 
 
The TABLE. 
 
 In what cafe lets and impediments in Rivers , &c. are to be 
 maintained, and not deftroyed 366 
 
 Imprifonment. 
 
 The' liberty of a- maris^erfon, much favored in Law 1 68 
 
 Where Imprifonment is againji Magna Charta ibid. 
 
 Who may imprifon, and who not 1 68, 169 
 
 Where the Commiffioners of Sewers may imprifon, and where 
 
 170 to 177 
 not . ' ' ' 
 
 When a man is fined, he may be imprifoned 1 7 1, 1 76 
 
 Where a man may be imprifoned, quoufque finem fecerit, and 
 
 Where the imprifonment Jhall precede the fine, and where the 
 fine the imprifonment l ° id - 
 
 A man in the protection of a fuperiour Court, cannot be im- 
 prifoned by an inferiour Court *95 
 
 Indi&ment. 
 
 See Traverfc 
 
 Where an Indictment will not lie upon a penal Statute 249 
 
 Infant. 
 See Sale. 
 
 An Infant may be a Commiffioner of Sewers 253 
 
 An Infant Parfon or Prebendary full not for his nonage avoid 
 
 a Leafe made by him lbld - 
 
 Informer. 
 
 How within what time, and where an Informer muji fue up- 
 on a penal Statute 347. 2 4», 249 
 
 X t Inhabitant. 
 
The TABLE 
 
 Inhabitant. 
 
 A man maybe an Inhabitant , where he doth not perfonally re~ 
 fi de 239 
 
 Inquifition. 9j — ^^r^^«-fh>\iy&? 
 
 n \ Prefentment. 
 oe MStat. 23 H. 8. cap. 5. 
 
 What matters theCommiffwners of Sewers are to inquire of by a 
 3«V ic8, 109 
 
 Inrolment 3 See Bargain and Sale. 
 
 Jointenants. 
 
 See DiiTeifbr. 
 
 One Join ten ant may diffeife his companion 2 2 Q 
 
 A right may hold Joint enancy with a pojfeffwn ibid. 
 
 One Jointenancy may be built upon another ibid' 
 
 Two Jointenants, Tenants in Common, or Coparceners, muk 
 have Lands double forty Marks per Annum, or neither 
 of them can fit as a Commiffioner of Sewers 243, 242 
 
 Ifland?. 
 
 Jfland, what 
 
 Gernfey and Jer/ey not within England , nor governed by its 
 Laws jkjj 
 
 The King of Man a Viceroy onely under the King of England 
 
 Whether Man be parcel of the Realm of England? 40 44 
 
 In Man, Breve domini Regis non currit 4? 
 
 Wight part of Hampfhire, Sicily */ Italy, Spurnhead of 
 
 Yorkshire, and Silly of England, and how they became 
 
 parted from the Continent .. 
 
 44 
 
 A new 
 
The TABLE 
 
 A new I/land rifen up in the Englijh Seas is the King of En- 
 glands, and the Laws of England flail be there in force 
 
 45,47 
 
 But is neither within County !, Parijh or Town, till the King 
 
 hath fa declared it 45 
 
 Axholm and Sheppey, lflands within the Land ibid. 
 
 To whom new lflands which arife in great Rivers belong 45, 
 
 46 
 
 Iflues. 
 
 c '< Charge. 
 
 °^2Stat. 13EHZ. cap. 9. 
 
 Judgment. 
 
 The Judgment in an Ajfize of Nufance 268 
 
 The Judgment upon a Prefentment of a Nufance 268, 269 
 The Judgment in an ABion upon the cafe for a Nufance 269 
 
 Jurifdi&ion. 
 See King's Bench. 
 
 The Admiral's Jurifdidtion 40 See Admiralty. 
 
 In what caujes, and in what manner the Court of Sewers hath 
 Jurifdi&ion, and in what caufes not 217 to 220 
 
 The Court which hath Jurifdiftion of the principal matter, hath 
 Jurifditfion of that which deptnds thereon 219, 220 
 
 Jury Jurors. 
 See Inquifition. 
 
 Where a Juror may be fined 175 
 
 If a Juror have forty ffnllings per annum Freehold at the time 
 
 of his being impannel/ed, it is fitjficient, though he fell away 
 
 the Land before he be fworn 245 
 
 T t 2 Jufliccs. 
 
The TABLE 
 
 Juftices. 
 
 Jufiices of Oyer and Terminer, what they may hear and deter- 
 mine 217 
 An A&ion of debt lietb not before them ibid. 
 fuflices of Peace, See Stat. 34 E. 3. cap I. 13 Eliz, cap. 9. 
 
 Juftification. 
 See Stat. 23 H. 8. cap. 5. 
 
 How, and in what manner the Perfon who is fuedfor anything 
 done by vertue of the Laws of Sewers, may juflify 2 20, 221, 
 
 222 
 
 K. 
 
 King. 
 
 Freeman. * 
 n } Grants of the King. 
 See < Iflands. 
 
 Seas. 
 
 THE King's Lands Jtibje& to the Commijjion of Sewers 
 8,15,16,224 
 Hwaffent to the Decrees oftheCommiffioners, See Stat. 23 H.8. 
 
 cap. 5. 13 Eliz. cap. 9. 
 He cannot take or grant Lands, but by Record 3 1 
 
 Hk interejl and prerogative in and upon the Seas 39, 40, 
 
 4',44,45, i'5 
 
 Where Grounds left by or gained out of the Sea, belong to the 
 
 King, and where to the Frontager 42, 47 ta 53 
 
 Where an owner cannot be found, the King hath right 45 
 
 When 
 
The TABLE. 
 
 Where the Ki»g fiaU have the Lands of * man exiled, and 
 
 where not 
 
 King's Bench. 
 
 Tk Jnrifdimon of the Court ./King's BencW theCo^ 
 
 Labourers* See Stat. 23 H. 8. cap. 5. 1 p Raff*!*?* 
 /tievy etc fcv* fri*^ l> ■ *o —-J??* i*** P &itav f ? p 
 
 5 Alienation. 
 See \ Office. 
 
 Laws. vC»* A &h £&utf 4xfnr&> «<*<*«"*? if.* { 
 
 ^o, a ,P3H.8. cap. 5 . ? t 
 
 (, Stat -li3Eliz. cap. 9. 
 
 Where Lam, &c of Severs made by a difabled Cor4- 
 mitfiomrfiaBbevoid, and where not 19,244,254 
 i„tiauitv of the Laws of Sewers 2 ^aM' 2 \ 
 
 ItlTtftt bJmdZhHdfi*. ,t,U.r 9 f(M^ 
 
 Nature • . T 2 - 
 
 The Laws of Sewers are Prerogative Lairs > 
 
 Th TcommijTweers of Sewers may make Laws hkg <° M' <f 
 komny Marlh, Lere there have not been any Juch m»fi 
 
 The 
 
 J 
 
The TABLE. 
 
 The Commiffioners of Shewn have power jus facere 2 8r 
 
 What Lam they may ma^, and for what purpofes new Law] 
 
 are to he or darned by them 2 8 1 282 X 
 
 Sewers^*' C °" fiderabk in the m ^»g of new Laws of 
 
 The difference between a Law, Ordinance and Decree 284, 
 
 What Laws and Decrees made by the Commiffioners of Sewers 
 are reverfable, and what not f ™%q 
 
 See Charge. 
 T '&L^&Zt* andt ° ML f e *M* 
 
 Goods may be let with Land, or a Stock ^ithaptrm^ 
 
 A Leafi for years is no enablement of a man nl^lcol 
 ""ffioner ofShewers, but a difablement J Z 4 /* 
 
 Where a Leafe made by an Infant fi*B bind him , 111 
 
 L ^ fir years may lawfully abate a nnfance contrary toll 
 
 ^eU^d 1*4— J 259, 260 
 
 ' Level. 
 
 W %l h e 6 J:r liSt0be <*"*"""* ^of Sewers, md 
 
 TZSfc the Lev 1 " h0 *** * % ™*$*V£ 
 
 paid his principal, with interefi * J , f~ 
 
 Liberties. 
 See Privileges. 
 
 judged' Jl3aUmUxUndt0 »* ^purch, fed Lands, \ d . 
 
 • .52,60 
 
 Liberty j 
 
P,/*d v / The TABLE. 
 
 Liberty 5 See Imprifbnment. 
 Livery of leifin. 
 
 Livery of feifm, an ancient approved Ceremony of the Late 
 
 .31 
 How many ways it may be given ibid. 
 
 If the Feoffment contain hands in two Counties , actual Livery 
 in one County in the name of both will not pafs the Lands 
 in the other County 3 1, 3 2 
 
 Where the Rents, Services, Sec. of a Manor will pafs by At- 
 tornment before Livery of feifm of the Demeajhes, and 
 where not 3 2 
 
 Livery may be given of Lands in another County within the 
 
 view 33,33 
 
 The difference between Livery, and Livery of feifm 3 2 
 
 /* Livery within the view, all the particular Lands need not 
 
 be put in view 3 3 
 
 // may be made without any neceffity urging thereunto 3 4. 
 Who can neither give nor take by Livery within the view ibid. 
 Exprefs Livery may be given by Attorney ibid. 
 
 Whether Livery within the view can be made by Attorney 3 5, 
 
 36,38 
 An intellectual view will not ferve 3 5 
 
 If there be twoLeJfees, the remainder in fee to J. S. one of the 
 
 Leffces may take the Livery and Seifin 36 
 
 If a Letter of Attorney he made to two jointly to take Livery 
 
 and Seifin, one of them cannot take it ibid. 
 
 If a Leafe be made to A. for years, the remainder to B. in 
 
 fee, and A. dieth, his Executors may take Livery of feifm 
 
 ibid. 
 The Leffee for years who takes Livery, is more than a bare 
 
 Deputy ibid. 
 
 Whether the Livery may be made to the Leffee for years t within 
 
 the view 37, 38 
 
 London 5 
 
The TAB^E. 
 
 London ; See Stat. 3 Jac. cap. 14, 
 Lord 5 See Taxes. 
 
 T 
 
 M. 
 
 Man 3 See Iflands. 
 
 Manor. 
 
 HE Soil between the High-water and Low- water Mark^ 
 may be parcel of the Manor of a Subje& 49 
 
 Market ; See Fairs. 
 
 Mill. 
 See Stat. 23 H. 8. cap. 5. 
 
 If the Commifioners of Sewers order J. S. to repair the F loud- 
 gates belonging to his Mill, they need not exprefs what E- 
 Jiate he hath in the Mill, nor fliall it he intended a Mill be- 
 fore the time ofE. 1. 261 
 
 Every owner of a Mill ought to repair the E 'loud-gates ', what- 
 ever EJiate he hath in the Mill ibid. 
 
 Milfiankj See Decree. 
 
 Mines. 
 
 Why a SubjeB fball not have the Silver Mines in his Grounds 
 
 48 
 
 Mortgage. 
 
 The Mortgagor not chargeable by the Laws of Sewers 138 
 
 Mortmain 3 
 
The TABLE 
 
 Mortmain j See Decree. 
 Moveables. 
 
 Moveable fubjiance to what it extends 239, 240 
 
 A 
 
 Nomine poens. 
 
 Nomine poena? will not enable a man to jit as a Com- 
 fftijjioner of Sewers 242 
 
 Non compos Mentis ; See Sale. 
 Nonluit 5 See Amerciament. 
 
 Nulance. I 
 
 See 4 
 
 Amerciament. 
 
 Stat 1 2 E. 4. cap. 7. 
 
 Who may or ought to abate or reform a Nufince 259, 260, 
 
 267, 268, 269 
 What Nufances are within the Conufance of the Commijfioners 
 
 af Sewers, and what not 267, 268 
 
 The fever al judgments in Cafes of Nufances ' 268,269 
 
 Where a man [hall be fined, and where onely amerced for a 
 
 Nufance 267, 268, 269 
 
 o 
 
 o. 
 
 Oath. 
 
 A TH to be taken by the Commijfioners of Sewers 5 See 
 Stat. 23 H. 8. cap. 5. and 25 H. 8. cap. 10. 
 
 U u Obliga- 
 
The TABLE. 
 
 Obligation. 
 
 Obligations not held valuable, but things in a&ion 240 
 
 An Obligation by a Mayor and Commonalty, Dean and Chap- 
 ter, or Abbat and Covent , Jhall not be avoided for the 
 nonage of the Mayor, Dean or Abbat 253 
 
 Office and Officers. 
 See Annuity. 
 
 What Offices are not chargeable by the Laws of Servers 138 
 
 To what Offices Land may belong 156 
 Officers of Sewers 5 See Stat. 23 H. 8. cap. 5. 
 
 Where an Officer of Sewers may be fined or imprifoned 174, 
 
 An Office will not enable a man to fit as a Commiffioner of 
 Sewers 241 
 
 But Lands belonging to an Office will 244 
 
 Women capable of Offices, to be exercifed by a Deputy 252 
 
 Order. 
 
 Order of the Council- table, about the execution of the Commif- 
 fion of Sewers 98 to 102 
 
 Orders of the Commiffwners of Sewers, quafbed for divers 
 de fells 291 
 
 Ordinances. 
 
 C Laws. 
 
 C.^ at, li3 Eliz. cap. 9. 
 Outlawry; See Traverfe. 
 OwnerQiip. 
 Where owner/hip pall tie a man to repair, and where not 1 1 5 
 
 121, 
 
 Parce- 
 
p 
 
 The TABLE. 
 P. 
 
 Parceners ; See Jointenants. 
 Park. 
 Ark? are chargeable by the Laws of Sewers 138 
 
 Paflage. 
 
 What Per/bus who have Pajfage for their Boats on a River 
 are chargeable by the Laws of Sewers , and what not 
 
 137 
 Patron. 
 
 The Patron not chargeable by the Laws of Sewers, for his right 
 of prefentation or nomination 139 
 
 Penalty. 
 See Stat.^ 
 
 ^23 H. 8. cap. 5. 
 
 t.< 25 H. 8. cap. 10. 
 
 (. 1 3 Eliz. cap. 9. 
 
 cap. 9. 
 
 The Penalty for a CommiJJioner of Sewers to Jit, who is unqua- 
 lified 8, 9, 233, 234, 246 
 
 Where a Penalty appointed by a Statute^ fhall be recovered by 
 that means onely which the Statute appoints 249 
 
 Penalty for re levying , inhauncing or continuing Weres , &c. 
 
 256,257,259,267 
 
 Plea. 
 
 How the Defendant may plead in juflification of any act 
 done by vertue of the Commijfion of Sewers 9, 10, 220, 
 
 221, 222 
 U u 2 The 
 
• The TABLE. 
 
 The Party grieved by the Commijjioners of Sewers , may dis- 
 charge himfelf by Plea 1 67 
 
 In all cafes ; where the Party cannot have a Writ of Error, or 
 Audita Querela, he may difcharge himfelf by Plea ibid. 
 
 The time of taking the diflrefs t is matter of fubfiance 22 r, 
 
 22 2 
 
 Ponds -j See Stat. 23 H. 8. cap. 5. 
 Pools; See Stat. 23 H. 8. cap. 5, 
 Port.. • 
 
 „ YCinque-Port3. 
 ^ e tStat. 4H.4, cap. 20. 
 
 4. cap. 
 
 A Port is always graced with Legal Privileges 58 See Mag. 
 
 Char. cap. $j 
 The whole Countrey is bound to the repair of Ports and Havens 
 
 148,149 
 
 Poffibility ; See Condition. 
 
 Praemunire. 
 
 A Praemunire brought again jl a Commiffioner of Sewers 173 
 What hands are not forfeited by a Praemunire 207,208 
 
 Preface. 
 
 
 The Anthonys Preface 
 
 2Ij &C. 
 
 Prerogative. 
 
 
 f Iflands. 
 See < King. 
 CLaws. 
 
 
 The King's Prerogatives, upon the Seas 
 
 39i 40,41* 
 
 
 Prefcrip- 
 
The TABLE. 
 
 Prefcription. 
 
 What things a Subje£t may claim by Prefcription, and what 
 
 not 
 The difference between Prefcription and Cufiome ll6 
 
 Where Preoption Jhall tie one to repair, and where not ibid. 
 Be who abound by Prefcription to repair, n bound to doe tt 
 
 Prefcription in a modus decimandi good, though not in anon 
 
 decimando ',' 
 
 Preferment. 
 
 c Judgment. 
 •^^Traverfe. 
 
 A Preferment at a Court of Sewers, quafied for fever al fa 
 
 ptlfentments at a Court of Sewers mufi be by the Oathsjf 
 twelve men, and not a lefs number i&ia. 
 
 ApZZent certified to be per folium fifom* 
 generally, wit hoJ faying twelve men adjudged \S ibid 
 
 A Surveyor of Sewers may make a fupplemental, but not^an 
 
 H^n^TZ traverfahle, for the f.aU efleemth* 
 
 A PKjlnlLftl repair ravione tenure without ment£ 
 ^C^s^re^ther remedy to compeUtheTen^ 
 
 A f Prefentment before Commoners of Oyer and Terminer 
 
 AlTJmenUhat a Were was inhaunced, without faying \n 
 quanto, or in qua parte, defective ™* 
 
 Pitvi- 
 
The TABLE 
 
 Privilege?. 
 
 Privileges and Liberties confined to a certain Freeing cannot 
 be inlarged beyond the ancient bounds, although the Pre- 
 cinft be inlarged - / 
 
 Procefs j See Stat. 23 H. 8. cap. 5. 
 
 Property. 
 
 Who hath the Property in the Sea, Sea-Jhore and Rivers 39i 
 
 n'fJu»*Lt .l r j , 4 !>i5, 54>55,77,78,U5 
 
 UJ what things the Common-law hath fixed no property jQ yg 
 
 How many ways the property of a man's Goods may be altlred 
 without his confent ,gg 
 
 The property of Goods or Stock, leafed with a Farm remains in 
 tfcLefir 22g 
 
 Proxies. 
 
 Not chargeable by the Laws of Sewers jog 
 
 Publick fafety. 
 To be preferred before private refpetts or interefi I03 
 
 Purprefture. 
 A Purprejittre isfineable, and where it may be committed 174 
 
 0: 
 
 Qualifications. 
 
 *~T* HE Vilifications reauiftteinaCommiffionerofSewers 
 ■*■ 9, 233 to 253 
 
 Reading?, 
 
A 
 
 The TABLE. 
 
 R. 
 
 Readings. 
 
 Summary of the firji four days Readings 2 74 to 2 8 1 
 
 Recovery. 
 See Stat. 21 H. 8. cap. 15. 
 
 Common Recovery, the force of it 207 
 
 Redifleifin. 
 
 Will not lie , but on the firfi Ejlate, and again fi the firfi 
 Parties 7 2 
 
 Releafe. 
 
 Where, if there be two Diffeifors, and the Dijffeifee releafe to 
 one of them, he ffiaU hold his Companion out of all, and 
 ■where not, but the Releafe (hall enure to both 230,231,232 
 
 If the Diffeifors mak$ a leafe for life or years, and the Dif- 
 feifee releafe to one of them, the releafe fhall enure to both 
 
 231 
 
 If the releafe be to one of the Diffeifors upon condition, and the 
 condition be broken, yet the other Diffeifor (who was ex- 
 pelled by the releafe ) is not thereby admitted to become a 
 Copartner again with his Fellow- diffeifor 232 
 
 Where the breach offuch condition fliaU reduce the foffeffion to 
 the Relefor ibid, 
 
 c j Devhe. 
 bee I Reveifion. 
 
 How Goods and Chattels may be devifed in remainder 228, 
 
 229 
 Rent. 
 
The TABLE. 
 
 Rent. 
 
 What Rents are fejfable by the Laws of Sewers 140 
 
 Where a Rent-charge granted by two Tenants in common, jhall 
 
 double 2 1 r 
 
 Where a Rent will enable a man to be aCommiffioner of Sewers, 
 
 and where not 242 
 
 Repairs. 
 
 „ c Level. 
 
 0<?<? 1Stat. 43EHZ. cap. 4. 
 
 Where he who the Jury finds is bound to repair a Bank., &c. 
 decayed by the Sea, muji firji repair it, before he be ad- 
 mitted to make his defence I o 
 
 For what caufes one jhall be tied to the repairing and keeping 
 of Defaces again ft the Sea, and Frejli- waters 114 to 122 
 
 Who is bound to repair a High-way j 1 5 
 
 Prefcription for every Occupier to maintain or repair a Defence, 
 ill . ri 6 
 
 Where the Feoffee or Donee, his Heirs or Succefours and Af- 
 figns Jhall be bound to repair in perpetuity \\j 
 
 Who Jhall be bound by a Covenant to repair a Sea-wall, &c. 
 and who may be compelled thereunto by the Commijjioners 
 and who not ! I g 1 j g 
 
 With what repairs a. County , Townjhip or Hundred may be 
 
 u;°L harged 123, 124 
 
 Where high Grounds may be charged with repairs of Sea-walls 
 &c. and where not 136,222,225 
 
 To what repairs the Lfjfor, and io,what tJie.LeJfee is 'Jkbupf 
 _ 140 to 144 
 
 To what repairs the Level is liable, and to what not 144 
 
 r to 148 
 
 Covenant to repair, where broken, and where not ia6 
 
 Whoare bound to the repair of Ports and Havens 148, 149 . 
 A Preferment to repair, where necejfary 183 
 
 How. 
 
 
The TABLE. 
 
 How, and by whom Lands may be bound to perpetual repairs 
 
 201, 202 
 Who ought to repair the Floudgates of a Mill 261 
 
 Repeal. 
 
 What Laws and Decrees of the Commifftoners of Sewers, may 
 be repealed, and what not 283 
 
 Replevin. 
 See Stat. W. 2. cap. 2. 
 
 Where a Replevin upon a Diflrefs taken by virtue of the Laws 
 of Sewers can iffue out of the King's Courts onely , and 
 where it may be granted by the Sheriff', and where not 
 
 195/0 200 
 
 Where a fecond Replevin did lie 195 
 
 If a rent be granted with Dijirefs againji gages and pledges, 
 yet the Dijirefs is replevi fable 198,200 
 
 If a Dijirefs be taken and fold for a fefs of Sewers, a Reple- 
 vin lieth again fl the bu, er 199 
 
 A Replevin from the Sheriff lieth for a Dijirefs taken by a 
 Lord on his Tenant, for not repairing a worl^ of Sewers 
 
 200 
 
 Goods taken upon a diftringas ad reparandum upon a Judg- 
 ment or Decree, are irreplevi fable ibid. 
 
 Refiancy, Residence. 
 
 What Re fancy that it, which is required in a Commiffioner of 
 Sewers, who is a Freeman 238, 239 
 
 What Refidence is required in a Parjdn or Vicar 239 
 
 X x Return. 
 
The TABLE. 
 
 Return. 
 
 r Action upon the Gafe. 
 See < Sheriff. 
 
 (. Stat. 1 3 Eliz. cap. 9. 
 
 Return to a Mandamus, or upon a Habeas Corpus, not tro- 
 ver fable 214, 215 
 
 The Return of the Commiffioners of Servers denied to be amen- 
 de d t and why 291 
 
 Reverfal ; See Decree. 
 Reverfion. 
 
 The Reverfion or Remainder man depending upon an Eftate 
 
 Tail, not feffabk by the Laws of Sewers 140 
 
 But otherwije it is of a Reverfion or Remainder depending upon 
 
 an Eftate for life or years 141, 142, 143, 150 
 
 Dry Reversions or Remainders depending upon Efiates for 
 
 lives, mil not enable a man to be a Commiffioner of Sewers 
 
 241 
 Revocation. 
 
 Where a power of Revocation may be transferred to another 
 Perfon, and where not 55 
 
 See 
 
 River. 
 C Commiffioners. 
 
 C tat, 1 19 H. 7. cap. 18. 
 
 The increafement of a River , to whom it fhall belong 5 1 
 Rivers twofold, and to whom they and the Soil belong, and 
 
 who fhall have the Pifcary 77, 78, 115 
 
 What Rivers are within the Statutes of Sewers, and in what 
 
 cafes the Commiffioners may deal therein 79, 84 to 87, 270 
 
 A3s 
 
The TABLE 
 
 Aftt of Parliament for bringing of the New-river to London 
 
 A new River may be made by the Commifjioners of Servers 96, 
 
 97, 103, 104 
 
 Sir Edward Cokes's opinion to the contrary 93, 94 
 
 Such a River may be made by them, without the Writ Ad quod 
 
 damnum 97 
 
 Several Statutes to make Rivers navigable 270 
 
 S. 
 
 Sale. 
 
 „ f Decree. 
 
 ^>Star. 23 H. 8. cap. 5. 
 
 WHere and in what cafes Goods dijlrained upon the 
 Laws of Sewers or for other caufe, may be fold and 
 
 where not 189 to 193 
 
 Where in a Recovery of Debt or damages , the Goods of the 
 
 Debtor cannot be fold 1 90 
 
 Goods dijlrained cannot be fold by the Laws of Sewers with- 
 out a fpecial Warrant 192 
 The Goods of a (ir anger cannot be fold by the Laws of Sewers 
 
 192, 193 
 For what caufes Lands may be fold by the Commiffioners of 
 
 Sewers, and where not 204, 205 
 
 Where on a charge originally laid on a Town/hip, Hundred, &c. 
 
 Lands may be fold, and where not 205 
 
 No Sale of Lands can be made, but where there is a Perfon 
 
 certainly affeffed by name 205 
 
 What Lands may be fold by the Commiffioners of Sewers, and 
 
 whatnot 205 f<? 2iz, 288 
 
 No Lands can be fold away, but f itch as were charged with the 
 
 Sefs 206 
 
 A Copiholders Land cannot be fold, nor the Freehold offuch 
 
 Land but Rents of Affize may 134,206 
 
 X x 2 Lntaikd 
 
The TABLE 
 
 lntailed Lands may be fold by the Commifftoners of Sewers 
 
 208, 209 
 The Lands of a Prebend, Parfon, Vicar, Dean, Bijhop, &c. 
 
 cannot be fold by the Commifftoners of Sewers 209 
 
 But the Lands of a Corporation, Feme Covert, Infant, non 
 
 Compos Mentis, &c. may 209,210 
 
 Neither the whole, nor moiety of the Lands of two Tenants 
 
 in common can be fold, for the refufal of one of them to 
 
 pay hk moiety of the Ajfejfment 212 
 
 Sea. 
 
 r Laws. 
 
 \ f 18 E. 3. cap. 3. 
 
 See< \S t *tJ ^R- 2 - "P. 5- 
 P tat \3iR. 6. cap. 4. 
 
 v / 28 H. 8. cap. 15. 
 v. r > 
 
 The Sea within the Realm of England 39, 40, 41 
 
 The Kings intereji and prerogative in and upon tht Seas 39, 
 
 40, 4 I ,44»45 v >i5 
 Grounds left by or gained out of the Sea belong to the King, 
 
 and afubjecJ cannot have them beyond the Low-water Marki 
 
 by Cuflome or Prefcription 42, 47 to 53 
 
 Subje&s may have by Cuflome or Prefcription Perfonal Profit r 
 
 on the Sea 48, 49 
 
 The Soil whereon the Sea flows and reflows, may he parcel of 
 
 the Manor of a Subject 49 
 
 What Grounds fhall he /aid to be left by, or gained out of the 
 
 Sea 50, 51 
 
 They fhall be taken to be of the County and Parifh whereto they 
 
 adjoin 5 1 
 
 V/here the Sea overflows Land for fever al years, and then goes 
 
 back* who fhall have the Soil 5 jl # 52 
 
 The King grants Grounds before the Sea relinquifbes them 5 
 
 Q_ta?re, if good? 53 
 
 Diver ((ty between Grounds left by the Sea 7 andGrounds gained 
 
 from the Sea. 6 1 
 
 Sea-banks 5 
 
The TABLE' 
 
 Sea- banks; See Banks. 
 
 Sea- walls ; See Walls. 
 
 Second Deliverance; See W. a. cap. 2. 
 
 Services. 
 
 Will not enable a man to be a Commifftoner of Sewers 242 
 
 Sewers. 
 
 • 23 R 8. cap. f. 
 \ 25 H. 8. cap. 10. 
 See Stat. < 3 & 4 E. 6. cap. 8. 
 J 1 3 Eliz. cap. 9. 
 V3 Jac. cap. 14. 
 
 The Antiquity of the Laws of Sewers tb$. 23, 24, 25, 16 f 
 The Court of Sewers a member of the Ancient Court of Oyer 
 and Terminer 166 
 
 A Bill of Rever/al lieth in the Court of Sewers 2 1 7* 
 
 The jurifdittion of the Court of Sewers 217 to 2 2o 
 
 For the refi relating to Sewers, See under their proper Heads,. 
 
 Sheppey; See Iflands. 
 
 Sheriff. 
 
 See Stat. 23 H. 8. cap. 5, 
 
 Where a Sheriff may be fined 1 7 5; 
 
 Where the Sheriff may grant a Replevin, and where not 195 
 
 to 200 
 No Averment to be taken againji a Sheriff's return 215 
 
 Shore. 
 Who hath the property, and who the ufe thereof 54, 55, 115 
 
 Sicily 3 
 
The TABLE 
 
 Sicily ; See Iflands. 
 
 Silly 5 &* Wands. 
 
 Soil. 
 
 n c Rivers. 
 See isea. 
 
 Spiritual Perfons. 
 
 „ c Ecclefiaftical Perfons. 
 " ee i Mag. Char. cap. 14. 
 
 Springs 5 See Stat. 23 H. 8. cap. 5. 
 
 Spurnhead ; See Iflands. 
 
 Statute, &<? Defeafance. 
 
 Statutes. 
 
 The Commiffioners of Servers power to make Statutes 4, 5, 7 
 Where the Judges have expounded a Statute by the Title 26 
 The Statute Laws are in force on the Seas 40, 42 
 
 A general Statute unjlinted and unbounded, fiall extend to 
 Wales 46 
 
 Expojitors of Statutes are not tied to Titles and Preambles 50 
 
 60 
 The difference between a Statute repealed, and a Statute ex- 
 pired 95 
 Statutes fhall be expounded according to the meaning, and 
 not the letter 96 
 What Statutes extend to Copiholds, and what not 135, 1 34 
 How promifcuous words in a Statute fiali be marfhalled and 
 expounded 170 
 What Statutes extend to int ailed hands, and what not 207 
 
 208 
 Venal Statute, See Indittment, Stat. 31 Eliz. cap. 5. 
 
 
 A penal 
 
The TABLE. 
 
 A penal Statute k to be Jlri8ly taken for the King, and fa- 
 vourably for the SttbjeS 209 
 Several Statutes for abating private Weres 261 , 26 2 
 Several Statutes to make Rivers and Streams navigable 270 
 
 Magna Charta. 
 Cap. p. Liberties. 
 
 The Liberties and free Cujioms of Ports confirmed 58 
 
 Cap. 14. Amerciaments. 
 
 An Amerciament mufi be impofed by prejentment of good and 
 law full men upon their Oaths 1 09, no, 177, 179 
 
 A fpiritual perfon Jhall not be amerced according to his fpiri- 
 tual living 129 
 
 The Writ of Moderata mifericordia grounded upon this Law 
 
 »77 
 An Amerciament ought to be according to the offence ibid. 
 
 What is meant there by Freeman 234. 
 
 Cap. 15. Banks and Bridges. 
 
 The firjl Statute of Sewers, and Bridges 25, 85 
 
 Facere there, is to he conjirued Reparare, or Manutenere 
 
 86 
 Whether it be repealed, or extends onely to Bridges ere&ed be- 
 fore ibid. 
 Implies that a Townfoip may be bound to repair Bridges 123, 
 
 124 
 
 Cap. 16. Banks. 
 
 Makes much againfi ereSing of new Banks, if it be in force 
 
 93 
 Cap. 23. Weres. 
 
 What Weres were to be put down by this Statute 255, 256 
 
 The 
 
The TABLE. 
 
 The generality of this Statute is refrained by the fucceeding 
 Statutes about Weres 258 260 
 
 Cap. 29. Imprifonment, &c. 
 What Imprifonment is again ft this Statute \&% 
 
 Anno 4 E. 1. Extenta Manerii. 
 The office of a Surveyor defcribed ! £ 
 
 Anno 1 1 E. 1. A&on Burnel. 
 
 Copt holds cannot be extended upon this Statute 134 
 
 Intailed Lands not extendable by this Statute 208 
 
 Anno 12 E. 1. Statuta Walliae. 
 Wales made parcel of England thereby 43 
 
 W. 2. Anno 13 E. 1. 
 €ap. 1. De donis conditionalibus. 
 
 Extends not to gifts made before the Statute 5 g 
 
 What things are intailable within this Statute, and what not 
 
 A Baftard cannot inherit by force of this Statute 161 162 
 
 162 
 
 The general words of the Stat, of 16K. 2. cap. 5. of Pre- 
 munire do not repeal this Statute 207 208 
 
 Cap. 2. Replevin. 
 By this Statute the fecond deliverance is to be awarded out 
 of the Rolls of the Court whence the Retorno habendo came 
 
 195 
 Cap. 18. Elegit. 
 
 Copiholds cannot be put in execution upon this Statute 124 
 Intailed Lands not extendable by thk Statute 208 
 
 Cap. 35. 
 
The TABLE. 
 
 Cap. 35. Wards 5 See Abjuration. 
 Anno 13 E. 1. De Mercatoribus. 
 
 Copiholds cannot be extended upon this Statute 1 34 
 
 Intailed Lands not extendable by this Statute 20« 
 
 Anno 13 E. 1. Of W'mchefter. 
 A Townjhip Jbatt be amerced for the efcape of a Robber 1 24 
 No remedy for 300 years, for him whofe goods were takgn in 
 execution upon this Statute, to have contribution 1 2 5 
 
 Anno 31E.1. Gap. 7. Butchers 5 See Abjuration. 
 
 Anno 1 7 E. 2. Gap. 1 1. Prerogativa Regis. 
 
 The King's Prerogative upon the Seas 4° 
 
 Anno 18 E. 3. Cap. 3. Sea. 
 
 The Sea fhall be open to all grangers 40 
 
 Anno 25 E. 3. Cap. 4. Weres. 
 
 See Weres. 
 
 Anno 27 E. 3. Cap. 1. Praemunire. 
 
 A Praemunire brought upon this Statute againji a Commijjioner 
 of Servers *73 
 
 Anno 34 E. 3. Gap. 1. Juftices of Peace. 
 Fines fet by Jufiices of Peace Jhall be reafonable 1 7 6 
 
 Anno 45 E. 3. Cap. 2. Weres. 
 
 See Weres. 
 Anno 13 R. 2. Gap. 5. Admiralty. 
 
 Doth not imply that the Seas are not within the Realm 42 
 
 y y Anno 
 
The TABLE. 
 
 Anno \6 K. 2. Cap. 5. Praemunire. 
 Int ailed Lands not forfeitable by this Statute 207 20S 
 
 Anno 1H.4. Cap. 12. Were?. 
 Provides for the paffage of Ships and Boats in great Rivers 
 
 Gives aTraverfe to the Party grieved ,*- „ , ?6 
 
 "'tut "'"S'i A "°rr< **** « & &£ 
 
 JIuU be correffed or pulled down **vers 
 
 Who ftull pull down or amend them * S7i 2S 
 
 ™^z:^* *****> ?i**. ***«<»«" 
 
 E T/rJ° fH i h W f res rJ ^dinsents onely, as IVrl^erel 
 ted before the reign of King E. ..- and which have been in 
 haunced and exalted face "' 
 
 Anno 4 H. 4. Cap. u. Weres. 
 
 Two things there mentioned, which none of the former Sta 
 tutes took order for J ' 0fa ' 
 
 : 258 
 
 Cap. 20. Ship?. 
 Puts a difference between a Port and a Creek 
 Thereafon why it appoints merchandises to be charged aid 
 at/charged at great Ports 6 .7? f 
 
 ibid. 
 
 Anno 6 H. 6. Cap. 5. Sewer?. 
 See Cotrimiffion 
 
 Calceys mentioned therein 3 ? 
 
 The n C e:t$Z7 ° fSemrt h « d t°™hthis Statute tom% 
 Though expired, jet worthy imitation ih ?j> 
 
 Anno 
 
The TABLE 
 
 Anno 18 H. 6. Cap. u. Juftices of Peace. 
 
 A Juflice of Peace not hiving Lands fujficient /hall be pu- 
 mped the way the Statute appoints , and not by Inditi ment 
 
 349 
 
 Anno 31 H. 6. Cap. 4. Aliens. 
 
 The Kings Subjects fliall not attach upon the Sea any Stran- 
 ger in amity with this Realm 40 
 
 Anno 1 2 E. 4. Cap. 7. Weres. 
 
 Confirms all former Statutes again fi Lets , Impediments and 
 Annoyances 258 
 
 The Penalty for not amending or breaking down, or for cont inn- 
 ing Weres, &c levied, inhaunced, &c. contrary to the Sta- 
 tute of 1. H. 4. Cap. 12. 259, 267 
 
 Extends to Rivers and Streams not navigable, which the for- 
 mer Statutes did not ibid. 
 
 Lejffee for years is within this Statute , and may lawfully 
 abate any fuch nufance, and be punijhed for the continuance 
 of it 259,260 
 
 Anno 1 R. 3. Cap. 1. Ufes. 
 
 The promifcuom words thereof, how to be conjlrued 1 70 
 
 Anno 4 H. 7. Cap. 15. Thames. 
 Thames termed a River yy 
 
 Cap. 24. Fines. 
 
 A Corporation bound by a Fine and nonclaim by five years 
 
 209 
 
 Infants , Idiots , and Women Covert had been bound by this 
 
 Statute, had they not been excepted 2 1 o 
 
 Anno 1 9 H. 7. Cap. 18. Severn. 
 Severn termed a. River yy 
 
 Y y 2 Anno 
 
The TABLE 
 
 Anno 6 H. 8. Cap. io. Sewers! 
 
 A Commiffion of Servers directed to any Perfon not qualified, 
 
 was void by this Statute 254 
 
 Expired, and not revived by 23 H. 8. cap. 5. ibid. 
 
 Anno 21 H. 8. Cap. 1 5. Recoveries. 
 
 Tenant for years, though there were neither Fine nor Income, 
 miy falfify a Common Recovery 59 
 
 Anno 22 H. 8. Cap. 5. Bridge?. 
 
 Seems to oppofe Magna Charta Cap. 1 5. 86 
 
 What Bridges are within this Statute, and what not 86, 87, 
 
 89 
 
 Extends to the repairing and amending of Bridges, but not to 
 the making of new 89 
 
 Gives authority to Jujlices of Peace to charge a County , Hun- 
 dred or Town with the repair of Bridges 124 
 
 Anno 23 H. 8. cap. 5. Sewers. 
 See Commiffion, Coramiffioners. 
 
 The reafons of making this Statute I 
 
 Commijfions of Sewers fhaU be directed in all parts within the 
 
 Realm I, 2 
 
 The form of the Commiffion of Sewers 1 to 6 
 
 The Caufes af awarding fuck Commiffion 2 
 
 Inquiry by tvhofe default the Annoyances come 3 
 
 Affifjing the Perfons to be contributory to the Charge ibid. 
 Reforming the Annoyances and Impediments 3, 4 
 
 Deputing of officers, and auditing their accompts 4 
 
 Dijlr. lifting for arrearages of the money affeffed 4 
 
 Punifhing by Fines, Amerciaments, Diflrefs, &e. 4, 5 
 
 Tahjng of Labourers, Workmen, Carriages, Wood, Timber, 
 
 and other neceffaries x 
 
 Making of Laws, Statutes, Ordinances and Decrees 4, 5, 7 
 Power to hear and determine 5 
 
 Awarding 
 
The TABLE. 
 
 Awarding of Writs and other Procefs to Officers ibid* 
 
 Power to furvey ibid* 
 
 Sheriffs to return Juries 6 
 
 All Officers JhaB be attendant upon the Commijjioners of Sewers 
 
 ibid. 
 The Oath to be tahgn by the Commijjioners of Sewers, and be- 
 fore whom 6, 7 
 Confirms all former Statutes of Sewers, and authorizes the 
 Commijjioners to doe according to the tenor and effcft of 
 the [aid Statutes 7>95 
 The Commijjioners of Sewers may decree Lands, &c. from 
 the Owner, who doth not pay hk ajfefment y, 8 
 Their Decree jliall bind the King's, and all other mens hands 8 
 The penalty on the Commijfwner who Jits, being unfieorn, or 
 unqualified 8,9,233,234,246 
 Commijftoners of Sewers, how to be qualified 9 
 How the Defendant may jujiify, by force of this A& 9, 10, 
 
 221, 222 
 
 Treble damages to be recovered, by him that is fined 10 
 
 Wages for the Commijjioners and Officers of Sewers ibid. 
 
 In what manner Commijjions of Sewers for the Dutchy of Lan- 
 cafter, Wales, and Counties Palatine /hall be awarded^ 
 and who Jhall name the Commijjioners 10 to 13 
 
 The Fees to be paid for the Commifions of Servers 1 1 
 
 A Commijfion of Sewers by virtue of this A& JhaB endure three 
 years 1 1. See the Statute 3 & 4 E. 6. cap. 8. and 13 Eliz. 
 cap. 9. 
 
 Superfedeas of a Commijfion of Sewers ibid. 
 
 How long the Laws, Decrees, Ordinances, Sec. of the Com- 
 mijfwners of Sewers jhall be in force 12,286. See the Sta- 
 tute 13 Eliz. cap. 9. 
 
 The Kings Royal Ajfent, where netejjary and whither to- be 
 certified 12, 213, 286. See the Statute 13 Eliz. cap* 9. 
 
 What Pees jhall be paid for fuch Certificate 1 2 
 
 Made perpetual by the Statute 3 8c 4 E. 6. cap. 8. 13, 23. 
 
 The caufes wherefore the Authottr made choice to reade upon 
 this Statute 2?, 3& 
 
 The 
 
The TABLE 
 
 The extent of this Statute 86,27,42,46,47,58/062,129 
 
 The neceffary 11 fe of this Law ^j 
 
 The divifion thereof into fever al pari 'r 28, 29, 63, 64 
 
 Extendi not to reform the hurt and mifance arijing front the 
 Sand, driven by the Sea to Land 47, 269, 270 
 
 Private Ban/{s and Walls are not within this Statute j6 
 
 What Rivers are within this Statute, and in what cafes the 
 Commiffioners may deal therein 79, 84, to 87, 270 
 
 What Sewers , Gutters, Ditches, Pools, Ponds, Streams, 
 Springs, Waters, Bridges, Calceys and Goats are within 
 this Statute, and what not , and how the Commiffioners 
 may deal therein 80 to 91, 270 
 
 Seems to oppofe Mag. Char. cap. 15. of Bridges 86 
 
 New-invented MiUs or other Engines, though not to be erecJed 
 by the power of this Law, yet when once ere&ed and found 
 beneficial, may be continued and maintained by the Autho- 
 rity thereof 91 
 
 New Walls, Btnl{s, and other Defences, and new River s, 
 Streams, Cuts, Drains and Goats may be made by force of 
 this Statute 94 to 104 
 
 Some Opinions to the contrary 95, 94, 104. 
 
 What Poffeffions or Revenues of the Clergy may be charged by 
 this Law 131, 132 
 
 All proceedings upon the Commijfion of Sewers ought to be in 
 Englifl) 1 66 
 
 How thofe words in the Statute (That ye compell them by Di- 
 flrefs , Fines , Amerciaments , and by other puniffiments , 
 way* or means) are to be conjirued 169, 170 
 
 By what words in this Statute the Commiffioners of Sewers 
 have power to fell the Goods of the Offender 1 90, 191 
 
 To what Replevins, and out of what Courts the words ( A- 
 vowry, Cognizance, &c. ) extend 194, 195, 197 to 200 
 
 The firfi and onely Law which gives fale of Lands in cafes of 
 Sewers 203 
 
 The Profecutor upon this Statute cannot fue by Bill 247 
 
 Within what time, where, and how he muji fue 247, 248, 
 
 249 
 The 
 
The TABLE. 
 
 The fever al forts of Impediments and Annoyances mentioned 
 in this Statute 25c 
 
 The Statutes and Ordinances made before this Statute, and 
 confirmed thereby, are intended ofAQs of Parliament, and 
 not of Laves or Ordinances made by the Commijjioners of 
 Sewers 285 
 
 Anno 25 H. 8. Cap. 10. Sewers. 
 
 The Statute 23 H. 8. cap. 5. of Sewers to extend to the Town 
 and Marches 0/Callis \± 
 
 No CommiJJioner bound to travel out of the County where he- 
 dwells 14 
 
 The forfeiture of a CommiJJioner refujing to be fworn 1 4, 1 5 
 
 Anno 26 H. 8. Cap. 3. Firft-fruits and Tenths. 
 
 Tenths formerly payable to the Pope, now payable to the King 
 
 130 
 Cap. 13. Treafbn. 
 
 Gives the forfeiture of int ailed Lands, in cafes ofTreafon 
 
 208 
 Anno 27 H. 8. Cap. 10. Ufes. 
 
 If a fine be levied of Lands, to the intent that J. S. fijould re- 
 ceive a yearly rent thereout, J. S. may dijirain, though no 
 mention thereof in the Conveyance , for that the Statute gi- 
 veth a diflrefs 180, 18 1 
 
 Cap. 26. Wales. 
 
 The Laws of England not totally in force in Wales till this 
 Statute 46 
 
 Anno 28 H. 8. Cap. 15. Trials. 
 
 Trials of Offences done upon the Sea .40 
 
 Puts a difference between the Sea, a Haven, and a Creek^ 57 
 
 Anno 
 
The TABLE. 
 
 Anno 32 H. 8. cap. i. Wills. 
 
 Extends not to devifes of Lands before the Statute 59 
 
 The having Lands mentioned therein, is intended of a ha- 
 ving to dijpofe, and not of a having to retain onely 243 
 A Dijfeifee cannot during the Diffeifin devije his Lands by 
 this Statute 246 
 
 Gap. 45. Firft-ftuits and Tenths. 
 See Courts. 
 
 Anno 33 H. 8. cap. 22. Wards and Liveries. 
 See Courts. 
 
 Cap. 39. Accomptants. 
 
 Binds the Lands of Heirs in tail 208 
 
 Anno 3&4E. 6. cap. 8. Sewers. 
 
 The Statute of 1% H. 8. cap. 5. made perpetual 15, 23 
 
 A dijirefs may be taken on the King's Lands for a Tax affef- 
 
 fed by the Commiffwners of Sewers 1 5, 1 6 
 
 No other Fees fhall be paid for Commiffions, &c. of Sewers 
 
 under the Dutehy Seal, than fitch as are appointed by the 
 
 Statute of 23 H. 8. cap. 5. to be paid in Chancery 16 
 
 Commijfioners of Sewers to endure five years 1 6. See Statute 
 
 23 H. 8. cap. 5. and 13EHZ. cap. 9. 
 Superfedeas of a Commiffion of Sewers 1 6 
 
 This Statute and that of 13 Eliz. cap. 9. reconciled 142,143 
 
 Anno 1 Mar. cap. 11. Sewers. 
 
 Provides for reforming the hurt which may arife by reafon of 
 the Sand in the County of Glamorgan driven out of the Sea, 
 which the Statute of 23 H. 8. cap. 5. did not extend unto 
 
 46,47,269,270, 
 
 »> Annis 
 
The TABLE 
 
 Annis a 8c 3 Ph. & Mar. cap. 8. High- ways. 
 
 What Ecclefiajiical Perfons are chargeable by thk Statute 
 
 131 
 
 Anno iEliz. cap. 1. Supremacy. 
 
 An Alien could not have been a Commifftoner in Caufes Eccle~ 
 fujiical 255 
 
 Cap. 19. Leafes. 
 
 See Ecclefiaftical Perfons. 
 
 Anno 5 Eliz. cap. 5. Navy. 
 
 A new Fifh-day appointed by this Statute 26 
 
 Anno 13 Eliz. cap. 8. Ufury. 
 
 In what manner Jujlices of Oyer and Terminer may hear 
 
 and determine ZJjury 217 
 
 An A3 ion of Debt lieth not thereupon before them ibid. 
 
 Cap. 9. Sewers. 
 
 c C Commiffioners. 
 
 ^t Stat. 3&4E. 6. cap. 8. 
 
 Commiffions of Servers to indure ten years 1 7, 286. See Stat. 
 
 23 H. 8. cap. 5. and 3 & 4 E. 6. cap. 8. 
 Superfedeas of aCommiffton of Servers 17 
 
 The Laws, Decrees, Ordinances, 8cc. of the Commiffioners 
 ,of Sewers fliall be in force without any Certificate thereof 
 
 into Chancery, or the Royal Affent had 17. See Stat. 
 
 23 H. 8. cap. 5. 
 How long they f] all be in force 17, 18. See Stat. 23 H. 8. 
 
 cap. 5. 
 /* what cafe the Jujlices of Peace may execute them, and how 
 
 long 1 8 
 
 No Farmer of any Lands within the PrecinCt of the Commif- 
 
 fion, who hath not forty pounds per annum Freehold, full 
 
 Z z have 
 
The TABLE. 
 
 have his voice in ntakjng any Ordinances of Sewers, con- 
 cerning the Lands he hath in farm 19, 20, 244, 345 
 All Ac7s done by fuch a difabled Per/on fiall be void 1 9, 244, 
 
 254 
 The Commifjioners need not make certificate or return of their 
 
 Commijjion, or any of their Ordinances, haws or doings 
 
 The Clerb^of Sewers fiall yearly ejlreat the lffnes, Fines, Pe- 
 nalties, Forfeitures and Amerciaments, and yearly deliver 
 them into the Exchequer, under fain of five founds 20 
 
 Cap, 10. Leafes. 
 
 See Ecclefiaftical Perfbns. 
 
 Anno 14 Eliz. cap. 11. Leafes. 
 
 See Ecclefiaftical Perfbns. 
 
 Anno 18 Eliz. cap. 5. Informers. 
 
 No Profecutor Qui tarn, &c. can fue by Bill upon any Statute 
 precedent to this 247 
 
 Anno 27 Eliz. cap. 13. Robbery. 
 
 Gives contribution to him whofe Goods are taken in execution 
 upon the Statute of Winton 125 
 
 Cap. 22. Chichefter Haven. 
 
 Power given to cut a new Chanel in any man's Ground, and 
 to compound with the Owners thereof 104 
 
 Anno 31 Eliz. cap. 5. Informers. 
 
 Within what time the King or Informer mufi fue upon a pe- 
 nal Statute 248 
 
 Anno 43 Eliz. cap. 2. Poor. 
 Makes the Par fin and Vicar chargeable to the Poor 130 
 
 Cap. 4, 
 
The TABLE. 
 
 Cap. 4. Charitable ufes. 
 
 Goods. &c. as well as Lands, &c. are chargeable to the re- 
 pairs of Sea-banks, &c. by force of this Statute 1 20 
 The Commiffloners of Sewers may compel/ the performance ibid. 
 
 Anno 1 Jac. r. cap. 7. Rogues. 
 
 Why Wales was named therein 4^> 47 
 
 Cap. 9. Alehoufes. 
 
 Why Wales n^ »^»«<i therein A&, 47 
 
 T#e forfeitures of Alehoufe- keepers may be levied by fale of 
 their Goods l8 9 
 
 Anno 3 Jac. 1. cap. 14. Sewers. 
 
 Provides for the Walls, Ditches, Banks, Gutters, Sewers, 
 Goats, Caufeys, Bridges, Streams and Watercourfes with- 
 in two miles of London 87, 88 
 
 Cap. 18. New River. 
 
 For bringing the New River to London 85 
 
 Satisfaction to be given to the Owners of the Grounds, through 
 
 which the New River fhould be made 1 04 
 
 Anno 4 Jac. 1. cap. 12. New River. 
 For bringing the New River to London. 85 
 
 Anno 7 Jac. 1. cap. 20. 
 In great repairs and new building, the Leffor and Lefee JbaS 
 both be at the charge *4 2 
 
 Gives exprefs power to fell the Goods dijirained 109 
 
 Zz 2 Stock. 
 
The TABLE. 
 
 r ' r -* • Stock. 
 
 c c Goods. 
 
 See iu&. 
 
 Strangers. 
 
 The feveral punifiments which the Roman Laws did inflift 
 upon Strangers 235 
 
 Streams. 
 
 f Commiflioners. 
 „ J Statutes. 
 
 )st,t4 23H - 8ca P' 5 - 
 
 C i3jac. cap. 14. 
 
 New Streams may be made by the Commijfioners of Sewers 
 
 93,94,96,97,103,104 
 
 Suit 3 See Informers. 
 
 Sunday. 
 
 See Commiffioners. 
 
 Where judicial aUs propter neceffitatem are good on that 
 day 166 
 
 Superfedeas. 
 
 ^23 H. 8. cap. 5. 
 &e-Stat.< 3 & 4 E. 6. cap. 8. 
 (.13 Eliz. cap. 9. 
 
 An inferior Court cannot fnperfede a fnpcrior 195 
 
 Surrender. 
 
 A fnrrender of a Copihold may be given and taken by Attor- 
 nies 35 
 
 Survey, 
 
The TABLE. 
 
 Survey, Surveyor. \oa 
 
 c Commifiioners. 
 Aee 1Stat. 23 H. 8. cap. 5. 
 
 The office, ejlecm and authority of a Surveyor I c6 
 
 Several forts of Surveyors ibid . 
 
 Surveyor of Stivers ibid. See Preferment . 
 
 Survivorfhip. 
 
 Where an aftion by two Tenants in common full furvive 2 IO 
 
 211 
 
 Synodals. 
 Not chargeable by the Laws of Sewers 138 
 
 Tail. 
 
 f Eftate. 
 See< Frank- marriage. 
 (.Stat. W. 2. cap. 1. 
 
 What things are intailable, and what not 1 57, I 58 
 
 In what cafes the Heir in tail full be bound by the All of his 
 Ancejior, and where not 2C>7> 2C ^ 
 
 A Recovery againji Tenant in tail with voucher, a lineal war- 
 ranty with Ajfets , or a collateral warranty without Af- 
 fets binds the Heir in tail by the Common- law 207 
 
 Where int ailed Lands are extendible or forfeitable, and where 
 not 207,208 
 
 Intailed Lands may be fold by the Commijfioners of Sewers 
 
 208, 209 
 
 Taxey, 
 
 b i 
 
The TABLE. 
 
 Taxes. 
 
 C Charge. 
 
 3 & 4 E. 6. cap. 8. 
 
 ^Istat.^^H. 8. cap. 
 
 Who, and what hands, Hereditaments, &c. may be taxed by 
 the Commijjioners of Sewers, and who, and what not 115 
 
 f<? 151 
 
 A whole Townfhip or Hundred may be taxed by the haws of 
 Sewers 122 to 129 
 
 What taxations may be laid upon TownJIoips or Hundreds 
 
 123, 124 
 
 To Tax a man and his Ajfigns upon the Commiffion of Sew- 
 ers, ill ny 
 
 How a particular Tax by the haws of Sewers ought to be laid, 
 whether upon the Acres, or Per/on s 1 27, 1 28 
 
 A Copiholder or Tenant foall be taxed for the hand, and the 
 hord for the Rent 135 
 
 Tenant 3 See Taxes. 
 
 Tenants in Common. 
 
 C Frank- marriage. 
 See< Jointenants. 
 ( Hent. 
 
 Tenants in common may be affeffed jointly, but if one refufeth 
 to pay his moity, yet his moity of the hand cannot be fold, 
 nor yet the whole 210, 211, 212 
 
 Where for a trejpafs done upon the hands of two Tenants in 
 common, one onely fhaU have the a&ion, and where both 
 mufi join, and the action fhall furvive 210, 21 1 
 
 Tenths. 
 To whom paiable 130 
 
 The 
 
The TABLE 
 
 The Bifhrfs Certificate of a Par Jon's refufal to pay his Tenths, 
 not t raver J able 2 1 5 
 
 Tenure. 
 Where Tenure fhall tie one to repair 1 1 7 
 
 Townfhip. 
 See Trelpafs. 
 
 IVhere a Townfhip may be taxed or amerced \ 22, to 129 
 
 Trade. 
 
 A Trade will not enable a man to be a Cotnmiffioner of Sewers 
 
 241 
 Traverfe. 
 
 p < Bankrupt. 
 See \ Tenths. 
 
 What Preferments are tr aver fable, and what not 111,113 
 
 to 216 
 Where the caufe of a Fine is traverfable , and where not 
 
 176 
 
 Returns not traverfable 215 
 
 A traverfe admitted of by the Statute of 1 H. 4. cap. 12. of 
 
 Sewers 216 
 
 Thofe things which the Commijjioners of Sewers doe by their 
 
 view , or by furvey or discretion , are not traverfable 
 
 ibid, 
 Where the Aft of a Judge is traverfable , and where not 
 
 ibid. 
 The Decrees of Commijjioners of Sewers, not traverfable 216 
 
 217 
 At Common-law , after judgment no traverfe can be taken 
 
 117 
 An Indictment at the Seffions of the Peace is traverfable, but if 
 the party indicted be outlawed, no traverfe lieth, but a, writ 
 of error ibid. 
 
 Trealbn. 
 
The TABLE. 
 
 Treafon. 
 
 Ifitailed Lands forfeitable for Treafon 208 
 
 Trefpafo 
 See Tenants in Common. 
 
 If a Townfiip be affeffcd, and the goods of a man of the Town 
 who is not chargeable be dijirained, Trefpafs lies 125 
 
 Trial. 
 
 Trials of offences done upon the Sea 40 
 
 If one be ftricken on the Sea, and die on the Land, the Com- 
 mon-law cannot try it 41 
 
 Tythes. 
 
 Tythes of Fijli gotten in the Sea 48 
 
 What charges are payable out of Tythes, and what not 1 30 
 How far a man may prefcribe to be dif charged of Tythes 223 
 
 224 
 
 V. 
 
 Value. 
 What is valuable fubjiance, and what not 239, 240 
 
 Vi & armis. 
 
 No permiffion, fi/fferance, negleft or nonfeafans car be found 
 to be by force 178 
 
 View. 
 
 J Comrmftioner?. 
 f« I Livery. 
 
 Who may make the view in an Affile g ^ 
 
 Where a perfonal or atfual View is neceffary, and where an m- 
 
 telleUual View will ferve, and where not 35, 106 
 
 Villain. 
 
The TABLE 
 
 Villain. 
 AViUain way fit at a Commijfioner of Sewers 243 
 
 Vocation. 
 A Vocation wiU not enable a man to be a Commijjioner of Sewers 
 
 Ufiiry; See Stat. 13 Eliz. cap. 8. 
 
 lifts rei. 
 
 Where lifts rei fhaU bind, a man to the repair ofSea-waBs and 
 other Defences •, and where not 120, m 
 
 w. 
 
 Wages. 
 See Stat. 23 U.S. cap. 5. 
 
 WAget of Labourer /, 8cc. may be recovered in a Court of 
 Sewers 219 
 
 Wales. 
 
 n _ fiaE. 1. 
 
 SeeStsL \2 7 H.8. cap. 2*. 
 
 CommiJJions of Sewers for Wales 1 2 
 
 A general Statute Jhall extend to Wales 46, 47 
 
 Why Wales was named in the Statutes of I Jac. cap. 7 & 9. 
 
 4^47 
 Wales within the Statute of 23 H. 8. cap. 5. of Sewers ibid. 
 
 Walls. 
 
 SeeStat.f 
 
 3 Jac. cap. 14. 
 
 A Wall or Banl^may be raifed on the Grounds left, to defend 
 tbeCountrey, but not to defend the Grounds themfelves 62 
 
 A a a In 
 
The TABLE 
 
 In whom the Property of Sea-walls k 74 
 
 New Sea-Walls may be made by the Commiffionert of Sewers 
 
 92 to 96, 99, 100, 101, 105 
 
 Some opinions to the contrary 104 
 
 An ancient Seawall may be pulled down by the Commiffioners 
 
 of Sewers 282 
 
 They who were bound to maintain the ancient Wall , are 
 
 not bound to maintain a new one in another place 282, 
 
 283 
 Ward j See Family. 
 Warrant. 
 
 Where a Dijirejs may be taken without any exprefs Warrant 
 
 180,181 
 
 Tor a file of goods by the Laws of Sewers, an exprefs Warrant 
 
 is necejfary 192 
 
 Warranty. 
 The force of it 207 
 
 Warren. 
 
 If one have a Warren in his Lands in Pale , and pur chafe 
 other Lands there i the Warren {hall 'not extend thereto 52, 
 
 60 
 Warrens are chargeable by the Laws of Sewers 138 
 
 Waft. 
 Who may take advantage of Waft committed, and who not 
 
 71,72 
 
 Leffee for life without impeachment of Waft, remainder fpr hit 
 
 own life, the privilege is lofi 72 
 
 If Leffee for years fuffer a Houfe to faff down, and before an 
 aQion brought he build another in the fame place of the fame 
 quality and quantity, that /ball excufe him in an affion of 
 Waflj contra, if it be built in another place 03 
 
 Where the irruption of the Sea or Frefh-waters , whereby 
 the Land is furrounded, is Waft, and where not 146, 
 
 147, H^ 
 Water- 
 
The TABLE 
 
 Watercourfes. 
 
 V7 3 Jac. cap. 14. 
 Waters. 
 See Stat. 23 H. 8. cap. 5. 
 No property in running Waters 78, 79 
 
 Wears. 
 
 See Stat. <p H AV a P- 12 ' 
 1 1 2 E. 4. cap. 7. 
 
 Jfta# Pfere/ nwe ifc be put down by Magna Charta 255 
 
 256 
 What Weres and other Impediments and Annoiances are to be 
 
 put down by the Statutes of 25 E. 3. cap. 4. and 45 E. 3. 
 
 cap. 2. ibid. 
 
 The penalty for relevying, inhauncing or continuingWeres and 
 
 other Impediments 2 5 6, 2 5 7, 2 67 
 
 Several Statutes for abating private Weres 261,262 
 
 An ancient Were not to be overthrown or removed 263, 264, 
 
 Vtao — Survey (op2— 26%. 
 
 Wight 5 Seelflands. 
 
 Women. 
 
 See Baron & Feme. 
 
 What rule and government in Ecclejiajiicals Women have been 
 admitted to 25 1 
 
 They have been admitted to the highefi places in Temporal Go- 
 vernments 251,252. 
 
 What other Governments and Offices they may be admitted t& 
 
 252 
 
 A Woman may be a CommiJJioner of Sewers 252,253 
 
 Wood* 
 
The TABLE 
 
 Wood j SeeStit, 33 H. 8. cap. 5. 
 
 Words $ See Expofirion of Words. 
 
 Writ. 
 
 Writ of moderata mifericordia, See Magna Charta, cap. 14. 
 Writs of AJfize and Eje&ione Firms, See Goods 
 Writ of ad quod damnum for the making of a neve River or 
 Cut, where nece£arj/ t and where not 96, 97 
 
 THE END. 
 
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