Lectura
prima
.
MY
most
worthy
Fellows
and
Companions
of
this
noble
and
renowned
Society
,
the
Hour-glass
of
my
puisne
time
is
run
,
and
I
am
now
come
to
take
possession
of
your
Readers
place
;
wherein
I
must
hazard
to
your
censures
the
fortunes
of
my
inability
:
These
Twenty
and
six
years
compleat
I
have
had
continuance
here
,
and
in
that
time
I
have
only
taken
the
measure
and
length
of
your
Hall
:
And
herein
I
acknowledge
Grayes-Inn
to
be
the
Patron
of
my
best
fortunes
,
and
your selves
the
best
Companions
of
my
forepast
and
present
life
.
I
made
a
question
,
when
it
came
to
my
turn
to
reade
,
Whether
I
should
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
solid
(
for
ibi
ponebantur
solidi
)
Care
notwithstanding
had
his
equal
weight
with
the
other
,
and
poised
the
Scales
even
:
Yet
I
considered
the
small
Substance
I
had
got
came
by
my
Profession
,
I
therefore
took
my self
both
in
Credit
and
Conscience
bound
to
undertake
this
burthensome
place
,
for
the
maintenance
and
preservation
of
the
honor
of
this
house
;
and
with
that
I
put
Charge
and
Care
in
one
Scale
,
and
Resolution
in
the
other
,
which
scaled
them
both
up
.
Twenty
years
likewise
of
my
last
past
time
,
I
have
in
the
practise
of
my
Profession
spent
,
but
,
I
hope
,
little
consumed
thereof
;
In
which
time
I
lanched
forth
my
Ship
(
In
profundum
maris
)
for
a
Voyage
to
the
Sea
,
and
now
she
is
returned
to
your
Shores
,
furnish'd
and
ballist
with
Merchandize
of
several
estimates
:
By
my
Ship
I
mean
my
Statute
which
I
read
on
,
which
be
the
Laws
of
Sewers
;
the
Merchandize
be
the
weighty
matters
therein
contained
:
By
the
Governors
and
Rulers
of
this
Ship
,
I
mean
the
grave
and
prudent
Commissioners
who
are
put
in
charge
and
trust
with
the
execution
of
these
Laws
:
By
the
Mariners
,
I
intend
the
Officers
of
this
Law
;
the
Merchants
place
I
reserve
unto
my self
:
The
Wares
brought
home
be
of
divers
sorts
,
some
only
fit
for
the
Imperial
Majesty
of
a
King
,
and
these
be
Royal
Prerogatives
,
shewing
forth
their
splendor
like
the
Flower
de
Lice
in
the
Crown
;
others
belong
to
high
Nobility
,
and
some
be
useful
for
the
homely
Commonalty
;
the
rest
which
shall
remain
,
I
have
cast
under
Hatches
for
my
last
days
Mart
,
when
I
mean
to
make
chaffer
on
them
all
.
But
though
I
seem
to
make
these
Markets
of
my
Legal
Merchandize
,
yet
I
do
not
mean
to
set
such
Rates
upon
them
as
Merchants
use
to
do
,
which
be
all
for
(
utile
dulce
)
for
I
only
set
one
price
upon
all
,
which
is
your
kinde
acceptance
.
Marvel
not
,
I
pray
you
,
at
these
my
Sea-like
salutations
,
for
this
day
I
am
become
god
Neptunes
Orator
,
and
I
mean
to
display
the
power
of
his
Empire
;
for
my
Statute
,
my
Cases
,
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
shore
,
and
I
have
cast
Anchor
there
,
and
to
my
great
comfort
I
see
many
Chapmen
attending
the
Market
,
and
therefore
now
presently
I
will
unlock
,
and
set
open
the
closet
of
my
Store
,
which
be
contained
in
the
fair
Volumns
of
the
Law
,
and
especially
in
that
Law
made
and
Enacted
in
the
Parliament
held
in
the
23.
year
of
Hen.
the
8.
Chapt.
5.
which
is
A
general
Act
concerning
the
Commissioners
of
Sewers
for
all
the
Realm
of
England
.
The
causes
wherefore
I
made
choice
to
read
upon
this
Law
,
be
five
in
number
;
Viz.
First
,
For
the
Antiquity
of
these
Laws
of
Sewers
,
though
this
Statute
bear
date
but
23.
Henry
8.
Secondly
,
For
the
Largity
and
extent
thereof
,
which
appears
in
the
stile
of
this
Statute
,
and
there
termed
,
A
general
Act
for
all
the
Realm
of
England
.
Thirdly
,
For
the
necessary
use
thereof
,
which
continual
practise
and
daily
experience
teacheth
us
.
Fourthly
,
I
have
had
a
more
desire
to
read
upon
these
Laws
,
because
never
any
Reader
did
heretofore
undertake
the
same
;
and
upon
perusal
of
this
Statute
,
and
upon
due
consideration
taken
of
others
,
I
thought
I
could
not
make
my
choice
of
a
more
fitting
,
and
more
necessary
Law
,
nor
more
profitable
for
my
Native
Countrey
of
Lincolnshire
,
and
other
Maritine
places
of
this
Kingdom
,
then
this
is
.
And
Fifthly
,
His
Majesties
general
care
,
which
these
Laws
require
at
His
hands
,
and
his
special
care
,
by
the
which
His
Highness
of
late
hath
taken
these
Laws
into
His
gracious
and
provident
protection
.
And
upon
due
consideration
taken
of
all
these
Cases
,
I
resolved
to
proceed
in
the
Exposition
of
this
Statute
,
being
made
perpetual
by
the
Statute
of
3.
Edward
6.
cap.
8.
And
to
speak
something
of
the
three
first
causes
,
I
am
of
And
although
it
is
said
in
Scripture
,
That
Almighty
God
It
is
true
,
that
at
the
Flood
,
Cum
cateracta
Coeli
fuerint
And
if
the
Register
be
so
ancient
a
Book
as
Sir
Edward
Cook
in
one
of
his
Epistles
hath
there
declared
it
to
be
,
then
it
may
give
satisfaction
in
this
kinde
,
that
these
Laws
of
Sewers
were
in
these
times
of
great
iminency
and
authority
;
For
there
I
finde
two
several
Writs
or
Commissions
of
that
nature
,
The
one
authorizing
certain
persons
to
survey
the
defences
in
the
parts
of
Holland
in
the
County
of
Lincoln
;
The
other
for
the
viewing
and
surveying
of
the
Fitz.
nat.
bre.
fo.
113.
Yet
the
first
Statute
which
appears
to
us
Fitz.
Nat.
bre.
.
fol.
113.
in
Print
,
wherein
the
frame
of
a
Commission
of
Sewers
is
set
down
,
is
the
Statute
of
6.
Henry
6.
Chapt.
5.
Yet
I
make
no
question
but
the
said
Commissions
expressed
in
the
Rigister
,
Fitz.
na.
bre.
.
were
in
their
forms
long
before
Henry
the
6.
time
;
and
that
the
Statute
of
Hen.
6.
addes
some
more
power
and
strength
thereto
then
was
before
,
having
backt
them
with
the
power
of
the
Parliament
;
and
it
is
something
additional
in
matter
,
as
it
was
in
power
,
as
by
both
the
Commissions
compared
together
is
apparent
.
I
do
likewise
finde
in
the
38.
Edw.
3.
Lib.
Ass.
plac
.
15.
That
Edward
Cook
in
his
10.
Report
in
the
Case
of
the
Isle
of
Ely
,
saith
,
That
the
Kings
of
this
Realm
,
before
the
making
of
any
Statute
of
Sewers
,
might
grant
Commissions
for
the
surveying
and
repairing
of
Walls
,
Banks
and
Rivers
,
and
other
defences
.
And
of
the
same
opinion
is
the
books
of
Sir
John
Davies
in
his
Irish
Reports
,
in
the
Case
of
the
Royal
Pischary
of
the
Banne
.
And
Sir
Edward
Cook
hath
in
John
Davies
Reports
.
his
first
Case
set
the
first
Statute
of
Sewers
to
be
in
time
the
9.
H.
3.
which
is
in
Magna
Charta
the
first
volumn
of
of
Statutes
,
and
the
most
ancient
that
be
extant
in
our
By
all
which
is
manifest
,
that
these
Laws
have
been
received
into
the
government
of
this
Realm
,
in
time
as
ancient
as
any
other
were
;
And
I
am
the
rather
herein
confirmed
,
for
that
in
the
ancient
Commission
expressed
in
the
Register
aforesaid
,
there
be
these
words
,
That
the
King
Ratione
dignitatis
suae
regiae
ad
providendum
salvationi
regni
sui
circumquaque
fuit
astrictus
:
Wherein
it
is
hereby
made
plain
,
That
the
King
by
the
Tenure
and
Prerogative
of
His
Crown
,
was
bound
to
see
and
foresee
the
safety
of
this
Realm
;
and
so
this
Law
is
a
Prerogative
Law
,
and
seems
to
be
as
ancient
as
any
Laws
of
this
Realm
,
and
all
Prerogatives
be
without
limitations
of
time
;
Neither
can
it
be
presumed
,
that
all
or
any
Kings
till
the
time
of
Hen.
6.
were
so
improvident
as
to
want
these
Laws
,
without
the
which
the
Realm
could
not
be
defended
from
the
violence
of
that
unmerciful
enemy
the
Sea
;
wherein
I
do
conclude
,
That
these
Laws
of
Sewers
be
as
ancient
as
any
other
Laws
of
this
Kingdom
be
.
The
extent
of
this
Law
.
For
the
extent
of
this
Law
,
the
Title
of
this
Statute
shews
it
,
viz
,
A
general
Act
for
granting
Commissions
of
Sewers
within
the
Realm
,
without
any
word
of
Restraint
,
other
then
these
(
where
need
should
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
serve
to
give
some
direction
in
the
Exposition
thereof
:
But
to
make
the
Title
to
be
the
ground
in
the
material
Exposition
of
the
Law
,
may
lead
the
Expositor
many
times
into
error
:
For
in
Stradling
and
Morgans
Case
in
Plo.
Com.
the
For
the
true
answering
for
the
Revenues
of
the
King
,
and
the
words
in
the
body
did
extend
the
same
to
the
Receivers
of
Subjects
;
but
there
the
Judges
and
Expounders
of
that
Law
went
with
the
Title
in
a
Statute
made
in
23.
Eliz.
the
Title
of
the
Statute
was
For
Politique
Constitutions
for
the
Navy
;
and
in
that
Statute
there
was
a
new
Fish
day
provided
,
which
no
man
would
have
looked
for
under
such
a
Title
.
And
Lucian
an
ancient
Greek
Poet
compiled
a
Book
,
and
in
the
Frontispiece
thereof
Intituled
the
same
A
Book
of
True
Reports
;
where
looking
into
it
,
there
was
not
any
thing
true
therein
:
So
it
appears
though
in
Acts
and
Books
the
Titles
and
Stiles
may
give
help
in
the
Exposition
,
and
may
serve
as
an
Index
or
Table
to
finde
out
the
matter
,
yet
it
is
not
fit
to
relye
upon
them
,
but
that
they
may
be
used
or
refused
as
occasion
shall
serve
.
Howsoever
there
is
better
concord
betwixt
the
Title
and
the
Body
of
my
Statute
,
for
the
corps
of
the
Act
perform
as
much
as
the
Title
promised
,
whereby
the
Inland
Countreys
of
Notingham
,
Northampton
,
Huntington
,
Bedford
and
the
like
,
may
have
the
use
of
this
Statute
as
well
as
the
Maritine
Countreys
of
Lincoln
,
York
,
Cambridge
,
Norfolk
,
Suffolk
,
Kent
,
Sussex
,
Hampshire
,
Devon
,
Cornwal
,
Glocester
,
Chester
and
Lancashire
,
if
not
in
all
,
yet
in
part
,
as
hereafter
I
shall
make
it
appear
in
my
second
Lecture
upon
this
Law
.
And
although
both
the
Statute
of
6.
Hen.
8.
and
the
Register
,
and
Fitz.
Nat.
Brev.
make
all
of
them
mention
in
those
Commissions
of
the
County
of
Lincoln
and
of
no
other
County
,
yet
doubtless
the
Lawmakers
and
Judges
of
this
Realm
,
and
the
Expositors
did
intend
then
,
and
did
extend
them
to
all
the
Parts
and
Counties
of
the
Realm
.
And
yet
I
take
it
,
that
the
first
Original
and
the
chief
use
of
these
Laws
,
was
in
the
said
Maritine
Countreys
,
which
stood
in
most
need
thereof
,
and
especially
Lincolnshire
,
where
be
the
huge
great
and
vast
Fens
and
Marishes
:
But
yet
notwithstanding
they
may
serve
generally
for
all
the
Realm
of
England
,
as
the
extent
of
this
Statute
I
read
on
hath
bounded
them
.
So
herein
my
conclusion
is
,
That
the
extent
of
this
Statute
is
as
large
as
the
Realm
of
England
.
The
necessary
use
of
it
.
From
the
Title
I
am
now
come
to
the
Preamble
of
this
Statute
,
where
the
words
be
very
solid
and
weighty
;
that
is
,
That
the
King
nothing
earthly
so
highly
weighing
as
the
advancing
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
most
necessary
,
and
of
greatest
consequence
,
when
the
King
preferred
the
same
before
any
earthly
thing
:
And
the
Kings
care
herein
became
his
Royal
Person
very
worthily
,
because
by
this
Statute
Safety
was
brought
to
the
Realm
,
and
Wealth
and
Profit
to
the
People
thereof
;
greater
and
better
fruits
then
which
,
no
humane
Law
can
produce
:
And
the
chief
execution
of
this
Law
was
most
aptly
left
to
the
King
,
Ratione
regiae
dignitatis
suae
,
whose
Office
doth
,
as
the
Philosopher
truly
saith
,
contain
in
it
great
Vertue
,
high
Understanding
,
and
Divine
Wisedom
,
to
whose
high
Government
,
as
well
our
Persons
as
our
Laws
be
committed
,
and
the
defence
thereof
is
applied
to
his
grave
foresight
.
And
truly
I
have
taken
upon
me
to
reade
on
those
Laws
of
Sewers
,
as
Mr.
Marrow
did
in
former
times
take
upon
him
to
Expound
in
his
reading
the
Laws
of
the
Justices
of
Peace
,
hoping
this
work
of
mine
may
prove
as
acceptable
to
the
Commissioners
of
Sewers
,
as
that
of
his
was
beneficial
to
the
Justices
of
Peace
;
the
use
whereof
being
no
less
commodious
to
the
Commonwealth
then
that
of
the
Peace
,
being
both
general
Laws
of
great
use
and
esteem
,
and
my self
being
for
many
years
past
a
Commissioner
in
the
County
of
Lincoln
,
I
found
that
these
Laws
were
dark
and
intricate
,
and
came
not
usually
within
the
reach
and
understanding
of
such
as
were
not
well
seen
and
studied
in
the
Laws
.
And
because
I
found
the
use
of
them
to
be
wondrous
necessary
,
I
did
intend
,
when
occasion
served
me
,
to
break
the
Ice
,
and
enter
seriously
into
the
Exposition
of
them
.
And
therefore
seeing
these
Laws
being
in
time
most
ancient
,
in
extent
most
large
,
and
for
the
use
most
necessary
,
I
have
,
with
your
kinde
favor
,
made
choise
of
them
to
frame
my
Reading
upon
;
wherein
,
if
upon
your
perusal
you
finde
any
scapes
or
errors
,
which
may
soon
fall
from
Opinion
,
haec
amice
corrige
,
and
such
of
them
as
you
shall
bestow
your
liking
upon
,
hiis
utere
mecum
;
and
this
shall
suffice
touching
my
choise
made
of
this
Statute
.
And
as
I
have
formerly
declared
and
delivered
the
causes
which
stirred
me
up
,
and
the
reasons
which
confirmed
me
to
read
upon
this
Statute
;
Now
I
do
intend
to
break
it
up
,
and
I
do
divide
it
into
these
several
branches
or
parts
:
First
,
to
make
provision
to
resist
the
over
flowing
of
the
Sea
upon
the
large
Marsh
grounds
lying
in
the
Maritine
Countreys
,
which
commonly
be
the
surest
for
soundness
,
the
greatest
for
compass
,
and
the
best
for
profit
of
all
the
Sheep-walks
and
Commons
of
this
Realm
,
which
take
prejudice
and
loss
only
by
the
rage
of
the
Sea
.
Secondly
,
to
provide
also
that
the
great
fresh
Rivers
and
Streams
may
have
their
passages
made
clear
,
and
that
their
Walls
,
Banks
and
other
Defences
be
repaired
,
kept
and
maintained
,
whereby
the
fair
,
delightful
,
pleasant
and
fruitful
Meadows
and
Pasture
grounds
which
lie
in
the
greatest
abundance
upon
or
near
the
Rivers
,
Brooks
and
Streams
may
be
preserved
from
the
inundation
of
fresh
Waters
,
which
many
times
annoy
them
,
to
the
great
and
inestimable
damage
of
His
Majesties
Subjects
,
which
be
Owners
and
Farmers
thereof
.
Thirdly
,
whereas
Navigation
,
both
for
the
Exporting
of
our
Homebred
Commodities
,
and
for
the
Importing
of
Foraign
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
Ostia
&
janua
Regni
,
for
that
by
the
maintenance
of
these
the
wealth
of
the
Realm
is
increased
,
and
the
Inland
Cities
,
Boroughs
and
Towns
are
made
partakers
with
ease
and
small
cost
of
the
Seas
Commodities
.
Fourthly
,
likewise
this
Law
giveth
redress
and
remedy
for
the
removing
of
such
lets
and
impediments
as
are
either
hinderances
to
Navigation
,
or
stops
whereby
the
abundant
Waters
cannot
have
their
free
passage
to
the
Sea
.
And
fifthly
,
because
in
the
surrounded
grounds
there
be
most
commonly
the
greatest
use
of
Bridges
,
Calceys
,
Passages
and
Ways
,
therefore
this
Statute
hath
taken
order
for
them
also
,
whereby
his
Majesties
people
may
in
those
places
for
their
persons
and
their
goods
have
both
Salvum
&
securum
conductum
.
In
these
five
parts
be
all
the
whole
materials
of
this
great
and
worthy
Law
contained
;
and
therefore
according
to
the
said
division
I
have
framed
a
Case
for
the
first
Lecture
upon
this
Law
.
The
first
Case
.
A.
Leaseth
to
B.
a
Mannor
on
the
Sea
Coasts
for
years
,
which
hath
incrementum
&
decrementum
maris
by
prescription
in
the
County
of
Chester
,
and
the
City
there
,
(
where
a
Commission
of
Sewers
is
)
remainder
to
C.
in
Fee
,
Livery
is
given
and
taken
by
Attorneys
at
full
Sea
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
Lease
expired
,
C.
enters
,
the
Prince
ejects
him
,
and
the
King
seizeth
this
Relinquished
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
Commission
.
Points
of
the
Common
Law
.
The
Points
of
this
Case
be
three
at
the
Common
Law
,
and
five
by
this
Statute
.
First
,
Whether
Livery
of
Lands
may
be
made
within
the
view
in
another
County
,
or
not
?
Secondly
,
Whether
Livery
by
the
view
may
be
given
or
taken
by
Attorneys
or
not
?
Thirdly
,
Whether
in
this
case
Livery
and
Seisin
may
be
made
by
Attorneys
,
or
that
of
necessity
it
must
be
made
to
the
Lessee
for
years
,
and
who
must
joyn
in
making
of
the
Letter
of
Attorney
to
take
the
Livery
?
All
which
Points
I
must
maintain
Affirmatively
,
else
C.
the
Subject
cannot
have
any
Lands
at
all
.
Points
on
this
Statute
.
First
,
Whether
the
English
Seas
be
within
this
Realm
of
England
,
and
what
Interest
the
King
hath
there
,
and
what
Interest
a
Subject
may
have
therein
by
custom
and
prescription
,
and
what
is
meant
by
the
said
words
,
Incrementum
&
Decrementum
maris
?
Secondly
,
Whose
these
new
Islands
be
which
arise
there
,
and
wherher
they
be
said
to
be
within
the
Realm
,
and
what
Laws
govern
the
same
;
for
that
it
appears
in
my
Case
,
that
the
ground
left
between
the
Sea
and
the
Haven
is
an
Island
?
Thirdly
,
Whether
the
King
shall
have
all
the
grounds
by
His
Prerogative
,
or
the
Subject
by
the
said
Prescription
,
or
the
Prince
as
participating
of
both
?
or
whether
every
one
shall
have
a
part
thereof
,
according
to
my
Conclusion
?
Fourthly
,
Whether
the
grounds
left
by
the
Sea
be
within
this
Statute
and
Commission
,
both
or
either
of
them
,
or
neither
of
them
?
Fifthly
,
What
a
Haven
,
a
Shore
,
and
the
Coasts
be
in
definition
,
and
the
several
properties
thereof
?
The
Readers
Argument
.
And
as
it
comes
to
my
turn
,
I
intend
to
maintain
the
conclusion
of
my
Case
:
And
first
of
the
first
Point
.
Livery
and
Seisin
is
one
of
the
most
ancient
approved
Ceremonies
of
the
Law
which
hath
been
used
for
conveying
of
Lands
;
and
the
Law
hath
a
more
respect
thereto
then
to
any
other
:
And
it
cannot
be
denied
,
but
that
it
is
the
most
perfect
form
of
any
,
by
the
which
the
Freehold
and
Inheritance
of
Lands
is
transferred
from
one
to
another
,
and
all
Subjects
may
give
and
take
Lands
by
this
Ceremony
;
but
the
King
only
is
excepted
,
whose
Prerogative
is
such
,
That
as
Lands
cannot
be
taken
from
him
,
as
King
,
but
by
Record
;
so
Lands
cannot
be
given
or
granted
to
him
,
as
King
,
but
by
Record
:
And
in
the
same
degree
is
a
County
Palatine
in
his
County
,
because
he
hath
there
Jura
Regalis
:
And
this
Livery
and
Seisin
may
be
actually
and
really
done
and
performed
,
or
else
it
may
be
done
within
the
view
of
the
Lands
intended
to
be
conveyed
.
And
as
touching
Livery
and
Seisin
to
be
actually
effected
if
the
Feoffment
contain
Lands
in
two
several
Counties
,
and
Livery
and
Seisin
be
made
in
one
County
in
name
of
both
,
this
will
not
pass
the
Lands
in
another
county
,
because
the
Land
passeth
by
the
Livery
,
which
is
local
,
and
not
by
the
Deed.
But
in
an
exchange
of
Land
in
two
several
Counties
by
Deed
,
the
same
is
good
,
for
there
the
Land
passeth
by
the
Deed.
But
if
one
make
a
Feoffment
of
a
Mannor
lying
in
Demesn
in
the
County
of
L.
and
in
services
in
the
County
of
M.
these
services
,
and
so
Rents
,
will
pass
by
attornment
of
the
Tenants
,
though
they
lye
in
a
foraign
County
;
and
so
of
an
Advowson
appendant
,
and
such
like
,
because
those
rents
and
services
pass
not
by
the
local
ceremony
of
Livery
and
Seisin
,
but
by
the
ceremony
of
Attornment
,
which
is
personal
,
and
depends
upon
the
person
which
is
transitory
;
wherein
I
take
this
difference
,
That
if
a
Feoffment
be
made
of
a
Mannor
by
Parol
,
the
Advowson
appendant
,
Villains
Regardant
,
and
Rents
and
Services
by
Attornment
of
Tenants
,
will
not
pass
to
the
Feoffee
,
till
the
demesns
and
Lands
be
first
conveyd
.
But
if
the
Feoffment
be
by
Deed
,
then
the
Rents
and
Services
will
pass
by
Attornment
of
the
Tenants
,
and
delivery
of
the
Deeds
,
before
Livery
and
Seisin
be
made
to
pass
the
demesns
.
Then
seeing
that
Land
in
one
County
will
not
pass
by
Feoffment
,
by
express
Livery
made
in
an
other
County
;
if
then
the
same
may
be
passed
and
conveyed
by
Livery
within
the
view
,
is
the
question
of
our
Case
:
And
in
my
opinion
they
may
,
because
it
is
a
ceremony
performed
by
the
eye
,
which
is
a
member
or
instrument
which
hath
his
operation
by
aspect
,
Tam
procùl
quam
propè
.
But
express
Livery
and
Seisin
,
which
is
done
by
the
hand
,
cannot
in
reason
be
extended
to
another
place
then
where
the
body
is
:
And
although
the
eye
be
fixed
in
the
head
,
annexed
to
the
body
,
yet
like
the
Sun
,
his
beams
are
carried
afar
of
.
And
this
Livery
by
the
view
,
is
not
a
Livery
in
the
County
where
the
body
is
,
but
properly
in
the
County
where
the
Land
lay
,
which
was
the
object
of
the
eye
;
and
in
this
case
it
is
said
to
be
Livery
onely
,
and
not
Livery
and
Seisin
,
because
the
Seisin
is
properly
when
the
party
enters
,
and
the
entry
of
the
party
is
that
which
perfects
the
work
,
which
is
in
proprio
commitatu
.
And
for
authority
in
the
point
,
28.
Ed.
3.
fo.
11.
there
is
a
Case
according
to
my
opinion
,
where
the
Husband
at
the
Church
door
,
when
Now
it
is
fit
to
be
declared
,
what
view
is
sufficient
,
for
there
be
two
maner
of
views
,
The
one
general
,
the
other
special
:
In
the
special
view
,
every
particular
piece
of
ground
is
to
be
seen
;
but
in
the
general
view
it
sufficeth
to
take
notice
of
the
grounds
by
the
place
they
lie
in
:
and
in
my
opinion
.
The
general
view
in
my
Case
will
suffice
.
For
if
one
make
a
Feoffment
in
Fee
of
a
whole
Island
,
or
of
a
whole
Mannor
or
Town
,
and
make
Livery
thereof
within
the
view
,
this
is
good
;
and
yet
it
is
not
possible
to
view
every
particular
piece
of
ground
at
once
,
for
Trees
,
Houses
and
Hills
might
so
be
interposed
,
that
the
view
could
not
be
taken
of
some
part
thereof
,
yet
notwithstanding
veiw
of
the
rest
will
pass
.
Also
if
Lands
be
covered
with
Water
,
Ice
or
Snow
,
these
will
pass
well
in
a
Feoffment
or
Livery
in
the
veiw
.
In
Brook
Title
View
plac
.
101.
the
Case
there
may
give
Sed
est
vn
auter
diversitie
concernant
veiwe
Carsi
vn
fait
Feoffment
de
B.
acre
que
gist
del
auter
parte
dam
Mountaine
tout
hors
del
veiwe
,
la
Liuerey
de
ceo
nest
bone
sans
expres
veiwe
tamen
tout
voile
passer
per
veiwe
de
parte
&
sic
in
mon
case
on
part'
gist
south
le
floud
del
mere
ceo
non
obstant
passe
vt
parcel
del
mannor
.
Ascuns
aver
teneus
&
ceo
Knightley
pur
vn
in
28.
H.
8.
in
Dier
que
Liuercy
deins
le
veiwe
doit
touts
foits
este
fait
in
cases
de
necessity
ceo
vrging
in
respect
del
chose
ou
del
person
,
del
chose
quia
leterre
gist
del
furder
side
dun
grand
ewe
ou
in
le
ewe
ou
ne
puit
oste
facile
accesse
del
person
,
quia
que
le
Feoffor
ou
Feoffee
soit
lame
ou
infirme
,
&
detraher
ceo
in
question
Jeo
aye
mist
mon
case
quia
le
Feoffment
&
Liuerey
fuit
ad
plenitudinem
maris
tamen
Jeo
sue
de
opinion
que
Liuerey
deins
le
veiwe
puit
este
fait
sans
ascun
matter
de
necessity
ceo
vrging
&
ceo
Jeo
collect
per
le
liuer
de
42.
Ed.
3.
Fitz.
Feoffments
54.
when
the
Son
did
give
back
the
Lands
to
his
Father
as
freely
as
his
Father
had
And
there
be
some
persons
which
can
neither
give
nor
take
by
Livery
within
the
view
,
and
that
is
where
the
Feoffor
or
Feoffee
is
blinde
:
So
a
Major
and
Commonalty
,
Dean
and
Chapter
,
or
other
corporate
and
politique
capacities
cannot
give
or
take
within
the
view
.
Some
have
held
a
difference
,
that
a
Parson
of
a
Church
might
not
take
by
Livery
within
the
view
to
him
and
his
Successors
,
because
that
came
to
him
in
his
politique
capacity
,
which
had
no
Eyes
;
but
if
he
were
seized
in
the
right
of
his
Church
,
that
he
might
infeoff
I.
S.
thereof
by
Livery
within
the
view
,
because
this
was
a
wrong
to
the
Church
,
and
therefore
But
the
main
Point
in
my
Case
is
,
Whether
Livery
within
the
view
may
be
given
and
taken
by
Attorneys
;
and
whether
the
view
is
so
incident
to
the
person
,
that
it
cannot
be
imparted
to
another
.
It
is
true
,
that
the
personal
view
cannot
be
lent
to
another
,
or
divided
from
the
person
,
no
more
can
the
personal
touch
or
act
of
my
hand
be
imparted
to
another
;
and
yet
express
Livery
,
which
is
the
deed
and
act
of
the
hand
,
may
be
done
per
auter
maine
.
Sir
Francis
Englefields
Case
in
the
seventh
Report
of
Sir
Edward
Cook
,
gives
us
a
pretty
difference
,
where
the
act
to
be
done
is
unseparably
tied
to
ones
person
,
and
where
not
;
as
in
the
Case
of
Thomas
Duke
of
Norfolk
,
where
upon
conveyance
of
divers
Mannors
to
Philip
Earl
of
Arundel
his
Son
,
there
was
a
Proviso
,
That
the
Duke
might
revoke
the
same
upon
signifying
of
his
minde
under
his
own
proper
hand
in
writing
,
&c.
This
power
of
Revocation
was
not
transferred
to
the
Queen
by
the
Attainder
of
the
Duke
,
because
it
was
inseparably
tied
to
his
own
proper
hand
:
But
the
principal
Case
there
of
Englefield
,
where
the
And
so
in
our
Case
,
though
by
the
Law
I
take
it
that
Livery
within
the
view
must
be
in
the
view
of
both
the
parties
,
yet
this
may
be
done
by
Attorneys
;
for
as
my
own
hand
is
not
precisely
tied
by
the
Law
to
an
express
Livery
,
no
more
is
my
own
eye
expresly
tied
to
this
view
.
And
we
see
in
views
in
an
Assize
,
the
under
Sheriff
,
or
Yet
I
take
this
difference
,
that
if
a
Letter
of
Attorney
be
directed
to
A.
B.
to
make
Livery
and
Seisin
,
he
cannot
do
the
same
within
the
view
,
for
therein
he
doth
not
pursue
his
warrant
;
but
if
the
Letter
of
Attorney
be
special
,
to
give
or
take
Livery
within
the
view
,
I
am
of
Opinion
,
then
the
Livery
may
in
such
a
Case
be
given
and
taken
by
Attorneys
within
the
view
,
as
well
as
in
Combes
Case
in
Sir
Edwards
Cooks
9.
Report
,
where
it
is
affirmed
that
a
surrender
of
a
Copy-hold
may
be
given
and
taken
by
Attorneys
,
which
is
as
personal
as
this
is
in
the
taking
part
,
because
Fealty
ought
to
be
made
.
Some
things
may
in
this
Case
be
further
aleaged
in
this
third
point
,
which
I
now
have
in
hand
,
that
is
,
Who
must
make
the
Letter
of
Attorney
on
the
Feoffees
part
,
whether
the
Lessee
for
years
,
or
he
in
the
remainder
,
or
both
of
them
:
For
Lessee
for
years
,
it
is
to
be
noted
,
that
his
Estate
hath
not
any
perfection
thereby
,
and
he
seems
himself
but
a
Deputy
,
and
if
so
,
then
a
Deputy
cannot
make
a
Deputy
;
but
yet
he
is
not
meerly
a
Deputy
,
for
if
there
be
two
Lessees
,
the
Remainder
in
Fee
to
I.
S.
one
of
the
Lessees
may
take
the
Livery
and
Seisin
;
yet
if
a
letter
of
Attorney
be
made
to
two
joyntly
,
one
of
them
cannot
take
it
;
and
if
in
our
Case
the
Lessee
had
dyed
before
entry
,
the
Livery
might
have
been
made
to
his
Executors
,
and
powers
and
authorities
cannot
be
apportioned
and
come
to
Executors
in
such
maner
;
Ergo
,
It
is
more
then
a
power
of
a
Letter
of
Attorney
for
the
reasons
aforesaid
,
and
for
these
insuing
:
For
the
Lessee
for
years
cannot
be
prohibited
from
taking
his
Livery
by
the
Lessor
,
but
a
Letter
of
Attorney
may
be
countermanded
;
yet
the
Lessee
alone
cannot
make
this
Letter
of
Attorney
,
neither
can
he
in
the
remainder
make
the
same
,
because
he
could
not
himself
accept
of
the
present
Livery
,
neither
can
he
meddle
with
the
present
possession
which
a
Livery
and
Scisin
yields
.
But
I
am
of
Opinion
,
That
Lessee
for
years
,
and
he
in
remainder
,
must
joyn
in
the
Letter
of
Attorney
,
for
these
Reasons
:
First
,
they
were
both
one
party
to
the
Deed
,
so
ought
they
to
be
to
the
Letter
of
Attorney
,
which
is
to
give
life
thereunto
.
Secondly
,
they
be
but
in
Law
one
Tenant
.
Thirdly
,
they
should
joyn
in
Advoury
.
And
in
many
Cases
,
the
Lessee
shall
have
ayd
of
him
in
remainder
,
for
the
privity
between
their
Estates
;
and
although
the
Lessee
gets
no
Estate
by
the
Livery
,
yet
he
assists
himself
thereby
,
with
the
ayd
and
strength
of
him
in
the
remainder
,
and
the
Livery
goes
through
his
Estate
,
and
so
passeth
into
the
remainder
.
Therefore
my
conclusion
is
,
that
they
shall
joyn
in
this
Letter
of
Attorney
;
and
hereby
I
suppose
I
have
conveyed
a
good
Estate
in
the
maner
to
I.
S.
in
the
remainder
,
to
maintain
my
position
for
him
in
the
end
of
my
Case
,
and
here
I
end
my
three
Common
Law
points
,
and
now
am
come
to
the
Statute
.
The
Readers
Argument
upon
the
Statute
and
Commission
.
The
Sea
within
the
Realm
of
England
.
FIrst
,
touching
our
Mare
Anglicum
,
in
whom
the
interest
therein
is
,
and
by
what
Law
the
Government
thereof
is
,
is
a
fit
question
and
worth
the
handling
.
And
in
my
Argument
therein
,
I
hope
to
make
it
manifest
by
many
proofs
and
precidents
of
great
worth
and
esteem
,
that
the
King
hath
therein
these
powers
and
properties
,
videlicet
.
-
1.
Imperium
Regale
.
-
2.
Potestatem
legalem
.
-
3.
Proprietatem
tam
soli
quam
aquae
.
-
4.
Possessionem
&
Proficuum
tam
Reale
quam
Personale
.
And
all
these
he
hath
by
the
Common
Laws
of
England
:
in
the
6.
R.
2.
Fitz.
Prot.
46.
it
is
said
,
That
the
Sea
is
within
the
Legiance
of
the
King
,
as
of
his
Crown
of
England
;
This
proves
that
on
the
Seas
the
King
hath
Dominationem
&
Imperium
ut
Rex
Angliae
,
and
this
by
the
Common
Law
of
England
.
The
Charter
of
the
Admiral
of
England
hath
these
words
Imprimis
,
this
Charter
is
under
the
great
Seal
of
England
,
quod
est
Lex
Angliae
.
The
King
grants
to
the
Admiral
thereby
power
in
Maritine
Causes
,
which
proves
the
Kings
legal
power
and
jurisdiction
on
the
Seas
.
He
grants
to
him
bona
in
mare
deperdita
super
mare
emergentia
&
extra
mare
projecta
,
which
be
Profits
arising
on
the
Sea
.
And
all
these
are
said
to
be
per
totum
Regnum
Angliae
;
Ergo
,
the
Seas
be
infra
Regnum
Angliae
.
In
the
Eleventh
Chapt.
de
Prerogativa
Regis
it
is
declared
,
Quod
Rex
habebit
wreccum
Maris
per
totum
Regnum
&
Balenas
&
Sturgiones
captos
in
Mari
vel
alibi
infra
Regnum
Angliae
:
and
this
was
by
the
Common
Laws
before
ever
this
Statute
was
made
;
for
as
the
King
was
and
is
rhe
most
Excellent
Creature
within
his
Realm
,
so
the
most
Excellent
things
which
Land
and
Sea
afford
are
appropriate
unto
him
.
And
this
Statute
also
proves
the
Sea
to
be
infra
Regnum
Angliae
,
and
that
the
profits
therein
,
and
thereon
arising
belong
to
the
King
by
the
temporal
Laws
of
England
.
In
the
Case
of
Sir
Henry
Constable
in
the
Fifth
Report
of
Sir
E.
Cook
,
it
is
said
,
That
Flotsan
,
Jetsan
and
Lagan
are
goods
Henry
Constables
Case
.
on
or
in
the
Sea
,
and
that
they
belong
to
the
King
,
and
the
King
by
his
Charter
granted
them
to
the
Admiral
.
The
Statute
of
the
18.
Edward
3.
Let
the
Sea
be
open
to
all
If
any
Treason
,
Murther
,
or
other
Felony
be
done
on
the
sea
coast
,
the
Offendors
shall
be
tryed
in
such
county
as
the
King
shall
appoint
by
Commission
to
be
directed
to
the
Admiral
and
others
,
to
try
the
same
per
Sacramentum
duodecem
,
which
is
by
Jury
.
And
the
Statute
31.
H.
6.
Chapt.
4.
there
is
a
Restraint
,
Here
the
Statute
Laws
are
in
force
on
the
Seas
,
as
appears
by
the
examples
;
but
these
seem
to
tye
the
person
only
.
John
Davies
.
And
in
the
Irish
Reports
of
Sir
John
Davies
,
in
the
Case
of
the
Royal
Pischary
of
the
Banne
,
it
is
said
,
That
the
Sea
is
the
Kings
proper
Inheritance
.
And
Mr.
Bracton
lib.
2.
Chap.
12.
in
his
Title
de
acquirendo
Bracton
.
L.
2.
Ch.
12.
rexum
dominio
,
setteth
forth
a
prescription
in
these
words
,
Quod
I.
S.
&
antecessores
sui
fuerunt
quiet
'
de
Theolonio
&
aliis
consuetudinibus
dandis
per
totum
Regnum
Angliae
tam
per
terram
quam
per
mare
;
and
many
times
in
that
Chapter
he
reiterates
the
same
words
;
which
is
a
strong
proof
that
the
Sea
is
infra
Regnum
Angliae
,
and
that
the
King
Governs
there
by
his
Common
Laws
of
England
;
for
that
prescription
is
a
main
and
material
point
of
the
Common
Law
:
And
the
like
is
alleaged
in
Sir
Henry
Constables
Case
by
way
of
Custome
in
the
Citizens
,
as
of
Bristol
,
to
have
Flotsan
on
the
Seas
between
the
high
water
and
the
low
water
marks
.
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
;
and
that
I
have
also
proved
it
by
Ancient
Books
and
Authorities
of
the
Laws
,
and
by
Charters
,
Statutes
,
Customes
and
Prescriptions
,
that
the
Government
therein
is
by
the
Common
Laws
of
this
Realm
.
One
Case
and
one
Statute
seem
to
sway
to
the
contrary
,
And
I
acknowledge
that
the
King
ruleth
on
the
Sea
by
the
Laws
Imperial
,
as
by
the
Roll
of
Oleron
and
other
;
but
that
Le
Roll
de
Oleron
.
is
only
in
the
particular
Case
of
Shipping
,
and
for
Merchants
and
Mariners
:
But
the
King
hath
neither
the
properties
of
the
Sea
,
nor
the
real
and
personal
profits
there
arising
,
but
by
the
Common
Laws
of
England
,
and
in
proof
thereof
the
Book
15.
and
16.
Eliz.
in
Dyer
,
where
the
grounds
gained
from
the
Sea
pertained
to
the
Queen
,
which
must
Eliz.
Dyer
.
needs
be
by
the
Common
Law
of
England
;
for
no
Law
gives
the
King
any
soil
but
only
the
Common
Laws
of
England
;
so
this
is
sufficient
proof
for
the
real
profits
,
and
for
the
personal
profit
the
Charter
of
the
Admiralty
and
other
Cases
aforesaid
make
it
manifest
.
And
there
is
a
Statute
made
in
1.
R.
2.
Chapt.
which
restrains
Of
Islands
.
BEcause
in
my
Case
in
matter
,
though
not
in
express
per
se
est
peninsula
,
that
is
penè
Insula
,
almost
an
Island
;
for
on
all
parts
it
Gernsey
and
Jernsey
be
Islands
on
the
Sea
,
but
it
seems
by
the
Resolutions
in
Calvins
Case
7.
Report
,
That
they
be
The
Isle
of
Man
was
in
times
past
a
petty
Kingdom
,
and
had
a
King
,
but
he
was
onely
as
a
Viceroy
,
and
under
the
Where
Artold
King
of
Man
made
suit
to
the
King
of
England
to
come
into
England
;
but
whether
Man
be
within
the
Realm
or
not
,
seems
to
be
put
without
question
in
Sir
Edward
Cooks
Case
of
Calvin
,
and
by
Kelwayes
Reports
,
11.
H.
8.
that
it
is
not
,
for
there
an
office
found
after
the
death
of
the
Earl
of
Darby
by
a
Writ
out
of
the
Chancery
Kelwayes
R.
of
England
was
avoided
,
because
as
the
said
books
do
affirm
Man
was
not
within
the
Realm
of
England
;
but
under
the
favor
of
these
books
,
that
is
,
no
necessary
cause
to
avoid
that
Office
;
for
in
my
Opinion
the
said
Office
of
the
Earl
of
Darby
was
void
,
quia
in
Man
breve
Domini
regis
non
Currebat
,
and
so
in
the
county
of
Palatine
of
Chester
,
breve
Domini
regis
non
Currit
,
161.
tamen
Committatus
Cestriae
est
infra
Regnum
Angliae
.
Mr.
Cambden
in
his
History
de
Insulis
is
But
I
do
take
the
Isle
of
Wight
Originally
to
be
parcel
of
England
,
and
is
a
part
of
the
County
of
Hampshire
,
and
was
But
in
our
Case
a
new
Island
is
risen
up
in
the
English
Seas
,
to
whom
the
same
in
point
of
property
and
ownership
Institutes
,
De
rerum
Divisione
,
saith
,
Quod
insula
in
mari
nata
(
ut
Delos
)
est
primi
occupantis
.
And
Britton
,
one
of
our
ancient
Titulo
Purchase
,
fol.
86.
saith
,
That
if
a
new
Island
rise
up
in
the
Sea
,
datur
primo
occupanti
,
and
agreeth
fully
with
Justinian
therein
;
but
saith
he
,
If
it
be
taken
or
divorced
from
the
continent
,
then
it
continueth
to
the
former
owner
;
but
clearly
our
Law
of
England
doth
not
agree
with
either
of
those
Authors
in
the
point
of
ownership
.
For
if
as
I
have
formerly
delivered
it
,
the
Sea
in
property
,
possession
and
profit
,
tam
in
aqua
quam
in
solo
,
belongs
to
the
King
in
the
right
of
His
Crown
of
England
,
as
I
take
the
Law
clearly
to
be
,
then
it
followeth
as
a
consequent
,
That
the
grounds
which
was
the
Kings
when
it
was
covered
with
waters
,
is
His
also
when
the
waters
have
left
it
;
For
our
Law
admits
not
any
thing
,
either
real
or
personal
to
go
primo
occupanti
;
but
when
an
owner
cannot
be
found
,
the
Common
Law
gives
it
Domino
Regi
,
as
Waifs
,
Strays
,
Wreck
of
the
Sea
,
Treasure
found
,
Escheated
lands
,
and
such
like
;
so
that
my
opinion
is
conceived
in
this
,
that
in
point
of
ownership
and
property
,
the
said
new
Island
is
the
Kings
.
But
yet
I
am
likewise
of
opinion
,
That
a
new
Island
risen
from
the
bottom
of
the
Sea
,
although
it
be
within
the
Realm
,
yet
it
is
neither
within
county
,
Parish
nor
Town
of
this
Realm
,
till
the
King
by
his
Edict
or
Proclamation
have
so
declared
it
.
There
may
be
Islands
also
within
the
Land
compassed
about
with
fresh
Rivers
,
as
the
Isle
of
Axholm
in
the
county
of
Lincoln
,
and
Sheppey
in
the
county
of
Kent
,
and
divers
others
.
But
Mr.
Bracton
in
his
Book
de
acquirende
rerum
Bracton
.
Liber
.
1.
cap.
2.
dominio
,
doth
very
well
deliver
the
Law
concerning
his
new
Islands
which
arise
in
great
Rivers
;
his
words
be
these
,
Habet
etiam
locum
eadem
species
accessionis
Insula
nata
in
flumine
quod
si
quidem
medeam
partem
teneat
Communis
est
eorum
qui
pro
indiviso
ab
utraque
parte
fluminis
prope
ripam
praedia
possident
pro
modo
latitudinis
cujuscunque
fundi
que
latitudo
prope
ripam
sit
que
si
alteri
parti
proximior
sit
,
eorum
est
tanta
qui
abea
parte
prope
ripam
praedia
possident
:
Si
autem
insula
in
Mari
nata
sit
quod
raro
accidit
occupantis
fit
.
Domini
Regis
non
tamen
credas
proprium
alicujus
agrum
informam
insulae
redact
insulam
esse
ut
ecce
flumen
dividatur
in
superiori
parte
&
circuit
agrum
alicujus
&
demum
infra
in
quo
casu
ejus
erit
ager
cujus
prius
fuerat
:
Cavendum
quoque
erit
in
metienda
vicinitate
insularum
quia
potest
quis
in
hoc
de
facili
decipi
ponatur
igitur
punctus
quod
in
medio
inter
utrumque
agrum
&
secundum
hoc
si
insula
Citra
,
punctum
sit
vel
hujus
tant'
vel
illius
tant'
erit
si
autem
sit
&
citra
punctum
&
in
ipso
puncto
&
ultra
tunc
proindiviso
:
Communis
erit
ut
tantam
mihi
de
ipso
insula
cedat
qua
continentur
in
medietate
puncti
usque
ad
agrum
meum
.
Si
autem
insula
rotunda
inveniatur
hoc
observetur
quod
omnè
quod
propinquiùs
est
mihi
cedat
,
&
ita
vicino
cedat
quod
ei
vicinius
erit
.
But
whether
the
Laws
of
this
Realm
be
of
force
in
the
said
new
sprung
up
Sea
Islands
,
or
not
,
is
a
question
:
It
appears
in
Calvins
Case
,
and
in
the
Case
of
the
Tanistry
in
the
Irish
Reports
,
That
if
the
King
conquer
an
Island
or
Nation
,
the
same
is
no
part
of
England
,
nor
the
Laws
of
England
there
in
force
,
till
the
King
shall
so
declare
the
same
,
but
the
own
proper
Laws
seem
to
be
in
force
there
;
but
if
the
King
conquer
a
Nation
from
an
Infidel
,
there
the
antient
Laws
of
that
Nation
upon
the
conquest
are
extinct
;
but
the
Law
is
not
so
of
another
Christian
Region
,
as
Callis
,
Guyen
,
Bulloign
and
the
like
.
And
although
Ireland
was
under
the
obeysance
of
the
King
,
yet
the
Laws
of
England
were
not
there
in
force
,
till
the
King
so
declared
the
same
.
And
although
Wales
before
the
Reign
of
E.
1.
was
within
the
Fee
of
the
King
of
England
,
yet
was
it
not
parcel
Rice
Thomas
Case
in
Plo.
Com.
but
notwithstanding
whether
Wales
be
within
my
Statute
,
or
not
,
is
questionable
,
for
these
Reasons
following
:
First
,
it
is
clear
that
a
general
Law
unstinted
and
unbounded
shall
extend
to
Wales
as
well
as
to
England
;
but
our
Law
grants
Commissions
within
the
Realm
of
England
,
and
so
precisely
prescribes
it
to
bounds
,
and
it
may
seem
that
the
Parliament
took
it
so
in
1.
Mar.
Cap.
11.
where
Commissioners
of
Sewers
were
authorized
in
the
county
of
Glamorgan
,
which
,
as
may
be
objected
,
need
not
,
if
Wales
had
bin
formerly
comprised
:
and
some
new
Statutes
,
as
that
of
Alehouses
in
1.
Ja.
Cap.
9.
and
that
of
Rogues
,
1.
Ja.
Cap.
7.
extend
the
same
to
the
Realm
of
England
and
Dominion
of
Wales
,
as
if
Wales
should
not
be
contained
in
the
words
(
the
Realm
of
England
)
yet
notwithstanding
in
my
opinion
this
Statute
of
23.
H.
8.
extends
to
Wales
;
for
although
the
Statute
of
the
1.
Mar.
gave
power
to
Commissioners
in
Glamorganshire
,
that
was
for
a
special
purpose
,
which
,
as
was
conceived
,
the
Statute
of
23.
H.
8.
did
not
in
England
extend
thereunto
,
that
as
for
the
carrying
away
of
the
sand
which
was
thrown
upon
their
grounds
;
but
in
that
Statute
it
may
well
be
perceived
,
that
the
Statute
of
23.
H.
8.
was
of
force
there
;
and
inserting
the
words
,
Dominion
of
Wales
,
in
the
said
Statute
of
Poor
and
Rogues
,
was
rather
of
superabundance
to
satisfie
some
which
might
nodum
in
scirpo
querere
,
make
a
doubt
where
none
was
,
then
that
they
were
there
put
for
any
necessity
requiring
the
same
:
But
I
am
of
opinion
,
that
in
this
new
sprung
up
Island
the
Laws
of
England
are
there
in
force
,
because
when
it
was
Sea
the
same
was
under
the
Government
of
these
Laws
;
and
although
the
nature
and
quality
thereof
be
changed
,
viz.
Dry
Land
for
full
sea
,
yet
the
same
Laws
and
Government
remain
in
force
;
so
that
I
hold
this
new
Island
within
the
Statute
,
and
that
the
property
thereof
is
the
Kings
.
Now
occasion
and
time
gives
me
fit
opportunity
to
treat
of
Grounds
which
be
newly
gained
from
the
Seas
.
If
as
I
have
formerly
declared
,
the
Grounds
be
the
Kings
when
they
be
covered
with
Waters
,
it
must
needs
be
held
an
infallible
ground
,
that
they
be
also
the
Kings
when
the
Waters
have
left
them
dry
;
and
when
the
Waters
had
their
being
on
the
same
,
the
whole
Profit
there
arising
did
appertain
to
the
King
;
yet
I
have
known
in
some
Countries
where
the
Frontagers
have
claimed
those
grounds
so
left
,
by
a
pretended
Custome
of
Frontagers
,
and
some
probable
reason
might
be
shown
,
wherefore
they
should
have
the
same
,
for
as
their
grounds
was
nearest
the
Sea
,
and
so
next
to
the
charge
to
repair
the
defence
,
and
next
to
the
loss
where
any
overflow
happened
,
it
might
therefore
seem
reasonable
,
that
as
they
were
put
to
the
greatest
charge
,
and
in
peril
of
the
loss
of
their
Lands
,
that
so
if
Lands
were
left
by
the
Sea
affront
them
,
that
these
Lands
might
accrew
unto
them
as
a
reciprocal
consideration
for
their
charge
and
loss
;
but
I
take
it
that
of
late
the
Law
hath
in
these
Cases
been
often-times
ruled
for
the
King
against
the
Subject
;
for
at
Crost
in
the
county
of
Lincoln
,
1600.
Acres
were
gained
from
the
Sea
,
affront
the
Mannor
of
sir
Valentine
Brown
there
,
yet
he
was
put
to
obtain
a
grant
from
the
King
thereof
:
and
one
Bushey
of
St.
Kegneys
claimed
grounds
left
by
the
Sea
,
by
the
said
pretended
Custome
of
Frontage
,
but
they
were
decreed
against
him
in
the
Court
of
Wards
,
in
12.
Jac.
R.
in
which
Case
I
was
of
Counsel
:
For
it
were
inconvenient
that
the
subject
should
have
Frontage
,
and
yet
no
bounds
prescribed
thereto
;
so
that
Ten
thousand
Acres
might
be
left
affront
a
mans
Mannor
,
which
were
not
fit
a
subject
should
have
this
large
Inheritance
by
pretence
of
such
allowed
Custome
;
and
I
suppose
I
may
herein
say
in
this
Case
,
as
Mr.
Plowden
doth
of
his
silver
Mines
,
That
it
is
inconvenient
a
subject
should
have
the
silver
Mines
in
his
grounds
,
for
so
might
he
become
richer
then
the
King
.
So
it
is
not
fitting
that
a
subject
should
have
the
grounds
left
by
the
Sea
,
when
so
much
may
happen
to
be
left
as
the
Kings
own
Lands
in
the
Realm
come
to
;
and
so
because
nimium
se
exaltat
in
prerogativam
Regis
,
I
am
of
opinion
the
new
gained
grounds
from
the
Sea
appertain
to
the
King
as
a
Royal
Escheat
,
and
not
to
the
subject
;
but
in
my
Case
here
is
a
prescription
where
the
owner
of
the
Mannor
hath
Incrementum
&
decrementum
Maris
;
of
what
force
this
is
of
,
is
now
to
be
argued
;
therefore
I
will
now
declare
what
interest
a
subject
can
or
may
challenge
in
the
seas
,
in
grounds
gained
therefrom
.
Personal
profits
arising
on
the
sea
,
subjects
may
have
and
challenge
by
custom
and
prescription
,
as
to
have
free
Pischary
on
the
sea
;
and
a
Parson
had
Tythes
of
Fish
gotten
in
the
sea
by
the
inhabitants
of
his
parish
;
&
yet
the
sea
,
nor
any
part
thereof
is
not
in
any
Parish
,
but
it
followed
the
person
.
In
Sir
Henry
Constables
Case
,
the
Citizens
of
Bristol
Henry
Constables
Case
.
claimed
Flotsan
(
which
be
goods
floating
in
the
sea
)
by
custom
,
in
Bracton
Chap.
12.
one
aleaged
to
be
discharged
Edward
Cooks
7.
Report
,
one
prescribed
to
have
a
game
of
wilde
Swans
at
Abbotberry
,
in
a
Creek
of
the
sea
,
which
is
a
member
or
arm
of
Henry
Constables
aforesaid
,
it
is
taken
and
received
for
Law
,
that
a
Subjects
Mannor
may
extend
to
the
low
water-mark
by
prescription
;
and
seeing
all
these
a
subject
may
have
in
and
on
the
Sea
,
wherefore
then
should
he
not
have
all
the
grounds
left
by
the
Sea
by
prescription
?
To
that
I
answer
,
That
he
cannot
have
claim
in
any
thing
by
prescription
and
custome
,
but
that
which
lyeth
in
use
,
which
is
the
life
of
them
both
;
but
lands
and
grounds
which
have
always
been
Sea
,
could
not
be
nor
lye
in
use
,
and
therefore
they
cannot
be
claimed
,
nor
the
same
can
be
bounded
out
by
prescription
or
custome
;
yet
lands
between
the
high-water
mark
and
low-water
mark
the
bounds
thereof
may
be
prescribed
to
belong
to
,
or
to
be
parcel
of
the
Mannor
,
because
in
every
twelve
hours
,
or
in
every
day
they
lie
dry
,
and
so
a
Subject
all
that
time
may
have
use
of
them
,
and
so
of
all
the
rest
of
the
said
things
,
but
in
that
which
never
lay
in
use
,
no
custom
or
prescription
could
take
hold
on
,
insomuch
that
in
my
Opinion
,
no
prescription
or
custome
can
fetch
lands
further
then
the
low
water-mark
.
Grounds
left
.
But
now
what
grounds
shall
be
said
a
leaving
by
the
Sea
,
is
a
point
in
my
Case
also
,
for
it
is
certain
that
at
spring-tides
the
Sea
useth
to
overflow
the
Marshes
in
Lincolnshire
and
Norfolk
,
and
returneth
within
a
short
space
again
;
these
being
usual
and
annual
,
be
not
accounted
grounds
left
or
gained
from
the
sea
;
so
because
the
Marshes
in
Lincolnshire
and
the
Sands
in
Lincolnshire
be
overflown
every
twelve
hours
,
and
then
dry
again
,
are
not
accounted
grounds
left
or
gained
from
the
sea
,
because
the
sea
hath
daily
her
recourse
thereon
:
and
therefore
in
15
and
16
Eliz.
in
Dier
fo
.
326.
Eliz.
Dyer
326.
in
the
Case
there
was
a
quantity
of
ground
was
left
by
the
Sea
,
and
whether
the
King
,
or
he
whose
grounds
were
adjoyning
should
have
them
,
was
there
made
a
question
;
but
in
that
Case
there
is
an
excellent
president
set
down
,
very
apt
for
the
handling
of
this
point
,
put
in
43
E.
3.
Contra
First
,
That
if
by
little
the
Sea
sometimes
decrease
and
leave
some
parcel
to
the
Land
,
and
some
other
times
run
over
the
same
again
,
this
ground
belongs
not
to
the
King
;
for
these
be
grounds
whereto
the
subject
may
have
a
property
,
as
in
the
grounds
of
the
shore
,
but
otherwise
it
is
where
great
quantity
of
ground
which
had
always
been
drowned
before
is
left
,
that
belongs
to
the
King
.
Also
by
this
president
the
Law
was
taken
to
be
,
that
these
grounds
left
by
the
Sea
to
the
Land
,
were
in
the
County
of
Norffolk
,
whereto
they
did
adjoyn
,
and
in
my
opinion
within
that
Parish
whereto
they
lay
;
for
there
was
a
Presentment
,
which
was
by
a
Jury
of
Nofolk
,
and
the
Jury
taken
to
try
an
Issue
must
be
de
viceneto
ejusdem
commitatus
:
but
note
there
,
the
Presentment
was
by
a
Jury
de
Corpore
Commitatus
,
in
22.
lib.
Assis
.
pl.
93.
The
Case
was
,
That
lib.
Ass.
pl.
93.
a
River
of
water
did
run
between
two
Lordships
,
and
the
soil
of
one
side
,
together
with
the
River
of
water
,
did
wholly
belong
to
one
of
the
said
Lordships
,
and
the
River
by
little
and
little
did
gather
upon
the
soil
of
the
other
Lord
,
but
so
slowly
,
that
if
one
had
fixed
his
eye
a
whole
day
thereon
together
,
it
could
not
be
perceived
;
by
this
petty
and
unperceivable
increase
,
the
increasement
was
got
to
the
owner
of
the
River
;
but
if
the
River
by
a
sudden
and
unusuall
flood
had
gained
hastily
a
great
parcel
of
the
other
Lords
ground
,
he
should
not
thereby
have
lost
the
same
:
and
so
of
petty
and
unperceivable
increasements
from
the
sea
,
the
King
gains
no
property
,
for
De
minimis
non
Curat
Rex
;
but
put
the
case
the
sea
overflow
a
field
where
divers
mens
gounds
lye
promiscuously
,
and
there
continueth
so
long
,
that
the
same
is
accounted
parcel
of
the
sea
,
and
then
after
many
years
the
sea
goes
back
and
leaves
the
same
,
but
the
grounds
are
so
defaced
,
as
the
bounds
thereof
be
clean
extinct
and
grown
out
of
knowledge
,
it
may
be
the
King
shall
have
those
grounds
;
yet
in
Histories
I
finde
that
Nilus
every
year
so
overflows
the
grounds
adjoyning
,
that
their
bounds
are
defaced
thereby
;
yet
they
are
able
to
set
them
out
by
the
Art
of
Geometry
.
These
grounds
in
my
Case
which
are
left
by
the
sea
,
and
Jura
Regalia
,
but
also
Escheta
Regalia
within
his
said
Palatinate
,
and
so
in
my
opinion
is
not
only
owner
of
the
county
,
but
Lord
of
the
Prerogatives
there
,
and
all
Jurisdiction
is
to
the
Prince
,
only
a
Writ
of
Error
lieth
in
the
Kings
Bench
of
a
Judgement
there
,
like
an
Appeal
to
Caesar
,
then
he
is
Lord
of
those
Laws
by
which
the
Freehold
and
Inheritance
of
those
lands
be
ruled
,
wherefore
then
should
not
these
lands
belong
to
his
Grace
?
And
first
it
is
usual
to
have
a
Commission
directed
to
enquire
of
these
Lands
ut
de
terris
concelatis
,
and
this
inquiry
shall
be
by
Commission
;
if
that
Commission
be
to
issue
out
of
the
county
Palatine
of
Chester
,
then
the
Lands
would
questionless
fall
to
the
Prince
,
and
the
inquiry
to
be
made
of
the
Freeholders
of
the
said
county
Palatine
.
The
Case
put
in
Barkleys
Case
in
the
Comment.
of
Mr.
Plowden
,
fo
.
129.
doth
force
much
against
the
Princes
Title
;
for
there
it
is
put
,
that
the
Bishop
of
Durham
had
Liberties
and
Priviledges
in
Terris
suis
inter
Fluvios
de
Tyne
de
Tese
,
and
afterward
purchased
moe
Lands
between
these
two
Rivers
,
the
said
Liberties
and
Priviledges
shall
not
extend
thereto
;
and
so
if
one
have
a
Warren
in
his
Lands
in
Dayle
,
and
he
purchaseth
other
Lands
there
,
his
Warren
cannot
be
extended
upon
these
new
purchased
Lands
,
for
saith
the
Book
,
Things
or
Priviledges
confined
to
certain
Precincts
or
Dominions
,
cannot
be
extended
further
,
though
the
Dominion
be
inlarged
,
and
that
they
shall
not
be
inlarged
with
the
inlargement
;
but
the
County
Palatine
vested
in
the
Prince
,
is
prescribed
within
no
other
bounds
then
the
word
County
doth
confine
it
;
and
therefore
this
falling
to
be
within
the
county
,
should
be
properly
his
,
and
as
I
am
imformed
,
the
Prince
hath
special
words
therefore
in
his
Charters
,
if
it
were
granted
that
these
grounds
could
be
claimed
by
Charters
;
but
I
am
clear
of
Opinion
,
That
no
increase
of
the
new
left
grounds
can
possibly
become
within
the
county
of
the
city
of
Chester
;
for
the
bounds
thereof
cannot
extend
over
that
circle
which
their
Charter
hath
confined
them
to
:
and
so
for
the
causes
and
reasons
formerly
declared
,
I
take
it
,
That
the
said
Island
is
the
Kings
,
the
ground
left
between
the
haven
and
the
ancient
shore
,
belongs
to
the
Prince
as
Earl
of
Chester
;
and
the
shore
because
of
the
said
prescription
appertains
to
C.
the
Subject
as
parcel
of
the
said
Mannor
;
and
so
according
to
my
said
conclusion
of
my
Case
,
here
the
King
hath
a
part
,
the
Prince
a
part
,
and
the
Subject
a
part
of
the
grounds
left
by
the
Sea
.
My
Tenets
therefore
be
these
:
First
,
that
the
Subject
may
have
the
grounds
of
the
Sea
to
the
low-water
mark
,
and
that
no
Custome
can
extend
the
ownership
of
a
Subject
further
.
That
a
Subject
cannot
have
the
grounds
to
the
low-water
mark
,
but
by
custom
and
prescription
,
and
I
take
it
that
it
is
very
disputable
whether
grounds
before
they
be
relinquished
by
the
Sea
,
may
be
gained
by
Charter
and
grant
from
the
Crown
;
I
suppose
they
may
.
That
the
words
incrementum
&
decrementum
maris
are
fully
described
by
the
said
Record
of
43
E.
3.
of
the
Abbot
of
Ramsey
:
that
is
,
That
if
the
decrease
of
the
Sea
be
by
little
and
unperceiveable
means
,
and
grown
only
in
long
tract
of
time
,
whereby
some
addition
is
made
to
the
Frontagers
grounds
,
these
by
these
words
may
appertain
to
the
subject
;
and
herein
the
said
words
have
no
other
operation
,
but
Lands
left
to
the
shore
by
great
quantities
,
and
by
a
sudden
occasion
and
perceiveable
means
,
accrew
wholly
to
the
King
.
That
the
increase
to
the
said
County
Palatine
,
for
the
causes
aforesaid
,
doth
appertain
to
the
Prince
as
Earl
of
Chester
.
The
Shore
.
BUt
now
I
am
arrived
at
the
continent
,
and
the
first
ground
I
set
my
foot
on
is
the
shore
,
which
in
Latine
is
called
Littus
Maris
,
it
taketh
the
name
wholly
from
the
sea
,
as
partaking
most
with
her
nature
,
and
so
Ex
digniori
parte
appellatur
;
yet
it
is
not
all
one
with
the
Sea
,
nor
with
the
Land
,
but
participates
with
them
both
:
And
Mr.
Bracton
in
his
second
Book
,
Chap.
12.
saith
,
That
Littora
Maris
Institutes
,
lib.
2.
pag.
141.
and
is
there
thus
defined
,
Cicero
Topicorum
,
The
shore
is
not
counted
for
lands
or
grounds
gained
from
the
Sea
,
or
left
by
it
,
because
at
every
full
Sea
it
is
covered
with
the
waters
thereof
.
In
the
13.
Chapter
of
St.
Matthews
Gospel
,
ver.
2
,
3.
it
is
said
,
That
Henry
Constables
Case
is
,
a
subject
may
have
the
same
,
as
belonging
to
his
Mannor
by
prescription
.
In
the
Imperial
Law
which
the
Civilians
use
,
the
sea
shore
is
held
to
be
common
to
all
,
and
that
it
is
as
lawful
for
Diogenes
the
poor
Cinick
,
as
Cressus
the
rich
King
,
Casam
.
161.
Ponere
&
retia
siccare
;
but
our
Common
Law
of
England
doth
in
reason
much
surpasse
either
the
Imperial
Law
or
the
Civil
Law
,
in
distinguishing
upon
these
;
for
it
is
said
,
Rex
in
ca
habit
proprietatem
sed
populus
habet
usum
ibidem
necessarium
:
so
that
as
to
the
lading
and
unlading
of
ships
,
and
for
drying
of
Nets
there
,
and
for
other
necessary
businesses
,
the
subjects
have
these
uses
therein
,
but
the
soil
and
grounds
thereof
belong
properly
dom'
Regi
.
And
a
subject
may
have
the
same
by
prescription
,
and
therefore
such
as
hold
the
shore
to
be
the
extreme
point
both
of
land
and
water
be
in
a
great
error
,
for
as
Iustinian
saith
in
his
Institutes
,
Quod
gemmae
&
lapilli
praeciosi
inveniuntur
,
which
can
be
taken
no
otherwise
sed
super
terram
aqua
relictam
:
so
that
this
shall
suffice
to
have
said
concerning
the
sea
shore
.
Sea
Coasts
.
THe
coasts
of
the
sea
come
next
in
order
to
be
treated
of
:
Costera
maris
be
words
well
known
,
but
their
confined
definition
is
hard
to
be
found
out
;
yet
certainly
they
contain
the
shore
and
banks
,
for
by
the
Statute
of
27.
Eliz.
Chap.
24.
an
Act
was
made
for
the
mending
of
the
banks
and
Mark
,
Chap.
7.
it
is
thus
written
,
That
Jesus
departing
from
the
Coasts
of
Tyre
and
Sydon
,
came
to
Galile
,
so
that
it
may
thereby
be
gathered
,
That
these
coasts
were
neer
the
sea
,
for
our
Savior
was
no
sooner
out
of
the
coasts
but
he
was
on
the
sea
,
which
shews
that
sea
and
coasts
be
contiguè
Iacentia
,
yet
no
certain
definition
can
I
finde
of
the
words
Coasts
of
the
Sea
,
but
by
these
and
such
like
descriptions
;
yet
this
I
gather
and
collect
thereby
,
that
in
respect
of
the
whole
World
,
a
whole
Kingdom
lying
next
may
be
said
to
be
a
sea
coast
,
and
a
whole
county
in
respect
of
a
Kingdom
;
and
in
my
opinion
the
next
town
and
territories
thereof
lying
next
to
the
seas
,
be
in
our
Law
taken
to
be
the
sea
coasts
and
no
other
;
and
therefore
some
do
much
erre
which
take
coast
to
be
the
edge
of
Land
next
the
water
,
and
shore
to
be
the
brinks
of
the
water
next
the
Land
quasi
duo
opposita
.
And
because
Creeks
,
Havens
and
Ports
be
all
of
them
within
the
charge
of
this
Law
,
and
this
Statute
was
materially
made
in
defence
thereof
,
and
as
they
differ
in
appellation
,
so
they
vary
in
definition
,
yet
they
do
in
some
things
agree
in
the
material
;
I
will
therefore
deliver
my
opinion
of
them
.
Creeks
.
CReeks
of
the
sea
is
an
Inlet
of
sea
cornered
into
the
main
Land
,
shooting
with
a
narrow
passage
into
some
Angle
of
the
Land
,
and
therein
stretching
it self
more
then
ordinary
into
the
Land
,
and
so
holdeth
not
even
quarter
with
the
Levant
sea
;
and
such
Creeks
or
Inlets
we
commonly
term
in
the
Law
to
be
arms
of
the
sea
:
for
like
as
the
arm
of
a
man
shooteth
out
from
the
body
,
so
by
a
metaphor
the
inlet
or
corner
of
the
sea
let
into
the
Land
,
is
called
an
arm
of
the
sea
;
and
although
it
go
far
into
the
land
,
yet
the
points
of
land
on
both
sides
may
well
be
discovered
:
and
this
appears
in
that
great
arm
of
the
sea
on
Humber
,
where
it
runs
betwixt
Lincolnshire
and
Yorkshire
,
the
points
of
either
county
may
be
seen
at
once
,
and
seem
to
stand
even
over
the
one
to
the
other
.
Arm
of
the
Sea
.
ANd
an
arm
of
the
Sea
is
said
to
extend
into
the
Land
so
far
as
the
flow
and
reflow
goeth
:
In
the
Patent
of
the
Admiral
of
England
I
finde
this
word
Creek
used
;
for
there
the
King
granteth
to
him
omnia
bona
mercimonia
&
Catalla
in
vel
super
Mare
littora
crecas
&
Costeras
Maris
,
but
it
differs
much
both
from
the
shore
and
coast
;
for
a
shore
is
sometimes
dry
Land
,
and
sometimes
water
,
a
coast
is
always
dry
land
,
but
the
Creek
is
always
sea
and
new
land
:
In
the
Statute
28
H.
8.
Chap.
15.
Rastals
tryal
,
A.
It
is
that
all
felonies
,
&c.
done
upon
the
Sea
,
Haven
or
Creek
,
where
the
Admiral
hath
Jurisdiction
,
shall
be
tryed
in
such
county
which
the
King
shall
appoint
;
by
the
Statute
it
is
manifest
that
the
Creek
is
not
all
one
with
the
sea
,
nor
the
same
that
a
Haven
is
,
by
the
Statute
made
in
the
4
H.
8.
Chap.
20.
Rastal
ships
,
5.
appoints
Fosdyke
,
Stow
,
Wainflet
,
and
A
Port.
A
Port
is
a
harbor
and
safe
arrival
for
ships
,
boats
,
and
ballengers
of
burthen
,
to
fraught
and
unfraught
them
at
,
as
by
the
said
Statute
of
4
H.
4.
appeareth
:
In
the
Irish
Reports
,
Fol.
56.
Ports
be
said
to
be
Ostia
&
Ianuae
Regni
;
I
take
a
Port
to
be
some
special
place
in
some
great
Borough
,
where
arrival
of
ships
be
,
as
the
Cinque
Ports
,
which
be
Dover
,
Sandwich
,
Rye
,
Rumney
,
and
Winchesley
,
the
most
famous
in
this
Realm
,
and
these
be
places
of
great
priviledges
:
and
Boston
,
Hull
,
Lyn
and
Plymouth
,
be
also
Ports
and
Port
Towns
,
where
special
offices
&
officers
belonging
to
them
,
touching
Merchants
&
Merchandizers
.
And
the
said
Statute
of
4
H.
4.
directed
that
Merchants
should
be
charged
and
discharged
at
great
Ports
,
was
for
that
there
were
Officers
for
the
King
,
deputed
to
receive
His
Highness
customs
and
profits
thereupon
arising
;
hereupon
came
that
Officer
called
Portgreve
,
Diversity
between
a
Creek
,
Haven
and
Port.
A
Creek
is
a
corner
of
the
sea
let
into
the
land
farther
then
ordinary
,
and
more
then
the
sea
is
,
but
it
is
no
usual
or
accustomed
place
of
arrival
for
ships
;
and
commonly
it
hath
neither
safe
harbor
nor
legal
priviledge
.
A
Haven
is
properly
a
safe
place
of
harbor
for
ships
,
but
may
be
without
any
priviledge
at
all
,
of
which
kinde
I
know
some
.
And
a
Port
is
not
onely
a
safe
harbor
for
ships
of
the
greatest
burthen
,
but
it
is
also
always
graced
with
legal
priviledges
;
and
this
appears
so
by
the
Statute
of
Magna
Charta
,
After
all
these
difinitions
and
distinctions
,
I
have
now
prepared
my
Case
ready
to
receive
his
censure
upon
the
last
conclusion
;
that
is
,
That
all
the
said
grounds
were
within
this
Statute
,
but
no
part
thereof
within
this
Commission
of
Sewers
:
and
therefore
it
is
first
to
be
noted
,
That
these
grounds
were
left
by
the
sea
since
the
awarding
of
this
Commission
,
and
the
words
of
the
Preamble
of
this
Statute
speaks
of
grounds
heretofore
won
;
which
word
(
Heretofore
won
)
seemeth
to
tie
the
Statute
and
Commission
,
both
to
grounds
left
or
won
before
the
said
Statute
,
and
not
such
as
be
won
after
,
like
to
the
Statute
of
West
.
2.
de
Donis
conditionalibus
quod
ad
dona
prius
facta
non
extenditur
,
which
excludeth
out
of
that
Statute
all
gifts
made
before
.
And
the
words
(
Heretofore
and
hereafter
)
are
words
of
consequence
in
point
of
time
;
and
wheresoever
they
are
spoken
,
they
come
with
an
Emphasis
,
as
if
they
required
express
observance
;
and
so
is
the
Statute
of
32
H.
8.
cap.
28.
of
Leases
,
that
Statute
is
of
all
Leases
hereafter
to
be
made
by
Covenant
in
tail
,
with
such
cautions
and
proviso's
as
be
limited
and
set
down
in
that
Statute
,
should
be
good
Leases
formerly
made
,
though
all
the
proviso's
in
the
said
Statute
were
observed
,
were
notwithstanding
by
reason
of
the
said
word
Hereafter
out
of
the
relief
of
that
Statute
.
And
so
in
the
Statute
of
Wills
32.
H.
8.
which
had
these
words
in
it
,
All
persons
having
Lands
,
or
which
hereafter
should
have
,
might
devise
;
this
did
not
make
good
any
devises
of
Lands
made
before
:
but
if
this
should
pass
for
currant
,
then
I
should
not
perform
my
word
in
my
conclusion
,
which
puts
it
all
within
the
Statute
;
and
this
exception
,
if
it
were
material
,
would
not
put
it
onely
out
of
the
Commission
,
but
the
Statute
also
;
yet
notwithstanding
though
the
construction
made
of
all
the
said
former
Statutes
,
stand
with
Law
,
by
reason
of
the
said
words
(
Heretofore
and
hereafter
)
yet
in
this
Statute
of
Sewers
,
the
same
be
not
material
,
neither
be
the
said
words
(
Heretofore
won
)
to
be
precisely
observed
,
because
they
be
placed
in
the
Preamble
of
the
Statute
,
and
not
in
the
enacting
part
of
the
Law
,
as
in
the
said
former
Statute
they
were
:
And
Expositions
are
not
tyed
to
Titles
and
Preambles
,
which
many
times
comes
short
of
the
parts
of
the
Law
,
but
to
the
body
and
enacting
part
of
the
Statute
,
which
is
the
matter
and
substance
:
And
hereupon
the
Statute
of
21
H.
8.
cap.
15.
of
Leases
recites
in
the
Preamble
thereof
,
That
whereas
divers
Leases
had
aforetime
been
made
for
Incomes
and
great
Fines
,
and
yet
after
the
Lessors
did
suffer
Recoveries
,
if
at
this
day
a
Lease
be
made
,
and
that
without
Fine
or
Income
,
yet
such
a
Lessee
shall
be
received
to
falsifie
the
recovery
had
against
his
Lessor
notwithstanding
:
The
Preamble
of
that
Statute
seems
to
remedy
no
Lessees
,
but
such
as
made
Fines
and
were
made
before
that
Statute
,
but
the
said
words
were
not
put
in
the
body
or
enacted
part
of
the
Statute
:
and
so
it
is
in
our
Statute
;
the
words
(
Heretofore
won
)
be
only
put
in
the
preamble
and
not
in
the
material
part
of
the
Law
,
and
so
the
Exposition
is
not
to
be
tyed
hereto
;
so
notwithstanding
this
exception
,
these
grounds
though
gained
since
the
Statute
,
are
within
the
relief
thereof
.
The
second
cause
wherefore
these
new
grounds
should
not
be
within
this
Law
,
is
,
Because
these
Lands
be
increased
beyond
the
bounds
since
the
making
of
these
Laws
,
and
so
it
may
be
alleaged
that
they
cannot
extend
to
the
new
inlargement
:
for
Mr.
Plow
.
in
his
Com.
fol.
129.
saith
,
That
Laws
and
Priviledges
tied
to
a
certain
Place
or
Precinct
,
cannot
be
extended
or
inlarged
beyond
the
ancient
Bounds
,
although
the
Predinct
be
inlarged
.
As
the
Case
in
7
H.
6.
fol.
32.
Diversity
between
grounds
gained
and
grounds
left
.
THe
third
matter
is
that
which
I
have
grounded
the
conclusion
of
my
Case
upon
,
and
that
is
,
Whether
the
grounds
in
my
Case
newly
left
by
the
sea
to
the
shore
,
and
the
shore
be
such
grounds
as
be
within
this
Commission
?
And
in
my
opinion
they
be
not
:
And
therefore
to
maintain
my
opinion
herein
,
I
take
a
difference
between
grounds
left
by
the
Sea
,
and
grounds
gained
from
the
sea
;
for
grounds
left
are
of
no
value
,
and
bring
forth
no
fruit
or
encrease
at
all
,
but
the
uppermost
part
thereof
are
sand
,
which
these
Laws
take
no
hold
of
;
for
the
Commission
extends
only
to
grounds
won
and
made
profitable
for
the
Commonwealth
of
this
Realm
,
which
Terra
relicta
yield
not
,
for
no
profit
at
all
thereof
ariseth
,
till
the
sand
be
inned
and
gained
;
and
these
Laws
made
the
Commissioners
Savers
and
not
Gainers
,
and
therefore
did
extend
the
Commission
but
to
the
utttermost
banks
and
walls
,
and
left
the
shore
as
grounds
possessed
by
the
sea
,
and
so
be
put
pro
in
defenso
by
this
Law
;
and
therefore
I
do
make
my
conclusion
as
followeth
:
First
,
That
the
Seas
,
Creeks
and
Bays
are
all
within
this
Statute
in
point
of
extent
;
but
that
they
and
the
shores
,
and
the
relinquish'd
grounds
,
be
all
of
them
out
of
this
Commission
of
Sewers
to
be
dealt
withal
thereby
.
Secondly
,
That
Ports
and
Havens
are
totally
the
waters
,
as
well
as
the
walls
and
banks
thereof
,
within
the
Commission
of
Sewers
.
Thirdly
,
The
shore
and
grounds
left
by
the
sea
when
they
are
put
as
in
Gainage
,
are
then
and
not
before
within
the
power
of
the
Commission
of
Sewers
.
Fourthly
,
although
the
grounds
left
by
the
sea
are
not
in
point
of
defence
within
the
Commission
of
Sewers
,
yet
a
wall
or
bank
may
be
thereon
raised
for
the
aid
and
succor
of
the
countrey
,
but
not
for
any
cause
where
the
defence
extends
but
to
themselves
.
And
although
the
grounds
that
have
been
gained
from
the
sea
in
the
county
of
Lincoln
and
elswhere
in
this
Realm
,
yet
that
was
done
at
the
labor
of
private
men
,
and
not
by
the
Commission
of
Sewers
,
which
aims
at
the
general
good
,
and
not
at
private
Commodities
.
So
that
Super
totam
materiam
,
I
am
of
opinion
with
the
conclusion
of
my
Case
,
that
is
,
That
the
said
new
Island
is
the
Kings
,
the
grounds
left
to
the
shore
pertains
to
C.
the
subject
;
and
that
because
they
are
all
of
them
within
the
Realm
of
England
,
they
are
therefore
within
the
extent
of
this
Statute
:
But
in
regard
they
are
grounds
left
only
,
and
not
gained
nor
made
profitable
for
the
Commonwealth
of
this
Realm
,
they
are
not
therefore
within
this
Commission
.
And
so
I
conclude
my
Argument
as
I
did
my
Case
:
in
which
,
I
hope
,
I
have
neither
injured
the
Subject
in
his
private
Inheritance
,
nor
wronged
Prerogative
in
any
point
.
Finis
primae
Lecturae
.
Initium
secundae
Lecturae
.
FOrasmuch
as
the
first
day
I
went
perambulation
about
the
Sea
,
and
of
all
which
belong
to
her
Empire
and
Dominion
;
wherein
I
did
survey
her
bounds
,
her
qualities
and
her
government
:
Now
I
do
intend
to
go
a
progress
through
the
Land
,
and
to
take
a
view
of
the
fair
goodly
Rivers
which
make
their
voyage
to
the
Sea
,
for
these
my
Statute
hath
taken
into
her
protection
.
And
this
second
day
I
purpose
to
call
a
Court
of
Oyer
and
Terminer
:
And
I
do
intend
,
with
your
gentle
patience
,
to
examine
all
the
particulars
there
arising
.
And
because
the
said
Statute
of
23
H.
8.
must
be
my
chief
guide
to
direct
my
fairest
passage
through
these
uncouth
ways
,
I
will
pray
aid
thereon
;
and
I
will
now
proceed
to
declare
what
business
on
Land
this
Law
hath
undertaken
to
defend
,
and
what
offences
it
purposeth
to
reform
:
And
accordingly
the
said
Law
doth
distribute
it self
into
these
particular
Branches
:
-
1.
Walls
.
-
2.
Banks
.
-
3.
Ditches
.
-
4.
Gutters
.
-
5.
Sewers
.
-
6.
Goats
.
-
7.
Calceys
.
-
8.
Bridges
.
Secondly
,
Into
matters
of
Offence
which
this
Statute
termeth
Le
ts
,
Impediments
and
Annoyances
which
are
to
be
put
down
or
reformed
,
as
cause
shall
require
;
-
1.
Streams
.
-
2.
Mills
.
-
3.
Ponds
.
-
4.
Fishgarths
.
-
5.
Mildams
.
-
6.
Locks
.
-
7.
Hebbingwers
-
8.
Hecks
.
-
9.
Floodgates
.
-
10.
Other
like
Lets
and
Impediments
.
And
to
the
end
I
might
fully
examine
this
part
of
the
Statute
which
produceth
these
matters
,
I
have
framed
a
Case
,
which
doth
give
occasion
in
this
days
exercise
to
dispute
of
all
them
.
The
Case
for
the
second
Lecture
.
A.
Leaseth
his
Mannor
in
the
county
of
Lincoln
,
in
which
My
conclusion
is
,
That
this
new
Bank
,
new
River
,
and
old
Sewer
be
well
decreed
,
but
the
said
sesse
is
void
in
toto
&
in
qualibet
parte
.
Points
at
the
Common
Law
.
The
Points
of
this
Case
are
three
at
the
Common
Law
,
and
three
upon
this
Statute
;
but
all
of
them
are
so
woven
within
another
,
that
every
one
of
them
go
hand
in
hand
from
the
beginning
to
the
end
of
the
Case
.
Imprimis
,
Whether
the
Duplicate
Condition
be
good
,
or
not
?
Secondly
,
What
Estate
B.
the
yonger
Son
hath
by
the
first
Condition
,
and
what
Estate
he
hath
got
by
the
second
?
Thirdly
,
A
Copyhold
becomes
forfeit
to
the
Lord
,
and
before
the
Lord
take
advantage
of
it
his
Estate
is
changed
,
Whether
by
the
change
of
his
Estate
the
benefit
of
the
forfeiture
be
lost
,
or
not
?
Points
upon
the
Statute
.
Imprimis
,
Whether
Commissioners
have
power
to
decree
a
new
bank
,
a
new
drain
,
and
other
new
defences
,
or
not
?
And
herein
the
qualities
and
properties
of
Rivers
,
Streams
and
Banks
,
and
their
dependants
,
are
to
be
treated
of
.
Secondly
,
Whether
they
may
decree
the
said
new
defences
by
view
and
survey
?
And
herein
is
to
be
handled
,
What
Commissioners
of
Sewers
may
do
by
survey
,
and
what
they
may
do
by
their
discretion
,
and
what
they
may
do
by
Jury
.
Thirdly
,
in
what
cases
Assesses
and
Taxes
may
be
laid
and
imposed
,
and
on
what
things
,
and
in
what
maner
they
are
to
be
imposed
;
and
whether
the
Rates
set
upon
the
persons
in
any
case
be
well
done
or
not
,
and
where
the
fault
is
if
any
be
.
Argumentum
Lectoris
.
Seeing
it
hath
been
the
ancient
order
for
the
Reader
of
this
place
to
maintain
the
Conclusions
of
his
Case
,
I
shall
therefore
endeavor
my self
to
perform
that
order
which
Custom
hath
imposed
upon
me
;
and
accordingly
as
I
have
concluded
,
so
I
take
the
Law
to
be
.
And
touching
the
first
Point
,
it
hath
been
challenged
and
drawn
in
question
upon
some
Opinion
delivered
in
the
Rector
of
Cheddingtons
Case
in
Sir
Edward
Cooks
first
Report
;
where
it
said
,
That
one
contingent
cannot
depend
upon
another
:
Ed.
Cooks
1
Report
.
But
more
strictly
it
is
called
to
an
accompt
in
the
Lord
Staffords
Case
in
Sir
Edward
Cooks
eighth
Report
;
for
there
it
is
That
one
possibility
cannot
depend
upon
another
possibility
;
and
this
Case
is
there
put
,
That
if
A.
let
Lands
to
B.
for
years
,
upon
condition
to
have
it
for
life
,
and
upon
condition
to
have
Fee
,
that
the
Fee
simple
can
never
increase
by
the
second
condition
;
but
as
he
saith
in
another
Case
,
Amicus
Plato
Amicus
Socrates
sed
magis
amica
veritas
,
his
rule
taken
in
the
first
Case
is
very
general
,
and
the
Lord
Staffords
Case
admits
distinctions
,
which
in
my
Argument
I
shall
apply
my self
unto
.
And
some
differences
I
shall
take
in
this
Point
in
question
;
therefore
I
shall
thus
distinguish
,
That
if
upon
performance
of
the
first
Condition
,
the
Original
Estate
be
determined
upon
which
both
the
first
and
second
Condition
were
built
and
grounded
,
the
second
Condition
and
increase
thereupon
is
utterly
void
;
but
if
the
first
Estate
be
not
destroyed
nor
confounded
upon
the
first
Condition
performed
,
the
second
Condition
and
Estate
thereof
which
shall
be
gotten
thereby
,
may
then
well
grow
upon
the
old
stock
.
To
explain
this
by
Example
,
If
A.
give
Land
to
B.
in
Fee
simple
,
upon
condition
to
have
the
Land
in
Tail
,
upon
condition
to
have
for
Life
;
here
because
the
first
Estate
and
Livery
by
the
first
Condition
is
not
destroyed
,
therefore
the
second
Condition
should
well
stand
in
force
.
So
I
do
make
a
Lease
to
A.
for
twenty
years
,
upon
condition
to
have
the
Land
for
forty
years
,
upon
condition
to
have
Fee
;
this
first
Condition
and
second
Condition
may
have
both
their
full
operations
:
for
by
the
performance
of
the
first
Condition
,
the
lease
of
twenty
years
is
not
destroyed
,
but
stands
on
foot
;
and
therefore
the
original
Estate
remaining
unconfounded
,
the
Fee
simple
may
well
increase
by
the
performance
of
the
second
Condition
:
But
if
a
Lease
be
made
to
A.
for
his
life
,
upon
condition
to
have
in
Tail
,
upon
condition
to
have
Fee
;
the
second
Condition
here
is
utterly
void
,
because
by
the
performance
of
the
first
Condition
,
A.
had
an
Estate
in
Tail
,
which
drowned
and
destroyed
his
Estate
for
life
;
and
so
because
every
decreasing
and
increasing
Estate
is
to
depend
upon
the
first
Estate
which
receives
the
Livery
,
which
is
the
life
of
all
,
therefore
the
second
Estate
can
never
accrew
in
this
case
:
and
this
is
true
reason
,
as
I
take
it
,
of
the
said
Case
put
in
the
Lord
Staffords
Case
;
for
there
the
Case
for
years
was
destroyed
by
the
Lease
for
life
,
which
came
by
the
first
That
one
de
Cheddingtons
Case
.
contingent
or
possibility
cannot
depend
upon
another
;
under
favor
I
take
it
,
not
that
I
am
bound
thereby
,
neither
was
it
the
meaning
of
Sir
Edward
Cook
,
as
I
take
it
,
to
extend
the
same
so
largely
as
they
are
there
put
,
because
I
finde
many
Authorities
of
great
account
which
are
against
the
said
general
position
.
And
first
in
the
38
H.
8.
Br.
Feoffments
,
pl.
71.
a
Feoffment
H.
S.
was
made
to
the
use
of
A.
and
his
heirs
,
until
I.
S.
paid
him
Ten
pounds
,
and
then
to
I.
S.
and
his
heirs
,
and
so
to
the
third
person
;
and
what
is
this
but
one
condition
,
contingent
and
possibility
to
depend
upon
another
,
for
these
contingents
there
were
held
good
,
and
were
built
upon
a
sure
foundation
.
And
so
in
Digs
Case
in
Sir
Edward
Cooks
Reports
,
where
a
Feoffment
is
made
to
the
use
of
A.
and
his
heirs
,
with
The
Case
of
Sir
Edward
Cook
put
in
the
end
of
the
Rector
of
Cheddingtons
Case
out
of
12
Lib.
Ass.
pl.
5.
in
my
lib.
Assize
opinion
doth
not
disalow
the
second
Condition
;
for
there
the
Case
is
,
That
A.
Leased
to
B.
upon
condition
,
That
if
A.
or
his
heirs
pay
to
B.
Ten
pounds
within
a
certain
day
,
that
they
might
re-enter
;
and
if
A.
nor
his
heirs
should
not
pay
the
Ten
pounds
within
the
time
;
Then
if
B.
paid
to
A.
Ten
pounds
at
another
day
,
that
he
should
have
Fee
:
Both
A.
and
B.
failed
in
payment
,
and
A.
entred
,
and
being
put
out
,
brought
an
Assize
,
and
nihil
Caepit
per
breve
;
this
doth
not
prove
that
one
condition
cannot
depend
upon
another
,
neither
can
I
see
well
what
Exposition
to
make
of
so
uncertain
a
Case
,
so
that
I
take
this
Case
to
be
no
evidence
against
mine
.
But
in
the
14
H.
8.
fol.
15.
there
is
a
Case
which
in
my
I.
S.
before
Easter
ensuing
,
then
the
Obligation
to
be
void
;
and
if
he
do
not
infeoff
him
,
then
to
pay
Ten
pounds
at
Pentecost
,
then
the
Obligation
to
be
void
:
The
Feoffment
is
not
made
before
Easter
,
therefore
Brudnel
held
the
Obligation
was
forfeit
,
and
that
the
second
Condition
was
not
good
:
But
there
is
a
(
Quaere
)
set
upon
that
Case
,
and
so
it
may
well
be
,
for
I
see
it
commonly
done
,
that
if
a
defesans
be
made
of
a
Statute
which
is
broken
,
and
so
the
Statute
becomes
forfeit
,
yet
a
new
defesans
may
defeat
it
;
and
so
in
my
opinion
may
the
second
Condition
in
this
Case
avoid
the
Obligation
,
if
the
first
conclusion
had
not
been
in
the
Case
.
I
shall
adde
this
Case
also
as
a
conceit
;
that
is
,
A.
infeoffs
B.
upon
condition
,
if
A.
go
to
Lincoln
he
shall
have
the
I
do
here
hold
these
Conditions
being
put
promiscuously
,
without
distinction
of
the
times
of
the
Conditions
which
shall
be
first
performed
,
and
which
the
second
,
that
the
Fee
is
decreased
into
an
Estate
for
years
,
and
can
never
increase
into
an
Estate
in
tail
by
performing
of
the
second
Condition
,
because
the
Livery
out
of
which
it
should
grow
was
quite
destroyed
by
the
first
decreaser
.
So
that
my
intent
I.
S.
is
Parson
of
the
Church
of
Dale
,
and
the
Patron
grants
the
next
avoidance
,
this
grant
can
he
himself
take
no
benefit
by
,
unless
he
resign
,
yet
if
he
dye
it
shall
come
to
his
Executors
.
But
I
take
the
Law
to
be
in
my
Case
,
that
B.
shall
not
by
the
first
Condition
have
both
the
Estates
in
him
at
once
,
that
is
,
for
his
own
life
,
and
after
for
the
life
of
C.
but
that
the
Estate
of
B.
by
the
first
Condition
,
shall
be
decreased
or
changed
from
his
own
life
into
the
life
of
C.
and
shall
be
melted
and
newly
molded
by
this
Condition
;
for
an
Estate
may
as
well
decrease
as
increase
by
a
Condition
:
and
yet
the
Lord
Staffords
principal
Case
was
,
That
Queen
Elizabeth
did
grant
the
Mannor
to
Tindal
and
the
heirs
of
his
body
,
upon
condition
upon
payment
of
Twenty
shillings
to
her
by
Tindal
,
that
he
should
have
the
Reversion
to
him
and
his
heirs
;
and
there
it
is
holden
for
Law
,
that
by
the
payment
of
Twenty
shillings
,
the
Reversion
in
Fee
simple
shall
increase
to
Tindal
,
and
shall
not
alter
or
drown
the
Estate
Tail
,
which
is
an
excellent
Case
,
but
alter
the
putting
of
that
Case
,
and
then
it
may
alter
the
Law
also
;
that
is
,
I
give
Land
to
I.
S.
and
the
heirs
of
his
body
,
upon
condition
That
upon
payment
of
Twenty
shillings
he
shal
have
the
Lands
to
him
and
his
heirs
:
In
the
first
Case
,
the
Fee-simple
accrewing
shall
not
alter
the
Estate
Tail
,
but
in
the
second
Case
,
by
the
Fee
increasing
,
the
Estate
Tail
is
determined
and
changed
into
a
Fee
simple
,
quod
quaere
.
Admitting
the
first
condition
did
increase
the
Estate
of
B.
from
his
own
life
to
the
life
of
C.
and
the
second
condition
is
performed
,
by
the
which
another
Estate
will
accrew
to
B.
as
I
take
it
will
,
because
an
Estate
decreased
,
is
parcel
of
the
first
Estate
;
then
what
Estate
B.
hath
got
by
this
new
Limitation
,
is
the
question
:
And
in
my
Opinion
,
he
hath
at
the
most
but
gotten
an
Estate
again
for
his
own
life
,
and
that
the
Limitation
to
the
heirs
of
the
body
of
his
father
is
utterly
void
,
be
his
father
dead
or
alive
;
for
if
his
father
be
dead
,
his
elder
brother
is
the
heir
of
his
body
,
within
these
words
of
Limitation
,
who
cannot
take
the
Lands
by
descent
Dier
Ereswoulds
Ma.
Dier
.
Case
,
where
Lands
were
given
to
the
eldest
son
,
and
the
heirs
of
the
body
of
his
father
;
this
is
a
good
Estate
in
Tail
,
being
made
to
the
eldest
son
,
because
he
is
capable
to
take
the
Lands
in
both
degrees
.
And
in
2
E.
3.
the
Case
The
heirs
of
the
body
of
his
father
.
The
Case
upon
the
third
Point
is
this
,
a
Mannor
is
granted
That
if
Tenant
for
life
make
waste
,
and
then
he
in
the
reversion
grant
over
the
reversion
,
the
Grantee
shall
not
now
punish
this
waste
;
and
so
Mr.
Perkins
,
fol.
20.
If
a
Tenant
alien
in
Mortmain
,
and
Perkins
,
so
.
20.
then
the
Lord
grant
away
his
Signiory
,
the
Grantee
shall
not
enter
for
this
Mortmain
:
so
by
Fitz.
in
his
Nat.
bre.
.
in
his
admeasurement
Fitz.
Har.
Nat.
brc.
of
Dower
,
If
a
Garden
assign
to
a
woman
more
dower
then
she
ought
to
have
,
and
then
grant
his
Gardenship
over
,
the
Grantee
cannot
have
an
admeasurement
of
Dower
against
her
:
and
so
Binghams
Case
in
Sir
Edward
Cook
2.
Rep.
where
there
was
Tenant
for
life
,
remainder
in
Fee
of
a
Tenancy
holden
I.
S.
and
the
first
Tenant
for
life
commit
waste
or
forfeiture
,
he
in
the
reversion
cannot
punish
this
during
the
life
of
him
in
the
remainder
for
life
,
but
after
his
death
he
may
:
also
if
one
make
a
Lease
for
years
,
upon
Condition
to
be
void
,
and
the
Lessor
grant
away
his
reversion
,
the
Grantee
may
enter
for
breach
of
this
Condition
by
11
H.
7.
17.
and
yet
here
the
Estate
in
reversion
is
altered
from
Ayd
pl.
77.
which
will
not
lie
but
on
the
first
Estate
,
and
against
the
first
parties
,
and
yet
it
was
maintained
,
because
it
was
parcel
of
her
former
Estate
:
And
so
in
this
Case
,
although
the
Estate
of
B.
was
altered
from
his
own
life
into
the
life
of
C.
yet
I
am
of
Opinion
,
That
he
might
take
advantage
of
this
forfeiture
,
because
the
Customary
Estate
is
utterly
void
thereby
.
Points
upon
the
Statute
.
I
am
determined
before
I
enter
into
the
discourse
of
new
defences
in
my
Case
,
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
because
Banks
and
Walls
be
the
first
named
in
the
Commission
,
they
shall
therefore
have
the
first
place
in
my
argument
,
being
the
most
ancient
and
approved
defences
,
as
well
against
the
rage
of
the
Seas
,
as
against
the
violence
of
fresh
waters
,
that
either
Art
or
Nature
have
produced
.
Bank
.
THe
Bank
of
the
sea
is
the
utmost
border
of
dry
land
,
and
is
of
the
same
materials
with
the
grounds
wherein
and
whereon
it
standeth
;
it
is
sometimes
natural
,
and
in
some
places
artificial
:
Natural
,
as
Mountains
raised
higher
then
other
grounds
adjoyning
as
it
pleased
the
Creator
,
when
the
first
huge
Chaos
was
separated
,
divided
and
distributed
;
Artificial
,
when
it
is
cast
by
mans
hand
.
Justinian
the
Emperor
treating
of
these
in
his
Institutes
,
and
his
title
de
rerum
divisione
describeth
them
in
this
maner
,
Riparum
usus
est
publicus
illar'
verò
domin'
ad
eos
pertinet
qui
proximior
praediis
domini
sunt
,
itaque
naves
ad
eas
appellere
funes
arboribus
ibi
natis
Religare
onus
aliquod
,
in
his
Reponere
cuilibet
liberum
est
,
by
which
authority
it
appeareth
,
that
the
ownership
and
property
of
the
sea
bank
and
banks
of
great
Rivers
,
be
to
them
whose
grounds
are
next
thereto
adjoyning
,
and
the
Trees
,
Grass
and
other
things
thereon
growing
,
belong
to
the
owner
of
the
soil
,
but
the
use
of
the
banks
is
common
to
all
the
Kings
liege
people
,
as
to
tie
the
ships
and
boats
to
the
Trees
,
and
to
tow
them
to
and
fro
,
and
to
lade
and
unlade
their
Merchandizes
thereon
,
and
for
fishers
to
dry
their
nets
on
.
And
as
the
owner
of
the
soil
and
proprietor
of
the
grounds
,
cannot
justifie
the
digging
or
casting
of
them
down
,
whereby
the
people
shall
be
hindred
of
their
necessary
use
thereof
,
no
more
can
the
people
which
have
but
necessarium
usum
,
fell
up
the
Trees
,
or
mow
the
grass
thereon
growing
,
neither
ought
they
to
dig
ballast
there
,
but
every
one
,
as
well
owner
as
user
,
Sic
uti
suo
ut
alienum
non
laedat
.
I
cannot
more
aptly
compare
a
Bank
of
the
Sea
,
or
of
a
navigable
River
,
then
to
a
Highway
,
for
that
the
property
thereof
is
to
him
whose
ground
is
next
adjoyning
,
and
the
use
thereof
is
common
to
all
men
,
and
the
power
thereof
the
King
hath
by
His
Laws
,
Proprietas
Domino
,
usus
populo
,
potestas
Regi
:
wherein
for
more
clear
Illustration
of
this
matter
,
I
put
this
Case
,
I.
S.
doth
cut
the
Sea
bank
,
or
the
bank
of
a
great
I.
B.
which
hath
occasion
to
pass
thereby
,
falleth
unawares
into
the
cut
,
and
is
hurt
in
body
or
goods
,
the
party
which
cutteth
this
Bank
incureth
these
mulcts
:
For
first
,
the
owner
of
the
soil
may
have
his
Action
of
Trespass
,
quare
solum
fodit
,
and
he
which
fell
therein
may
have
his
Action
upon
the
Case
against
the
digger
of
that
cut
,
for
to
A
Wall
doth
differ
in
point
of
ownershhip
from
a
Bank
,
first
,
in
respect
of
the
materials
the
same
is
made
on
,
for
a
Bank
is
made
Ex
solo
&
fundo
qua
ex
suis
propriis
naturis
sunt
cadem
cum
terra
super
qua
edificatur
,
but
so
is
not
a
Wall
,
for
it
is
an
artificial
edifice
,
not
of
the
materials
arising
of
the
place
where
it
standeth
,
but
which
be
brought
thither
and
built
there
,
ad
propria
onera
&
costagia
partis
;
so
that
the
ownership
&
property
of
a
Wall
doth
appertain
to
him
who
is
bound
to
repair
the
same
,
though
his
ground
lye
not
next
thereto
;
but
of
a
Bank
the
property
and
ownership
is
his
whose
grounds
adjoyn
thereto
:
And
this
shall
,
I
hope
,
suffice
to
have
said
of
Banks
and
Walls
,
the
two
first
defences
nominated
in
the
Commission
of
Sewers
.
The
letter
of
this
Statute
and
Commission
,
seem
to
extend
only
to
Banks
,
Walls
,
and
other
defences
standing
and
being
by
the
coasts
of
the
sea
and
Marish
grounds
thereto
adjoyning
;
but
whether
the
Banks
and
Walls
of
fresh
Rivers
which
have
their
courses
to
the
sea
be
within
this
statute
or
not
,
hath
heretofore
bred
some
question
;
but
for
my
own
part
,
I
am
cleer
of
opinion
that
they
be
within
the
provision
of
these
Laws
,
for
there
be
two
mischiefs
recited
in
the
Statute
;
the
first
is
,
for
not
maintaining
the
Walls
and
Banks
against
the
sea
,
by
reason
whereof
great
hurt
hath
happened
thereby
,
by
the
overflowing
thereof
:
and
the
other
,
by
the
inundation
of
fresh
water-courses
through
Landfloods
,
which
have
done
some
damage
to
the
grounds
next
adjoyning
;
and
these
Laws
apply
a
remedy
to
both
these
grievances
,
that
is
,
by
repairing
the
Walls
and
Banks
next
the
sea
,
and
by
maintaining
of
the
defences
of
the
fresh
Inland
Rivers
,
to
cause
them
keep
their
waters
within
their
Channels
.
And
I
take
it
there
be
words
in
the
Statute
that
will
bear
this
construction
,
viz.
That
by
the
rage
of
the
sea
,
flowing
and
reflowing
,
and
by
means
of
the
Trenches
of
fresh
waters
descending
,
and
having
their
courses
to
the
sea
,
by
divers
ways
be
so
dirupt
,
lacerate
and
broken
,
&c.
And
also
in
the
preamble
of
the
Statute
the
words
there
be
,
that
by
reason
of
the
outragious
flowing
surges
&
course
of
the
sea
in
&
upon
Marsh
grounds
,
and
other
low
places
heretofore
through
politique
wisdom
won
and
made
profitable
for
the
great
Common-wealth
of
this
Realm
,
as
also
by
occasion
of
Lands
,
waters
,
and
other
outragious
springs
,
in
and
upon
Meadows
,
Pastures
and
low
grounds
adjoyning
to
Rivers
,
Streams
,
and
Currents
,
wherein
the
waters
are
to
have
their
courses
.
And
what
keeps
the
fresh
waters
within
this
Channel
but
good
and
serviceable
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
waters
;
and
these
words
extend
more
properly
to
the
Walls
and
Banks
of
fresh
Inland
Rivers
then
to
sea
coasts
.
And
I
do
finde
some
ancient
Authority
in
the
point
out
of
the
Charter
of
Romney
Marsh
,
pag.
where
the
words
be
,
Ad
distriction
'
Private
Walls
and
Banks
.
BUt
all
Banks
and
Walls
wherein
waters
be
pent
are
not
within
the
provision
of
these
Laws
,
but
only
such
as
belong
to
common
and
publique
Rivers
and
ditches
,
Sewers
and
streams
:
for
Walls
and
Banks
made
and
erected
as
fences
to
mens
private
grounds
,
and
there
set
or
made
to
ditches
,
gutters
and
streams
,
for
the
drayning
and
watering
of
mens
private
grounds
are
not
within
these
Laws
,
for
these
Laws
take
cognisance
and
notice
of
none
but
of
such
as
tend
to
the
good
service
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
persons
have
for
inning
and
safety
of
their
Marshes
and
Marsh
grounds
,
cast
great
banks
for
those
private
uses
:
these
banks
are
not
within
the
protection
and
defence
of
these
Laws
to
be
maintained
;
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
erected
.
Forasmuch
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
correspondency
here
in
this
place
,
to
treat
of
them
and
of
their
dependencies
.
A
River
therefore
is
a
running
Stream
,
pent
in
on
either
side
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
expressed
in
the
Case
of
the
Pischary
of
the
Banne
in
Ireland
:
In
the
Statute
of
4
H.
7.
Cap.
15.
Lib.
Ass.
pl.
11.
and
in
Plow
.
Com.
fol.
129.
Tyne
and
Tese
be
both
named
Rivers
:
and
in
19
H.
7.
Cap.
18.
Severn
is
said
to
be
a
River
;
Trent
,
Humber
,
Boston
Haven
,
Lyn
Haven
,
and
Tyber
,
Orontes
,
Euphrates
Rennatus
Choppinus
in
his
Treatise
de
Dominio
Franciae
,
John
Davies
in
his
Irish
Reports
in
the
said
Case
of
Banne
,
saith
,
That
so
far
as
the
Sea
doth
flow
and
reflow
,
it
is
a
Royal
Stream
,
and
the
fishings
therein
belong
to
the
Crown
;
but
where
the
same
doth
not
flow
and
reflow
,
Tertennants
of
both
sides
,
de
Communi
Jure
,
have
the
Pischary
;
yet
a
Subject
may
have
the
free
fishing
in
the
Royal
streams
by
custom
and
prescription
:
And
in
the
River
of
Thames
tam
aqua
quam
solum
pertinuit
Dom'
Regi
,
and
by
Charter
they
were
conveyed
to
the
Lord
Major
of
London
,
and
Citizens
of
the
same
.
In
Lib.
Intrac
.
fol.
666.
In
veteri
lib.
Int.
fol.
666.
there
is
a
president
put
in
this
maner
,
That
an
Action
of
Trespass
was
brought
Quare
le
defend'
piscat'est
in
sua
separali
pischaria
&
pisces
inde
,
videlicet
,
duos
Salmones
caepit
;
the
Defendant
justified
,
and
said
,
That
he
was
seized
of
the
Mannor
of
Dale
,
which
doth
extend
it self
usque
ad
medium
aquae
de
V.
quae
est
eadem
pischaria
in
qua
supponitur
pischationem
predict'
,
fieri
exaustriali
parte
,
and
that
the
Plaintiff
eodem
tempore
quo
,
fuit
sesitus
de
manerio
de
Sale
quod
se
extendit
usque
ad
medium
fili
aquae
predic'
ex
boreali
parte
ejusdem
aquae
&
quod
ipse
defendens
&
omnes
quorum
statum
ipse
habet
in
predic'
manerio
de
Dale
,
à
tempore
quo
non
extat
memoria
hominum
in
contrario
seisit'
fuerant
de
predic'
australi
parte
de
predic'
aquae
ut
de
separali
pischaria
sua
:
in
which
pleading
it
appears
,
That
the
Lords
on
either
side
the
River
,
owe
the
River
by
several
moyeties
,
and
the
several
moyeties
and
the
several
parts
of
the
fishing
as
incident
thereto
.
It
may
also
here
,
as
I
take
it
,
be
moved
for
an
apt
question
,
In
whom
the
property
of
running
waters
was
;
for
Nat.
br.
fo
.
123
P.
C.
164.
in
Natura
Brevium
,
fol.
123.
there
is
a
quod
permitt'
habere
liberam
pischariam
in
aquae
ipsius
L.
whereby
it
appears
,
That
the
Plaintiff
had
property
in
those
waters
;
and
in
Plo.
Com.
154.
one
granted
aquam
suam
in
L.
and
the
Pischary
passed
thereby
,
and
so
did
the
soil
also
in
my
opinion
:
for
in
12
H.
7.
fol.
4.
a
precipe
quod
reddat
is
brought
de
una
Let
it
not
be
held
Questionable
,
whether
Rivers
of
both
kindes
be
within
these
Laws
or
not
,
though
they
be
not
put
among
the
defences
which
this
Statute
speaketh
of
;
for
that
expresly
those
things
which
are
termed
Lets
and
Impediments
,
are
commanded
by
this
Statute
to
be
removed
out
of
the
Rivers
and
Streams
for
hindring
the
waters
;
and
Navigation
being
so
carefully
provided
for
cannot
be
supported
,
unless
Rivers
Navigable
be
maintained
:
and
these
Rivers
are
like
the
veins
of
a
mans
body
,
by
means
whereof
the
increase
of
the
grounds
near
thereunto
adjoyning
are
abundantly
multiplyed
,
and
the
waters
which
trouble
the
Level
are
conveyed
away
thereby
:
so
that
I
am
clear
of
Opinion
,
that
Rivers
and
their
Channels
,
Waters
and
Banks
,
are
all
of
them
fully
within
the
defence
of
these
Laws
,
howsoever
some
which
would
have
no
new
Rivers
cast
by
the
power
of
these
Laws
,
would
extend
the
words
but
to
the
repairs
,
and
not
to
the
River
it self
.
Sewer
.
A
Sewer
,
whereupon
these
Laws
took
their
name
,
hath
been
no
great
stranger
to
our
Common
Laws
of
this
Realm
,
being
perfectly
described
,
though
not
precisely
defined
in
our
Law
;
some
mincing
the
word
,
compound
it
of
two
words
,
Sea
and
were
,
saying
,
that
nomina
sunt
consonantia
rebus
;
and
there
is
some
coherence
between
the
name
and
the
nature
of
the
thing
.
Authorities
in
Law
will
best
decide
the
question
,
and
therefore
20
H.
6.
fol.
1.
an
action
of
waste
Gutter
.
A
Gutter
is
of
a
less
size
,
and
of
a
narrower
passage
and
current
then
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
publike
stream
,
and
a
Gutter
is
a
straight
private
running
water
;
and
the
use
of
a
Sewer
is
common
,
and
of
a
Gutter
peculiar
,
and
by
express
words
also
a
Gutter
is
within
these
Laws
&
ceo
est
sic
mention
'
39
H.
6.
31.
Ditches
.
A
Ditch
Fossa
is
also
described
in
our
Books
,
as
in
12
H.
4.
7.
where
an
Action
upon
the
Case
was
brought
against
the
Mr.
of
S.
Marks
in
Bristol
,
for
that
he
was
bound
by
the
tenure
of
his
Land
to
cleanse
a
Ditch
there
;
he
did
neglect
to
do
the
same
,
by
means
whereof
the
waters
therein
were
stopped
,
and
did
thereby
surround
the
Plaintiffs
grounds
;
so
that
hereby
it
is
apparent
,
That
a
Ditch
is
a
kinde
of
current
of
waters
in
infimo
gradu
.
And
Mr.
Cambden
in
Sua
Lincolniensi
Historia
doth
there
describe
Fosdyke
to
be
Fossa
incibis
ut
non
videtur
currere
omnino
:
It
serves
in
many
places
for
a
fence
to
divide
Lordships
,
and
is
a
great
trough
to
swallow
up
waters
thereabouts
,
which
otherwise
would
lie
upon
the
Level
,
and
of
it
I
say
no
more
,
but
Spero
meliora
&
expecto
.
Other
famous
Ditches
there
be
,
as
that
in
the
North-East
part
of
the
city
of
York
,
which
is
in
a
maner
a
standing
Water
:
And
there
is
an
old
forlorn
Dike
on
the
Fen
sides
in
the
county
of
Lincoln
,
called
Caredike
,
more
ancient
then
profitable
,
for
it
doth
,
as
many
other
of
those
unusual
Ditches
do
,
run
cross
to
the
ordinary
currents
of
waters
in
those
parts
:
For
where
the
Seas
(
for
example
)
stand
East
from
the
main
Land
,
and
so
the
ordinary
currents
run
all
from
West
to
East
directly
towards
the
Sea
,
this
runs
North
and
South
,
obvious
and
cross
to
the
natural
current
of
the
waters
,
which
is
the
true
cause
wherefore
their
currents
be
so
slow
,
small
or
none
at
all
.
There
is
another
of
them
on
Newmarket
Heath
quae
admiranda
Fossa
vocat
'
the
Devils
Dike
:
and
in
Wiltshire
there
is
a
Ditch
famous
,
called
Wansdike
,
or
Mercurii
Fossa
,
which
serves
for
a
division
of
countreys
,
and
so
be
Fossa
Limitania
,
and
are
either
altogether
dry
Dikes
,
and
contain
commonly
no
more
waters
then
those
that
fall
into
them
:
None
of
these
Ditches
be
within
these
Laws
,
but
such
of
them
which
have
a
kinde
of
current
,
and
which
in
some
sort
partake
with
the
Rivers
.
Pools
.
A
Pool
is
a
meer
standing
water
,
without
any
current
at
all
,
and
hath
seldom
or
never
any
issue
to
convey
away
the
waters
;
but
a
Ditch
hath
no
constant
standing
,
nor
any
apparent
current
:
A
Pool
is
properly
the
Inheritance
of
some
private
,
but
a
Fosse
or
Ditch
is
in
use
common
.
Pools
be
not
within
this
Law
for
two
causes
;
the
one
,
Because
both
in
property
and
use
they
be
private
and
peculiar
:
The
other
is
,
Because
these
Laws
seem
to
extend
to
grounds
casually
,
and
not
continually
drowned
&
ad
eaquae
frequentius
accidunt
Jura
ad
aptantur
;
yet
all
Pools
be
not
excluded
from
the
helps
of
these
Laws
:
for
such
as
adjoyn
to
great
Rivers
,
and
lie
upon
the
sides
thereof
without
division
,
they
are
in
a
maner
part
of
the
Rivers
;
and
of
their
kinde
is
the
two
famous
Pools
called
Brayford
and
Swanpool
,
both
near
unto
the
city
of
Lincoln
.
Ponds
.
A
Pond
is
a
standing
Ditch
cast
by
labor
of
mans
hand
in
his
private
grounds
for
his
private
use
,
to
serve
his
house
and
houshold
with
necessary
waters
;
but
a
Pool
is
a
low
plat
of
ground
by
nature
,
and
is
not
cast
by
mans
hand
.
I
finde
a
Pond
within
my
Law
I
read
on
in
expressis
terminis
,
not
as
a
thing
defended
thereby
,
but
as
a
Let
and
Impediment
:
And
had
I
not
found
him
therein
named
,
I
should
not
by
any
Exposition
have
here
brought
it
in
amongst
the
water
Instruments
;
for
I
much
marvel
what
impediment
a
Pond
can
be
at
all
,
unless
by
casting
of
Trenches
from
the
River
to
the
same
,
it
shall
be
a
means
to
take
thereinto
some
of
the
waters
of
the
River
,
and
may
thereby
hinder
Navigation
;
but
this
is
far
fetcht
.
Streams
.
STreams
be
not
any
of
these
,
for
all
these
have
their
proper
peculiar
Banks
,
Bounds
and
Channels
,
and
are
put
in
amongst
them
;
but
a
Stream
is
properly
a
current
of
waters
running
over
the
Level
at
random
,
and
be
not
kept
in
with
Banks
or
Walls
,
and
so
Linwood
saith
,
that
Flumen
which
is
a
Stream
nihil
aliud
est
quam
ipsa
aqua
.
Conduits
.
A
Conduit
or
ought
thereto
belonging
is
not
within
these
Laws
in
any
sort
,
whether
it
pertain
to
a
private
person
,
or
to
a
Town
or
Corporation
.
Springs
.
SPrings
I
finde
within
this
Statute
,
but
coupled
with
such
a
word
,
that
they
thereby
seem
to
be
excluded
and
exiled
quite
from
claiming
any
priviledge
of
defence
by
these
Laws
;
for
the
word
(
Outragious
)
being
joyned
therewith
,
doth
signifie
the
meaning
of
these
Laws
to
take
them
to
be
hurtful
,
and
not
helpful
;
but
all
this
cometh
of
the
word
Outragious
,
which
being
but
a
quality
annexed
upon
accident
,
may
upon
just
occasion
be
taken
away
.
And
the
word
Springs
of
it self
is
both
in
appellation
and
operation
,
very
beneficial
for
the
Commonwealth
:
for
I
may
justly
term
them
the
vital
Spirits
of
many
the
great
and
Royal
Rivers
of
this
Kingdom
,
as
of
Thames
,
Trent
,
and
such
like
:
And
therefore
I
am
willing
to
let
such
of
them
as
be
not
outragious
and
hurtful
,
to
take
up
a
place
of
defence
within
these
Laws
;
for
the
Trent
at
the
head
is
derived
from
Springs
,
as
many
other
Rivers
be
:
and
I
give
both
the
essence
and
assistance
to
them
,
and
so
in
my
opinion
they
are
worthy
the
protection
of
these
Laws
:
and
I
doubt
not
but
the
waters
issuing
and
gushing
from
the
outragious
Springs
,
may
by
the
provident
&
discreet
care
of
the
Commissioners
be
so
ordered
,
as
the
same
may
be
applyed
&
imployed
to
necessary
uses
.
So
now
I
have
run
through
,
like
a
swift
stream
,
the
qualities
of
these
Rivers
,
Gutters
,
Sewers
and
Ditches
,
and
of
all
their
dependancies
,
and
wherein
they
are
to
have
aid
and
assistance
of
these
Laws
of
Sewers
,
being
in
truth
the
very
materials
of
these
Laws
:
yet
for
a
little
better
explanation
of
their
several
natures
and
kindes
,
I
shall
therefore
put
these
Cases
;
First
,
If
the
Town
of
A.
want
water
by
the
driness
of
the
season
for
the
use
of
their
cattel
,
or
for
other
houshould
affairs
,
as
for
brewing
,
washing
and
such
like
;
and
in
the
Town
of
B.
which
doth
adjoyn
thereto
,
there
is
plenty
of
waters
,
more
perhaps
then
is
necessary
for
use
there
,
the
Commissioners
of
Sewers
have
no
power
by
any
of
these
Laws
,
for
any
of
the
said
purposes
,
to
make
any
order
or
decree
to
relieve
the
Town
of
A.
with
waters
from
B.
for
this
Statute
makes
but
two
uses
of
Rivers
,
Sewers
and
Streams
,
the
one
for
draining
,
the
other
for
sailing
;
and
being
for
neither
of
these
purposes
,
the
Commissioners
have
no
power
to
deal
therein
.
But
if
two
towns
do
adjoyn
,
and
in
either
of
them
there
is
a
River
Navigable
,
and
by
accident
one
of
them
is
dried
up
,
and
the
other
aboundeth
with
waters
,
more
perhaps
then
there
is
necessary
use
of
;
I
am
in
the
case
of
opinion
,
that
the
Commissioners
of
Sewers
have
power
by
the
Commission
to
make
a
Law
or
Ordinance
to
relieve
the
River
which
wants
waters
,
out
of
the
abundance
of
waters
which
the
other
River
hath
,
in
help
and
supply
of
Navigation
.
But
put
the
case
that
I.
S.
keeps
Boats
for
his
own
necessary
uses
and
occasions
,
and
for
no
other
purpose
,
the
Commissioners
have
no
warrant
by
their
Commission
to
relieve
I.
S.
with
waters
for
this
his
own
private
use
,
for
that
their
power
is
the
Republike
;
Yet
if
I.
S.
hath
used
with
his
Boats
to
carry
and
recarry
for
the
common
use
of
the
people
in
general
,
then
he
is
within
the
relief
of
these
Laws
.
The
new
Stream
and
cut
which
was
now
of
late
made
and
cast
by
Mr.
Middleton
from
Ware
to
London
,
could
not
have
been
done
by
the
power
of
these
Laws
,
because
it
was
not
made
for
the
draining
or
sailing
,
but
for
houshold
affairs
,
and
therefore
special
Statutes
were
enacted
to
begin
,
continue
and
perfect
that
work
in
3
,
4
Jac.
Regis
;
and
after
the
stream
was
effected
,
these
two
Statutes
brought
the
same
within
Jac.
Reg.
the
power
of
these
Laws
.
And
now
seeing
my
Law
hath
brought
me
in
my
argument
and
discourse
among
the
things
defended
by
these
Laws
;
I
shall
now
make
a
little
digression
from
my
Case
,
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
of
this
Statute
;
and
they
be
three
material
instruments
which
this
Statute
by
name
hath
been
careful
to
take
order
for
.
Bridges
.
BRidges
are
diversly
taken
in
these
Statutes
,
for
some
are
thereby
to
be
maintained
,
and
other
some
are
to
be
extirped
or
reformed
as
lets
and
impediments
;
wherein
I
think
it
not
amiss
for
instruction
,
to
open
some
other
leading
Statutes
which
have
provided
for
them
.
The
first
Statute
of
Bridges
is
in
Magna
Charta
,
cap.
15.
(
facere
)
is
to
be
construed
in
the
sence
of
Reparareor
Manutenere
,
for
other
construction
it
cannot
have
.
And
if
this
Statute
should
be
in
force
,
I
take
it
that
it
would
abate
much
the
power
of
the
Commissioners
of
Sewers
;
for
it
seemeth
by
the
letter
of
it
,
that
either
no
Bridges
were
to
be
repaired
,
but
such
as
were
made
in
the
time
of
H.
2.
and
before
;
Edward
Cook
in
his
Cases
of
the
Isle
of
Ely
Bridges
within
the
Law
of
Sewers
,
are
such
as
lye
on
or
near
surrounded
grounds
,
especially
if
they
be
not
only
placed
there
for
free
passage
,
but
also
for
strength
,
to
defend
the
violence
of
the
waters
,
as
many
of
this
kinde
be
;
viz.
London
Bridge
,
Rochester
Bridge
,
the
great
Bridges
at
Lincoln
,
Boston
Bridge
,
and
the
like
;
and
such
as
lye
on
Inland
and
high
countreys
,
over
high
ways
,
as
Burton
,
Trent
,
Ware
,
Wainsford
,
Huntington
and
such
like
,
be
within
the
said
Statute
of
22
H.
8.
and
I
make
little
doubt
of
it
,
but
all
the
said
last
mentioned
Bridges
are
also
within
the
provision
of
the
said
Laws
of
Sewers
,
for
they
lie
and
are
built
over
such
Rivers
as
be
all
of
them
within
these
Laws
.
The
Statute
of
22
H.
8.
extends
not
to
Bridges
lying
out
Also
private
Bridges
are
within
these
Laws
,
as
if
I.
S.
and
his
Ancestors
,
owners
of
such
a
House
,
have
had
and
used
to
have
a
Bridge
over
a
greater
or
less
River
to
the
Church
,
and
to
his
Pasture
Grounds
,
or
to
his
Common
,
this
Bridge
,
and
all
other
of
this
kinde
,
are
within
this
Statute
of
Sewers
;
viz.
to
be
put
down
or
reformed
if
they
be
impediments
to
the
Common-wealth
,
and
also
to
be
maintained
,
if
thereby
the
same
be
any
material
defence
against
the
rage
and
violence
of
the
waters
,
otherwise
not
,
but
for
putting
down
such
Bridges
which
have
been
by
prescription
.
I
hope
the
Commissioners
of
Sewers
will
be
well
advised
therein
,
seeing
time
hath
given
great
approbation
of
them
,
and
therefore
I
shall
handle
this
point
more
fully
,
when
I
come
to
treat
of
Lets
and
Impediments
,
where
that
part
of
this
Statute
comes
most
fit
to
be
handled
.
The
Statute
of
22
H.
8.
extends
to
the
repairing
and
amending
of
Bridges
onely
,
but
if
it
be
fit
to
take
an
Arch
away
,
or
to
adde
a
new
Arch
thereto
,
or
to
erect
and
build
a
new
Bridge
where
none
was
before
,
this
is
most
fit
to
be
done
by
the
Commissioners
of
Sewers
,
whose
power
may
be
extended
thereto
.
All
Bridges
set
upon
Rivers
by
persons
without
authority
,
may
be
pulled
down
by
the
Commissioners
of
Sewers
,
and
the
parties
punished
;
for
no
man
ought
of
his
own
authority
to
be
so
bold
with
the
common
and
high
ways
or
streams
,
as
to
erect
Bridges
or
other
Engines
thereon
without
lawful
Warrant
.
Bridges
in
highways
,
where
there
is
no
stream
under
,
but
onely
some
petty
Land
stream
at
rain
and
wet
seasons
,
these
be
dry
Bridges
,
and
be
not
within
this
Statute
of
Sewers
,
but
yet
they
be
within
the
Statute
of
22
H.
8.
if
they
stand
on
highways
:
In
14
Jacobi
Regis
it
was
found
by
inquisition
taken
at
the
city
of
Lincoln
in
the
Guild-Hall
there
,
Thomas
Grantham
Knight
,
and
my self
,
and
other
Commissioners
of
the
Sewers
,
that
the
great
Bridge
at
Bracebridge
near
the
city
of
Lincoln
,
and
standing
upon
the
River
of
Wytham
thirty
miles
from
the
Sea
,
was
fallen
into
great
decay
,
whereby
carts
,
carriages
&
men
on
horse-back
could
not
pass
over
the
same
,
as
in
times
past
had
been
used
,
in
defect
of
Hen.
Sapcots
Esq
who
ought
to
repair
a
part
thereof
,
by
reason
of
his
Mannor
of
Bracebridge
;
and
of
Bartholmew
Gregge
,
who
by
reason
of
his
house
standing
at
the
Bridge
foot
,
called
the
Hermitage
,
on
the
North
side
of
the
River
,
ought
to
repair
another
part
;
and
of
the
Corporation
of
Lincoln
,
who
was
to
repair
a
part
thereof
;
and
of
the
country
of
Moreland
,
who
used
to
repair
another
part
:
And
the
same
was
decreed
accordingly
.
But
Mr.
Sapcot
without
cause
finding
himself
grieved
thereat
,
preferred
his
Bill
into
the
Exchequer
Chamber
against
Sir
Thomas
Grantham
and
others
,
to
be
relieved
therein
;
and
did
alleage
,
That
the
same
stood
far
from
the
sea
,
pretending
thereby
that
the
Commissioners
of
Sewers
had
no
power
to
deal
with
the
same
:
but
at
the
hearing
of
the
Cause
in
Anno
16.
Jac.
he
was
over-ruled
in
that
and
all
other
parts
of
this
Suit
.
A
Calcey
.
A
Calcey
or
Calsway
is
a
passage
made
by
art
of
Earth
,
Gravel
,
Stones
and
such
like
,
on
or
over
some
high
or
Common
way
leading
through
surrounded
grounds
for
the
safe
passage
of
the
Kings
liege
people
,
and
these
Calceys
have
always
been
expressed
in
the
ancient
Commissions
of
the
Sewers
in
the
Register
,
Fitz.
nat.
bre.
.
and
in
the
Statute
of
6
H.
6.
cap
5.
but
not
any
Calceys
be
in
these
Laws
,
but
F.
H.
N.
B.
6.
H.
6.
such
as
be
over
surrounded
and
low
grounds
,
as
that
of
Barston
Bank
,
Southy
Bank
,
and
such
like
:
but
touching
Calceys
lying
in
Towns
and
Villages
which
be
in
the
high
uplandish
Countries
,
this
Law
doth
not
in
any
sort
extend
unto
them
,
but
all
Calceys
leading
over
the
said
Bridges
,
and
near
unto
them
,
are
provided
for
by
this
Law
;
yet
no
private
Calceys
are
to
be
dealt
withal
by
the
said
Commissioners
.
Goats
.
GOats
be
usual
Engines
erected
and
built
with
Percullesses
and
doors
of
timber
,
stone
or
brick
,
invented
first
in
Lower
Germany
,
and
after
brought
into
England
,
and
used
here
by
imitation
and
experience
,
hath
given
so
great
approbation
of
them
,
as
they
are
now
,
and
that
with
good
reason
and
cause
inducing
the
same
,
accounted
the
most
useful
instruments
for
draining
the
waters
out
of
the
Land
into
the
Sea
:
There
is
a
twofold
use
made
of
them
,
the
one
when
fresh
waters
flows
and
descends
upon
the
low
grounds
where
these
Engines
are
always
placed
,
and
whereto
all
the
channels
where
they
stand
have
their
currents
and
drains
directed
,
the
same
is
let
out
by
these
into
some
creek
of
the
Sea
;
and
if
at
some
great
floods
the
Seas
break
into
the
Lands
,
the
salt
water
usually
have
their
returns
through
these
back
to
the
Sea
:
Many
of
these
Goats
which
are
placed
on
highways
,
serve
also
for
Bridges
.
This
Goat
is
no
such
imaginary
Engine
as
the
Mills
be
which
some
rare
wise
men
of
late
have
invented
,
but
this
Invention
is
warranted
by
experience
,
the
other
is
rejected
as
altogether
chargeable
and
illusory
:
Yet
these
Engines
seems
to
me
not
to
be
very
ancient
here
in
this
Kingdom
,
for
that
I
do
not
finde
them
mentioned
in
any
of
the
ancient
Commissions
granted
,
before
this
statute
did
express
the
same
;
and
surely
this
Statute
was
so
curious
in
the
special
repetition
of
such
defences
in
specie
as
it
intended
to
defend
and
maintain
,
that
I
am
of
Opinion
,
it
can
scarce
be
drawn
to
extend
to
any
other
:
And
therefore
I
do
agree
with
the
Opinion
of
Sir
Edward
Cook
in
his
Case
of
the
Isle
of
Ely
,
that
an
artificial
Mill
,
and
such
like
new
invented
Engines
,
are
not
to
be
erected
by
the
power
of
these
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
.
New
defences
.
HItherto
I
have
proceeded
onely
in
the
handling
and
discoursing
of
the
old
and
ancient
defences
which
be
helpful
both
to
Sea
and
Land
:
And
therefore
I
am
now
desirous
to
enter
into
the
argument
of
new
defences
,
being
a
matter
very
fit
and
apt
to
be
disputed
on
:
And
to
give
some
warrant
to
my
argument
therein
,
I
have
so
composed
my
Case
,
as
both
old
and
new
be
therein
contained
,
wherein
the
point
will
be
shortly
this
,
Whether
the
new
River
and
new
Bank
mentioned
in
my
Case
,
could
be
ordered
to
be
made
by
the
power
and
authority
of
these
Laws
:
And
those
which
would
take
a
part
to
argue
on
the
contrary
,
may
alleage
much
matter
,
and
many
reasons
to
make
good
their
arguments
;
first
,
out
of
the
words
of
the
Law
it self
,
for
thereby
it
seemeth
,
that
this
Statute
can
bear
no
such
exposition
by
reason
;
the
words
thereof
literally
taken
,
seem
to
extend
onely
to
the
old
and
ancient
defences
,
and
not
to
the
erecting
of
new
:
And
the
words
thereof
in
this
point
be
these
;
Forasmuch
as
the
Walls
,
Banks
,
Ditches
,
&c.
by
the
rage
of
the
Seas
,
and
by
the
fresh
waters
descending
,
be
so
lacerate
,
dirupt
and
broken
,
the
Commission
therefore
doth
authorize
the
Earls
of
Lincoln
,
Rutland
and
Exeter
;
Robert
Lord
Willoughby
of
Grimsthrop
,
Sir
William
Welby
,
Sir
Thomas
Grantham
,
and
Sir
John
Hatcher
,
Knights
,
whereof
three
to
be
of
the
Quorum
,
to
survey
and
amend
the
said
Walls
,
and
Banks
,
Ditches
,
&c.
in
all
places
necessary
,
and
the
same
as
oft
as
need
shall
be
to
make
new
:
Upon
these
words
of
the
Statute
,
do
those
which
argue
against
the
new
Defences
infer
,
That
the
Commissioners
have
not
any
power
to
cause
new
Banks
,
new
Walls
,
or
other
defences
to
be
erected
;
and
so
take
a
difference
between
the
words
nova
construere
,
&
de
novo
construere
,
the
first
extending
to
erect
new
ones
where
none
were
before
,
and
the
other
purporting
the
erecting
of
a
new
one
where
before
an
old
one
stood
:
and
the
words
which
inforce
this
exposition
,
be
penned
strongly
to
that
purpose
;
for
first
,
they
have
power
to
repair
and
amend
,
What
?
such
Walls
and
Banks
as
were
before
,
and
the
same
to
build
new
;
which
words
,
The
same
,
literally
taken
,
must
needs
extend
to
such
old
fences
as
were
before
;
and
the
construction
being
so
made
,
excludes
clearly
the
power
to
make
new
ones
where
none
was
before
:
and
this
exposition
may
be
exampled
in
other
Cases
of
like
quality
,
as
in
22
H.
6.
fo.
18.
where
it
is
said
,
That
if
Lessee
for
years
suffer
a
house
to
fall
down
,
and
before
an
Action
of
Waste
be
brought
against
him
,
he
buildeth
another
in
the
same
place
where
the
former
stood
,
of
the
same
quality
and
quantity
,
that
shall
excuse
him
in
the
Action
of
Waste
:
but
so
would
it
not
have
done
if
he
had
builded
the
same
in
all
points
answerable
in
another
place
,
for
the
one
is
renewed
,
the
other
a
new
one
:
and
in
the
10
H.
7.
fol.
18.
in
the
That
the
Lessee
should
repair
a
Chappel
leased
to
him
,
and
the
same
de
novo
construere
&
constructam
curare
,
which
words
there
bear
the
same
sence
in
exposition
:
And
the
Statute
of
Magna
Charta
cap.
16.
seemeth
,
touching
Banks
,
to
sway
Edward
Cook
in
his
Case
of
the
Isle
of
Ely
,
is
strongly
of
the
same
opinion
,
That
no
new
River
should
be
made
and
cast
by
the
power
of
this
Commission
;
for
the
case
there
is
,
That
the
Commissioners
of
Sewers
in
those
parts
made
an
order
and
decree
,
That
a
new
River
should
be
cut
out
of
the
old
River
there
called
Owse
,
through
the
main
Land
seven
Miles
unto
another
part
of
the
said
River
:
And
the
question
there
was
,
Whether
the
Commissioners
of
Sewers
had
any
such
power
or
not
?
and
he
there
delivered
his
opinion
expresly
,
That
they
had
not
;
and
affirms
it
,
That
it
was
dangerous
and
incovenient
that
Commissioners
of
Sewers
should
have
any
such
Power
and
Authority
,
for
then
they
might
thereby
stop
up
the
Havens
,
which
are
the
Ports
of
the
Realm
:
And
for
the
justifying
of
this
opinion
therein
,
he
alleageth
Fitzher
.
Na.
Bre.
fol.
225.
and
the
Register
,
fol.
Fitz.
Na.
13.
Fol.
225.
Regist.
252.
252.
that
in
case
where
a
new
River
or
Stream
was
desired
to
be
made
,
the
Writ
of
Ad
quod
damn
'
was
to
be
awarded
,
which
should
first
be
directed
to
the
Escheator
of
that
county
,
to
the
end
he
must
enquire
and
certifie
what
damage
it
might
be
if
such
a
cut
should
be
made
,
or
a
new
Trench
cast
;
and
so
concluded
directly
against
the
making
of
new
Rivers
and
drains
by
the
Commissioners
of
Sewers
.
And
truly
there
is
one
thing
more
which
makes
strong
on
that
side
,
which
is
,
That
a
new
River
,
drain
or
cut
,
cannot
be
made
but
through
some
mans
private
Inheritance
,
and
to
the
prejudice
thereof
,
which
is
a
matter
very
considerable
:
So
that
all
these
things
laid
together
,
might
very
well
move
Sir
Edward
Cook
to
be
of
the
said
opinion
,
That
no
such
new
River
or
drain
could
be
made
by
the
Commissioners
of
Sewers
by
the
power
of
these
Laws
.
Argumentum
in
contrarium
.
The
reasons
and
authorities
put
on
the
other
part
are
weighty
and
ponderous
,
and
require
a
very
good
answer
;
which
I
shall
endeavor
to
give
thereto
:
It
is
true
,
that
the
words
of
this
Statute
and
Commission
bear
much
with
the
said
former
exposition
;
So
I
hope
to
finde
words
in
this
Edward
Cook
delivered
upon
the
said
Statute
of
H.
6.
in
his
Case
of
the
Isle
of
Ely
,
which
being
observed
and
granted
,
makes
strongly
for
this
part
;
for
that
the
Statute
of
23
H.
8.
doth
not
only
confirm
all
former
Statutes
of
the
Sewers
then
in
Esse
,
but
also
gives
authority
to
the
Commissioners
to
do
after
the
Tenure
and
effect
of
all
and
singular
the
Statutes
and
Ordinances
before
that
time
made
:
And
although
the
said
Statute
of
H.
6.
was
in
time
then
expired
,
yet
the
form
and
effect
of
it
may
be
followed
and
observed
:
And
to
that
end
I
take
this
diversity
between
a
Law
repealed
and
a
Law
expired
,
for
a
repealed
Law
is
made
void
and
frustrate
,
as
either
unworthy
or
unnecessary
for
some
respects
to
be
any
longer
continued
or
put
in
execution
,
and
therefore
was
forbidden
to
be
used
or
practised
;
but
a
Law
expired
in
time
,
though
it
hath
lost
his
vigor
and
force
,
yet
it
is
like
a
vertuous
man
deceased
,
his
life
and
actions
may
be
worthy
imitation
,
though
the
date
of
days
be
at
an
end
;
but
a
Law
repealed
is
like
a
man
condemned
for
some
offence
,
whose
life
and
actions
are
neither
of
them
worthy
imitation
,
unless
it
be
to
do
the
contrary
:
And
the
said
Statute
of
H.
6.
was
a
worthy
Law
,
which
this
Statute
intended
not
to
come
short
on
,
but
to
extend
further
then
the
Limits
of
that
Law
did
reach
unto
:
also
the
said
Statute
of
H.
6.
is
used
by
Sir
Edward
Cook
in
the
pleading
of
Rooks
Case
in
his
15.
Rep.
where
he
could
Also
we
must
conceive
,
that
these
Laws
of
Sewers
are
of
great
and
urgent
necessity
and
use
for
the
good
of
the
whole
(
and
the
same
to
make
new
)
which
according
to
the
bare
words
in
a
literal
construction
,
cannot
extend
to
new
ones
where
none
was
before
,
but
to
the
reedifying
of
the
decayed
old
ones
;
but
the
learned
expositor
,
whose
constructions
be
not
so
much
grounded
upon
the
letter
as
upon
the
sence
,
may
in
equal
justice
extend
the
sence
to
new
making
,
as
wel
as
to
renewing
of
defences
;
for
Mr.
Bract.
Plow
.
Com.
in
Hill
and
Granges
Case
,
fol.
178.
and
in
many
other
authorities
à
forciori
shall
this
Statute
of
23
H.
8.
be
expounded
Hill
&
Granges
Case
.
with
as
much
favorable
equity
as
can
be
,
to
inlarge
the
letter
of
the
Law
in
the
sence
of
construction
,
because
it
tends
so
much
to
the
advancement
of
the
Commonwealth
,
Et
qui
heret
in
littera
heret
in
corticè
.
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
these
new
defences
where
either
just
occasion
or
necessity
did
inforce
it
;
they
would
have
answered
,
That
they
so
intended
it
;
for
the
soul
and
life
of
the
Law
lieth
in
the
sensible
exposition
thereof
,
and
not
in
the
bare
letter
,
as
Mr.
Plow
.
also
fully
demonstrates
in
his
Com.
in
Easton
and
Studs
Case
.
And
whereas
it
is
formerly
alleaged
,
that
the
wariness
of
the
Common
Law
was
such
in
these
Cases
,
that
it
admitted
not
one
such
new
Trench
,
River
or
new
cut
to
be
made
,
without
the
awarding
out
of
the
writ
of
Ad
quod
dam
'
directed
to
the
Escheator
,
an
Officer
sworn
to
enquire
,
first
,
what
damage
it
might
be
if
such
a
new
cut
or
drain
were
made
?
and
then
upon
his
inquisition
returned
,
there
might
be
one
made
,
if
by
the
inquisition
it
were
found
convenient
,
else
not
to
be
proceeded
further
in
:
But
in
answer
thereto
,
being
the
argument
set
down
in
the
said
Case
of
the
Isle
of
Ely
,
I
am
of
Opinion
,
That
there
may
be
more
wary
and
circumspect
proceedings
by
this
Commission
,
then
in
the
Ad
quod
damn
'
by
the
Escheator
;
for
there
be
many
Commissioners
which
be
all
sworn
,
and
in
the
Ad
quod
damn
'
there
is
but
one
,
the
Escheator
,
plus
vident
oculi
quam
oculus
&
tutius
est
rem'
committere
pluribus
,
quam
uni
,
and
in
my
Opinion
,
it
is
much
better
to
commit
this
weighty
business
to
many
Commissioners
of
great
gravity
,
experince
,
learning
,
wisdom
and
integrity
,
then
to
one
Escheator
,
who
may
perhaps
want
all
those
vertues
:
And
further
,
whereas
in
the
said
Case
of
the
Isle
of
Ely
,
it
is
inferred
,
or
rather
feared
,
that
by
giving
this
power
to
the
Commissioners
of
Sewers
,
they
may
thereby
stop
up
the
havens
of
this
Kingdom
;
that
fear
is
needles
,
for
I
finde
,
that
neither
by
the
letter
nor
the
sence
of
these
Laws
,
any
such
exposition
can
be
made
,
either
to
the
stopping
up
or
hindring
of
their
currents
and
passages
.
But
to
proceed
in
my
former
discourse
in
making
new
defences
:
I
know
that
in
the
43
,
and
44
Eliz.
a
great
controversie
did
arise
in
the
county
of
Lincoln
,
about
the
building
and
erecting
of
two
new
Goats
at
Edward
Dymock
Knight
,
did
further
what
he
might
,
by
the
strength
of
himself
and
his
friends
;
and
it
was
opposed
by
the
Countrey
of
Kesteven
:
and
the
very
exception
thereto
taken
,
was
,
That
the
Commissioners
of
Sewers
could
not
by
the
power
of
their
Commission
make
a
Law
for
the
erecting
of
these
new
Goats
where
never
any
stood
there
before
:
And
that
Case
proceeded
so
far
,
as
the
same
came
in
the
end
before
the
two
chief
Justices
,
Popham
and
Anderson
,
who
both
delivered
their
opinions
,
that
the
said
new
Goats
,
if
they
were
found
to
be
profitable
for
the
good
and
safety
of
the
county
,
might
be
erected
by
the
power
of
this
Statute
;
but
they
then
wished
and
advised
,
that
the
Commissioners
should
be
wary
,
provident
and
circumspect
to
advise
deliberately
before
hand
,
that
they
by
the
opinion
of
experienced
persons
in
those
affairs
,
the
said
new
works
should
in
all
appearance
seem
to
be
profitable
to
the
Common
weal
,
if
they
were
effected
;
&
that
Commissioners
should
not
in
any
sort
make
such
devices
at
the
suit
,
prosecution
and
request
of
private
persons
for
their
private
&
peculiar
good
,
who
many
times
sought
their
own
ends
under
pretence
of
the
publike
good
.
And
a
like
great
controversie
did
arise
in
12
Jac.
in
the
counties
of
Cambridge
,
Huntington
and
Northampton
,
about
the
making
of
new
cuts
and
drains
in
the
Isle
of
Ely
by
the
power
of
the
Commissioners
of
Sewers
,
which
being
much
opposed
,
the
same
came
in
the
end
to
be
heard
before
the
King
and
Councel
,
wherein
this
Order
was
conceived
as
followeth
.
The
Kings
Councels
Order
.
HIs
Majesties
Attorney-General
having
according
to
an
Order
of
this
Board
of
the
Thirteenth
of
October
last
,
called
unto
him
the
Kings
learned
Councel
;
and
taking
Information
of
such
Complaints
as
were
first
exhibited
unto
this
Board
,
touching
sundry
Suits
and
Vexations
moved
of
late
by
certain
obstinate
and
ill-disposed
persons
,
against
His
Majesties
Commissioners
of
Sewers
,
for
the
counties
of
Lincoln
,
Huntington
,
Northampton
and
Cambridge
,
and
their
Officers
and
Ministers
,
for
executing
the
Orders
and
Decrees
of
the
Commissioners
,
to
the
manifest
destruction
and
inundations
of
many
large
Levels
and
parts
of
the
said
counties
:
And
having
by
their
Lordships
like
Directions
,
upon
advised
consideration
,
weighed
and
compared
the
said
late
and
undue
proceeding
with
ancient
Laws
of
this
Realm
,
appearing
in
divers
notable
Records
in
the
point
now
questioned
,
with
the
continual
and
concurrent
practise
of
ancient
and
later
times
;
and
also
the
Opinions
of
the
Lord
Popham
,
late
Chief
Justice
,
delivered
in
writing
very
exactly
and
fully
upon
the
said
Questions
,
touching
the
Power
and
Authority
of
the
said
Commission
;
and
thereupon
making
Report
at
large
unto
their
Lordships
this
day
in
full
Counsel
,
of
the
whole
state
of
the
cause
;
Forasmuch
as
thereby
it
appeared
,
That
these
Inventions
and
Disturbances
consist
upon
Four
heads
,
wherein
the
extent
of
the
Commission
was
questioned
,
upon
pretext
and
conceit
of
Law
:
First
,
that
the
Commissioners
of
Sewers
had
not
Authority
to
cause
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
first
Presentment
or
Judgement
to
charge
every
man
in
particular
,
according
to
the
quantity
of
his
Land
or
Common
.
Thirdly
,
that
they
had
not
power
sufficient
to
commit
to
prison
persons
refractory
and
disobedient
to
their
Orders
,
Warrants
and
Decrees
.
And
lastly
,
that
Actions
of
Trespass
,
False
Imprisonment
,
and
other
Proces
at
the
Common
Law
,
have
been
brought
against
some
of
their
Officers
and
Ministers
for
executing
their
Decrees
and
Warrants
;
Their
Lordships
finding
in
their
wisdoms
,
that
it
can
neither
stand
with
Law
,
nor
with
common
Sense
or
Reason
,
that
in
a
cause
of
so
great
consequent
the
Law
can
be
so
void
of
Providence
,
as
to
restrain
the
Commissioners
of
Sewers
from
making
new
works
to
restrain
the
fury
of
the
Waters
,
aswel
as
to
repair
the
old
where
necessity
doth
require
it
for
the
safety
of
the
country
,
or
to
cause
a
charge
upon
the
Towns
or
Hundreds
in
general
that
are
interessed
in
the
benefit
or
loss
,
without
attending
particular
Survey
or
Admeasurement
of
Acres
,
when
the
service
is
to
have
speedy
and
sudden
execution
,
or
that
a
Commission
of
so
high
a
nature
,
and
of
so
great
use
to
the
Commonwealth
,
and
evident
necessity
,
and
of
so
ancient
jurisdiction
,
both
before
the
Statute
and
since
,
should
want
means
of
coertion
for
obedience
to
their
Orders
,
Warrants
and
Decrees
,
when
as
the
performance
of
them
,
the
preservation
of
many
Thousands
of
His
MAJESTIES
Subjects
Lives
,
Goods
and
Lands
doth
depend
;
It
plainly
appearing
,
That
it
will
be
a
direct
frustrating
and
overthrow
of
the
authority
of
the
said
Commission
of
Sewers
,
if
the
Commissioners
,
their
Officers
and
Ministers
should
be
subject
to
every
Suit
at
the
pleasure
of
the
Delinquent
in
His
Majesties
Court
of
the
Common
Law
,
and
so
to
weary
and
discourage
all
men
from
doing
their
duties
in
that
behalf
:
For
the
Reason
aforesaid
,
and
for
the
supreme
Reason
above
all
reasons
,
which
is
the
salvation
of
the
Kings
Land
and
People
,
Their
Lordships
did
Order
,
That
the
persons
formerly
Committed
by
this
Board
for
their
contempt
concerning
this
cause
,
shall
stand
Committed
until
they
release
or
sufficiently
discharge
such
Actions
,
Suits
and
Demands
as
they
have
brought
at
the
Common
Law
against
the
Commissioners
of
Sewers
,
or
any
the
Ministers
or
Officers
of
the
said
Commission
;
saving
unto
them
nevertheless
any
Complaint
or
Suit
for
any
Oppression
or
Grievance
before
the
Court
of
Sewers
,
or
this
Table
,
if
they
receive
not
Justice
at
the
Commissioners
hands
.
And
their
Lordships
further
Order
,
That
Letters
from
the
Table
shall
be
written
to
the
Commissioners
of
Decrees
of
like
nature
,
when
it
should
be
found
needful
,
requiring
,
incouraging
and
warranting
them
to
proceed
in
the
execution
of
their
several
Commissions
,
according
unto
former
practise
and
usuage
,
Any
late
disturbance
,
opposition
or
conceit
of
Law
whereupon
the
said
disturbance
hath
been
grounded
notwithstanding
;
with
admonition
nevertheless
,
That
care
be
taken
that
there
be
no
just
cause
of
complaint
given
by
any
abuse
of
the
said
Commission
.
Examinat'
per
Edmunds
Cleric'
Consilii
.
Present
at
this
Order
making
,
were
,
-
1.
The
Kings
Majesty
in
Person
.
-
2.
The
Archbishop
of
Canterbury
.
-
3.
L.
Chancelor
Elsmeare
.
-
4.
L.
Treasure
Earl
of
Suffolk
.
-
5.
L.
Steward
D.
de
Lenox
.
-
6.
L.
Admiral
Howard
Earl
of
Notingham
.
-
7.
L.
Chamberlain
Earl
of
Pembroke
.
-
8.
E.
of
Arundel
,
Howard
.
-
9.
Viscount
Wallingford
.
-
10.
Viscount
Fenton
.
-
11.
Andrews
Bishop
of
Ely
.
-
12.
Lord
Wotton
.
-
13.
Lord
Cary.
-
14.
Secretary
Winwood
.
-
15.
Secretary
Lake
.
-
16.
Sir
Foulk
Grevil
Chancelor
of
the
Exchequer
.
-
17.
Master
of
the
Rolls
Cesar
.
-
18.
Sir
Francis
Bacon
Attorney-General
.
All
of
them
of
the
Privy-Councel
.
This
Order
is
in
some
points
legal
,
and
may
stand
for
a
direction
in
matters
of
Law
,
and
the
other
parts
thereof
may
stand
for
a
president
of
State
;
and
it
thereby
plainly
appeareth
,
that
the
Kings
learned
Counsel
were
of
Opinion
,
That
the
said
new
works
might
be
Ordered
and
Decreed
to
be
done
by
the
Commissioners
of
Sewers
,
and
that
the
same
had
warrant
from
former
presidents
.
But
the
last
allegation
on
the
contrary
party
is
very
forcible
against
this
argument
,
That
by
the
making
and
erecting
of
these
new
Defences
,
the
inheritance
of
private
persons
are
thereby
prejudiced
whereon
they
be
built
;
yet
as
Cato
saith
,
Vix
ulla
Lex
fieri
potest
quae
omnibus
utilis
sit
sed
si
majori
And
so
it
is
13
H.
8.
fol.
16.
That
the
Commonwealth
Pro
ch
.
8.
ver.
27.
and
bound
him
in
the
fetters
of
his
eternal
decree
,
and
given
policy
and
means
to
man
to
keep
him
from
invading
the
Land
by
artificial
works
,
proper
for
such
services
:
Therefore
in
my
Opinion
,
by
the
very
true
intent
and
meaning
of
the
said
Statute
,
and
by
a
just
,
equal
and
reasonable
construction
,
it
should
lie
in
the
power
of
the
Commissioners
of
Sewers
,
upon
just
and
urgent
occasions
and
considerations
,
to
make
Orders
and
Decrees
for
erecting
and
making
of
new
Banks
,
new
Walls
,
Goats
,
Streams
,
Sluces
,
and
other
necessary
Defences
against
the
overflowing
of
the
Sea
;
For
Ubi
nova
fit
maris
incursio
ibi
novum
est
apponendum
remedium
,
with
this
caution
,
That
under
the
pretence
of
the
Commonweal
a
private
mans
welfare
be
not
intended
to
the
charge
,
trouble
and
burthen
of
the
countrey
:
And
with
this
also
,
That
where
any
mans
particular
interest
and
inheritance
is
prejudiced
for
the
Commonwealths
cause
,
by
any
such
new
erected
works
,
That
that
part
of
the
countrey
be
ordered
to
recompence
the
same
which
have
good
thereby
,
according
as
is
wisely
and
discreetly
Ordered
by
two
several
Statutes
,
the
one
made
in
Anno
27
Eliz.
cap.
22.
El.
c.
22.
Rastal
Havens
and
Rivers
,
is
where
the
Commissioners
have
power
to
compound
and
agree
with
the
Lords
and
owners
of
the
grounds
through
which
the
new
cuts
are
to
be
made
;
And
the
other
3
Jac.
Reg.
cap.
for
bringing
the
new
stream
The
second
Point
upon
this
Statute
.
It
appeareth
by
my
Case
,
That
the
Commissioners
of
Sewers
did
decree
a
new
Bank
to
be
raised
,
and
a
new
River
to
be
cast
,
and
an
old
Sewer
to
be
repaired
upon
their
view
,
survey
and
discretion
.
The
words
of
this
Commission
upon
which
I
framed
this
part
of
the
Case
be
these
(
videlicet
)
We
have
assigned
you
Theophilus
Earl
of
Lincoln
,
Robert
Lord
Willoughby
of
Earsby
,
Sir
George
Manners
Knight
,
Sir
Philip
Tyrwhit
,
and
Sir
John
Wray
,
Knights
and
Baronets
,
Sir
William
Pelham
,
Sir
John
Read
,
Sir
Edward
Ascough
,
Sir
Hamond
Knights
,
Anthony
Erby
Esq
Quor'
;
the
said
Earl
,
Lord
,
and
Sir
George
Manners
,
we
will
to
be
three
to
survey
the
Walls
,
Banks
,
Drains
,
Sewers
,
&c.
and
the
same
to
cause
to
be
repaired
,
amended
or
put
down
as
cause
shall
require
,
after
your
wisdom
and
discretions
,
and
to
do
after
our
Statutes
;
as
also
to
inquire
by
the
oathes
of
lawful
and
honest
men
of
those
places
where
such
default
be
.
By
the
Tenor
of
which
words
I
conceive
,
That
Commissioners
of
Sewers
have
power
by
their
Commission
to
proceed
three
maner
of
ways
;
(
viz.
)
first
,
By
Survey
:
2.
By
Jury
:
3.
By
discretion
;
wherein
it
behoveth
Commissioners
of
Sewers
to
know
perfectly
,
how
to
use
and
dispose
of
their
powers
with
due
understanding
of
these
parts
of
this
Commission
and
Law
:
And
the
better
to
prepare
them
herein
,
I
shall
take
some
pains
to
declare
unto
them
what
they
may
do
by
survey
without
a
Jury
,
and
what
by
Jury
,
and
what
by
their
discretion
,
without
both
Survey
and
Jury
.
View
and
Survey
.
VIew
is
the
primary
part
of
Survey
,
and
Survey
is
much
,
but
not
altogether
directed
by
view
.
It
is
true
,
that
view
is
of
great
use
in
the
Common
Law
,
and
it
is
to
be
done
and
performed
in
person
,
and
such
views
are
taken
in
Tryals
of
Assizes
;
yet
by
the
36
Hen.
8.
in
Dyer
fol.
61.
Accedere
ad
locum
vastatum
;
In
a
word
,
there
is
a
diversity
between
a
view
and
a
survey
,
for
by
the
view
one
is
to
take
notice
only
by
the
eye
,
but
to
survey
is
not
only
to
take
notice
of
a
thing
by
the
eye
,
but
also
by
using
other
ceremonies
and
circumstances
,
as
the
hand
to
measure
,
and
the
foot
to
pace
the
distances
.
And
the
Commissioners
Surveyors
have
power
to
take
information
by
examination
of
others
:
And
although
Judge
Fitz.
in
27
H.
8.
fol.
27.
holds
a
Surveyor
of
very
small
esteem
in
his
power
and
authority
,
that
is
,
That
he
may
hear
,
see
and
say
nothing
Oier
voier
&
rien
dier
:
Yet
under
the
favor
of
that
book
,
I
take
a
Surveyor
to
be
of
more
esteem
and
authority
;
for
by
an
old
Statute
made
in
4
Edw.
1.
Rastal
Surveyors
,
first
,
he
is
there
described
to
be
a
man
which
is
to
view
the
work
,
and
to
make
inquity
,
And
there
is
also
an
Officer
in
this
Statute
of
Sewers
,
called
a
Surveyor
,
who
hath
no
judicial
power
,
but
is
meerly
an
Officer
.
What
things
Officers
of
Sewers
may
do
by
Survey
onely
.
EVery
thing
which
Commissioners
of
Sewers
are
to
do
,
must
be
by
true
understanding
of
their
authorities
;
and
this
must
be
so
done
,
that
they
make
such
distinctions
,
differences
and
applications
as
may
stand
with
knowledge
,
skil
and
learning
;
or
otherwise
their
proceedings
will
prove
irregular
:
And
therefore
it
is
not
only
meet
to
describe
the
Officer
Surveyor
as
formerly
I
have
done
,
but
also
his
Office
,
which
I
now
mean
to
do
.
First
,
Commissioners
of
Sewers
may
view
the
Defences
,
and
thereby
may
inform
themselves
which
stands
in
need
of
repairing
and
amending
,
and
which
not
;
and
wherein
the
defaults
and
defects
appear
to
be
,
and
what
they
be
.
Secondly
,
they
may
by
survey
take
notice
and
knowledge
,
by
conference
with
Carpenters
,
Masons
,
Smiths
and
other
Officers
,
what
things
are
fitting
to
be
provided
for
effecting
the
works
,
and
what
sums
of
money
will
be
spent
for
the
finishing
thereof
.
Thirdly
,
the
Commissioners
may
by
view
and
survey
,
take
knowledge
of
the
lets
,
impediments
and
annoyances
in
the
Banks
,
Walls
,
Rivers
,
Streams
,
Gutters
,
Sewers
,
and
of
the
height
and
lowness
of
the
said
Banks
and
Walls
;
and
may
thereby
discover
and
finde
out
the
wants
,
imperfections
,
weakness
and
strength
of
them
,
and
so
may
cause
the
lets
and
impediments
to
be
removed
,
and
the
wants
to
be
supplied
,
and
the
weak
places
strengthned
,
as
cause
shall
require
.
Fourthly
,
also
by
survey
onely
they
may
sufficiently
inform
themselves
of
the
incroachment
,
and
of
the
straitness
,
depth
,
wideness
and
shallowness
of
the
Rivers
,
Streams
,
Gutters
and
Sewers
,
and
may
view
the
defects
in
these
kindes
.
These
things
I
have
produced
as
proper
to
be
performed
by
view
and
survey
of
the
Commissioners
;
and
now
I
shall
proceed
to
the
rest
.
Things
to
be
done
by
a
Iury.
FIrst
,
what
person
or
persons
did
erect
and
set
up
any
let
and
impediments
,
as
a
Floodgate
,
Mill-dam
or
such
like
,
must
be
found
by
Jury
;
for
here
the
words
of
the
Statute
are
to
be
observed
,
which
are
these
,
And
also
to
inquire
by
the
oathes
of
good
and
lawful
men
of
the
said
shire
or
shires
,
place
or
places
,
where
such
defaults
or
annoyances
be
,
as
well
within
liberties
as
without
,
by
whom
the
truth
may
rather
be
known
through
whose
default
the
said
hurts
and
damages
have
happend
,
or
who
hath
,
or
holdeth
any
Lands
or
Tenements
,
or
Common
of
pasture
,
or
profit
of
fishing
,
or
hath
or
may
have
any
hurt
,
loss
or
disadvantage
by
any
maner
of
means
in
the
said
places
,
as
well
near
to
the
said
Dangers
,
Lets
or
Impediments
,
as
inhabit
or
dwell
thereabouts
,
by
the
said
Walls
,
Ditches
,
&c.
So
that
the
first
Article
is
full
within
the
words
of
this
Statute
;
and
therefore
it
must
be
done
by
Jury
,
and
no
other
accusation
is
of
sufficient
strength
in
the
Law
to
put
a
man
to
his
answer
.
And
herein
the
makers
of
these
Laws
did
sagely
,
for
how
should
Commissioners
of
Sewers
take
notice
by
view
or
survey
of
such
things
as
are
done
or
committed
in
their
absence
?
Secondly
,
if
any
Wall
,
Bank
,
River
,
Sewer
,
or
other
defence
be
defective
by
neglect
or
sufferance
of
such
as
should
repair
the
same
,
the
Commissioners
of
Sewers
are
to
inquire
by
Jury
in
whose
default
the
same
happened
.
Thirdly
,
the
Commissioners
are
to
enquire
,
What
person
or
persons
ought
or
be
bound
by
Custom
,
Prescription
,
Tenure
,
Covenant
or
otherwise
;
or
for
or
by
reason
of
what
lands
or
grounds
he
or
they
be
tyed
or
bound
to
do
the
repairs
,
and
where
those
grounds
do
lye
,
and
who
be
the
owners
thereof
?
Fourthly
,
also
it
must
be
inquired
by
Jury
,
What
grounds
lye
within
the
hurt
or
danger
of
waters
,
either
within
the
surrounder
by
the
sea
,
or
the
inundation
of
the
fresh
waters
,
and
to
whom
they
do
belong
?
Fifthly
,
and
if
a
new
Sluce
,
Goat
or
other
defence
is
to
be
erected
,
built
and
made
,
or
a
new
Sewer
,
Gutter
or
Trench
to
be
cast
,
this
may
be
determined
of
by
the
view
and
survey
of
the
Commissioners
,
and
so
may
the
aptness
of
the
places
where
they
are
to
be
set
or
cast
,
and
the
length
,
height
,
bredth
and
depth
of
them
;
for
these
things
are
proper
for
a
view
and
survey
:
But
what
persons
hold
Lands
and
Tenements
within
the
Level
,
which
are
fit
to
be
chargeable
thereunto
,
and
the
quantity
of
their
Lands
are
to
be
inquired
of
by
Jury
.
And
these
few
causes
I
have
put
for
example
sake
:
and
if
any
other
fall
out
within
the
like
reason
,
then
they
are
to
receive
the
same
construction
.
Sixthly
,
in
every
case
where
an
Amerciament
is
to
be
imposed
,
it
must
be
by
presentment
of
good
and
lawful
men
upon
their
Oaths
,
Et
hoc
per
statutum
de
Magna
Charta
,
cap.
14.
nulla
miserecord'
ponatur
nisi
per
Sacramentum
proborum
&
legalium
hominum
de
viceneto
,
&c.
Surveyors
presentment
.
BUt
it
hath
been
used
,
that
Surveyors
of
the
Sewers
have
made
presentments
of
defaults
of
things
governed
by
these
Laws
;
but
whether
such
a
presentment
be
binding
or
not
,
is
a
good
point
.
It
is
clear
in
my
opinion
,
that
they
can
make
no
presentment
,
but
such
as
happeneth
within
their
view
and
survey
,
and
what
those
things
be
they
formerly
appeared
.
They
cannot
present
that
I.
S.
is
bound
by
prescription
,
custom
,
covenant
or
otherwise
,
to
repair
such
a
Wall
,
Bank
or
Sewer
,
for
this
is
not
within
their
Office
.
In
Kelloways
Reports
fol.
141.
there
is
a
custom
alleaged
,
that
Kelloways
Rep.
fol.
141.
two
men
within
the
provost
might
present
the
Articles
of
the
Leet
,
But
I
doubt
of
such
Presentment
,
though
it
have
a
custom
to
strengthen
it
:
I
take
this
difference
,
that
an
Original
Presentment
Surveyors
cannot
make
,
as
to
present
I.
S.
that
by
the
Tenure
of
his
Lands
he
ought
to
repair
such
a
Bridge
,
Wall
,
Bank
or
other
Defence
;
But
the
Surveyors
may
make
a
supplemental
Presentment
;
as
for
example
,
if
it
hath
been
presented
before
by
a
Jury
,
that
I.
S.
ought
to
have
repaired
such
a
Ditch
,
and
hath
not
done
the
same
,
and
day
is
given
him
by
the
Commissioners
of
Sewers
to
do
the
same
,
if
the
same
be
not
repaired
at
the
day
,
the
Surveyor
may
present
in
this
case
the
not
repairing
,
because
this
is
but
an
Oath
of
assistance
,
ad
informandum
conscientiam
Judicis
,
for
the
Amerciament
shall
be
imposed
by
the
force
of
the
said
former
Presentment
;
and
this
latter
Presentment
by
the
Surveyors
,
is
onely
to
give
the
Justices
notice
of
the
parties
farther
neglect
,
to
the
end
they
may
impose
the
greater
Amerciament
:
And
a
Presentment
by
Surveyors
is
not
traversable
,
being
of
so
smal
esteem
in
Law
,
as
our
Law
will
not
vouchsafe
to
take
an
issue
upon
it
,
for
their
act
herein
is
not
in
the
ordinary
legal
form
.
What
Commissioners
of
Sewers
may
do
by
Discretion
.
DIscretion
is
the
herb
of
grace
that
I
could
wish
every
Commissioner
of
Sewers
well
stored
withal
,
for
the
makers
of
this
Statute
had
an
intention
to
make
it
of
great
use
,
being
literally
nominated
nine
or
ten
times
in
this
Law
,
&
for
this
cause
I
have
inserted
in
my
Case
;
but
note
,
that
the
word
Wisdom
is
coupled
with
it
,
and
the
word
(
Good
)
is
annexed
to
them
both
,
as
best
shewing
of
what
pure
mettal
they
should
be
made
of
,
After
your
good
wisdom
and
discretion
.
There
be
three
several
degrees
of
discretion
,
Discretio
generalis
,
Discretio
legalis
,
Discretio
specialis
.
Discretio
generalis
is
required
of
every
one
in
every
thing
that
he
is
to
do
or
attempt
.
Legalis
discretio
is
that
which
Sir
Edward
Cook
meaneth
and
setteth
forth
in
Rooks
and
Keighlies
Cases
,
Hoc
est
scire
pro
legem
quod
sit
justum
;
and
this
is
meerly
to
administer
Iustice
according
to
the
prescribed
rules
of
the
Law
;
and
herein
is
this
discretion
limited
,
that
it
go
not
beyond
or
besides
those
Laws
which
are
to
be
executed
:
And
this
discretion
is
to
be
governed
by
the
Laws
,
for
Cicero
saith
,
Sapientis
est
judicis
cogitare
tantum
sibi
esse
permissum
quantum
sit
Commissum
aut
creditum
.
The
third
discretion
is
where
the
Laws
have
given
no
certain
rule
to
be
directed
by
in
a
case
within
the
power
of
this
Commission
,
there
the
Commissioners
are
to
order
these
affairs
with
such
wisdom
and
judgement
,
that
although
their
censure
be
not
framed
in
a
Rule
of
Law
,
yet
they
are
to
do
therein
secundum
aequum
&
bonum
;
and
herein
discretion
is
the
absolute
Iudge
of
the
Cause
,
and
gives
the
rule
:
But
in
the
case
of
Legal
discretion
,
there
discretion
is
but
a
servant
,
and
is
tyed
to
attend
upon
the
Law
;
and
there
the
Law
directs
the
censure
,
and
discretion
is
but
to
do
the
same
wisely
&
temporally
;
for
ipsae
etenim
leges
cupiunt
ut
jure
regantur
.
Sir
Ed.
Cook
in
Book
Case
5
Report
,
gives
this
rule
to
the
That
although
the
words
of
the
Commission
be
,
That
they
should
do
according
to
their
discretions
,
yet
their
proceedings
ought
to
be
limited
and
bounded
within
the
Rules
of
Law
and
Reason
;
for
that
discretion
is
a
Science
to
discern
betwixt
falsity
and
truth
,
between
right
and
wrong
,
between
shadows
and
substance
,
betwixt
equity
and
colourable
glosses
,
and
the
Commissioners
ought
not
to
follow
their
wills
and
private
affections
;
for
,
That
talis
discretio
discretionem
confundit
:
And
therefore
now
I
will
declare
in
few
words
,
in
what
things
these
Commissioners
are
to
be
ruled
by
good
discretion
.
First
,
the
quantity
of
Fines
be
left
to
the
discretion
of
the
Commissioners
.
Item
,
Imprisonment
of
the
bodies
of
the
offenders
when
they
deserve
,
and
the
time
how
long
,
lieth
much
in
their
discretion
.
Item
,
it
lieth
in
their
grave
wisdoms
and
discretions
,
when
and
where
to
erect
new
Walls
,
Banks
and
other
Defences
,
and
what
sums
of
Money
to
Raise
and
Levy
therefore
.
The
election
of
Officers
lieth
in
their
discretion
.
It
lieth
many
times
in
their
discretion
whom
to
fine
,
and
whom
to
imprison
.
I
take
it
this
word
Discretion
used
in
the
Statute
,
giveth
power
to
the
Commissioners
to
order
businesses
there
arising
in
course
of
equity
,
for
hoc
nihil
aliud
est
,
but
to
proceed
secundum
aequum
&
bonum
.
I
have
put
these
few
Cases
as
examples
to
direct
and
instruct
what
may
be
done
by
discretion
,
omitting
many
other
,
because
I
had
rather
trust
to
the
worst
certain
Law
,
then
to
give
too
much
way
to
the
uncertain
discretion
of
the
Commissioners
,
according
to
the
old
saying
,
Quoad
fieri
possit
quàm
plurima
legibus
ipsis
definiantur
My
former
labor
hath
been
to
expound
and
declare
what
defences
,
as
well
against
the
overflowing
of
the
sea
,
as
against
the
inundation
of
fresh
waters
,
were
and
be
to
be
maintained
,
and
also
new
erected
by
the
Tenor
and
power
of
these
Laws
:
So
that
now
it
comes
very
aptly
to
be
handled
,
for
what
causes
,
considerations
and
matters
one
shall
or
may
be
tyed
to
the
repairing
and
keeping
thereof
,
which
I
take
to
be
these
nine
several
ways
.
1.
By
Frontage
.
2.
By
Ownership
.
3.
By
Prescription
.
4.
By
Custome
.
5.
By
Tenure
.
6.
By
Covenant
.
7.
Per
usum
rei
.
8.
A
Township
.
9.
By
these
Laws
of
Sewers
.
I
suppose
I
shall
produce
sufficient
Warrant
and
Authorities
for
to
maintain
all
these
distinctions
,
wherein
I
am
desirous
that
Commissioners
of
Sewers
,
for
whose
learning
and
instruction
I
have
taken
these
pains
,
would
apply
themselves
to
do
their
duties
and
service
herein
carefully
and
advisedly
,
and
like
to
skilful
Physitians
,
would
apply
fitting
Medicines
to
the
curing
of
every
disease
,
else
shall
they
oftentimes
Opprimere
insontes
&
dimittere
reos
:
But
if
they
will
seriously
cast
their
eyes
upon
these
insuing
Cases
,
they
will
be
very
helpful
to
them
in
their
proceedings
.
Frontage
.
FRontage
is
where
the
grounds
of
any
man
do
joyn
with
the
brow
or
front
thereof
to
the
Sea
,
or
to
great
or
royal
streams
;
and
in
case
of
the
sea
or
royal
River
,
the
property
of
the
Banks
and
grounds
adjoyning
are
and
belong
to
the
subject
,
whose
lands
do
but
and
bound
thereon
,
but
the
soil
of
the
sea
and
royal
Rivers
do
appertain
to
the
King
,
as
formerly
in
my
Tractate
of
Rivers
may
appear
.
But
in
case
of
petty
and
mean
Rivers
and
streams
,
the
soil
of
them
,
as
well
as
the
banks
thereof
,
do
appertain
to
them
whose
grounds
adjoyn
thereto
;
so
that
Frontage
and
Ownership
in
base
inferior
Rivers
do
not
differ
,
but
in
great
streams
and
the
sea
they
do
vary
as
aforesaid
:
And
in
37
lib.
Assiz
.
plac
.
10.
it
seems
that
the
Frontagers
are
bound
to
assiz
.
pl.
10.
the
repairs
;
and
in
8
H.
7.
he
whose
grounds
are
next
adjoyning
to
a
Highway
,
is
bound
to
repair
the
same
.
And
by
Ownership
.
THe
Ownership
of
a
Bank
,
Wall
or
other
Defence
is
a
sufficient
warrrant
to
impose
the
charge
of
the
repairs
thereof
upon
him
,
without
being
tied
thereto
by
prescription
,
as
appears
in
8
H.
7.
fol.
5.
and
it
stands
with
Prescription
and
Custom
.
PRescription
and
Custom
are
much
of
one
quality
,
for
in
both
of
them
the
efficient
matter
is
(
use
to
repair
)
and
the
Law
hath
taken
notice
of
them
in
many
of
our
books
:
Prescription
doth
not
binde
or
tie
one
to
the
repair
of
any
thing
,
unless
it
be
ratione
terrae
;
and
in
this
it
doth
differ
from
Custom
:
for
if
it
be
presented
that
A.
B.
and
his
Ancestors
have
time
out
of
memory
used
to
repair
such
a
Bank
,
Wall
or
other
Defence
,
this
Presentment
is
void
,
and
doth
not
binde
the
party
pro
ut
constat
in
21
E.
4.
38.
Kelwey
fol.
52.
and
45
E.
3.
But
bodies
politique
or
coprorate
may
be
by
Custom
bound
to
repairs
,
without
making
mention
in
the
Presentment
or
Indictment
that
they
are
to
do
the
same
ratione
talis
Messuagii
terrae
aut
tenementi
;
And
to
that
purpose
be
the
books
of
21
E.
4.
38
and
44
Ed.
3.
Fitzherb
.
Title
Bar.
plac
.
103.
for
Also
if
a
man
and
his
Ancestors
have
voluntarily
made
a
defence
for
a
long
season
,
this
will
not
binde
his
Heir
thereto
,
though
he
have
assets
descended
to
him
in
Fee-simple
,
for
descending
charges
will
not
binde
the
Heirs
,
unless
he
descending
have
assets
,
as
an
equal
consideration
to
binde
him
thereto
;
neither
will
descending
assets
of
Land
binde
an
Heir
in
this
case
,
unless
the
Land
it self
be
really
tyed
and
charged
.
Tenure
.
A
Man
by
the
Tenure
of
his
Land
may
be
bound
to
repair
a
Wall
,
Bank
or
other
Defence
mentioned
in
this
That
if
before
the
Statute
of
Westminster
the
Third
,
a
man
had
made
a
Feoffment
in
Fee
;
or
if
since
that
Statute
one
had
made
a
Gift
in
Tail
,
to
hold
the
same
by
repairing
a
Bridge
,
the
said
Feoffee
and
Donee
and
his
heirs
should
have
been
bound
by
the
said
Tenure
to
repair
the
said
H.
Br.
Case
fel.
9.
and
in
Porters
Case
in
Sir
Edward
Cooks
That
if
Lands
were
given
to
repair
Ways
,
Bridges
,
Calceys
or
such
like
,
this
doth
binde
the
Owners
of
those
Lands
to
do
those
repairs
in
perpetuity
:
And
in
the
Case
of
12
H.
4.
fol.
7.
the
Prior
of
St.
Marks
in
Bristol
was
obliged
and
bound
by
the
tenor
of
his
Land
to
repair
a
common
Sewer
:
and
this
enough
to
satisfie
this
point
.
Covenant
.
SO
likewise
a
man
may
be
bound
by
his
Covenant
to
repair
a
Wall
,
Bank
,
Sewer
or
other
such
like
matter
,
and
he
may
binde
himself
and
his
heirs
to
do
the
same
;
but
yet
this
Covenant
will
not
binde
his
heirs
after
his
death
,
unless
there
be
left
assets
in
Fee
simple
to
descend
to
the
said
heir
from
the
said
Ancestor
which
made
the
Covenant
.
H.
8.
Dier
.
fol.
33.
Wherein
I
take
this
difference
between
a
Covenant
to
binde
an
Heir
,
and
a
Prescription
;
for
by
Covenant
the
Heir
shall
be
bound
to
the
repairs
,
if
he
have
assets
descended
to
him
from
that
Ancestor
;
but
the
Heir
shall
not
be
bound
by
prescription
to
repair
,
though
he
have
assets
descended
from
his
Ancestor
who
repaired
the
said
defences
:
But
if
Land
be
charged
therewithal
by
Tenure
or
otherwise
,
as
a
charge
imposed
upon
Land
by
prescription
,
then
the
said
Lands
are
therewithal
chargeable
in
cujuscunque
manus
devenerint
,
quod
nota
.
It
appears
by
the
Statute
of
43
El.
cap.
4.
That
if
Lands
,
Rents
,
Annuities
,
Goods
or
Chattels
,
be
given
towards
But
note
besides
all
the
former
matter
,
That
an
Heir
shall
not
be
bound
by
the
Covenant
of
his
Ancestor
,
though
he
have
assets
descended
,
unless
he
be
bound
expresly
by
the
word
Heirs
in
the
Covenant
.
Vsus
rei
.
I
Now
intend
to
declare
where
use
shall
tie
one
to
the
repairs
of
the
defences
mentioned
in
this
Law
(
I
do
not
hereby
mean
that
use
which
I
have
formerly
mentioned
in
Prescription
and
Custom
,
which
is
use
to
repair
)
but
the
use
I
intend
in
this
place
,
is
,
the
use
which
one
is
to
have
of
the
defence
or
thing
which
is
to
be
repaired
:
As
where
one
and
his
Ancestors
have
used
to
have
the
use
of
the
River
or
waters
by
sailing
up
and
down
the
same
,
or
have
used
to
have
a
Ferry
on
or
over
them
,
or
a
Staith
to
go
up
and
down
,
or
a
Crane
to
draw
up
waters
,
or
some
other
Engine
to
draw
up
the
waters
for
the
use
of
their
houses
;
These
uses
which
men
have
of
these
things
may
be
causes
and
considerations
sufficient
to
tie
them
to
the
repairs
of
the
Walls
,
Banks
and
Rivers
:
lib.
Assiz
.
And
for
warrant
in
this
learning
is
the
Book
of
37
lib.
Assiz
.
plac
.
10.
for
there
were
some
persons
which
were
bound
to
repair
the
River
,
because
they
had
passage
on
it
with
their
boats
,
and
others
were
charged
because
they
had
free
fishing
in
the
River
;
and
in
my
opinion
it
stands
with
good
reason
,
and
agreeable
to
Law
,
That
those
persons
,
before
others
,
should
be
bound
and
tied
to
the
repairs
of
such
things
whereof
they
have
peculiar
and
several
profits
and
use
of
more
then
others
have
:
And
it
is
manifest
,
that
this
very
Statute
aims
full
at
this
point
,
when
it
directed
that
such
persons
should
be
rated
,
taxed
and
sessed
towards
the
repairs
,
which
had
profit
of
fishing
and
other
commodities
in
the
Rivers
.
But
least
some
may
mistake
my
meaning
and
learning
also
in
the
said
former
Cases
,
I
will
therefore
make
the
same
plain
by
distinction
,
which
is
this
,
That
Frontage
,
Ownership
,
and
this
use
I
last
spake
of
,
do
not
binde
any
to
the
repairing
and
maintaining
of
Walls
,
Banks
,
Bridges
,
Sewers
or
other
Defences
,
when
and
where
any
other
man
or
Corporation
be
bound
to
do
the
same
by
Prescription
,
Custom
,
Tenure
or
Covenant
:
For
the
said
three
parts
,
Frontage
,
Ownership
and
Usus
rei
,
be
but
implicite
ties
onely
in
construction
of
Laws
,
and
serve
the
turn
onely
when
no
other
person
or
persons
are
bound
expresly
thereunto
;
and
this
distinction
may
be
maintained
by
the
Book
of
8
H.
7.
That
he
whose
grounds
is
next
adjoyning
is
bound
to
repair
,
unless
some
other
be
bound
to
do
the
same
by
Tenure
or
Prescription
:
Whereby
it
followeth
,
that
if
one
be
bound
to
do
the
same
by
special
Tenure
or
Prescription
,
it
freeth
the
Frontager
.
Note
also
another
difference
,
that
in
cases
where
a
Frontager
and
one
who
hath
liberum
passagium
on
the
River
,
and
a
man
which
hath
a
free
Pischary
there
,
are
not
any
one
of
them
bound
to
make
the
repairs
alone
,
but
all
alike
together
:
and
so
is
the
Book
of
37
Assiz
.
plac
.
10.
and
I
suppose
the
Book
of
38
Assiz
.
plac
.
15.
maintains
this
point
with
me
;
for
there
the
Law
is
declared
to
be
,
That
he
which
is
bound
by
prescription
to
repair
,
is
bound
peremptorily
alone
to
do
the
work
,
and
not
any
other
;
and
if
no
such
person
can
be
found
,
then
the
parties
whose
grounds
do
adjoyn
,
and
those
which
have
free
fishing
in
the
River
,
and
free
passage
thereon
,
be
all
of
them
to
do
and
perform
the
same
joyntly
,
and
no
one
of
them
is
a
discharge
for
the
other
,
because
they
shall
be
in
consimili
casu
.
So
by
this
which
hath
been
said
touching
these
matters
,
the
Commissioners
may
see
and
behold
how
carefully
and
understandingly
the
Laws
of
this
Realm
have
indeavored
to
do
equal
Justice
;
and
my
desire
is
,
that
they
would
as
carefully
put
them
in
execution
.
A
Township
Assessed
.
IT
hath
been
held
for
a
great
question
,
Whether
a
Township
or
Hundred
in
general
might
be
assessed
and
taxed
to
the
Sewers
,
without
imposing
the
same
on
particular
persons
?
And
Sir
Edward
Cook
in
the
Case
of
the
Isle
of
Ely
,
is
of
opinion
directly
,
That
a
Tax
,
Rate
or
a
Sesse
The
taxation
,
sessment
or
charge
ought
to
have
these
qualities
;
It
ought
to
be
according
to
the
quantity
of
their
lands
by
number
of
Acres
and
Pearches
,
or
by
the
tenor
of
profit
of
fishing
and
Common
of
pasture
,
which
if
it
should
be
laid
upon
a
Town
,
it
would
hold
none
of
those
proportions
:
and
his
opinion
is
not
alone
in
this
very
point
,
for
in
the
ancient
Charter
of
Rumney
Marsh
,
Rumney
Marsh
Case
.
pag.
50.
it
is
said
,
Quod
unusquisque
proportione
,
ac
periculo
incumbentium
aequae
contribuat
;
And
page
12
and
39
of
the
same
Charter
,
the
Taxations
is
expressed
to
be
Acres
,
Perches
and
Carucates
;
and
our
Statute
in
express
wordsis
,
And
all
those
persons
and
every
of
them
to
tax
and
assess
,
charge
,
distrain
and
punish
,
as
well
within
the
Limits
,
Leets
and
Bounds
of
old
time
accustomed
,
or
otherwise
,
or
elswhere
within
this
Realm
of
England
,
after
the
quantities
of
their
Lands
,
Tenements
and
Rents
,
and
by
the
number
of
Acres
and
Perches
,
and
after
the
rate
of
every
persons
portion
,
tenure
or
profit
,
or
after
the
quantity
of
their
Common
of
pasture
,
or
fishing
,
by
such
ways
and
means
as
you
the
Lord
Fitz
williams
,
Sir
Francis
Vane
,
and
Sir
Thomas
Mounson
Knight
and
Baronet
,
Sir
Edward
Dimock
,
Sir
William
Armin
,
Sir
Thomas
Grantham
,
Sir
George
Ftiz
williams
,
Knights
,
Richard
Totheby
and
Edward
King
,
Esquires
,
whereof
three
to
be
of
the
Quorum
,
shall
seem
most
convenient
:
These
words
literally
taken
,
afford
the
construction
to
be
according
to
the
opinion
of
Sir
Edward
Cook
.
But
on
the
other
part
I
finde
by
many
ancient
Book
;
and
Authorities
of
the
Law
,
that
Taxations
and
Charges
have
been
generally
laid
upon
Townships
and
Hundreds
in
matters
of
this
kinde
,
as
in
the
37
lib.
Assize
plac
.
10.
Four
several
Townships
were
charged
with
the
repairs
of
a
River
,
because
they
had
passage
thereon
with
Boats
;
and
in
38
lib.
Assiz
.
plac
.
15.
a
Township
was
there
charged
with
qui
ab
antiquo
facere
consueverunt
;
so
that
if
ab
antiquo
a
Township
had
used
to
repair
Bridges
,
it
was
tyed
thereunto
by
the
implyed
construction
of
this
Statute
:
And
the
Statute
of
22
H.
8.
cap.
5.
gave
authority
to
Iustices
of
Peace
to
charge
a
County
,
Hundred
or
Town
with
the
repair
of
Bridges
,
if
no
certain
person
were
specially
tyed
to
the
repair
thereof
:
and
many
times
in
ancient
Statutes
and
Books
of
our
Law
,
we
shall
finde
Townships
and
Hundreds
charged
generally
,
as
in
Doctor
and
Student
,
fol.
74.
a
Township
was
amerced
;
and
by
the
ancient
and
famous
Statute
of
Winchester
a
Township
shall
be
amerced
for
the
escape
of
a
Robber
by
the
highway
:
And
3
Ed.
3.
Title
Corone
in
Fitz.
pl.
293.
a
Township
was
amerced
for
the
escape
of
a
Murtherer
;
and
in
11
H.
4.
2.
Brook
94.
a
Town
was
sessed
for
the
expences
for
the
Knight
of
the
Parliament
and
might
be
levied
on
any
persons
goods
of
the
town
;
and
this
was
for
the
uncertainty
of
the
persons
,
and
for
the
infiniteness
of
the
number
of
them
,
as
it
is
said
in
Richard
Godfreys
Case
.
But
it
may
haps
be
objected
on
the
other
part
,
That
if
a
Town
or
Hundred
may
be
joyntly
taxed
,
then
it
might
so
come
to
pass
,
that
one
mans
goods
which
had
no
grounds
subject
to
the
charge
,
and
which
could
reap
nor
take
any
hurt
thereby
,
might
come
to
be
distrained
for
the
whole
tax
,
rate
or
sess
of
the
Town
;
and
another
man
which
had
great
quantities
of
grounds
there
subject
to
danger
might
escape
free
;
and
therefore
such
exposition
to
be
made
of
the
said
Law
,
were
not
within
the
rule
and
compass
of
equality
.
And
another
objection
may
also
be
made
,
That
it
is
true
,
that
by
an
express
Statute
or
Custom
,
an
assess
,
rate
or
tax
may
be
laid
upon
a
Town
or
Hundred
,
as
was
done
by
the
said
Statute
of
the
22
H.
8.
and
others
formerly
mentioned
;
but
such
exposition
were
contrary
to
the
letter
of
this
Statute
of
23
H.
8.
of
Sewers
.
I
do
confess
,
that
if
these
two
objections
could
not
be
answered
,
I
should
change
my
opinion
:
It
is
true
,
That
if
a
tax
or
sess
had
been
set
upon
a
Hundred
by
the
said
Stature
of
Winchester
,
for
the
escape
of
a
Robber
,
and
that
charge
had
been
levied
upon
one
mans
goods
of
the
Town
,
as
it
might
have
been
,
he
had
had
no
remedy
to
cause
his
fellow
Townsmen
to
be
contributers
to
him
to
bear
equal
share
with
him
;
and
so
if
the
party
robbed
had
recovered
by
Action
against
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
27
year
of
Queen
Eliz.
cap.
13.
wherein
Order
was
taken
,
that
if
some
one
or
few
mens
goods
were
taken
in
execution
upon
the
Recovery
in
an
Action
taken
against
the
Hundred
by
the
party
Robbed
,
he
or
they
should
have
contribution
,
which
before
that
Statute
of
27
of
Elizabeth
could
not
be
had
.
But
to
give
answer
to
the
two
objections
:
First
,
if
in
our
case
of
the
Sewers
,
a
Township
should
be
Taxed
,
yet
this
Tax
could
not
be
taken
or
Levied
,
but
only
of
such
as
had
grounds
within
the
charge
,
which
had
good
by
the
repair
,
or
might
have
hurt
by
the
neglect
thereof
;
for
in
11
H.
4.
fol.
35.
it
is
said
for
Law
,
That
if
a
town
be
assessed
in
the
Tax
,
and
the
Collector
doth
distrain
the
goods
of
a
man
of
the
town
who
was
not
chargeable
thereto
,
that
party
may
have
and
take
his
Action
of
Trespass
against
the
Distrainer
and
Collector
,
for
that
he
at
his
peril
must
look
well
to
it
,
that
he
whose
goods
were
taken
were
subject
to
the
charge
.
So
in
our
case
of
the
Sewers
,
if
the
goods
of
one
which
was
not
subject
to
the
Tax
or
Assess
imposed
were
taken
,
he
might
have
his
Action
of
Trespass
against
the
distrainer
,
and
should
recover
his
damages
thereby
;
so
this
salve
cures
one
of
the
said
maladies
.
But
then
the
case
goes
further
,
That
if
the
goods
of
one
man
of
the
town
should
be
taken
for
the
whole
Sesse
of
the
Town
,
and
he
is
such
a
person
as
in
truth
is
chargeable
thereunto
,
he
can
have
no
Action
against
the
distrainer
for
taking
his
Cattle
,
for
he
is
such
a
person
as
cannot
excuse
himself
but
that
he
is
chargeable
:
This
indeed
draws
the
Case
to
a
desperate
issue
,
for
this
seems
to
be
as
great
a
mischief
as
ever
the
Statute
of
Winchester
did
ever
suffer
,
which
was
remedied
by
the
said
Statute
of
27
Eliz.
but
our
Case
hath
not
such
a
Cure
provided
;
Therefore
it
puts
me
to
the
old
adage
of
Law
,
Better
it
is
to
suffer
a
mischief
to
one
or
moe
particular
persons
,
then
to
permit
an
inconvenience
to
the
whole
Commonwealth
which
concerns
a
multitude
:
But
yet
I
shall
give
this
objection
a
better
answer
,
I
hope
,
then
with
an
old
adage
;
for
in
our
Case
the
party
whose
goods
are
taken
for
the
whole
town
,
is
not
without
a
fitting
and
convenient
remedy
;
for
when
his
goods
be
taken
and
he
is
constrained
to
pay
the
whose
sessment
of
the
Town
,
he
may
make
his
complaint
to
the
Commissioners
of
Sewers
,
and
may
give
in
the
particular
names
of
every
Townsman
,
and
the
quantity
of
each
mans
Estate
which
be
charged
thereto
,
or
the
true
value
of
their
Lands
,
and
may
crave
of
the
Commissioners
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
Commissioners
of
Sewers
have
power
to
impose
a
proportionable
rate
upon
every
of
them
,
according
to
the
quantity
and
quality
of
his
ground
,
by
way
of
contribution
,
and
may
award
Process
to
force
and
compel
them
to
pay
the
same
to
the
said
party
;
whereby
it
plainly
appears
,
that
the
party
so
distrained
hath
a
direct
remedy
to
come
by
his
losses
.
In
Doctor
and
Student
a
whole
town
was
amerced
,
and
they
met
together
by
common
consent
,
and
Assessed
and
Rated
every
man
equally
according
to
his
ability
,
and
alowed
of
as
a
good
cause
.
But
Commissioners
of
Sewers
may
if
they
can
come
to
the
knowledge
of
the
certainty
of
every
mans
Estate
,
rate
in
the
primary
and
original
Sesse
every
person
according
to
his
several
quantity
of
Estate
,
which
may
be
done
in
this
maner
,
when
the
Commissioners
be
agreed
how
much
to
lay
upon
such
a
town
,
then
to
send
for
three
or
four
of
the
Inhabitants
,
and
cause
them
to
give
in
every
mans
Estate
;
and
to
make
and
appoint
them
Sessors
to
rate
every
man
,
or
else
the
Commissioners
themselves
,
having
true
intelligence
of
every
mans
Land
,
may
easily
set
the
rate
and
charge
upon
every
particular
person
in
an
even
and
proportionable
sum
;
and
thus
every
man
at
the
first
shall
know
his
own
rate
,
as
in
the
assessing
of
the
Subsidy
,
and
no
man
shall
be
burthened
with
his
Neighbors
charge
;
and
these
were
good
courses
to
be
used
within
both
the
letter
and
sence
of
these
Laws
:
And
this
course
was
used
by
the
Four
and
twenty
Jurators
in
Kent
in
Rumney
Marsh
,
who
always
upon
their
Oaths
set
Howsoever
the
Tax
in
my
opinion
generally
imposed
upon
the
town
is
good
,
as
appears
by
many
Authorities
and
Books
before
remembred
,
even
by
this
Statute
,
as
well
as
by
Custom
;
for
in
the
said
Book
of
the
37
and
38
lib.
Assiz
.
lib.
Assiz
.
it
doth
not
appear
that
the
Townships
there
rated
were
so
taxed
by
any
Custom
,
but
meerly
by
the
Law
of
the
Land
;
and
so
is
the
learning
delivered
to
be
in
the
Councels
Order
aforesaid
.
And
I
do
remember
,
that
at
the
Assizes
held
at
Lincoln
in
Anno
12.
Jacobi
,
in
a
Tryal
before
Sir
Edward
Cook
then
Judge
of
Assize
,
in
the
Case
of
Sir
Philip
Conisby
Knight
,
the
town
of
Mauton
was
assessed
five
pounds
,
and
Twigmore
as
much
,
and
a
distress
was
taken
for
non-payment
thereof
,
and
was
justified
in
a
Replevin
,
and
the
verdict
passed
for
the
distrainer
,
and
no
great
scruple
was
then
made
of
the
said
Assess
laid
and
imposed
generally
upon
the
towns
;
which
Case
I
specially
noted
,
because
it
was
tryed
and
passed
for
current
before
the
said
Sir
Edward
Cook
,
who
had
the
year
before
reported
the
Law
in
his
Tenth
Report
to
the
contrary
.
And
I
am
also
of
Opinion
,
that
if
a
new
defence
be
agreed
to
be
made
,
as
a
Wall
,
Bank
,
Sewer
or
any
other
,
and
a
Sesse
is
appointed
for
this
work
,
and
laid
upon
a
town
,
That
the
same
is
a
good
Sesse
and
well
laid
,
as
well
as
in
the
Case
of
old
repairs
,
where
Custom
may
give
Warrant
unto
it
,
and
the
Commissioners
in
their
discretion
may
so
do
in
imitation
of
the
said
former
rules
and
presidents
,
and
it
stands
with
good
wisdom
and
discretion
to
imitate
and
follow
ancient
and
approved
Laws
and
Statutes
made
in
Parliament
,
which
are
done
by
the
wisdom
of
the
whole
Realm
:
And
in
my
conceit
a
decree
made
which
hath
no
reference
or
dependency
to
former
presidents
,
may
be
doubted
whether
it
be
legitimate
or
not
,
having
no
ancient
Laws
to
patronize
it
.
And
thus
I
conclude
my
third
point
of
my
Case
,
That
a
Township
may
be
taxed
by
the
Laws
of
Sewers
.
Tythes
.
HEre
is
likewise
in
my
Case
a
Parson
Rated
and
Sessed
for
his
Tythes
,
and
is
now
to
be
put
to
the
question
,
whether
by
these
Laws
he
may
be
taxed
for
them
,
or
not
.
The
ancient
Commissions
of
this
kinde
have
very
strict
words
in
them
to
tie
every
one
to
the
charge
of
these
defences
,
being
for
the
preservation
of
the
Commonweal
;
and
this
Statute
extends
it self
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
brings
to
them
,
to
be
contributory
to
the
charge
.
It
is
true
that
Ecclesiastical
and
Spiritual
persons
,
as
Parsons
&
Vicars
hold
their
Ecclesiastical
living
exempt
ab
omni
onere
seculari
,
for
they
do
not
hold
their
Churches
of
any
Lord
,
but
of
the
Lord
of
Heaven
,
in
respect
of
the
spiritual
service
they
do
therefore
:
And
I
take
it
,
that
Parsons
and
Vicars
hold
not
their
Churches
in
free
alms
,
for
then
the
Founder
should
be
their
Lord
in
point
of
Tenure
and
service
,
which
I
have
not
observed
to
be
so
in
any
:
And
in
our
Law
Books
it
appears
,
that
Spiritual
persons
were
exempted
from
Lay
and
Temporal
charges
,
as
in
Magna
Charta
,
cap.
14.
A
Spiritual
person
shall
not
be
amerced
according
to
his
Spiritual
living
:
In
Fitz.
Nat.
bre.
fol.
228.
there
Iure
Divine
,
I
have
not
read
that
they
shall
be
charged
to
any
thing
but
to
the
repair
of
the
Temple
in
the
18
chapt
.
of
Numbers
the
21
,
22
,
23
,
24
,
25
,
26
,
27
,
and
28
,
verses
,
The
Lord
said
,
I
have
given
to
the
Children
of
Levi
all
chapt
Numbers
.
the
Tenth
in
Israel
for
an
Inheritance
;
and
yet
the
Levites
paid
a
Tenth
thereout
to
the
Priests
;
and
so
Clergymen
in
times
past
paid
a
Tenth
to
the
Pope
;
and
in
imitation
,
or
rather
in
reformation
thereof
by
the
Statute
of
26
H.
cap.
3.
the
Eliz.
cap.
2.
made
the
Parson
and
the
Vicar
liable
and
chargeable
to
the
relief
of
the
Poor
,
which
was
in
imitation
as
it
seemeth
of
the
Mosaical
Law
,
they
had
not
been
bound
or
tyed
to
do
the
same
;
for
it
is
held
to
be
more
charity
to
relieve
the
Church
then
the
Poor
:
And
in
payment
of
Taxes
and
Subsidies
they
are
granted
in
their
Convocation
house
,
a
Councel
meerly
consisting
of
the
Clergy
,
and
then
are
confirmed
in
Parliament
,
of
which
house
also
they
are
a
Member
.
And
therefore
in
my
opinion
,
seeing
Tythes
are
so
sacred
a
duty
,
that
a
Lay-man
could
not
have
any
help
for
at
the
Common
Law
,
and
were
exempt
from
temporal
and
prophane
uses
,
I
am
therefore
of
opinion
,
That
they
are
not
to
be
rated
or
taxed
by
the
general
words
of
these
Laws
;
Yet
I
am
of
opinion
,
that
Tythes
in
the
hand
of
a
Temporal
or
Lay-man
are
to
be
rated
by
these
Laws
,
for
when
they
are
come
into
his
hands
Tunc
res
spirituales
fiunt
temporales
&
transeunt
decimae
in
Catalla
.
But
I
must
here
leave
these
Ecclesiastical
persons
and
their
Church
livings
:
There
is
another
point
of
this
Law
will
reach
unto
some
of
their
possessions
,
as
to
their
Gleab
Lands
which
belong
to
their
Churches
,
and
their
Meadow
and
Pasture
grounds
,
for
these
be
not
sacred
,
as
Tythes
be
,
But
came
to
them
by
the
benevolent
gifts
of
Laymen
,
and
not
ex
duo
dei
&
evangelii
as
Tythes
did
;
and
so
they
took
that
burthen
with
them
from
the
Lay-donor
,
which
after
may
be
imposed
upon
them
:
And
therefore
such
Parsons
,
Vicars
or
other
Spiritual
persons
which
hold
a
plough
Land
in
Culture
,
are
chargable
by
the
Statute
of
2
Mar.
towards
the
repair
of
the
highways
,
as
other
Lay
men
be
:
But
in
that
Statute
there
be
Ecclesiastical
Officers
used
,
as
Churchwardens
,
whereby
it
was
conceived
,
that
that
Statute
had
an
eye
to
bring
Ecclesiastical
persons
within
the
reach
of
it
:
And
so
for
their
houses
and
grounds
I
take
them
to
be
within
these
Laws
of
the
Sewers
,
for
the
own
Lands
are
also
chargeable
thereunto
,
and
yet
on
earth
within
His
Dominions
He
is
said
to
be
caput
Ecclesiae
,
and
as
much
reason
were
it
to
exempt
His
possessions
as
theris
,
if
the
respect
of
the
person
should
bear
any
such
sway
in
the
Case
.
Also
I
do
finde
by
divers
ancient
Records
,
That
Abbeys
,
Priories
,
and
other
Spiritual
possessions
,
have
been
chargeable
to
the
repair
of
Bridges
,
Calceys
,
Banks
and
High-ways
,
by
Custom
and
Prescription
,
,
as
appeareth
also
by
the
Books
of
11
H.
4.
fol.
82
,
83.
and
44
Ed.
3.
Fitz.
Bar.
pl.
301.
and
I
take
it
,
that
by
a
very
express
and
special
Custom
or
Prescription
,
a
portion
of
Tythes
in
a
Clergy
mans
hand
may
be
charged
with
the
the
repairs
of
Bridges
,
Ways
,
Walls
or
Sea
Banks
,
but
not
without
a
direct
affirmative
Custom
;
for
I
suppose
that
they
may
as
well
indure
a
charge
in
this
kinde
,
as
a
charge
in
a
Modus
decimandi
.
And
so
I
conclude
this
part
of
the
Case
,
That
the
person
was
not
to
be
sessed
for
his
Tythes
by
the
general
words
of
of
this
Law
.
A
Copyholder
.
HEre
is
also
a
Copyholder
taxed
within
my
Case
for
his
Copyhold
Land
,
and
whether
he
for
his
Copy-hold
,
and
the
Lord
for
the
Freehold
of
that
soil
,
shall
be
assessed
therefore
,
is
another
question
.
A
Copyhold
by
the
Custom
of
the
Manor
yieldeth
and
affordeth
to
the
Lord
Seigniory
Rent
,
Fines
due
upon
admittances
,
and
such
like
duties
;
but
the
Copyholder
hath
the
real
and
visible
profits
of
the
soil
,
&
therefore
both
Lord
&
Copyholder
receive
Et
commodum
&
salvationem
,
by
the
said
defences
:
And
therefore
the
words
of
this
Law
be
exceeding
copious
and
full
in
this
point
of
sesse
(
viz.
)
To
inquire
who
hath
and
holdeth
any
Lands
or
Tenements
,
or
Common
of
pasture
,
or
fishing
,
or
hath
or
may
have
any
hurt
,
or
damage
or
losse
by
any
means
,
in
or
near
the
said
places
;
and
in
this
case
the
Lord
holdeth
the
said
Land
in
Tenure
,
though
not
in
Culture
,
and
many
ways
may
have
hurt
and
damage
;
As
if
the
Copyhold
were
overflowed
by
the
Sea
,
the
Lord
should
lose
his
Freehold
of
the
soil
,
his
Seigniory
,
yearly
Rents
and
Fines
for
admittances
,
and
all
other
perquesites
:
So
that
the
said
words
of
this
Stature
beat
mainly
upon
him
.
But
as
there
be
reasons
to
be
urged
against
him
,
so
there
be
matters
to
exempt
him
from
this
charge
,
and
to
lay
the
burthen
on
the
Copyholder
.
First
,
though
he
be
Lord
of
the
Copyhold
,
yet
he
is
seized
of
the
Freehold
thereof
,
but
in
Imagination
and
construction
of
the
Law
,
for
the
Copyholder
is
pernor
and
taker
of
the
visible
and
substantial
profits
.
Secondly
,
the
charge
of
repairs
respect
the
possessioner
in
presenti
,
which
is
easie
to
be
found
out
,
and
not
imaginary
owners
as
the
Lord
is
.
And
Thirdly
,
if
the
Lord
&
owner
should
both
be
charged
pro
una
eademque
re
,
which
the
Law
doth
never
permit
,
for
this
is
not
like
the
Case
of
Lord
and
Commoner
,
they
there
shall
be
charged
,
the
one
for
his
Soil
,
and
the
other
for
his
Common
;
for
in
this
case
the
Lord
is
the
immediate
proprietor
of
the
Soil
,
and
he
hath
the
present
and
real
occupation
thereof
,
as
well
as
the
Commoner
hath
the
use
of
his
Common
;
and
therefore
they
shall
both
be
taxed
to
these
repairs
diversis
tamen
respectis
.
But
for
the
Copyholder
it
may
be
objected
,
that
he
is
not
within
this
Statute
;
for
in
Heidons
Case
in
Sir
Edward
That
a
Copyholder
is
not
within
the
Laws
and
Statutes
which
alter
the
Service
,
Tenure
,
Interest
of
the
Land
,
or
other
thing
in
prejudice
of
the
Lord
;
and
this
is
the
cause
that
a
Copyholders
Lands
cannot
be
extended
or
put
in
execution
upon
the
Statute
of
Westminster
the
Second
,
nor
in
extent
upon
the
Statute
of
Acton
Burnel
and
De
mercatoribus
,
for
if
they
should
,
then
might
the
Sheriff
make
the
Lord
new
Tenants
,
without
surrender
and
admittances
,
which
is
contrary
to
Custom
,
the
life
and
essence
of
all
Copyholds
;
yet
there
is
another
good
rule
put
in
the
said
Case
of
Heidon
,
that
is
,
That
where
a
Statute
is
made
for
the
general
good
and
wealth
of
the
Realm
,
and
that
no
prejudice
can
come
to
the
Lord
by
alteration
of
Tenure
,
Service
,
Estate
or
Custom
,
there
Copyholds
may
well
be
within
those
Statutes
;
Therefore
now
it
is
to
be
considered
,
whether
this
Statute
of
Sewers
will
in
any
sort
hurt
or
prejudice
the
Lord
or
no
;
for
it
is
certain
,
that
these
Laws
tend
as
much
to
the
wealth
and
welfare
of
this
Realm
,
as
any
can
do
;
and
in
rating
and
assessing
these
Copyholds
to
the
repairs
of
Banks
,
Walls
and
Sewers
,
&c.
it
alters
neither
the
Copyholders
interest
,
nor
the
Lords
Tenure
,
nor
doth
it
in
any
sort
prejudice
the
custom
of
the
Manor
.
But
then
it
may
be
objected
,
That
if
sesse
be
imposed
upon
a
Copyholder
for
his
Land
,
and
be
not
paid
,
these
Laws
gives
sale
of
Lands
,
which
indeed
is
the
onely
clause
of
this
Statute
which
is
material
,
to
exempt
a
Copyholder
out
of
these
Laws
;
for
clearly
I
take
it
,
That
Commissioners
of
Sewers
have
no
power
to
decree
the
Copyhold
Land
away
for
non-payment
of
the
sesse
:
Yet
I
am
of
opinion
,
that
a
Copyholder
,
though
he
be
not
within
that
part
of
the
Statute
which
giveth
sale
of
Lands
,
yet
he
is
within
the
other
part
thereof
,
for
divers
Reasons
.
One
I
finde
by
experience
,
and
in
divers
presidents
,
that
many
Copyholds
have
been
and
be
charged
with
repairs
of
Bridges
and
other
defences
in
divers
parts
of
this
Realm
by
customs
:
Also
if
a
Lord
grant
a
Copyhold
to
I.S.
and
his
heir
by
Copy
Tenendum
by
the
repairs
of
such
a
Wall
,
Bank
or
Bridge
,
this
bindes
this
Copyhold
thereto
in
point
of
charge
.
And
lastly
,
this
Statute
bindes
such
to
the
repairs
which
may
have
good
by
the
doing
,
or
hurt
by
the
neglect
:
And
it
is
apparant
,
that
by
over
flowing
or
inundation
,
a
Copy-holders
Land
sustains
equal
damage
with
other
Lands
;
and
for
these
Reasons
I
resolve
that
a
Copyhold
is
within
these
Laws
:
And
shortly
touching
Copyholds
,
I
do
confine
them
to
these
four
heads
.
My
four
Tenents
concerning
Copyholds
.
First
,
a
Copyhold
is
sessable
towards
these
repairs
for
his
Copyhold
.
Secondly
,
that
the
Lord
of
the
Copyhold
is
not
to
be
taxed
for
the
Soil
of
the
Copyhold
;
for
although
he
might
come
to
it
by
forfeiture
committed
,
yet
that
is
a
forain
possibility
:
and
although
he
be
seized
in
Law
of
the
Freehold
,
yet
because
the
Issues
and
Profits
go
with
the
Copy-holder
,
this
Law
therefore
will
not
charge
him
for
the
Soil
.
Thirdly
,
in
respect
the
Copyhold
rent
is
a
rent
of
Assize
,
and
rents
be
within
the
express
letter
of
this
Statute
,
and
because
his
rents
by
the
overflowing
of
the
Sea
be
lost
,
therefore
the
Lord
shall
be
assessed
for
it
if
it
be
of
value
.
Fourthly
,
I
am
of
opinion
,
that
a
Copyhold
may
not
be
sold
by
the
Commissioners
of
Sewers
,
and
yet
Copy-holders
be
within
other
parts
of
this
Law
.
Now
because
it
is
a
high
point
in
this
Statute
,
in
what
maner
to
rate
,
tax
and
assesse
by
the
judicious
power
of
these
Laws
:
and
in
regard
my
Case
toucheth
all
maner
of
Sesses
and
Rates
which
be
or
may
be
imposed
by
these
Laws
,
I
will
therefore
spread
it
abroad
:
and
I
do
intend
to
treat
of
what
Lands
and
other
things
are
to
be
assessed
,
towards
the
repairs
in
my
Case
,
and
what
persons
to
be
assessed
,
and
in
what
degree
.
Wherein
first
I
am
of
opinion
,
that
one
is
not
to
be
assessed
for
his
high
and
descending
grounds
,
for
so
it
appears
That
if
a
mans
ground
be
surrounded
with
waters
,
he
may
make
a
trench
in
his
own
grounds
to
let
the
waters
run
downwards
,
and
to
descend
upon
his
neighbors
grounds
,
for
water
is
an
element
descendable
(
jure
naturae
)
And
also
high
descending
grounds
can
have
no
such
use
of
Walls
and
Banks
,
as
other
grounds
scituate
lower
may
have
,
for
the
waters
can
have
no
force
against
them
,
and
therefore
the
owner
is
not
chargeable
therefore
;
and
the
words
of
the
Commission
expressed
in
the
Register
be
,
Qui
defentionem
Commodum
&
salvationem
per
Predict
as
Wallias
,
Guttur
as
,
pontes
,
Calceta
&
gurgites
habere
poterint
nullatènus
parcantur
.
And
the
Charter
of
Rumney
Marsh
seems
to
bear
the
same
sence
(
viz.
)
Quod
pro
securitate
dicti
Marisci
districtiones
fiant
ita
quod
aequè
fiant
secundum
portiones
majores
&
minores
quas
homines
habent
in
eodem
Marisco
;
But
high
grounds
by
nature
need
not
Engines
of
art
to
defend
them
:
And
in
Rooks
case
in
Sir
Edward
Cooks
5.
Report
,
and
Keighleys
Case
,
it
is
truly
declared
,
That
the
grounds
lying
on
the
Level
which
are
in
apparant
danger
subject
to
surrounder
,
are
only
chargeable
to
repairs
by
this
Law
;
But
yet
grounds
lying
on
high
Mountainous
places
may
be
by
Custom
,
Prescription
or
Tenure
liable
and
stand
chargeable
to
repairs
of
Walls
,
Banks
,
Sewers
,
Goats
and
other
Defences
:
And
in
such
cases
though
they
be
never
so
high
,
yet
these
Laws
will
reach
unto
them
,
but
no
charge
is
to
be
imposed
on
them
by
this
Statute
,
and
by
force
thereof
onely
without
a
special
Custom
or
Prescription
to
warrant
the
same
.
Annuity
.
IF
a
Dean
and
Chapter
or
other
Corporate
persons
or
Body
Politique
be
by
Prescription
to
pay
a
yeerly
Annuity
to
I.
S.
and
his
Heirs
,
I.
S.
is
not
sessable
for
his
Annuity
,
yet
the
said
Corporate
or
Politique
persons
pay
the
same
in
respect
of
their
Lands
which
lie
in
danger
of
surrounding
,
and
so
the
grounds
be
subject
to
these
Laws
,
but
it
issueth
not
thereout
:
And
the
said
Corporate
and
Politique
persons
are
not
charged
in
their
Lands
,
but
in
respect
of
their
Lands
to
pay
the
same
.
Commons
.
THose
persons
which
have
Common
of
Pischary
,
Turbary
,
or
of
Pasture
in
great
Fens
,
Marishes
and
Wastes
,
may
be
charged
,
but
Commoners
in
agris
seminatis
after
the
corn
severed
,
as
stock
Commons
which
be
of
a
smal
value
,
are
not
to
be
charged
for
their
Commons
,
but
for
their
Lands
.
Ferry
.
HE
which
had
a
Ferry
over
a
River
was
in
37
lib.
Assiz
.
pl.
10.
charged
to
repair
the
River
,
and
so
for
a
Ferry
one
may
be
charged
by
this
Law
.
Herbage
.
HE
which
hath
the
Vesture
or
Herbage
of
grounds
,
as
Prima
tonsura
vel
vestura
terrae
,
may
be
charged
to
the
repairs
.
Free
passage
.
IT
appears
likewise
,
that
those
persons
which
had
passage
for
their
Boats
on
the
River
,
were
to
be
rated
towards
the
repairs
in
37
Lib.
Assiz
.
pl.
10.
but
this
is
to
be
intended
of
those
persons
which
had
free
and
customary
passage
thereon
,
as
a
liberty
and
inheritance
,
and
was
not
meant
nor
intended
of
poor
Boatmen
which
come
thereon
with
their
Boats
accidentally
,
by
the
general
Custom
of
the
Realm
.
Parks
,
Warrens
,
Chases
.
A
Man
for
his
Park
of
Dear
,
and
Warren
of
Conies
,
shall
be
charged
if
these
liberties
lie
within
the
Level
;
but
for
Chases
I
suppose
one
is
not
chargeable
onely
,
for
Dear
which
be
ferae
naturae
not
bound
to
certain
precincts
,
but
in
that
case
the
owner
is
onely
to
be
taxed
for
the
Soil
.
Mart
,
Fair
or
Market
.
ALso
if
one
have
only
the
liberty
of
a
Mart
,
Fair
or
Market
to
be
kept
in
a
place
which
is
subject
to
surrounder
,
In
my
Opinion
because
they
are
but
casual
in
their
profits
,
and
not
continuall
in
their
being
,
although
they
be
conscribed
to
place
and
circuit
,
yet
being
no
part
of
the
Soil
,
nor
of
the
issues
and
profits
thereof
,
they
are
not
taxable
within
these
Laws
.
Offices
.
THe
Office
of
the
Clerk
of
the
Market
,
Town
Clerk
,
or
such
like
,
although
these
Officers
be
confined
to
a
certain
place
and
precincts
within
the
Level
which
is
subject
to
surrounder
,
are
notwithstanding
exempt
from
these
taxations
.
Proxies
,
Synods
.
HE
which
hath
Proxies
or
Synods
of
Annual
sums
of
money
,
such
as
was
in
the
Case
of
Proxies
in
the
Irish
Reports
,
is
not
sessable
within
this
Law
;
for
although
the
person
is
charged
therefore
in
respect
of
the
grounds
,
yet
the
same
doth
not
issue
thereout
.
The
Morgager
for
the
Title
he
hath
by
the
Condition
to
reduce
the
Lands
back
again
to
him
,
or
he
which
hath
title
to
Land
by
Action
,
Condition
or
Entry
,
or
he
which
hath
a
contingent
use
shall
not
be
taxed
for
them
.
Neither
was
Cestui
que
use
at
the
Common
Law
before
the
Statute
of
27
H.
8.
of
uses
,
nor
is
the
Bargainee
of
Land
before
the
Deed
be
inrolled
sessable
by
this
Law
.
Neither
is
one
who
hath
the
presentation
or
nomination
to
a
Church
as
Patron
,
or
he
which
is
Founder
for
his
foundership
,
Taxable
within
this
Statute
,
yet
they
be
Tenements
,
the
largest
words
of
charge
within
this
Law
;
but
the
Law
intends
the
immediate
possession
of
such
Tenements
which
be
proficuous
,
and
not
these
things
which
be
Tenements
in
Law
,
and
which
be
but
conveyances
,
and
their
fruit
is
Ceremony
without
Substance
.
This
Law
setteth
down
such
things
for
the
which
one
is
chargeable
,
viz.
(
He
which
hath
Lands
,
Tenements
,
Rents
Commons
of
Pasture
,
Profit
of
Fishing
or
other
Commodities
and
such
as
have
Safety
,
Profit
,
Defence
or
any
other
Commodity
These
be
the
words
of
charge
recited
by
this
Law
:
This
word
Land
is
of
large
extent
,
for
it
reacheth
to
house
Arrable
,
Pasture
,
Meadow
,
Mills
,
Tofts
,
and
to
all
other
Edifices
,
Moors
,
Marishs
,
Woods
,
Wood
grounds
,
for
all
these
the
earth
is
the
substance
Et
omne
solo
cedet
,
and
the
several
increases
thereof
be
but
qualities
.
The
word
Tenements
is
of
larger
extent
then
Lands
;
for
it
containeth
all
which
the
word
Lands
doth
,
and
all
things
else
which
lyeth
in
Tenure
:
so
that
I
think
it
shall
be
but
labor
lost
to
enter
further
into
the
particulars
thereof
.
Lord
and
Tenant
.
IF
there
be
Lord
and
Tenant
,
and
the
Tenant
holdeth
of
the
Lord
by
yearly
Rent
services
,
the
Lord
may
be
rated
as
well
for
his
Rent
,
as
the
Tenant
for
his
Land
,
to
Annual
repairs
,
as
well
as
to
accidental
,
by
reason
of
these
words
in
the
Statute
(
that
is
,
That
every
one
be
rated
and
taxed
according
to
the
rate
of
every
persons
Rent
,
Tenure
or
profit
)
here
be
full
words
to
charge
the
Lord
for
his
Rent
;
and
so
Rent
charges
,
and
Rent
seck
shall
be
subject
to
sesses
in
this
kinde
:
for
otherwise
the
Tenant
of
the
grounds
may
be
undone
thereby
,
in
regard
the
Rents
going
and
issuing
out
of
the
grounds
may
amount
to
as
much
almost
as
the
yearly
value
of
the
grounds
do
:
But
if
the
Rents
be
so
smal
as
they
are
scarce
worth
the
gathering
,
then
in
discretion
the
Commissioners
may
spare
them
,
for
De
minimis
non
Curat
Lex
.
Also
whether
the
remainder
man
,
and
he
in
Reversion
depending
upon
an
Estate
in
Tail
,
shall
be
rated
and
taxed
,
or
not
,
by
the
power
of
these
Laws
,
is
an
apt
question
for
this
place
;
and
therein
my
opinion
is
,
That
being
dry
and
fruitlesse
Remainders
and
Reversions
,
they
shall
not
be
sessed
to
the
repairs
,
but
the
Tenant
in
Tail
in
possession
shall
be
solely
charged
:
for
it
is
more
to
be
feared
,
that
Tenant
in
Tail
will
cut
off
the
Remainder
and
Reversion
by
a
Recovery
,
then
that
the
Sea
shall
drown
his
Estate
by
an
overflow
.
Lessee
for
years
,
and
he
in
Reversion
.
IN
the
Case
of
the
Lessee
for
years
and
for
life
,
and
those
in
Reversion
and
Remainder
,
there
is
a
greater
cause
of
dispute
then
between
Tenant
in
Tail
,
and
he
in
the
Reversion
:
And
because
it
is
an
often
Case
,
I
have
therefore
taken
the
more
pains
to
resolve
the
same
.
First
,
the
Lessee
is
in
the
present
possession
,
and
so
is
subject
to
all
ordinary
charges
;
and
with
this
agreeth
Jeffrays
Edwards
Cook
5
Report
;
for
there
the
Case
was
resolved
,
that
where
the
Inhabitants
of
a
Town
were
assessed
towards
the
repair
of
a
Church
,
there
the
Lessee
for
years
was
charged
,
and
not
the
Lessor
,
though
he
had
a
yearly
Rent
reserved
:
For
in
point
of
the
Rent
this
Case
and
that
will
differ
,
by
reason
Rents
be
expresly
within
this
Law
;
but
I
now
speak
of
a
Lessee
where
no
Rent
is
reserved
:
In
17
Ed.
4.
fol.
6
,
a
Tenth
was
granted
to
the
The
Case
of
the
Proxies
in
the
Irish
Reports
doth
in
my
Opinion
in
reason
resemble
this
Case
;
for
the
Case
was
That
the
Bishop
of
Meath
in
Ireland
had
a
Proxy
of
fifteen
shillings
payable
out
of
the
Commandry
of
Kells
,
then
parcell
of
the
possessions
of
St.
Johns
,
all
which
came
to
the
Crown
by
the
dissolution
of
Monasteries
in
that
Kingdom
;
and
after
the
said
Bishop
granted
the
said
Proxies
to
Queen
Elizabeth
,
and
after
Q.
Elizabeth
made
a
Lease
of
the
Commandry
to
Dr.
Forth
,
reserving
a
yearly
Rent
,
without
mentioning
the
Proxy
;
And
it
was
there
resolved
,
That
Doctor
Forth
the
Lessee
for
years
should
be
at
the
charge
to
pay
the
said
Proxy
,
with
all
the
arrerages
thereof
which
did
incur
in
his
time
:
And
so
in
the
case
of
a
Rent
charge
,
the
Lessee
is
chargeable
,
and
he
is
to
pay
the
Tythes
,
and
the
Composition
money
due
therefore
:
So
that
these
Cases
sway
strongly
against
the
Lessee
for
years
,
to
lay
the
whole
charge
upon
him
,
and
to
exempt
the
Lessor
.
But
yet
we
must
here
distinguish
and
make
a
difference
between
Annual
repairs
in
ordinary
things
,
and
extraordinary
repairs
for
to
furnish
the
defence
with
petty
reparations
,
they
shall
be
laid
only
upon
the
Lessee
for
years
or
for
life
;
but
if
a
new
Wall
,
Bank
or
Goat
,
or
Sewer
be
to
be
built
new
,
and
erected
;
or
if
the
ancient
defences
be
decayed
in
the
main
timber
,
or
in
the
principal
parts
thereof
,
here
as
well
the
Lessor
as
the
Lessee
shall
be
put
to
the
charge
,
for
these
things
be
not
ordinary
and
annual
charges
,
but
do
reach
from
the
beginning
of
the
Lease
to
the
top
of
the
Inheritance
:
as
for
petty
reparations
they
are
by
intendment
to
continue
but
for
a
short
time
,
which
are
likely
to
be
spent
during
the
term
and
lease
;
but
these
new
defences
are
apparantly
done
to
save
the
Inheritance
:
And
this
difference
holds
good
correspondency
with
other
Cases
in
our
Law
,
as
in
49
Ed.
3.
fol.
1.
and
3
Eliz.
in
Dyer
fol.
198.
and
in
Eliz.
Dier
.
that
Book
again
fol.
134.
and
in
divers
other
Books
it
is
holden
for
Law
,
That
if
a
house
in
Lease
decay
in
the
Groundsels
,
Post
or
Balk
,
in
the
great
timber
,
in
direct
wearing
by
tract
of
time
,
and
not
in
default
of
the
Lessee
;
the
Lessee
may
take
and
cut
up
timber
growing
on
the
grounds
leased
to
repair
the
same
,
and
the
Lessee
shall
be
at
charges
of
workmanship
,
for
the
repairs
are
in
matter
of
right
,
and
do
the
Lessee
good
during
his
Lease
,
and
the
Lessor
after
the
expiration
thereof
:
And
because
these
great
repairs
extend
to
both
their
goods
,
therefore
they
shall
both
be
contributory
thereto
:
But
if
a
house
be
decayed
in
splinting
,
thack
,
walling
,
or
in
such
petty
matters
,
the
Lessee
for
years
shall
be
at
the
sole
charge
,
for
these
may
be
spent
in
his
own
time
.
So
I
suppose
my
meaning
is
herein
well
perceived
,
which
is
,
That
in
petty
,
annual
and
ordinary
repairs
,
the
Lessee
alone
shall
do
the
same
;
but
where
the
same
wants
in
great
timber
,
or
when
a
new
defence
is
to
be
built
,
they
shall
both
be
at
the
charge
:
And
with
this
the
Statute
of
7
Jac.
cap.
20.
doth
directly
in
reason
agree
withal
;
out
of
Jac.
cap.
20.
which
Statute
it
is
plainly
to
be
observed
,
that
in
the
great
repairs
,
as
also
in
the
new
building
,
as
well
the
Lessor
as
the
Lessee
shall
be
both
at
the
charge
:
Yet
in
the
Statute
of
3
Ed.
6.
cap.
8.
there
is
a
clause
in
effect
,
That
all
Lots
,
Scots
and
sums
of
money
hereafter
to
be
rated
by
the
Commissioners
of
Sewers
upon
the
Kings
Lands
,
shall
be
gathered
or
levied
by
distress
on
those
grounds
as
in
case
of
other
persons
;
and
that
all
Bills
of
acquittance
signed
with
the
hand
of
such
Receiver
or
Collector
,
shall
be
a
sufficient
Warrant
to
the
Auditors
and
Receivers
,
and
other
the
Kings
Officers
,
for
allowance
to
the
Farmer
or
Tenant
to
the
Kings
Majesty
;
Whereby
it
appeareth
,
that
the
Farmer
of
the
King
shall
not
be
at
the
charge
,
but
His
Majesty
;
yet
by
the
Statute
13
Eliz.
cap.
9.
it
may
be
collected
,
that
the
Lessor
for
years
shall
be
charged
,
but
all
Eliz
cap.
9.
these
are
to
be
reconciled
with
my
said
diversity
.
But
now
it
may
be
objected
to
me
;
Sir
do
you
think
it
reasonable
or
possible
for
Commissioners
of
Sewers
to
take
notice
at
the
first
of
every
private
mans
inheritance
,
and
the
several
Estates
which
the
parties
have
therein
,
when
it
will
scarce
be
possible
by
private
search
to
finde
them
out
?
To
this
I
answer
,
That
it
is
not
reasonable
to
tie
the
Commissioners
to
such
difficult
and
obscure
businesses
;
but
it
is
sufficient
for
the
Commissioners
to
impose
or
lay
the
rate
,
tax
or
sesse
on
the
grounds
,
or
on
the
visible
possessors
thereof
:
and
if
the
money
so
rated
be
demanded
on
the
Lessee
for
years
,
or
for
life
;
or
if
the
goods
be
distrained
therefore
,
or
they
be
compelled
to
pay
the
same
,
then
they
may
come
before
the
Commissioners
,
and
shew
forth
their
lease
,
and
make
it
appear
,
that
I.
S.
hath
the
Reversion
,
and
as
the
case
is
,
to
be
charged
as
well
as
himself
;
and
upon
due
proof
thereon
made
,
the
Commissioners
upon
hearing
the
parties
on
both
sides
may
apportion
the
tax
on
either
of
them
,
as
in
Justice
,
Discretion
and
true
Judgement
is
requisite
.
And
so
if
a
tax
be
set
upon
Land
,
the
owner
may
come
in
before
the
Commissioners
,
and
make
it
to
appear
before
them
,
that
I.
D.
hath
a
common
,
and
Rent
thereout
;
and
upon
proof
thereof
made
,
the
Commissioners
are
to
lay
the
charge
accordingly
:
And
so
it
shall
not
tie
the
Commissioners
at
the
first
to
lay
the
charge
upon
every
particular
person
,
for
that
were
opus
in
finitum
&
impossibile
,
but
to
relieve
the
parties
upon
their
complaint
;
and
this
may
be
easily
done
,
and
it
stands
with
the
Justice
of
these
Laws
so
to
do
:
And
if
the
parties
grieved
will
not
complain
for
relief
,
let
it
be
justly
accompted
their
own
folly
,
and
no
injustice
of
the
Commissioners
;
for
the
very
Statute
directs
,
that
such
as
are
Taxes
,
Rates
and
Sessments
imposed
meerly
by
the
Laws
of
Sewers
.
I
Have
formerly
put
nine
several
matters
to
tie
men
to
the
repairs
,
and
this
,
by
the
Laws
of
Sewers
is
the
last
,
but
not
the
least
of
them
:
I
propose
these
to
be
by
the
Laws
of
Sewers
,
because
they
be
not
backed
,
helped
,
aided
or
assisted
by
Customs
,
Prescriptions
Common
right
,
or
by
any
other
Rule
of
the
Common
Law
,
or
by
Tenure
or
Covenant
,
or
any
act
of
the
party
,
as
all
the
rest
be
,
but
are
only
composed
,
made
,
ordered
and
directed
by
the
sole
power
and
authority
of
these
Laws
of
Sewers
:
and
these
are
such
as
fall
out
of
all
the
fomer
rules
,
and
therefore
in
nova
causa
novum
remedium
est
adhibendum
:
But
yet
before
I
enter
into
my
own
works
,
I
will
set
down
and
declare
the
opinions
delivered
in
Rooks
and
Keighleys
Case
,
which
seemed
one
of
them
opposite
to
the
other
:
for
in
Rooks
Case
it
is
said
,
That
if
one
be
bound
in
respect
of
his
Lands
to
repair
a
Wall
or
Bank
by
Tenure
,
Prescription
or
otherwise
,
that
yet
the
Commissioners
of
Sewers
could
not
assess
the
said
party
alone
to
repair
the
same
;
and
said
,
that
the
Commissioners
were
not
tied
to
the
Rules
of
Prescription
,
Tenure
,
Custom
or
otherwise
,
but
ought
to
assess
all
the
Level
to
do
the
same
,
which
are
to
have
good
thereby
:
But
this
being
mistaken
,
is
very
justly
and
discreetly
altered
in
the
said
Case
of
Keighley
by
the
Author
himself
;
for
how
could
it
be
presumed
,
that
the
learned
makers
of
this
worthy
Law
would
have
stricken
down
at
one
blow
so
many
thousand
Prescriptions
,
Customs
,
Tenures
,
Covenants
and
uses
,
as
be
within
this
Realm
,
which
be
tied
and
bound
to
do
and
make
the
repairs
in
this
kinde
,
some
in
consideration
of
houses
and
land
,
others
for
yearly
Rents
,
and
for
other
causes
,
which
to
have
set
at
liberty
,
and
to
have
imposed
the
charge
on
the
Levellers
,
would
have
wrought
and
brought
a
wondrous
innovation
,
change
and
alteration
in
these
works
;
all
which
by
this
exposition
are
freed
and
saved
:
But
yet
there
be
certain
Cases
which
of
meer
necessity
lay
the
charge
upon
the
Level
,
which
are
as
follows
:
The
charge
upon
the
Level
.
FIrst
,
if
any
grounds
were
heretofore
by
Custom
,
Prescription
,
Tenure
or
otherwise
obliged
and
bound
to
repair
any
Wall
,
Bank
,
River
,
Sewer
,
Goat
,
Sluce
,
Jetty
,
or
other
Defence
,
which
grounds
so
charged
have
been
of
late
devoured
and
overflown
by
the
Sea
,
and
so
remain
;
The
Commissioners
of
Sewers
are
in
that
case
tied
to
lay
the
charge
now
upon
the
Level
,
which
stand
in
danger
of
taking
hurt
by
the
not
making
the
repairs
,
or
which
are
to
receive
good
by
the
doing
thereof
.
Secondly
,
also
if
A.
B.
be
bound
by
the
Tenure
of
his
land
to
repair
a
Bridge
,
Calcey
or
Bank
,
and
he
dieth
without
heirs
,
whereby
the
Land
escheateth
to
the
Lord
of
the
Fee
,
in
this
Case
the
Tenure
is
ended
,
and
the
chief
Lord
is
not
bound
to
the
repairs
,
and
therefore
now
the
charge
must
lie
on
the
the
Level
,
and
so
is
the
Law
if
this
Tenure
had
been
in
other
sort
extinguished
.
Thirdly
,
where
no
persons
or
grounds
can
be
known
,
which
ought
to
make
the
repairs
by
Tenure
,
Prescription
,
Custom
,
Covenant
or
otherwise
,
then
the
Commissioners
of
Sewers
are
to
lay
the
charge
on
the
Level
.
Fourthly
,
if
John
à
Stile
be
chargeable
to
make
the
repairs
and
be
not
able
to
do
the
same
,
here
the
Level
are
to
be
charged
to
assist
him
therein
,
as
appears
in
Keighleys
Case
.
Fifthly
,
if
I.
S.
by
reason
of
his
Lands
or
otherwise
be
tied
to
repair
the
Sea
bank
,
but
the
hazard
is
so
apparant
dangerous
to
the
country
,
that
I.
S.
in
all
likelihood
cannot
repair
the
same
:
and
so
the
country
might
be
in
danger
to
be
overflown
ere
I.
S.
alone
could
do
it
,
here
also
the
country
on
that
Level
are
to
be
rated
and
taxed
towards
the
same
:
Keighleys
Case
.
Sixthly
,
if
the
Sea
at
the
Spring
tides
,
or
at
extraordinary
casual
swelling
Tides
or
Floods
,
have
broke
down
the
fences
,
and
overthrown
the
Banks
,
and
drowned
the
country
without
any
default
in
the
party
who
was
tied
to
have
repaired
the
same
;
the
Level
shall
in
this
case
make
up
the
breach
,
for
things
which
happen
extraordinarily
by
the
Sea
or
great
waters
,
which
neither
policy
of
man
could
prevent
,
nor
industry
or
force
could
resist
,
are
counted
irevitable
and
undefenceable
,
and
so
is
the
Law
in
the
Case
of
Lessee
for
years
or
for
life
if
they
suffer
by
neglect
their
Banks
or
Walls
to
be
broken
down
,
and
their
grounds
surrounded
,
they
be
punishable
in
an
Action
of
Waste
:
But
if
those
grounds
by
the
extraordinary
rage
and
violence
of
the
Sea
or
waters
be
born
down
,
and
their
grounds
surrounded
thereby
,
they
are
in
this
case
freed
from
all
Wastes
;
and
in
proof
thereof
the
Case
in
28
and
29
H.
8.
Dier
fol.
33.
is
much
to
this
purpose
,
where
one
I.
S.
lying
near
the
River
of
Eye
,
and
the
Lessee
covenanted
to
repair
the
Banks
of
the
River
to
preserve
the
Meadow
from
surrounder
;
yet
after
an
extraordinary
flood
,
the
Banks
were
broken
down
,
and
the
Meadows
were
surrounded
,
and
it
was
there
holden
to
be
no
breach
of
Covenant
.
Nota
,
this
was
in
Seventhly
,
if
one
do
hold
his
Land
by
the
yearly
payment
of
Ten
shillings
towards
the
repair
of
a
Wall
,
if
this
money
will
not
defray
the
charge
,
the
rest
must
be
laid
on
the
Level
.
Eighthly
,
if
a
new
Wall
or
Bank
be
to
be
erected
,
or
a
new
Sewer
,
Trench
or
River
to
be
cast
,
or
Sluce
or
new
Goat
to
be
built
,
in
these
cases
the
Commissioners
must
lay
the
charge
on
the
Level
which
are
to
take
benefit
thereby
,
as
well
for
new
building
thereof
,
as
with
the
maintaining
of
them
:
for
in
the
Case
of
new
defences
there
can
be
no
Prescription
,
Custom
or
Tenure
bound
to
do
the
same
.
And
lastly
,
In
case
there
be
a
great
Port
in
the
country
,
by
the
which
the
whole
country
hath
benefit
;
for
the
Ports
and
Havens
as
hath
been
said
,
be
Ostia
&
januae
Regni
,
and
are
the
defences
to
the
whole
country
tempore
pacis
&
tempore
belli
,
and
are
these
places
,
by
means
whereof
the
upland
countreys
be
made
partakers
of
the
sea
Commodities
;
therefore
in
my
opinion
,
the
extraordinary
repairs
of
these
be
not
altogether
tyed
to
the
Level
,
as
in
other
cases
,
nor
to
Prescription
or
Custom
of
repairing
,
which
extends
but
to
ordinary
defects
,
but
upon
great
and
urgent
necessities
:
for
the
safety
of
the
Port
,
upon
the
welfare
whereof
the
safety
of
the
country
doth
depend
,
the
whole
country
are
obliged
and
bound
to
contribute
towards
the
repairs
,
for
these
reasons
following
:
First
,
for
that
in
time
of
peace
it
is
the
Gate
which
openeth
it self
to
let
in
from
Foraign
parts
the
Ships
and
Barques
,
which
bring
hither
to
this
Island
such
Merchandizes
,
Wares
and
Commodities
,
both
for
our
profit
and
pleasure
as
we
have
need
to
use
.
Secondly
,
at
these
Ports
we
ship
out
to
Foraign
Nations
our
excess
of
Corn
,
Cloth
,
Skins
,
Lead
and
other
Wares
,
wherewithal
we
do
abound
,
and
receive
in
truck
therefore
other
things
more
useful
and
necessary
for
us
.
Thirdly
,
in
time
of
War
we
have
shipping
here
for
our
Soldiers
,
and
means
at
the
easiest
charge
to
Transport
them
to
such
places
as
the
King
and
Councel
shall
direct
.
Fourthly
,
in
those
Ports
are
commonly
great
Havens
,
which
are
the
chief
receptacles
of
all
our
fresh
waters
,
into
which
the
waters
which
drown
the
grounds
of
the
countreys
adjoyning
are
conveyed
.
And
lastly
,
it
appears
by
divers
Authors
,
that
a
country
well
furnished
with
Ports
and
Havens
,
is
not
more
strengthned
then
honored
thereby
;
and
if
it
be
as
lawful
as
convenient
to
put
a
case
of
Chronicle
Law
upon
it
,
in
the
28
year
Eliz.
in
Holingshead
Chronicles
,
it
appeareth
what
great
care
the
Queen
and
the
Lords
of
the
Privy
Counsel
,
and
the
I
have
now
proceeded
in
this
point
of
Sess
so
far
,
that
I
take
it
,
I
may
justly
here
make
my
full
period
of
this
days
exercise
;
and
I
have
taken
up
the
more
time
herein
,
because
thereupon
a
main
part
and
strength
of
this
Law
consists
:
And
therefore
I
will
now
apply
my self
to
my
conclusion
,
in
the
which
I
have
already
proceeded
so
far
,
that
I
have
made
it
in
some
sort
to
appear
,
that
some
of
the
Sesses
in
particular
are
not
well
imposed
,
as
the
Lessee
in
case
of
the
new
defences
was
not
alone
chargeable
,
for
that
he
in
the
reversion
was
to
contribute
thereto
,
and
that
no
imposition
ought
to
have
been
laid
upon
,
the
Parson
for
his
Tythes
,
but
the
owner
of
the
Soil
was
to
be
charged
for
all
;
so
that
these
two
be
already
ruled
for
me
:
But
yet
if
any
of
the
Sesses
should
be
good
,
then
I
should
fail
in
my
conclusion
;
I
shall
therefore
set
forth
in
few
words
,
that
all
the
Sesses
are
void
.
And
the
cause
is
this
,
That
the
draining
of
the
superfluous
waters
in
S.
appeareth
by
my
Case
to
be
only
commodious
for
S.
and
that
D.
the
other
town
had
no
good
thereby
:
And
it
appears
also
,
that
by
the
repairing
of
the
ancient
Sewer
in
D.
that
town
only
had
benefit
thereby
,
therefore
to
assess
S.
to
repair
in
D.
and
D.
to
contribute
to
S.
where
in
those
Cases
there
could
be
no
benefit
,
is
directly
against
the
letter
and
sence
of
these
Laws
;
but
herein
either
of
them
ought
to
have
been
at
charge
with
that
,
by
the
which
it
took
benefit
,
and
that
not
otherwise
;
and
therefore
the
mixture
marred
all
the
matter
:
And
so
upon
all
this
I
conclude
my
Arguments
as
I
did
my
Case
,
that
the
new
Bank
,
new
River
,
and
old
Sewer
were
well
decreed
,
but
that
the
assess
is
void
in
toto
&
in
qualibet
parte
.
Finis
secundae
Lecturae
.
Lectura
tertia
.
IN
my
two
preceding
Cases
;
the
main
body
of
this
great
Law
were
contrived
,
and
therefore
I
took
a
greater
&
larger
compass
in
my
Arguments
therein
,
then
otherwise
I
would
have
done
;
and
I
am
now
come
to
the
execution
of
these
Laws
;
wherein
the
life
and
livelihood
of
all
Laws
consist
:
And
it
may
well
be
said
of
execution
,
as
Mr.
Plowden
in
Zouch
and
Stowels
Case
,
Commentaries
,
fol.
358.
saith
of
a
fine
,
that
it
is
finis
fructus
exitus
&
effectus
Legis
;
so
is
execution
the
fruit
,
issue
and
end
of
the
Law
,
and
without
it
nothing
is
effectual
,
and
till
it
come
nothing
is
material
;
for
to
begin
a
Suit
and
stay
at
the
declaration
,
were
a
fruitless
enterprise
;
and
to
proceed
on
to
Judgement
,
and
to
go
no
further
,
were
like
a
Traveller
which
undertook
a
journey
,
and
returns
or
sits
down
without
further
moving
,
before
he
came
at
the
end
of
his
intended
progress
.
Law
,
as
Cicero
saith
,
is
but
mutus
Magistratus
,
the
Magistrate
is
Lex
loquens
;
but
I
shall
adde
something
,
which
executio
est
Lex
agens
:
And
because
I
esteem
the
time
to
be
almost
lost
or
mispent
which
is
prologued
out
in
preambles
,
I
will
therefore
now
briefly
divide
this
part
of
this
Statute
into
these
insuing
heads
:
Either
in
punishing
the
body
and
person
of
the
delinquent
with
-
Imprisonment
,
-
Fine
,
or
-
Amerciament
.
Or
in
doing
execution
upon
the
offendors
goods
By
distress
,
or
by
the
Absolute
sale
thereof
.
Or
otherwise
in
extending
upon
the
Real
Estate
,
By
charging
the
Land
in
perpetuity
,
or
temporarily
;
or
by
the
absolute
sale
thereof
.
The
true
and
due
execution
of
all
these
in
a
just
,
legal
,
equal
and
qualified
decree
,
requireth
of
all
other
parts
of
Law
this
greatest
and
truest
discretion
,
consideration
,
wisdom
and
judgement
of
the
Commissioners
:
And
I
take
it
,
it
may
stand
as
a
ground
infallible
,
that
there
be
as
many
degrees
of
punishments
,
as
there
be
offences
;
It
behooveth
therefore
the
Commissioners
to
be
circumspect
,
that
they
apply
to
every
offence
his
due
punishment
;
for
it
is
injustice
to
punish
the
offence
committed
in
a
wrong
degree
,
to
pronounce
a
Traytors
judgement
upon
a
Fellon
,
or
a
Fellons
judgement
upon
a
Traytor
,
is
grand
misprision
;
to
imprison
the
body
,
or
to
fine
the
person
,
where
an
Amerciament
is
onely
due
,
is
not
onely
injustice
in
the
Commissioners
,
but
thereby
also
their
discretions
are
to
be
drawn
in
question
and
censured
.
And
seeing
the
Statute
doth
so
much
lie
upon
discretion
of
the
Commissioners
,
as
in
many
parts
of
this
Law
it
is
mentioned
;
It
seemeth
the
Parliament
did
give
them
to
understand
,
That
such
as
were
to
meddle
in
those
affairs
,
should
be
both
discreet
and
wise
,
and
should
strive
to
become
learned
in
those
affairs
.
And
therefore
for
the
better
furnishing
of
them
with
the
true
understanding
of
the
said
parts
of
this
Statute
,
I
have
framed
a
Case
thereupon
,
which
doth
give
just
occasion
to
treat
fully
of
them
all
.
The
third
Case
.
A.
Gave
the
Office
of
a
Ranger
of
a
Forest
,
to
which
a
Mannor
is
belonging
to
I.
S.
&
Abnepti
,
and
to
the
heirs
,
males
and
females
,
of
their
bodies
in
Franck
mariage
,
and
dieth
:
B.
and
C.
their
legitimate
son
and
daughter
,
and
D.
their
bastard
daughter
enter
,
and
dieth
in
seisin
,
and
E.
her
daughter
enters
:
The
Commissioners
of
Sewers
at
a
Court
make
a
Law
,
That
a
Goat
shall
be
repaired
,
and
assesse
severally
A.
B.
C.
and
E.
to
do
it
,
upon
surmise
,
that
they
all
had
benefit
:
B.
and
C.
refuse
to
obey
,
for
which
B.
is
imprisoned
,
and
C.
is
fined
;
A.
and
E.
tender
pleas
of
discharge
,
which
are
refused
,
and
they
are
severally
amerced
,
and
a
Law
made
,
that
A.
should
be
distrained
,
and
for
non-payment
the
distress
to
be
sold
,
without
alowance
of
Replevin
,
and
the
interest
of
E.
should
be
also
sold
,
because
she
hath
nothing
to
be
distrained
by
.
I
conclude
,
the
Commissioners
of
Sewers
have
done
due
Justice
upon
the
Offenders
in
every
part
of
this
Law
.
Argumentum
Lectoris
.
The
passages
of
this
Case
are
both
at
the
Common
Law
and
by
this
Statute
;
The
Common
Law
is
the
means
,
but
the
Statute
is
the
matter
I
must
insist
upon
:
But
seeing
the
Statute
Law
can
receive
no
due
construction
,
but
by
the
rules
of
the
Common
Law
,
I
have
therefore
made
a
harmonial
composition
of
them
both
in
my
Case
,
and
I
do
distinguish
and
branch
out
my
Case
into
these
ensuing
points
.
Points
at
the
Common
Law
.
-
Imprimis
,
Whether
this
Office
may
be
intailed
or
not
?
-
Secondly
,
Whether
it
be
an
ordinary
Intail
,
or
a
Frank-mariage
?
-
Thirdly
,
Whether
the
Bastard
be
inheritable
to
this
Estate
,
or
not
?
Points
upon
the
Statute
.
-
First
,
Whether
the
Commissioners
have
a
Court
,
or
only
the
strength
of
the
Commission
without
a
Court
?
-
Secondly
,
Whether
Commissioners
of
Sewers
have
power
to
imprison
and
to
fine
?
if
so
,
then
whether
they
have
well
behaved
themselves
in
this
Case
,
or
not
?
-
Thirdly
,
Whether
this
Law
doth
admit
of
any
pleas
,
and
especially
of
pleas
of
discharge
?
-
Fourthly
,
Whether
the
Law
made
touching
the
distress
be
well
made
,
because
it
seemeth
prima
facie
to
oppose
a
main
point
of
the
Common
Law
,
in
denying
of
Replevins
?
-
Fifthly
and
lastly
,
if
the
Law
made
for
sale
of
Lands
of
Tenements
in
Tail
be
warranted
by
this
Statute
,
or
not
?
These
be
the
materials
of
this
Case
,
wherein
you
may
perceive
by
the
beginning
,
what
you
are
to
expect
in
the
sequel
and
conclusion
of
my
argument
.
These
Points
upon
the
Statute
are
of
great
consequence
and
importance
,
and
tend
much
into
the
powers
of
these
Laws
:
In
the
handling
whereof
,
according
to
my
wonted
fashion
,
I
intend
to
maintain
the
Affirmatives
of
my
Case
.
First
Point
.
I
did
not
intend
it
a
point
of
any
importance
in
my
Case
,
Whether
Land
might
belong
to
an
Office
;
for
that
in
the
1
H.
7.
fol.
28.
in
Sir
Robert
Crofts
Case
,
it
is
resolved
it
might
:
For
there
Land
did
belong
to
the
Office
Dyer
f.
2.
Empsons
case
it
is
said
,
And
in
the
Case
of
Sir
Henry
Nevil
in
Plo.
Com.
an
Office
of
a
Parker
was
granted
to
two
,
and
an
Annuity
for
the
exercise
of
it
;
and
it
is
there
resolved
,
that
the
Annuity
might
not
be
severed
from
the
Office
:
and
so
it
might
be
said
in
my
Case
,
That
the
Mannor
which
belongs
to
the
Office
was
at
the
first
laid
thereto
,
or
given
therewithal
for
the
maintenance
of
the
Officer
in
his
place
by
the
Founder
,
and
so
may
not
be
severed
therefrom
without
his
consent
.
And
touching
the
intailing
of
the
Office
of
the
Ranger
of
a
Forest
,
it
is
held
in
Mancels
Case
in
the
Comment
of
Mr.
Plowden
,
that
the
Office
of
a
Bayliff
or
Receiver
of
the
Rents
of
a
Mannor
may
be
intailed
;
So
an
use
and
a
Copy-hold
,
because
these
concerned
and
depended
upon
Land
.
But
the
Office
of
the
Master
of
the
Hawks
,
or
the
Mastership
of
the
Horse
could
not
be
given
in
Tail
within
the
Statute
of
West
.
2.
de
donis
conditionalibus
,
nor
an
Annuity
which
chargeth
the
person
;
Yet
all
these
may
be
given
or
granted
within
these
intailed
limitations
,
but
yet
they
are
no
intails
within
that
Statute
.
I
am
of
opinion
,
That
the
Office
of
a
Ranger
of
a
Forest
cannot
of
it self
be
given
in
Tail
,
but
having
a
Mannor
belonging
to
it
,
make
the
question
of
more
moment
;
For
as
the
Office
Dese
is
not
intailable
,
so
the
Land
per
se
may
be
intailed
:
But
Land
in
our
case
is
not
the
principal
,
but
the
accessary
&
accessorium
sequitur
suum
principale
;
and
therefore
seeing
the
Land
follows
the
Office
,
as
the
shadow
doth
the
body
,
and
passeth
out
of
his
own
kinde
by
the
ceremony
belonging
to
the
Office
,
and
not
by
the
ceremony
by
which
Land
is
transferred
and
passed
,
I
should
therefore
take
it
,
that
the
Estate
of
the
Land
should
be
such
as
the
Office
of
it self
might
bear
,
which
could
not
be
intailed
;
yet
because
in
the
said
Case
of
the
Forester
,
with
Land
belonging
to
it
,
is
taken
to
be
in
Tail
in
1
H.
7.
aforesaid
,
with
a
remainder
Second
Point
.
The
second
Common
Law
Point
is
,
Whether
this
gift
in
my
Case
be
a
Frank-mariage
or
another
intail
;
I
have
observed
in
Books
that
there
be
five
things
incident
to
a
gift
in
Frank-mariage
(
viz.
)
First
,
it
must
be
to
or
with
a
Cosin
within
the
four
degrees
.
Secondly
,
the
word
Frank-mariage
must
be
literally
expressed
.
Thirdly
,
the
Reversion
must
be
left
at
the
time
of
the
gift
in
the
donor
;
and
then
there
be
two
other
things
follow
as
consequents
.
Fourthly
,
acquital
of
payment
of
Rents
and
services
.
And
Fiftly
,
warranty
to
secure
the
Estate
.
And
the
want
of
these
or
any
of
these
in
the
creation
doth
destroy
that
Estate
in
the
conception
.
Here
seems
to
be
two
Impediments
in
my
Case
to
hinder
this
gift
to
take
root
as
a
Frank
mariage
;
It
is
made
abnepti
,
which
is
the
Cosin
in
the
fourth
degree
,
and
the
last
in
those
gifts
,
whereby
the
gift
that
way
cannot
have
his
full
operation
,
for
that
the
first
Heir
of
their
bodies
is
out
of
the
former
priviledges
:
But
in
regard
I
take
it
that
a
Frank
mariage
doth
more
respect
his
original
creation
In
incepto
then
the
descent
of
the
priviledges
to
the
Heirs
In
suo
progressu
,
I
take
this
to
be
no
impediment
to
hinder
this
from
being
a
gift
in
Frank
mariage
.
But
here
the
words
in
the
gift
preceding
the
words
Frank
mariage
do
differ
much
from
it
,
for
by
the
special
limitation
the
Heirs
Females
shall
inherit
with
the
Heirs
Males
,
Simul
&
Semel
as
Heirs
in
common
;
But
in
the
Case
of
the
Frank
mariage
Heirs
Males
shall
first
inherit
single
,
and
for
want
of
them
then
the
Females
.
I
do
agree
the
Law
,
that
in
cases
where
the
special
words
of
limitation
may
in
construction
be
made
to
agree
with
the
word
,
and
limitation
of
Art
contained
in
Frank
mariage
,
the
gift
shall
be
taken
a
Frank
mariage
,
as
in
the
Case
of
2
H.
3.
It.
suff
.
Fitz.
Mordanc
.
plac
.
52.
where
Lands
were
given
R.
S.
cum
Alicia
sorore
le
donor
it
a
quod
post
mortem
dictae
Aliciae
&
puerorum
suorum
,
the
Land
should
revert
to
the
donor
;
and
this
was
adjudged
a
Gift
in
Frank
mariage
,
and
the
words
It
a
quod
were
holden
of
no
validity
;
neither
will
the
words
of
Reservandum
Redendum
Tenendum
or
Warrantizandum
;
though
they
vary
from
the
nature
of
a
Frank
mariage
,
yet
they
shall
not
destroy
the
same
as
an
Habendum
may
do
,
which
is
the
word
whose
proper
place
is
to
create
the
Estate
:
and
therefore
if
any
thing
come
therein
,
which
is
repugnant
thereunto
,
the
same
will
alter
the
quality
of
the
gift
:
And
with
this
agreeth
the
Case
in
45
Edward
the
3.
Title
Tail
14
and
31.
where
Lands
were
given
to
I.
S.
in
Frank
mariage
with
B.
the
daughter
I.
S.
and
his
heirs
;
the
Frank
mariage
is
defeated
by
the
opinion
in
Br.
Cases
and
so
in
my
Case
,
because
there
can
be
no
reconciliation
between
the
special
words
of
limitation
in
my
Case
,
and
the
word
Frank
mariage
:
I
am
therefore
of
opinion
,
that
this
gift
is
an
Estate
in
Tail
,
according
to
the
special
limitation
,
and
no
Frank
mariage
.
Third
Point
.
Whether
the
Bastard
shall
inherit
to
have
an
Estate
in
Tail
,
is
the
third
Common
Law
question
;
for
I
am
clear
of
opinion
,
that
a
Bastard
cannot
inherit
to
a
gift
in
Frank
mariage
,
because
adultery
and
fornication
,
which
is
the
seed
of
every
Bastard
is
opposite
to
mariage
,
and
in
breach
of
that
powerful
link
and
knot
of
Matrimony
,
which
is
an
Ordinance
derived
from
the
Divine
power
of
the
Almighty
:
And
therefore
seeing
mariage
is
the
material
consideration
of
such
a
gift
,
Bastardy
the
opposite
can
never
(
being
out
of
the
consideration
)
come
within
the
priviledges
to
inherit
this
Estate
.
So
if
I
give
Lands
to
I.
and
S.
and
to
the
heirs
of
their
two
bodies
lawfully
begotten
,
their
Bastard
cannot
inherit
to
this
gift
,
because
he
is
not
heir
of
their
two
bodies
lawfully
begotten
;
But
if
the
word
Lawfully
had
been
out
of
the
limitation
,
then
I
see
no
reason
but
that
a
Bastard
may
inherit
to
an
Estate
in
Tail
,
as
to
a
Fee
simple
conditional
,
which
he
might
have
done
at
the
Common
Law
,
seeing
an
Estate
Tail
may
be
made
before
mariage
,
as
expecting
to
be
confirmed
thereby
;
and
so
a
Bastard
born
before
mariage
is
by
the
consummation
of
a
succeeding
Mariage
made
capable
to
inherit
to
them
,
if
his
possession
continue
without
disturbance
to
his
death
:
Yet
in
Plow
.
Com.
fol.
57.
in
Winbish
and
Tailboys
Case
,
it
is
said
,
That
if
there
be
a
Bastard
,
Eigne
and
Mulier
puisne
,
and
the
Bastard
after
the
death
of
the
Ancestor
entreth
into
intailed
Lands
,
and
dyeth
seized
,
this
doth
not
binde
the
Mulier
in
case
of
Estates
Tail
,
as
it
doth
in
an
Estate
of
Fee
simple
:
and
voucheth
for
Authority
in
the
point
,
39
Ed.
3.
plac
.
ultimo
,
where
the
Case
is
,
That
Lands
were
given
in
Tail
to
I.
S.
the
Remainder
in
Tail
to
C.
and
I.
S.
hath
Issue
by
a
woman
a
Bastard
,
and
dyeth
seized
,
and
then
the
Bastard
dyeth
seized
,
having
Issue
,
he
in
the
Remainder
may
recover
the
Land
against
the
Issue
of
the
Bastard
;
affirming
,
That
the
continuance
of
possession
in
the
Bastard
shall
not
be
prejudicial
to
him
in
Remainder
:
To
which
Opinion
I
do
subscribe
,
because
he
in
the
Remainder
is
a
stranger
in
blood
,
and
so
cannot
be
concluded
as
the
Mulier
shall
be
;
for
a
Mulier
indeed
is
like
a
graft
drawn
out
of
both
the
bloods
of
Father
and
Mother
:
so
the
Bastard
is
a
slip
which
is
derived
from
the
same
Stock
,
and
had
his
being
therefrom
.
And
for
my
own
Opinion
,
considering
the
Statute
of
Westminster
2.
de
Donis
doth
accept
of
Gifts
in
Tail
made
before
Mariage
,
upon
the
hope
and
expectation
of
a
succeeding
Mariage
to
perfect
the
same
,
even
so
the
Mariage
succeeding
to
a
Bastards
birth
gives
him
and
his
Issue
a
priviledge
in
these
cases
of
descent
,
which
is
denied
to
other
Bastards
or
meer
Strangers
.
And
I
see
no
reason
wherefore
that
maxime
and
principle
of
Law
should
be
altered
by
the
said
Statute
of
West
.
2.
but
because
Mountagues
Opinion
in
Mr.
Plow
.
Com.
sways
the
other
way
;
I
will
therefore
submit
this
Point
to
men
of
greater
judgement
then
my
own
:
So
that
if
the
Law
fall
out
for
the
Bastard
Issue
,
then
she
should
have
title
to
the
half
part
belonging
to
the
Females
,
and
to
no
part
belonging
to
the
heirs
Males
:
And
with
this
Conclusion
I
do
here
end
my
Common
Law
Points
,
and
will
now
resort
to
the
handling
of
my
Statute
Points
.
The
Sewers
are
a
Court
of
Iustice
.
I
Am
desirous
to
attribute
to
this
Law
all
the
honor
and
dignity
which
may
in
any
sort
belong
to
it
;
and
therefore
I
am
unwilling
to
forget
any
thing
which
may
materially
tend
to
the
upholding
and
maintaining
thereof
:
wherein
amongst
the
rest
,
and
the
chiefest
of
them
all
,
it
is
,
To
prove
the
Commissioners
of
Sewers
a
Court
of
Justice
:
I
know
some
Opinion
hath
been
to
the
contrary
,
and
held
,
That
the
Commissioners
had
only
the
power
of
a
Commission
,
and
not
any
Court
;
and
I
suppose
much
may
be
said
to
maintain
that
opinion
,
First
,
because
in
expressis
terminis
there
is
no
Court
ordained
by
this
Statute
,
or
by
any
other
,
and
without
words
express
in
the
point
,
they
can
have
no
Court.
Secondly
,
by
presidents
in
the
like
case
it
hath
been
held
no
Court
,
as
in
the
Case
of
the
City
of
London
,
in
Sir
Edward
Cooks
8
Report
,
The
King
granted
to
the
Major
and
Commonalty
Plenum
&
integrum
scrutinium
gubernationem
And
so
if
a
Commission
issue
out
of
the
Chancery
to
examine
matters
in
a
Suit
there
depending
,
and
to
Oyer
and
Terminer
the
same
,
yet
hereby
these
Commissioners
have
not
any
Court
;
for
in
that
case
the
Commission
is
derived
out
of
the
proper
power
of
the
Chancery
,
which
is
the
Court
,
for
that
cause
eo
instante
when
it
is
in
Commission
:
And
one
Cause
cannot
uno
eodemque
tempore
depend
in
several
Courts
;
neither
have
the
Commissioners
upon
the
Statutes
of
Bankrupts
and
charitable
uses
any
Courts
:
nor
the
Commissioners
in
the
Case
of
1
&
2
Eliz.
Dier
fol.
175.
which
had
power
to
hear
and
determine
the
Office
of
the
Exigenter
,
had
not
any
Court
,
but
only
the
power
of
a
Commission
:
For
in
truth
these
are
all
of
them
rather
Ministerial
then
Judicial
Commissions
,
and
so
a
Court
is
not
proper
to
them
.
Yet
I
am
of
Opinion
,
That
the
Commissioners
of
Sewers
have
an
eminent
Court
of
Record
:
It
is
true
,
that
Courts
had
their
beginnings
in
three
sorts
;
First
,
by
Prescription
.
Secondly
,
by
Charter-grant
from
the
Crown
.
And
,
Thirdly
,
by
Act
of
Parliament
.
1.
The
Courts
,
Hundred
and
Leet
began
by
custom
,
and
so
did
the
eminent
Courts
of
Westminster-Hall
.
2.
Courts
in
Corporations
most
of
them
took
their
beginnings
by
Charters
.
And
,
3.
The
Courts
of
first
Fruits
and
Tenths
,
and
the
Court
of
Wards
and
Liveries
were
erected
by
Act
of
Parliament
,
the
one
in
32
,
the
other
in
33
Hen.
8.
But
to
bring
the
question
nearer
home
to
our
Statute
of
Sewers
,
which
is
but
additamentum
legibus
antiquis
Sewerarum
,
for
they
have
been
used
from
the
beginning
of
Laws
,
though
perhaps
not
known
by
that
name
:
And
yet
before
the
6
H.
6.
they
were
known
by
that
name
,
as
by
the
perusal
of
that
Statute
may
be
collected
:
And
therefore
for
the
causes
and
reasons
hereafter
ensuing
,
I
hold
the
same
to
be
a
Court.
First
,
for
that
the
Statute
of
12
Ed.
4.
cap.
7.
and
our
very
Statute
of
23
H.
8.
calls
the
Commissioners
of
Sewers
Secondly
,
here
be
legal
Proceedings
and
Process
;
for
this
Statute
saith
,
That
the
Commissioners
may
make
and
direct
all
Writs
,
Precepts
,
Warrants
,
and
other
Commandments
,
to
all
Sheriffs
,
Bailiffs
,
and
other
Ministers
,
&c.
And
the
Statute
of
1
H.
4.
cap.
12.
hath
these
words
in
it
(
That
he
that
thinks
himself
grieved
may
pursue
and
he
shall
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
Court
of
Justice
to
have
them
in
:
But
in
Doctor
Bonhams
Case
the
Physitians
had
no
legal
proceedings
,
and
therefore
parties
grieved
could
have
no
remedy
,
which
was
the
reason
they
had
not
a
Court.
And
thirdly
,
the
chief
reason
wherefore
I
take
it
that
Commissioners
of
Sewers
have
a
Court
,
is
,
Because
the
Commission
of
Sewers
is
a
member
of
the
ancient
and
renowned
Court
of
Oyer
and
Terminer
,
which
was
and
is
a
Court
of
great
esteem
,
power
and
authority
;
and
so
it
was
needless
to
erect
a
new
Court
in
this
case
,
as
it
was
needful
to
erect
and
found
the
Court
of
Wards
and
first
Fruits
,
the
first
would
else
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
dispose
of
them
.
Fourthly
,
the
Commissioners
have
a
Clerk
proper
to
themselves
to
Register
their
Laws
.
Fifthly
,
the
Commissioners
have
power
to
make
Orders
and
Decrees
,
which
are
Judgements
in
effect
,
and
some
of
them
cannot
be
reversed
but
by
Act
of
Parliament
.
And
lastly
,
Writs
of
Error
have
been
brought
to
reverse
Judgement
given
in
that
Court
.
For
all
which
causes
I
do
conclude
,
That
the
Commissioners
of
Sewers
have
a
Court
of
Record
,
although
it
be
not
holden
in
aliquo
loco
certo
:
So
was
the
Kings
Bench
a
Court
of
more
Eminency
then
this
;
But
ubicunque
fuerimus
in
Angliae
,
and
for
express
Authority
in
the
point
of
Gregories
Case
in
the
6
Report
of
Cook
chief
Justice
,
that
the
Sewers
is
a
Court
of
Record
.
Imprisonment
imposed
by
the
Commissioners
of
Sewers
.
IT
is
a
point
of
high
consequence
,
whether
Commissioners
of
Sewers
have
power
by
these
Laws
to
Imprison
the
body
of
a
man
for
any
thing
touching
the
same
,
for
that
Imprisonment
of
the
body
seemeth
to
sway
somewhat
against
the
grand
Charter
of
England
,
and
against
the
liberty
of
a
free-born
Subject
;
and
it
is
said
in
Bonhams
case
,
28
H.
8.
in
Dyer
,
that
liberty
is
a
thing
which
the
Law
much
favoreth
:
and
I
finde
in
our
Books
of
Law
,
That
the
Judges
have
been
very
careful
and
curious
,
in
not
extending
words
contained
in
Charters
to
the
Imprisonment
of
mens
bodies
,
unless
they
were
express
in
the
point
:
And
therefore
in
Clerks
case
in
Sir
Ed.
Cooks
5
Report
,
fol.
64.
Quod
nullus
liber
homo
imprisonetur
nisi
per
legem
terrae
:
But
by
that
Book
they
might
have
inflicted
a
penalty
,
and
have
distrained
,
or
brought
an
Action
of
Debt
for
it
.
In
Doctor
Bonhams
case
in
the
8.
Report
,
King
Hen.
8.
incorporated
the
Physitians
of
London
,
and
gave
them
power
by
Charter
to
examine
the
Imperites
,
&
to
finde
out
the
defects
Et
pro
delictis
suis
in
non
bene
exequendo
faciendo
&
utendo
illos
per
punitionem
eorum
delinquentium
per
fines
amerciamentum
&
imprisonomentum
corporum
suorum
:
So
hereby
it
appears
,
that
by
the
Kings
Letters
Patents
they
had
power
to
imprison
the
Body
;
but
I
finde
their
Charters
confirmed
by
Act
of
Parliament
:
Yet
in
2
Eliz.
Dier
fol.
175.
the
Case
is
,
That
the
Queen
did
award
a
Commission
directed
to
certain
Commissioners
,
to
Hear
and
Determine
the
controversies
betwixt
Scrogs
and
Colshil
touching
the
Office
of
the
Exigenter
,
and
that
if
Scrogs
should
refuse
to
obey
to
make
answer
before
them
,
they
should
commit
him
to
Prison
;
but
the
validity
of
this
last
Commission
I
much
doubt
of
.
I
am
of
Opinion
,
That
the
Commissioners
of
Bankrupts
and
charitable
uses
,
have
no
power
to
commit
any
man
;
but
if
any
abuse
or
misdemeanor
be
committed
in
contempt
or
derogation
of
their
Authorities
,
they
may
make
Certificate
thereof
into
the
Chancery
,
and
refer
the
punishment
thereof
to
the
will
and
discretion
of
the
Lord
Chancelor
or
Lord
Keeper
for
the
time
being
.
In
Godfreys
Case
in
the
11
Report
,
there
is
a
discourse
what
So
that
Imprisonment
is
not
incident
to
every
Court
,
nor
to
every
offence
;
Yet
I
am
of
opinion
that
the
Commissioners
of
Sewers
may
Imprison
the
body
,
for
it
is
not
only
a
Court
of
Record
,
but
is
authorized
by
Act
of
Parliament
;
and
I
suppose
that
there
be
words
in
the
Commission
and
Statute
which
will
bear
this
construction
,
which
are
as
follow
,
viz.
And
all
such
as
ye
shall
finde
negligent
,
gainsaying
or
rebelling
in
the
works
,
reparation
or
reformation
of
the
premises
,
or
negligent
in
the
due
execution
of
the
Commissioners
,
That
ye
Compel
them
by
Distress
,
Fines
and
Amerciaments
,
and
by
other
Punishments
,
ways
or
means
,
&c.
Which
words
are
strong
,
and
large
enough
to
authorize
the
Commissioners
of
Sewers
upon
just
Cause
to
Imprison
the
body
;
But
here
they
are
to
be
careful
,
and
not
to
think
that
they
may
Imprison
,
Fine
or
Amerce
in
any
case
,
because
the
words
be
generally
put
together
:
But
this
construction
must
be
thereof
made
,
That
they
may
Imprison
where
Imprisonment
is
due
,
and
Fine
in
cases
Fineable
,
and
Amerce
in
cases
Amerciable
,
and
Distrain
where
a
Distress
properly
lyeth
by
the
Rules
of
Law
;
and
they
may
not
Imprison
,
where
by
the
Laws
Imprisonment
is
not
due
,
but
every
one
of
the
said
punnishments
is
to
be
used
in
its
proper
kinde
;
for
these
words
promiscuously
put
together
,
must
be
ordered
by
a
just
and
legal
construction
,
according
to
the
Rules
of
Law
and
Reason
.
And
I
have
known
the
words
of
a
Statute
generally
and
promiscuously
put
together
,
have
been
marshalled
according
to
their
distributive
operations
,
as
the
Statute
of
1
Rich.
3.
which
is
,
That
all
Feoffments
,
Gifts
,
Grants
,
Releases
and
Confirmations
of
Lands
made
by
Cestui
que
use
should
be
good
;
Yet
though
these
words
were
generally
put
together
,
notwithstanding
the
wise
and
discreet
Sages
and
Expositors
of
our
Laws
have
so
Marshalled
the
words
of
this
Statute
,
that
they
made
construction
thereof
according
to
the
Rules
and
reason
of
the
Laws
,
That
is
,
That
Cestui
que
use
in
Possession
might
make
a
Feoffment
;
and
that
Cestui
que
use
in
Reversion
or
Remainder
might
grant
the
Land
,
and
Cestui
que
use
of
a
discontinued
Estate
might
release
or
confirm
:
and
yet
the
words
of
this
Statute
were
general
,
howsoever
Reason
must
be
the
Expositor
,
that
every
thing
be
done
in
due
form
of
Law
,
and
not
in
preposterous
maner
.
And
these
matters
being
thus
passed
over
,
I
shall
endeavor
my self
to
declare
in
what
cases
Commissioners
of
Sewers
may
Imprison
,
Fine
and
Amerce
,
and
where
not
.
Imprisonment
,
Fine
and
Amerciament
.
Fines
.
IF
one
give
evil
Language
to
Commissioners
in
Court
,
or
disturb
the
peace
there
,
or
hinder
the
business
of
the
Court
in
a
Turbulent
fashion
,
he
may
be
by
them
Fined
or
committed
to
Prison
,
or
both
,
at
the
discretion
of
the
Commissioners
;
for
by
34
H.
6.
fol.
24.
in
every
case
when
a
man
is
fined
,
he
may
be
imprisoned
;
and
by
19
H.
6.
fol.
67
in
every
case
where
one
is
Imprisoned
he
may
be
Fined
;
and
If
one
oppose
against
a
Law
of
Sewers
not
legally
in
questioning
the
same
,
but
refractory
contemning
thereof
,
or
by
disswading
persons
assessed
not
to
pay
such
,
or
not
to
obey
the
Law
,
I
am
of
opinion
that
a
person
is
both
Fineable
and
Imprisonable
;
and
if
this
be
done
in
facie
Curiae
,
it
aggravates
the
contempt
;
and
this
is
the
Rebelling
which
this
Statute
speaketh
of
.
If
one
do
refuse
to
obey
the
Decree
,
Rule
,
Order
of
the
Court
,
especially
if
it
be
done
in
affront
of
the
Commissioners
,
when
they
be
in
execution
of
their
Commission
,
This
is
a
contempt
,
and
he
is
to
be
imprisoned
for
such
his
disobedience
,
and
this
agreeth
with
37
H.
6.
fol.
14.
In
Termino
Pasche
12
Jac.
in
the
Kings
Bench
,
the
Case
Anthony
Mildmay
,
and
Sir
John
Boyer
Knights
,
and
other
the
Commissioners
of
Sewers
,
they
caused
Hetley
to
be
attached
by
their
Warrant
,
and
committed
him
till
he
should
release
his
Actions
brought
against
Carier
,
and
until
he
should
be
delivered
out
of
the
Prison
by
Warrant
to
be
granted
by
them
:
But
afterwards
Hetley
procured
a
Habeas
corpus
cum
causa
out
of
the
Kings
Bench
,
and
was
removed
,
where
all
the
said
matter
appeared
;
and
thereupon
Attachments
were
awarded
against
the
said
Commissioners
;
and
Sir
John
Boyer
appearing
,
was
by
Cook
chief
Justice
,
Crook
,
Dodderidg
and
Houghton
,
Justices
,
committed
to
the
Kings
Bench
Prison
,
and
was
fined
Two
hundred
pounds
;
but
was
after
delivered
Ex
favore
Regis
sed
non
ex
Rigore
Legis
.
And
in
my
opinion
,
The
said
Commissioners
in
this
case
in
making
a
Warrant
to
attache
Hetley
,
and
in
imprisoning
of
him
for
the
said
causes
did
exceedingly
erre
,
and
the
rather
,
because
they
took
upon
them
to
overrule
the
Justices
of
the
Kings
Bench
,
being
of
a
higher
and
greater
authority
then
they
were
of
;
But
this
is
no
president
to
impeach
the
power
of
the
Commissioners
of
Sewers
for
committing
persons
offending
their
authorities
to
Prison
,
if
their
proceedings
therein
be
consonant
to
the
Laws
of
this
Realm
;
but
they
were
punished
in
this
Case
,
not
for
executing
their
power
,
but
for
exceeding
their
limits
,
and
the
bounds
of
their
Commission
.
If
a
Collector
,
or
Expenditor
,
or
other
Officer
of
Sewers
have
been
negligent
in
the
execution
of
his
Office
and
place
,
he
his
fineable
therefore
,
though
his
offence
be
but
neglect
,
because
he
was
an
Officer
,
and
was
also
sworn
to
execute
the
same
duly
.
But
I
take
it
,
a
neglect
in
another
ordinary
person
is
not
to
be
punished
.
And
if
one
be
rated
to
pay
towards
repairs
,
and
he
neglect
to
pay
the
same
at
the
days
and
times
appointed
,
he
is
not
fineable
therefore
,
but
is
to
be
Amerced
in
this
Case
.
If
a
Collector
or
Officer
of
Sewers
do
distrain
a
man
,
or
do
any
other
act
contrary
to
an
Inhibition
of
Sewers
to
him
directed
by
the
Commissioners
of
Sewers
,
he
may
be
fined
and
imprisoned
&
simile
factum
fuit
in
7
H.
4.
fol.
33.
If
a
Purpresture
be
committed
in
the
Kings
streams
,
as
in
fixing
Piles
or
Stakes
therein
,
or
in
stopping
,
straitning
or
diverting
the
course
of
the
waters
from
their
ancient
chanels
or
courses
,
these
offences
being
presented
,
the
offenders
are
fineable
therefore
,
if
in
the
Presentment
they
be
found
to
be
done
vi
&
armis
,
or
be
presented
by
the
name
of
Purprestures
;
for
by
19
H.
6.
fol.
8.
if
the
offence
be
done
Eliz.
fol.
240.
That
for
a
Purpresture
one
is
fineable
,
and
a
Purpresture
may
be
committed
in
aquis
Regiis
as
well
Eliz.
fol.
240.
as
in
viis
Regiis
,
by
the
opinion
of
Glanvil
:
And
in
Keleways
Report
,
fol.
141.
And
a
Purpresture
is
taken
to
be
an
offence
done
to
the
King
imediately
,
or
to
His
possessions
;
But
if
the
like
offence
The
Abbot
of
Mellefont
was
fined
for
erecting
a
Were
in
the
royal
River
of
Boyne
in
Ireland
,
which
is
expressed
in
the
Irish
Reports
in
the
Case
of
the
Royal
Pischary
of
the
Ban
in
Ireland
,
and
this
was
a
Purpresture
.
If
one
do
refuse
to
accept
an
Office
of
Sewers
,
being
thereto
duly
elected
by
the
Commissioners
,
he
is
fineable
therefore
,
for
in
Greslies
Case
8.
Report
,
One
being
elected
And
if
an
Officer
do
misdemean
himself
in
his
Office
he
is
fineable
,
for
in
10
H.
6.
fol.
6.
A
Tythingman
did
refuse
And
if
the
Sheriff
upon
Writ
or
Warrant
directed
to
him
to
return
a
Jury
before
the
Commissioners
,
and
he
make
no
return
thereof
,
nor
doth
not
attend
when
he
is
required
,
he
is
to
be
fined
by
the
Commissioners
.
Also
an
Officer
of
this
Court
is
fineable
for
falsities
done
by
him
in
his
Office
,
for
these
are
a
violation
of
his
Oath
,
and
is
a
breach
of
that
trust
which
the
Court
reposed
in
him
at
his
election
and
entrance
into
his
Office
,
and
therefore
the
Offence
is
greater
in
him
then
in
another
man
.
I
have
learned
in
Books
that
a
Fine
hath
these
qualities
with
it
:
First
,
the
party
in
that
case
is
imprisonable
.
Secondly
,
the
cause
for
which
it
is
imposed
is
not
traversable
,
being
meerly
the
Act
of
the
Court
,
but
if
it
be
imposed
upon
a
presentment
found
by
Jury
,
then
the
cause
is
traversable
.
Thirdly
,
all
fines
ought
to
be
assessed
,
abated
or
increased
in
Plena
curia
,
and
not
elswhere
.
Fourthly
,
every
Fine
ought
to
be
reasonable
.
And
therefore
I
shall
put
the
Commissioners
of
Sewers
in
minde
as
the
Statute
of
34
Ed.
3.
cap
1.
did
the
Justices
of
Peace
,
that
those
Fines
that
they
should
impose
for
any
But
because
in
Godfries
Case
it
is
said
,
that
Commitment
of
the
body
to
Prison
is
incident
to
a
Fine
,
as
by
a
Gapias
pro
Fine
also
may
be
collected
;
Yet
I
hold
it
questionable
,
whether
the
Fine
shall
precede
the
commitment
,
or
the
commitment
the
Fine
.
But
for
my
own
opinion
,
I
hold
that
this
lyeth
much
in
the
discretion
of
the
Justices
,
and
I
finde
cases
and
presidents
both
ways
;
for
in
41
Assiz
.
plac
.
12.
an
Officer
was
imprisoned
quousque
finem
fecerit
,
where
the
Imprisonment
preceded
the
fine
:
and
with
this
agreeth
7
H.
6.
fol.
25.
But
upon
all
these
I
take
the
Law
to
be
,
that
if
one
be
fined
,
and
this
Fine
may
be
levied
by
the
Justices
,
as
Justices
of
the
Peace
may
do
(
but
not
Justices
of
Sewers
)
there
the
Imprisonment
may
be
quousque
finem
fecit
,
because
the
Fine
is
leviable
by
them
:
But
the
Law
is
not
so
of
Commissioners
of
Sewers
,
because
they
have
no
power
to
Levy
but
to
extreat
the
Fines
into
the
Kings
Exchequer
.
Howsoever
one
before
them
may
be
both
imprisoned
and
fined
Diversis
tamen
respectibus
,
The
one
for
the
wrong
done
,
the
other
for
the
contempt
or
disobedience
to
the
Court
;
As
for
example
,
if
one
refuse
to
be
a
Collector
,
he
is
finable
to
the
King
,
because
hereby
the
Commonweal
is
without
an
Officer
;
and
he
may
also
be
imprisoned
for
disobeying
the
Justices
command
:
and
yet
in
my
opinion
it
lieth
much
,
if
not
altogether
in
the
discretion
of
the
Commissioners
to
impose
or
inflict
both
the
said
punishments
,
or
one
of
them
,
at
their
pleasures
,
being
not
therein
precisely
limited
by
this
Statute
.
Amerciaments
.
AMerciaments
be
not
so
grievous
as
Fines
be
,
for
they
be
derived
of
the
word
Miserecordia
which
signifieth
moderation
&
mercy
;
and
to
that
end
was
the
Writ
in
the
Register
Moderata
miserecordia
devised
,
where
one
is
outragiously
amereed
he
might
be
relieved
by
suing
forth
that
writ
,
which
writ
and
the
Law
in
that
case
is
grounded
upon
the
grand
Charter
Glanvil
in
his
Book
saith
,
Est
autem
miserecordia
Domini
Fleta
lib.
1.
cap.
48.
saith
,
Quod
Bracton
lib.
3.
cap.
1.
and
Fitz.
Nat.
bre.
fol.
72.
and
if
the
Steward
set
an
Amerciament
upon
a
By
which
authorities
it
plainly
appeareth
,
that
Amerciaments
are
to
be
imposed
by
a
Jury
,
or
by
the
Oaths
of
good
and
lawful
men
;
and
therefore
I
have
heretofore
much
marvelled
,
when
sometimes
I
have
seen
Justices
of
Sewers
take
upon
them
to
set
down
Amerciaments
,
without
assistance
of
the
Jury
,
which
act
of
theirs
was
directly
against
the
said
great
Charter
of
England
,
and
contrary
to
the
said
authorities
of
Law
.
So
that
there
is
a
difference
between
the
imposing
of
Fines
which
are
done
by
the
Justices
,
and
Amerciaments
which
be
by
Jury
,
or
otherwise
,
per
sacramentum
parium
:
So
is
there
great
diversity
between
the
offences
of
the
one
kinde
,
and
the
other
;
For
if
one
do
suffer
a
Wall
,
Bank
,
or
other
work
of
Sewers
to
fall
into
decay
for
want
of
repairing
,
which
he
was
bound
to
maintain
by
Frontage
,
Tenure
,
Custom
or
Covenant
,
he
is
in
this
case
to
be
Amerced
therefore
:
And
so
if
one
be
bound
by
any
of
the
said
tyes
to
repair
a
Bridge
,
Calcey
,
Goat
,
Getty
,
Sluce
,
or
to
Cleanse
a
River
,
if
the
same
by
his
neglect
be
left
undone
or
unrepaired
,
he
is
therefore
amerceable
.
So
if
one
be
presented
for
casting
Dirt
,
Sand
,
Ballast
,
or
other
anoyance
into
the
Rivers
or
Streams
,
or
for
digging
down
the
Banks
,
or
for
pulling
down
the
Walls
thereof
;
if
the
presentment
do
not
express
the
same
to
be
done
with
force
,
or
therein
be
wanting
the
word
Purpresture
,
the
party
presented
is
then
but
amerceable
therefore
:
So
when
one
is
tyed
to
cleanse
the
Rivers
for
passage
of
Boats
and
Ballangers
,
or
for
the
draining
of
the
waters
,
if
he
suffer
Sand-beds
to
lye
and
choak
up
the
Channel
,
he
is
Amerceable
,
and
not
Fineable
therefore
;
for
no
permission
,
sufferance
,
neglect
or
Nonfeasans
can
be
found
to
be
by
force
,
because
they
consist
not
in
Agendo
,
&
sic
in
similibus
casibus
;
Yet
some
cases
following
fall
out
of
these
rules
pro
ut
sequuntur
.
As
if
the
violence
of
waters
was
so
great
,
either
by
breaking
in
of
the
sea
in
an
extraordinary
maner
,
or
by
a
sudden
flood
or
inundation
of
fresh
waters
after
a
Rain
,
that
thereby
the
defences
are
broken
down
,
or
caused
Sand-beds
or
other
Nusances
to
be
,
these
being
presented
,
no
man
is
Amerceable
therefore
,
because
the
same
could
not
have
been
prevented
by
policy
,
nor
resisted
by
strength
.
In
42
lib.
Assiz
.
plac
.
15.
a
Presentment
was
,
That
I.
S.
lib.
Ass
.
had
suffered
trees
to
grow
into
the
water
,
and
lay
in
the
Stream
,
by
reason
whereof
ships
were
hindred
in
their
passage
;
and
there
was
a
Writ
awarded
directed
to
the
Sheriff
to
remove
the
Nusans
:
but
Knivet
Justice
said
there
,
That
I.
S.
should
not
be
Amerced
,
because
the
Nusans
was
no
act
of
his
,
but
the
Trees
grew
so
naturally
of
themselves
.
But
perhaps
it
will
be
objected
to
me
,
Can
no
Amerciaments
be
set
but
by
a
Jury
,
or
by
the
Oathes
of
twelve
men
?
Yes
,
I
am
opinion
it
may
be
done
by
the
presentment
of
the
Surveyors
of
the
Sewers
,
for
that
is
per
Sacramentum
parium
as
the
Law
appoints
;
and
in
a
Nonsuit
we
see
daily
that
in
such
case
the
Plaintiff
is
to
be
amerced
,
and
this
Amerciament
shall
be
assessed
by
the
Coroners
of
the
county
,
as
appears
in
Greisleys
case
;
and
so
the
words
of
the
Statute
and
of
the
Law
may
herein
be
satisfied
.
Now
I
hope
I
have
fully
instructed
the
Commissioners
,
wherein
they
may
learn
whom
to
Imprison
,
when
to
Fine
,
and
how
to
Amerce
in
a
legal
and
orderly
sort
,
and
according
to
the
ancient
and
approved
Rules
of
Law
,
and
of
the
grand
Charter
;
for
in
those
things
they
are
to
direct
their
discretions
by
the
said
Rules
,
and
they
are
to
be
guided
thereby
,
and
are
not
to
proceed
therein
according
to
their
own
wills
.
And
herein
I
shall
conclude
the
second
point
of
this
part
of
the
Law
,
that
is
,
That
Commissioners
of
Sewers
have
power
to
Imprison
,
to
Fine
,
and
to
Amerce
;
And
that
B.
for
refusing
to
obey
their
Order
was
justly
imprisoned
,
and
C.
was
as
justly
fined
:
And
for
the
reasons
and
causes
aforesaid
,
the
Commissioners
in
their
discretions
,
though
the
offences
of
both
were
alike
,
yet
they
had
power
to
imprison
the
one
and
to
fine
the
other
.
And
now
I
do
intend
to
proceed
to
the
fourth
point
of
my
Case
,
and
the
third
point
I
intend
to
handle
in
a
more
convenient
place
.
Distress
.
THe
point
of
Distress
in
my
Case
is
grounded
upon
these
viz.
And
all
those
persons
and
every
of
them
to
tax
,
assess
,
distrain
and
punish
,
as
well
within
the
metes
,
limits
and
bounds
of
old
time
accustomed
,
or
otherwise
,
or
elswhere
within
the
Realm
of
England
.
Three
sorts
of
Distresses
.
First
,
there
be
divers
kindes
of
Distresses
(
viz.
)
Judicial
,
which
always
issueth
out
of
the
Rolls
of
the
Court.
Secondly
,
Ministerial
,
and
such
Distresse
is
to
be
performed
by
the
Officers
of
these
Laws
,
without
any
judgement
directing
the
same
.
Thirdly
,
and
there
is
a
Distress
of
Common
right
,
not
given
nor
awarded
by
Judgement
in
Court
,
or
by
Warrant
of
the
Commissioners
,
but
incident
to
the
thing
it self
.
And
first
of
the
Iudicial
Distress
which
is
awarded
by
the
Court
upon
a
presentment
found
of
a
Nusans
,
or
in
the
recovery
of
an
assize
of
Nusans
,
or
in
an
Action
of
the
case
,
as
it
appears
by
the
42
Assiz
.
plac
.
15.
32
Ed.
3.
23.
and
7
H.
4.
8.
there
a
Distringas
ad
Amovendum
shall
be
I.
S.
suffer
a
Bank
or
Wall
to
decay
,
and
that
be
presented
,
a
Distringas
ad
reparandum
shall
be
directed
to
the
Sheriff
to
distrain
I.
S.
to
repair
the
same
.
Secondly
,
a
Distress
Ministerial
is
where
one
is
assessed
or
rated
to
pay
a
certain
sum
of
mony
towards
the
repairing
of
a
Wall
,
Bank
,
Sewer
or
Goat
;
here
upon
Warrant
from
the
Commissioners
of
Sewers
,
the
Officer
expressed
in
that
Warrant
may
distrain
the
cattel
of
the
party
which
ought
to
pay
the
said
Rate
and
Sess
,
and
which
did
neglect
to
pay
the
same
:
And
yet
where
there
is
a
Rate
and
Sess
imposed
upon
one
by
the
Commissioners
of
Sewers
,
I
am
of
opinion
that
the
Collector
or
Officer
may
distrain
therefore
without
any
express
Warrant
from
the
Commissioners
so
to
do
;
and
my
reason
is
grounded
upon
the
Statute
,
which
is
this
,
because
the
Statute
and
Commission
which
be
the
general
Laws
,
do
of
themselves
in
this
case
give
a
distress
.
And
therefore
in
these
cases
,
the
Warrant
of
the
Commissioners
is
superfluous
,
like
to
the
Case
in
20
Eliz.
Dyer
.
I.
S.
should
have
and
receive
a
yearly
Rent
thereout
,
although
in
the
conveyances
there
was
no
mention
made
that
the
party
might
distrain
for
the
same
:
Yet
in
that
Book
it
is
mentioned
to
be
adjudged
,
That
the
owner
of
that
Rent
might
distrain
for
the
same
,
because
the
Statute
of
27
H.
8.
in
that
Case
gave
a
distress
.
Upon
which
Statute
the
said
conveyance
was
grounded
.
So
if
their
be
two
coparceners
to
whom
Land
doth
descend
,
and
they
make
partition
,
and
for
more
equality
she
that
hath
the
better
part
doth
grant
to
the
other
and
her
Heirs
a
yearly
Rent
out
of
her
Land
,
but
limits
no
clause
or
power
of
distress
,
she
to
whom
this
yearly
Rent
is
granted
may
distrain
therefore
;
And
so
may
a
Bailiff
distrain
for
an
Amerciament
in
a
Leet
without
a
Warrant
,
because
the
general
Law
gives
a
Distress
in
these
cases
.
Thirdly
,
and
as
touching
a
Distress
of
common
right
,
It
is
in
case
where
one
doth
hold
his
Land
of
his
Lord
as
of
his
Mannor
,
to
repair
a
Bank
,
Wall
or
other
work
of
Sewers
;
the
Lord
of
whom
these
Lands
be
holden
may
distrain
his
Tenant
of
common
right
to
compel
him
to
make
these
repairs
;
and
the
Distress
given
in
the
said
Case
of
the
coparceners
,
and
in
the
said
Case
of
Amerciament
in
a
Court
of
Leet
,
seem
both
to
be
Distresses
of
Common
right
:
And
that
the
Law
is
,
that
a
Distress
lyeth
for
a
Rate
,
Lot
or
Tax
imposed
by
the
Commissioners
of
Sewers
,
it
is
manifest
by
the
Case
of
Rooks
in
Cooks
5
Report
,
which
is
full
and
direct
authority
in
the
point
.
In
what
place
a
Distress
is
to
be
taken
.
NOw
touching
the
place
where
these
distresses
are
to
be
taken
,
comes
next
into
our
consideration
,
wherein
the
quality
of
the
matter
distrained
for
,
and
the
power
from
whence
the
distresses
are
derived
,
are
to
be
considered
of
.
And
therefore
if
a
Lord
do
distrain
his
Tenant
Ratione
tenurae
,
for
to
repair
a
Wall
,
Bank
or
other
defence
,
this
Distress
must
be
taken
on
the
Ground
holden
by
this
Tenure
and
not
elsewhere
,
for
these
grounds
are
chargeable
therewithal
,
as
the
opinion
of
Iustice
Sylliard
is
21
Ed.
4.
fol.
38.
But
,
not
as
that
Case
is
,
but
in
point
of
Tenure
;
Also
in
5
H.
7.
fol.
3.
there
is
a
like
Presentment
made
Quod
ipse
&
predecessores
sui
,
ought
to
repair
a
gutter
ratione
tenurae
terrar'
suar
'
;
but
because
in
that
case
the
Presentment
did
not
set
forth
where
those
Lands
lay
which
were
charged
,
the
Presentment
for
that
cause
was
holden
to
be
void
:
So
that
there
is
a
great
difference
between
a
Tenure
charge
,
and
a
charge
imposed
upon
Land
by
Prescription
;
For
in
the
case
where
a
Tenant
holdeth
his
Land
to
repair
a
Bridge
,
Wall
or
Bank
of
the
Lord
of
the
Fee
,
The
Lord
in
this
case
may
distrain
the
Tenant
of
Common
right
by
the
Common
Laws
of
England
:
But
where
ones
Land
is
charged
by
Prescription
and
Custom
,
there
is
no
remedy
to
force
and
compel
the
Tenant
to
do
the
repairs
but
by
Presentment
,
and
upon
a
Presentment
process
may
be
awarded
against
him
to
distrain
him
to
make
the
repairs
.
And
if
upon
a
Presentment
made
by
the
Laws
of
Sewers
,
I.
S.
is
charged
to
repair
a
Sewer
,
and
a
Distringas
ad
reparandum
be
awarded
against
him
,
the
Sheriff
may
distrain
the
party
in
any
place
within
the
power
of
the
Commission
of
Sewers
.
But
this
being
a
judicial
Distress
which
issueth
out
of
the
Rolls
,
the
Justices
are
tied
to
the
limits
and
bounds
of
the
Commission
;
Yet
in
19
H.
6.
fol.
7.
the
That
the
Admiral
of
England
hath
jurisdiction
in
causes
arising
onely
on
the
Seas
,
and
he
hath
no
jurisdiction
or
power
to
meddle
with
any
thing
done
upon
the
Land
:
Yet
upon
a
Presentment
made
in
the
Admiral
Court
one
was
Presented
and
Amerced
,
and
a
Distress
for
this
Amerciament
was
taken
on
the
Land
,
and
exception
was
thereto
taken
,
that
the
Distress
was
taken
out
of
the
jurisdiction
of
that
Court
:
But
there
Newton
chief
Justice
and
the
rest
of
the
Iustices
said
,
That
the
power
of
the
Admiral
to
hold
plea
was
restrained
by
Statute
to
matters
arising
on
the
Seas
,
but
Executions
were
not
so
.
And
I
have
further
observed
by
the
Book
of
8.
R.
2.
Fitzher
.
But
in
the
case
of
a
sess
,
rate
or
tax
imposed
by
the
Commissioners
of
Sewers
,
a
Distress
for
any
of
those
may
be
taken
in
any
place
within
the
Realm
of
England
;
for
in
this
case
the
Distress
is
meerly
grounded
upon
the
Statute
,
and
is
bounded
by
the
same
limits
,
which
is
as
large
as
the
Realm
of
England
:
And
hereupon
by
this
construction
made
in
this
legal
maner
,
all
the
words
in
the
said
clause
of
this
Statute
have
their
full
operation
.
And
although
in
Rooks
case
the
Distress
was
there
taken
on
the
ground
charged
,
yet
that
doth
not
prove
but
that
a
Distress
might
have
been
taken
in
any
other
place
;
for
I
verily
take
it
,
that
the
place
where
the
distress
was
taken
,
in
that
case
was
not
intended
any
material
point
,
though
in
my
succeeding
argument
for
another
purpose
I
shall
make
it
one
.
So
that
my
opinion
touching
distresses
to
be
taken
in
cases
of
Sewers
,
appears
to
stand
upon
these
three
distinctions
.
First
,
that
the
Lord
of
whom
the
grounds
be
holden
to
make
the
repairs
,
must
distrain
on
the
the
grounds
so
holden
,
and
not
elswhere
.
Secondly
,
that
upon
a
Distringas
ad
reparandum
or
Amovendum
upon
a
Presentment
,
which
issueth
out
of
the
Rolls
of
that
Court
,
and
is
a
judicial
process
,
a
Distress
must
thereupon
be
taken
within
the
bounds
of
the
Commission
of
Sewers
Ex
congruitate
.
Thirdly
,
a
Distress
for
a
rate
,
or
sesse
,
or
tax
assessed
and
imposed
by
the
Commissioners
of
Sewers
may
be
taken
in
any
part
or
place
within
the
Realm
of
England
;
for
this
is
a
Distress
grounded
upon
the
Statute
,
and
is
as
large
as
the
extent
thereof
.
And
so
the
difference
appears
where
the
Distress
is
guided
by
the
Commission
,
and
where
by
the
Statute
.
Whose
goods
may
be
distrained
.
IT
comes
now
in
turn
to
be
handled
,
whose
goods
may
be
distrained
and
taken
within
these
Laws
;
For
the
words
of
Distress
be
put
so
generally
in
this
Statute
,
that
they
must
receive
their
exposition
by
the
Rules
of
the
Common
Law
,
in
regard
these
Laws
do
give
no
special
direction
therein
;
and
therefore
the
Distress
mentioned
in
Rooks
case
may
in
this
place
be
questioned
:
For
there
Carter
was
assessed
,
but
the
goods
of
Rooks
were
distrained
and
taken
for
the
said
Assess
,
and
no
challenge
or
exception
was
there
made
of
it
;
and
no
marvel
,
for
it
was
specially
found
that
the
goods
were
taken
and
distrained
on
the
grounds
charged
,
for
otherwise
that
Distress
had
been
tortious
;
wherein
I
take
this
diversity
,
That
where
grounds
are
chargeable
to
repairs
of
defences
,
and
a
Sess
is
thereon
imposed
by
the
Commissioners
of
Sewers
,
the
goods
of
a
Stranger
may
be
taken
therefore
on
the
grounds
Sessed
;
and
this
is
warranted
by
Rooks
Case
.
But
Rooks
being
a
Stranger
,
his
goods
could
not
in
any
sort
have
been
taken
for
the
Sess
imposed
upon
Carter
,
but
on
the
grounds
charged
:
and
the
like
Law
for
Rents
and
Services
issuing
out
of
Lands
,
the
goods
of
a
Stranger
Levant
and
Couchant
on
the
grounds
so
holden
may
be
distrained
for
Rents
and
Services
,
by
7
H.
7.
2.
and
11
H.
7.
4.
But
put
the
case
a
little
further
,
that
in
the
Sessions
Court
of
the
Sewers
,
A.
B.
is
amerced
for
Non-payment
of
his
Sesse
towards
the
repairs
of
a
work
of
Sewers
;
and
in
this
case
I
am
of
opinion
,
that
the
proper
goods
of
A.
B.
are
to
be
distrained
for
this
Amerciament
,
and
not
the
goods
of
a
stranger
going
on
his
grounds
charged
to
the
said
assess
,
because
this
Amerciament
is
a
collateral
charge
,
which
falls
on
the
person
of
the
offendor
who
was
to
pay
the
Assels
,
and
doth
not
in
any
sort
charge
the
grounds
:
and
this
opinion
hath
warrant
from
the
Case
in
41
Ed.
3.
fol.
26.
Br.
Leet
4.
for
there
A.
B.
was
amerced
in
a
Dier
,
fol.
322.
doth
come
fully
thereto
,
which
is
,
That
a
Replevin
in
an
Avowry
was
made
for
a
pain
and
forfeiture
of
Ten
shillings
,
due
for
the
breach
of
a
By-law
,
Contra
ordinem
Curiae
,
and
alleaged
to
make
By-laws
within
the
Manor
by
the
Custom
thereof
:
In
which
Case
it
is
apparant
,
that
the
proper
goods
of
the
party
are
to
be
distrained
therefore
,
and
not
the
goods
of
a
Stranger
Levant
and
Couchant
on
the
grounds
.
And
in
the
47
Ed.
3.
fol.
12.
the
Prior
of
Tindals
Case
,
This
discourse
being
thus
ended
,
I
shall
now
enter
into
a
matter
of
greater
moment
;
and
yet
because
these
matters
be
frequent
in
businesses
of
the
Sewers
,
that
which
I
shall
here
pretermit
I
will
in
some
other
place
more
fully
discourse
of
.
Goods
sold
.
THe
further
matter
of
this
point
will
rest
upon
this
,
whether
goods
distrained
and
taken
for
a
Sess
and
Rate
of
Sewers
may
be
sold
,
or
not
;
which
point
hath
been
oftner
practised
then
the
Law
truly
decided
:
But
before
I
shall
touch
upon
the
main
,
I
will
make
an
Ingresse
to
treat
of
such
matters
whereby
the
property
of
a
mans
goods
may
be
altered
without
his
consent
.
And
first
,
at
the
Common
Law
,
if
a
mans
goods
be
wrecked
,
waived
or
taken
as
strays
,
or
sold
in
Market
,
overt
the
property
may
be
altered
.
Secondly
,
by
Custom
,
as
in
London
upon
a
Foraign
attachment
goods
may
be
attached
and
sold
to
another
:
and
in
10
El.
Dyer
,
fol.
279.
B.
a
Custom
is
alleaged
to
be
in
York
of
Foraign
goods
there
bought
and
sold
are
seizeable
by
the
Corporation
,
and
so
in
case
of
a
Heriot
Custom
.
Thirdly
,
But
the
King
by
his
Charter
cannot
take
the
properties
of
my
goods
from
me
,
as
in
the
Case
of
London
Cooks
Rep.
the
Case
of
Austen
and
Waltham
,
where
King
Henry
the
6.
granted
to
the
Corporation
of
Dyers
there
by
Charter
,
That
if
upon
search
they
should
finde
any
Clothes
died
with
Logwood
,
that
they
seized
them
as
forfeit
;
but
resolved
,
that
this
Grant
was
in
that
point
void
.
Fourthly
,
by
a
By-law
in
a
Court
Leet
or
Baron
,
the
property
of
my
goods
cannot
be
taken
from
me
.
And
fifthly
,
by
a
Judgement
against
one
at
the
Common
Law
,
although
a
mans
person
nor
his
Lands
were
lyable
thereto
,
yet
his
goods
were
.
These
five
grounds
being
first
taken
,
I
shall
now
examine
the
particular
of
our
Case
in
question
touching
the
Law
made
by
the
Commissioners
for
sale
of
goods
;
and
against
this
sale
many
things
may
be
alleaged
.
First
,
this
Statute
I
read
on
gives
a
Distresse
,
and
a
Distresse
is
but
a
gage
or
pledge
,
and
cannot
be
sold
;
for
if
a
Lord
distrain
his
Tenants
Cattel
for
Rent
and
Services
,
he
cannot
sell
the
Distresse
:
And
although
in
10
&
11
El.
Dier
,
fol.
280.
a
return
irreplevisable
was
awarded
to
the
Lord
or
Avowant
,
yet
he
cannot
sell
this
Distresse
,
nor
work
them
by
the
opinion
of
that
Book
.
Secondly
,
the
Statute
of
7
Jac.
cap.
20.
Rastal
Marshes
and
Fens
doth
enact
,
that
a
Commission
in
the
nature
of
this
of
ours
should
be
directed
to
the
Bishop
of
Norwich
,
and
others
for
the
Recovery
of
Fen-grounds
;
where
for
an
assess
imposed
,
and
for
Fines
and
Amerciaments
,
expresse
power
is
given
by
that
Statute
to
sell
the
parties
goods
which
doth
refuse
to
pay
,
Ergo
,
without
such
an
expresse
clause
a
sale
of
goods
could
not
have
been
lawful
.
And
by
the
Statute
of
1
and
3
Jac.
the
forfeitures
of
Alehousekeepers
But
much
may
be
said
to
the
contrary
;
for
although
in
cases
of
sale
the
Laws
be
tender
,
yet
it
is
plain
,
that
both
our
Common
Law
,
Customs
and
Courts
of
Justice
daily
use
them
,
and
are
frequent
in
those
sales
:
And
we
know
that
a
Distresse
is
properly
a
pledge
to
be
detained
till
satisfaction
be
made
,
and
then
to
be
restored
,
and
is
not
to
be
sold
:
Yet
in
3
H.
7.
fol.
4.
a
Distresse
taken
for
an
Amerciament
Assiz
.
plac
.
72.
it
is
said
,
That
if
one
recover
a
Debt
in
a
Court
Baron
,
the
goods
of
the
Debtor
could
not
be
sold
therefore
:
(
viz.
)
To
depute
and
assign
diligent
,
faithful
and
true
Keepers
,
Bailiffs
,
Surveyors
,
Collectors
,
Expenditors
,
and
other
Officers
for
the
safety
,
conservation
,
reparation
,
and
making
,
repairing
,
reforming
and
amending
of
the
Premises
and
every
of
them
,
and
to
hear
the
accompt
of
the
Collectors
and
other
Ministers
,
of
and
for
the
receipt
and
laying
out
of
the
money
that
shall
be
levied
and
paid
in
and
about
the
same
:
Here
is
the
word
(
Levy
)
used
,
and
money
levied
is
properly
upon
a
Sale
,
Execution
or
Forfeiture
;
And
the
words
of
our
Statute
go
furthet
(
viz.
)
And
to
distrain
,
or
otherwise
to
punish
the
debtors
and
distrainers
of
the
same
by
Fines
,
Amerciaments
,
Pains
,
or
other
like
means
after
their
good
discretious
;
and
no
likelier
means
to
these
is
there
any
,
then
to
make
sale
of
the
debtors
goods
for
non-payment
of
his
sesse
,
and
it
is
consonant
to
other
Laws
:
also
in
another
part
of
this
Statute
are
used
these
words
,
And
the
Clerk
by
the
Commissioners
to
be
assigned
to
have
Two
shillings
per
diem
of
the
Rates
,
Taxes
,
Lots
and
Waives
as
shall
be
assessed
or
lost
by
authority
of
the
said
Commission
,
to
be
levied
or
paid
by
their
discretions
:
And
so
it
seemeth
by
the
very
expresse
letter
of
this
Law
,
the
Taxes
,
Sesses
and
Rates
may
be
levied
by
the
discretion
of
the
Commissioners
,
which
if
they
please
may
be
by
sale
of
the
offendors
goods
:
And
in
many
parts
of
this
Starute
,
the
Justices
of
Sewers
have
power
to
make
Laws
,
Ordinances
and
Decrees
,
which
being
done
according
to
reason
,
shall
be
held
for
firm
and
inviolable
:
And
therefore
upon
just
cause
in
my
opinion
,
the
Commissioners
may
make
a
Law
or
Ordinance
for
the
sale
of
goods
in
furtherance
of
this
service
;
and
this
being
a
Law
which
tendeth
so
much
to
the
service
of
the
Commonwealth
,
and
is
so
profitable
and
commodious
for
the
same
,
it
is
therefore
good
reason
to
extend
the
same
,
and
the
exposition
thereof
,
as
far
as
the
letter
and
intent
of
the
letter
shall
reach
;
which
may
be
as
far
as
shall
stand
with
reason
,
and
rules
of
other
Laws
,
Statutes
,
Customs
and
Usages
of
other
Courts
which
have
power
in
sale
of
goods
in
causes
of
this
nature
,
is
not
altogether
without
president
:
For
in
the
Charter
of
Romney
Marsh
,
pag.
36
&
37.
Romney
Marsh
.
It
is
said
in
these
words
in
a
debate
between
Hamo
and
Godfrey
,
Et
predictus
Hamo
concessit
prose
&
aliis
quod
computabit
cor'
vigint'
quatuor
Jurat'
elect'
de
patria
super
districtionibus
&
averiis
capt'
predicti
Godfredi
pro
predict'
Walliis
&
watergangiis
repar'
ab
initio
istius
placiti
usque
nunc
&c.
&
districtiones
illas
secundum
quantitatem
portionis
sibi
contingent
interim
pro
predict'
Walliis
&
watergangiis
reparandum
sicut
predict'
est
per
predict'
districtiones
quod
idem
Hamo
&
alii
satisfacient
in
omnibus
quod
injunctum
fuerit
per
predicti
comput'
inter
eos
de
surplusagio
recepto
de
averiis
venditis
predict'
Godfredi
occasione
praedict'
.
Hereby
it
is
manifest
,
that
Hamo
the
Bailiff
sold
the
cattel
of
Godfrey
to
make
the
repairs
of
the
Walls
and
the
Waterganges
;
and
our
Statute
gives
power
to
the
Commissioners
of
Sewers
to
do
after
the
customs
of
Romney
Marsh
,
which
by
this
president
formerly
vouched
,
warrants
the
sale
of
goods
:
yet
herein
I
am
of
opinion
,
that
the
Bailiffs
which
distrain
cannot
Ex
osficio
without
a
special
Warrant
first
directed
to
them
for
that
purpose
from
the
Commissioners
,
make
sale
of
goods
distrained
for
a
Lay
,
Tax
or
a
Sesse
of
Sewers
;
And
I
take
it
,
it
were
a
good
Warrant
for
the
Commissioners
to
make
an
advised
special
Law
of
Sewers
for
sale
of
goods
distrained
upon
a
just
occasion
,
before
they
direct
any
Warrant
Ex
subito
to
the
Bailiffs
,
or
for
any
such
purpose
.
But
now
herein
follows
a
matter
of
some
consequence
,
and
worthy
the
handling
,
That
if
by
the
Laws
of
Sewers
goods
may
be
sold
towards
the
repairs
of
these
works
,
as
in
my
opinion
they
may
,
Then
whose
goods
may
be
sold
is
the
question
next
to
be
decided
;
wherein
to
be
brief
,
I
am
firm
of
opinion
,
That
no
goods
can
or
ought
to
be
sold
by
the
power
of
these
Laws
of
Sewers
,
but
only
the
proper
goods
of
the
party
Sessed
and
Taxed
,
though
the
goods
and
chattels
of
other
men
be
Levant
and
Couchant
on
the
grounds
Sessed
to
the
repairs
:
For
I
hold
it
not
consonant
to
reason
,
nor
that
it
stands
with
any
rule
of
Law
,
That
the
goods
and
chattels
of
a
stranger
should
be
absolutely
taken
away
from
him
,
and
sold
for
the
debt
and
default
of
another
man
.
And
to
this
purpose
the
Case
put
in
the
3
Eliz.
Dier
fol.
199.
may
fitly
be
applied
to
this
point
,
where
Thus
far
I
have
pursued
my
Argument
in
discoursing
upon
these
Distresses
,
and
touching
such
matters
as
do
depend
thereon
,
because
in
my
experience
I
have
found
them
the
readiest
part
of
the
execution
of
these
Laws
;
and
I
have
heretofore
beheld
much
enormious
proceedings
therein
,
both
in
the
Commissioners
and
in
their
Officers
,
and
therefore
I
thought
it
very
needful
to
have
treated
thereon
for
their
better
directions
in
these
affairs
hereafter
.
Replevins
.
YEt
as
I
finde
Distresse
to
be
the
most
useful
execution
of
these
Laws
of
Sewers
,
so
I
have
seen
the
proceedings
therein
much
stayed
and
interrupted
by
the
usual
suing
of
Replevins
,
by
which
means
the
said
Distresses
taken
by
the
authority
of
these
Laws
have
been
set
at
liberty
,
and
the
works
of
Sewers
have
been
much
letted
and
hindred
thereby
:
And
therefore
the
fifth
point
in
my
Case
doth
minister
a
good
occasion
to
enter
into
the
serious
examination
of
them
.
And
now
my
intent
is
,
to
declare
in
what
case
a
Replevin
doth
lie
,
and
where
not
;
and
surely
this
point
hath
heretofore
been
much
stirred
in
,
and
not
without
some
cause
,
for
the
very
Statute
seemeth
to
allow
of
Replevins
in
these
words
,
(
viz.
)
That
if
any
Action
of
Trespass
,
or
any
other
Action
shal
be
attempted
against
any
person
for
taking
any
Distress
,
or
for
any
other
thing
concerning
the
Law
of
Sewers
,
that
the
Defendant
in
such
Action
may
make
Avowry
,
cognisance
or
justification
,
for
the
taking
of
the
said
Distress
,
Trespass
or
other
Act
,
whereof
the
Plaintiff
complained
was
done
by
the
authority
of
the
Commission
of
Sewers
,
for
a
Lot
or
Tax
assessed
by
the
said
Commission
,
or
for
other
such
act
or
cause
as
the
Defendant
did
by
the
said
Commission
:
And
in
what
action
can
a
man
so
properly
make
his
Avowry
,
Cognisance
or
Justification
as
in
a
Replevin
,
being
a
word
only
apt
for
that
action
;
and
a
Distresse
is
de
sua
natura
,
properly
replevisable
by
the
Common
Law
:
and
for
direct
authority
in
the
point
,
it
appears
in
Rooks
Case
,
that
a
Replevin
was
there
sued
for
the
delivery
of
the
Distresse
taken
by
the
power
of
these
Laws
of
Sewers
:
But
I
must
here
distinguish
,
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
,
&
of
greater
authority
then
the
power
of
the
Sheriff
,
which
in
these
cases
was
but
Ministerial
;
and
the
highest
authority
that
he
hath
is
but
vicontiel
,
which
is
much
inferior
to
the
power
of
this
Commission
;
and
therefore
the
Sheriff
is
not
of
sufficient
power
to
supercede
a
Court
of
higher
power
.
Yet
if
one
sue
a
Replevin
,
which
afterward
in
Bank
was
abated
,
and
a
return
of
the
Cattel
there
awarded
,
another
Replevin
did
lie
by
the
opinion
of
the
Book
of
34
H.
6.
fol.
37.
and
so
it
appeareth
by
the
Statute
of
Westminster
,
cap.
2.
but
these
new
Replevins
came
out
of
the
Retorno
habendo
;
and
therefore
by
the
same
Statute
of
Secunda
deliberatione
,
is
now
to
be
awarded
out
of
the
Rolls
of
the
Court
whence
the
Retorno
habendo
came
:
And
if
one
would
resemble
this
case
with
other
authorities
,
and
with
the
reason
of
other
Book
cases
of
the
Law
,
it
will
be
made
thereby
apparant
,
that
the
higher
Court
may
take
or
remove
a
cause
out
of
the
inferior
Court
,
but
not
Econtra
,
neither
can
the
inferior
Court
supersede
the
superior
:
For
if
one
be
impleaded
in
the
Kings
Court
at
Westminster
,
and
in
coming
towards
London
he
is
arrested
in
a
Corporation
Court
,
he
may
be
delivered
thence
by
the
power
of
the
superior
Court
to
the
which
he
was
attendant
,
&
the
power
of
the
inferior
Court
shall
be
superceded
thereby
,
as
the
Law
is
declared
in
divers
of
our
Books
;
By
the
which
it
is
plain
,
that
ones
person
being
in
the
priviledge
and
protection
of
the
Kings
Court
,
could
not
justly
be
Imprisoned
by
the
power
of
an
inferior
Court
:
And
in
Stringfellows
Case
in
3
Ed.
6.
Dier
fol.
67.
The
goods
of
one
were
seized
by
the
I.
S.
were
taken
in
Execution
by
the
Sheriff
by
a
fieri
facias
which
came
out
of
I.
D.
and
there
was
a
Replevin
sued
in
that
case
,
but
no
deliverance
made
of
the
Cattel
in
Court
:
and
the
other
case
is
in
7
H.
4.
fol.
28.
goods
were
taken
by
a
Levy
which
issued
out
of
a
Court
Baron
,
and
they
were
sold
by
the
But
although
a
Replevin
doth
not
lie
in
the
case
aforesaid
from
the
Sheriff
or
his
Deputies
,
Ex
officio
to
deliver
a
Distresse
of
Sewers
,
yet
out
of
the
Kings
Courts
at
Westminster
a
Replevin
doth
lie
in
those
cases
:
And
the
Charter
of
Romney
Marsh
pag.
18.
doth
afford
us
in
this
Romney
Marsh
.
case
a
very
good
president
;
for
there
complaint
was
made
to
the
King
,
setting
forth
thereby
,
That
whereas
his
Highnesse
had
appointed
and
authorized
Henry
de
Bathonia
to
be
his
Justice
,
and
to
determine
the
differences
depending
and
touching
the
repairing
of
the
defences
of
the
said
Marsh
,
he
had
ordained
,
that
Distresses
might
be
taken
according
to
the
24.
Jurators
,
It
a
quod
nullus
vicecomes
aut
alius
balivus
noster
intromittat
in
districtionibus
illis
,
tu
tamen
(
meaning
the
Sheriff
of
Kent
)
nihilominus
districtiones
illas
propter
hoc
factum
per
vigint
quatuor
Juratores
in
prejudicio
considerationis
eorundem
reluxasti
,
tibi
igitur
precipimus
quod
districtionibus
illis
in
nullo
te
intromittas
;
and
in
the
same
Charter
the
like
matter
is
there
also
so
determined
of
,
pag.
7.
By
the
which
may
be
collected
,
that
the
Sheriff
Ex
officio
might
not
meddle
with
such
Distresses
:
and
in
the
same
Charter
,
pag.
8.
the
words
be
further
,
Quod
siquis
de
consideratione
predict'
districtionis
se
injuste
gravat'
sentiret
&
inde
conqueri
vellet
ad
ipsum
Dominum
Regem
querelam
suam
deferret
&
ipse
in
Curia
sua
justiciam
fieri
facere
reservasset
;
whereby
it
is
manifest
,
that
a
Replevin
lay
for
a
Distresse
taken
in
the
Kings
Court
,
for
that
they
be
of
a
superior
authority
and
jurisdiction
to
these
inferior
Courts
of
Sewers
:
And
therefore
the
Replevins
which
our
Statute
aims
to
give
way
to
,
are
intended
to
be
taken
out
of
the
Kings
Courts
,
which
in
Law
and
Justice
ought
to
be
obeyed
,
and
not
from
the
Sheriff
or
his
Officers
by
vertue
of
their
Office
only
.
But
in
my
case
the
Commissioners
made
a
Law
,
that
the
goods
of
A.
should
be
sold
without
allowance
of
Replevin
,
which
is
a
good
Law
upon
the
distinctions
and
diversities
aforesaid
;
that
is
,
that
A.
who
was
the
person
assessed
might
not
have
or
take
a
Replevin
because
he
was
a
person
bound
expresly
by
the
Law
,
nor
that
the
Sheriff
or
his
Officers
Ex
Officio
might
grant
a
Replevin
to
deliver
the
same
,
being
under
the
power
of
this
Law
of
Sewers
.
But
the
Kings
Courts
at
Westminster
may
in
those
cases
of
Sewers
deliver
the
Distresses
;
and
this
construction
made
of
this
Statute
,
as
I
take
it
,
stands
with
Law
and
reason
:
And
in
the
31
Ed.
3.
Brook
,
Replevin
,
plac
.
60.
the
Case
is
put
,
a
man
did
grant
to
A.
B.
a
rent
out
of
his
grounds
,
Imprimis
,
To
make
a
general
Law
to
restrain
all
Replevins
,
granted
either
from
the
Sheriff
or
the
Kings
Courts
,
is
no
good
Law
or
Ordinance
of
Sewers
;
for
that
Replevins
de
jure
are
in
such
cases
grantable
out
of
the
Kings
Courts
,
and
such
a
general
Law
savors
too
much
of
oppression
,
in
stopping
up
the
Gates
of
Justice
.
Secondly
,
for
a
Sheriff
or
his
Deputy
to
grant
and
award
Warrants
of
Replevin
Ex
officio
,
to
deliver
goods
or
cattle
distrained
,
and
detained
for
a
Tax
and
Law
of
Sewers
,
is
in
my
opinion
against
Law
,
and
need
not
to
be
obeyed
,
for
that
the
Distres
was
Sub
protectione
superioris
Curiae
,
which
is
of
a
higher
degree
then
a
Sheriffs
Ministerial
Warrant
.
Thirdly
,
if
a
Distresse
be
taken
and
sold
for
a
Sesse
of
Sewers
,
a
Replevin
lyeth
against
the
buyer
,
for
by
the
sale
the
goods
and
cattel
were
put
out
of
the
protection
of
the
Court
of
Sewers
.
Fourthly
,
if
a
Rate
or
Tax
be
imposed
by
the
Laws
of
Sewers
upon
I.
S.
&
the
goods
of
Iohn
a
Downs
be
taken
therefore
on
the
ground
of
I.
S.
which
were
charged
,
I.
D.
may
sue
a
Replevin
of
his
said
cattel
from
the
Sheriff
,
for
that
he
nor
his
goods
were
not
expresly
bound
by
the
Laws
of
Sewers
.
Fifthly
,
a
Replevin
lyeth
out
of
the
Kings
Courts
of
Westminster
,
to
deliver
a
Distresse
taken
and
detained
by
the
Laws
of
Sewers
,
for
that
they
be
Courts
de
altiore
natura
.
Sixthly
,
a
Distresse
taken
by
a
Lord
on
his
Tenant
for
not
repairing
a
work
of
Sewers
,
which
by
the
Tenure
of
his
Land
he
ought
to
do
and
repair
,
the
Tenant
may
sue
a
Replevin
from
the
Sheriff
Ex
officio
to
deliver
the
Distresse
,
for
that
this
Distresse
was
not
taken
or
detained
by
Warrant
,
Judgement
or
Decree
of
Sewers
.
Seventhly
,
If
upon
a
Judgement
given
in
the
Kings
Court
,
or
upon
a
Decree
made
in
this
Court
of
Sewers
,
a
Writ
or
Warrant
of
Distringas
ad
Reparandum
,
or
of
that
nature
be
awarded
,
and
the
parties
goods
be
thereby
taken
,
these
goods
ought
not
to
be
delivered
by
Replevin
to
be
taken
either
out
of
this
Court
,
or
out
of
any
other
Court
of
the
Kings
,
because
it
is
an
Execution
out
of
a
Judgement
.
Eighthly
,
although
one
grant
a
Rent
out
of
his
Land
with
clause
of
Distresse
,
and
with
Grant
or
Covenant
that
the
Grantee
may
distrain
and
detain
this
Distresse
till
he
shall
be
satisfied
his
Rent
,
Yet
a
Replevin
lieth
in
that
Case
.
A
perpetual
charge
.
SO
now
I
have
fully
and
:
at
large
declared
my
opinion
touching
Distresses
and
Replevins
;
wherein
,
I
hope
,
I
have
fully
satisfied
the
first
point
of
my
Case
:
I
intend
therefore
now
to
proceed
to
the
sixth
point
,
which
concerns
charges
and
sales
of
Lands
to
be
made
by
the
Commissioners
of
Sewers
by
the
power
and
authority
of
this
Law
.
And
,
first
I
suppose
the
question
may
be
extended
to
this
,
that
is
,
Whether
the
Commissioners
of
Sewers
can
impose
a
perpetual
charge
upon
Land
to
repair
a
work
of
Sewers
for
ever
by
the
power
of
these
Laws
.
I
do
here
acknowledge
,
that
this
is
a
knotty
Point
,
yet
something
may
be
alleaged
in
maintenance
of
this
Opinion
Affirmatively
:
For
in
the
parts
of
Holland
in
the
County
of
Lincoln
,
almost
every
one
knows
which
part
he
is
to
repair
and
maintain
in
perpetuity
;
And
Experientia
est
optima
interpres
rerum
;
And
it
appeareth
by
the
Charter
of
Romney
Marsh
,
pag.
12.
That
the
use
there
was
to
impose
perpetual
charges
on
singular
persons
;
Romney
Marsh
,
pag.
12.
For
the
words
there
be
these
,
Juratores
per
eor'
sacrament'
mensur
abunt
per
perticam
omnes
terr
as
&
Tenementa
quae
infra
dictum
Mariscum
periculo
subiacent
quibus
mensueration'
factis
viginti
quatuor
per
communitatem
prius
electi
&
jurati
habito
respectu
ad
quantitatem
Walliar'
terrar'
&
Tenement'
quae
periculo
subiacent
per
eor'
Sacramentum
ordinabunt
quantum
ad
predictarum
Walliar'
sustentationem
&
reperationem
faciend'
&
sustinend'
ad
quemlibet
pertineat
,
ita
quod
proportion'
acrar'
terrar'
periculo
subiacent'
singulis
assignetur
sua
portio
perticar'
&
predict'
assignatio
fiat
per
locos
certos
ita
ut
scietur
ubi
&
per
quae
loca
;
ad
quantum
,
singuli
defendere
teneantur
.
These
words
in
this
Charter
seem
to
be
plain
,
That
by
the
Laws
established
in
Romney
Marsh
,
the
Commissioners
had
power
to
assign
to
every
man
his
portion
to
repair
in
perpetuity
;
but
I
finde
no
such
words
in
our
Statute
:
And
whereas
it
may
be
said
,
that
our
Commissioners
have
power
to
make
sale
of
the
Lands
;
Ergo
,
They
may
charge
them
perpetually
;
but
this
is
a
non
sequitur
for
that
,
for
the
sale
they
have
expresse
Warrant
,
but
not
so
for
the
charge
:
And
powers
and
authorities
must
be
duly
pursued
,
and
are
not
to
be
taken
by
equitable
or
argumentable
collections
or
implications
,
so
that
it
may
seem
the
Laws
of
Sewers
were
never
held
so
perdurable
as
to
binde
mens
Lands
with
perpetual
charges
:
And
therefore
this
difference
I
take
,
That
by
the
Custom
of
a
town
or
country
,
every
one
may
know
his
particular
portion
,
which
the
owners
of
grounds
are
obliged
and
bound
to
repair
perpetually
;
but
without
such
a
Custom
it
hath
been
held
,
That
the
Commissioners
of
Sewers
cannot
binde
any
mans
inheritance
to
a
perpetual
charge
,
by
any
power
or
authority
given
by
this
Statute
;
but
in
the
said
case
of
Romney
Marsh
,
the
Custom
there
maintained
this
point
:
yet
Not
a
bene
verba
hujus
Statuti
,
which
be
these
(
viz.
)
And
to
make
and
ordain
Statutes
,
Ordinances
and
Provisions
from
time
to
time
as
the
case
shall
require
,
for
the
safegard
,
conservation
,
redresse
,
correction
or
reformation
of
the
Premises
and
every
of
them
,
and
the
parties
liable
to
the
same
,
necessary
and
behoofful
after
the
Laws
&
Customs
of
Romney
Marsh
in
the
county
of
Kent
,
or
otherwise
,
by
any
ways
or
means
after
their
own
wisdoms
and
discretions
:
These
be
the
words
,
and
this
is
the
clause
which
must
make
good
this
perpetual
charge
,
for
that
it
doth
formerly
appear
,
that
such
like
Laws
and
Customs
there
were
in
Romney
Marsh
as
this
is
;
and
therefore
I
may
conclude
this
point
,
that
the
Commissioners
in
imitation
of
the
said
Ordinance
of
Romney
Marsh
,
may
make
Decrees
to
binde
Lands
to
perpetual
charges
:
Yet
Sir
Edward
Cook
in
Keighlies
case
sets
it
down
as
resolved
,
That
the
several
Commissioners
of
Sewers
throughout
all
England
,
are
not
bound
to
pursue
the
Laws
and
Customs
of
Romney
Marsh
;
but
in
case
where
some
particular
place
within
their
Commission
have
such
Laws
&
Customs
as
Romney
Marsh
hath
,
there
they
might
pursue
them
.
But
in
my
own
opinion
,
the
Commissioners
may
,
if
they
please
,
make
Ordinances
and
Laws
like
to
those
of
Romney
Marsh
,
where
there
hath
not
been
any
such
use
;
and
the
words
of
the
Statute
,
as
I
take
it
,
will
bear
that
construction
;
and
the
said
opinion
of
Sir
Edward
Cook
,
is
not
directly
against
this
.
And
upon
Decrees
for
sales
of
Land
,
it
is
usual
in
these
Decrees
to
binde
those
Lands
to
the
perpetual
repairs
.
Sales
of
Lands
.
THe
words
of
the
Statute
which
be
made
for
sales
of
Lands
be
these
,
Provided
always
,
That
if
any
person
or
persons
being
assessed
or
taxed
to
any
lot
or
charge
for
any
Lands
,
Tenements
or
Hereditaments
within
the
Limits
of
any
Commission
hereafter
to
be
directed
,
do
not
pay
the
said
lot
and
charge
according
to
the
Order
and
Assignment
of
the
Commissioners
,
having
power
of
the
execution
of
the
said
Commission
,
&c.
by
reason
whereof
if
it
shall
happen
,
the
said
Commissioners
for
lack
of
payment
of
such
lot
&
charge
,
to
Decree
and
Ordain
the
said
Lands
and
Tenements
from
the
owner
or
owners
thereof
,
and
their
heirs
,
and
the
heirs
of
every
of
them
,
to
any
person
or
persons
for
term
of
years
,
term
of
life
,
Fee
simple
,
or
Fee
tail
,
for
payment
of
the
same
lot
and
charge
:
Then
every
such
Decree
and
Ordinance
so
by
them
ingrossed
into
Parchment
,
and
certified
under
their
seals
into
the
Kings
Court
of
Chancery
,
with
the
Kings
royal
assent
had
to
the
same
,
shal
binde
al
and
every
person
and
persons
that
at
the
making
of
the
same
Decree
had
any
interest
in
such
Lands
,
Tenements
and
Hereditaments
in
use
,
posession
,
reversion
or
remainder
,
their
heirs
and
Feoffee
and
every
of
them
,
and
not
to
be
in
any
wise
reformed
,
unless
it
were
by
authority
in
Parliament
hereafter
to
be
summoned
and
holden
within
the
Realm
.
And
also
that
the
same
Laws
,
Ordinances
and
Decrees
to
be
made
and
ordained
by
the
Commissioners
,
or
any
six
of
them
,
by
authority
of
the
said
Commission
,
shall
binde
as
well
the
Lands
,
Tenements
and
Hereditaments
of
our
Soveraign
the
King
,
as
all
and
every
other
person
and
persons
,
and
their
heirs
,
and
such
their
interest
as
they
shall
fortune
to
have
in
any
Lands
,
Tenements
and
Hereditaments
,
or
other
casual
profit
,
advantage
or
commodity
whatsoever
they
be
,
whereunto
the
said
Laws
,
Ordinances
and
Decrees
shall
in
any
wise
extend
,
according
to
the
true
purport
,
meaning
and
intent
of
the
said
Laws
.
This
Clause
or
Proviso
was
strangely
placed
in
this
Statute
,
as
if
this
Statute
had
not
been
the
first
Father
of
it
,
and
as
if
this
Law
had
made
some
addition
to
a
former
Law
:
But
I
take
it
,
that
this
Statute
was
,
and
is
,
the
first
and
only
Law
which
gave
sale
of
Lands
in
cases
of
Sewers
,
and
this
Clause
stands
upon
these
four
pillars
.
Imprimis
,
for
what
cause
Lands
may
be
sold
by
the
Commissioners
of
Sewers
.
Secondly
,
what
Lands
are
to
be
sold
within
these
Laws
.
Thirdly
,
what
persons
,
what
Estates
and
Interests
are
to
be
bound
thereby
.
Fourthly
,
to
what
persons
these
Lands
may
be
sold
or
decreed
.
The
Statute
is
,
If
any
person
sessed
do
not
pay
;
whereby
it
is
manifest
,
that
the
Lands
are
to
be
sold
for
sesses
and
charges
imposed
by
the
Commissioners
which
lyeth
in
payment
only
,
and
they
may
not
be
decreed
away
for
any
other
cause
or
matter
:
And
therefore
if
one
hold
his
Land
to
repair
a
Wall
,
Bank
,
Sewers
or
other
work
of
Sewers
,
and
he
neglect
to
repair
the
same
,
the
Commissioners
of
Sewers
cannot
for
this
cause
decree
the
Lands
away
from
the
owner
,
because
this
charge
lay
not
in
payment
:
And
I
cannot
gather
out
of
the
words
of
this
Statute
,
that
Lands
can
be
decreed
for
any
cause
then
for
Non-payment
of
a
Lot
,
Sess
or
Charge
,
by
reason
this
word
Payment
is
reiterated
three
or
four
times
in
this
branch
of
the
Statute
,
and
no
other
words
be
coupled
with
it
to
infer
any
other
or
larger
exposition
.
If
I.
S.
do
hold
his
Lands
of
the
Lord
of
a
Manor
by
the
payment
of
Twenty
shillings
yearly
or
other
sum
,
towards
the
repairs
of
a
work
of
Sewers
,
and
he
do
neglect
to
pay
the
same
,
whereby
the
work
is
unrepaired
,
although
this
is
a
charge
which
lyeth
in
payment
,
yet
because
it
grows
due
by
Tenure
by
the
Common
Law
,
and
was
not
imposed
by
the
force
of
this
Statute
,
therefore
the
Lands
of
I.
S.
cannot
be
decreed
from
him
by
the
Non-payment
thereof
,
by
the
tenor
and
vertue
of
this
Law
of
Sewers
.
But
if
the
Lands
of
one
be
generally
charged
to
repair
such
a
Wall
or
other
work
of
Sewers
by
Prescription
,
Covenant
or
otherwise
,
and
the
Commissioners
impose
a
sesse
and
rate
upon
him
to
repair
it
,
and
he
do
not
,
there
in
this
case
,
although
the
charge
was
by
the
rules
of
the
Common
Laws
,
yet
because
the
sesse
and
rate
was
set
upon
him
by
the
power
of
this
Statute
,
I
am
of
opinion
,
that
for
neglect
of
payment
the
said
Lands
may
be
sold
by
the
decree
of
the
Commissioners
of
Sewers
.
So
if
one
do
hold
his
Lands
for
the
payment
of
Twenty
shillings
to
repair
a
Bank
,
and
the
Commissioners
of
Sewers
do
order
the
party
to
pay
the
Twenty
shillings
at
a
time
by
them
prescribed
(
not
being
contrary
to
the
usual
days
of
payment
)
and
he
do
neglect
to
pay
,
The
Commissioners
may
decree
his
Lands
from
him
,
because
this
charge
,
by
reason
of
the
said
Order
,
had
got
the
force
and
power
of
this
Statute
.
If
a
charge
be
generally
laid
upon
a
Township
,
Hundred
or
Rape
,
which
is
not
paid
according
to
the
Commissioners
Order
,
no
Lands
can
be
decreed
in
this
case
,
because
no
persons
or
Lands
be
in
this
case
particularly
charged
,
and
the
decree
of
the
sale
must
be
directed
by
,
and
depend
upon
the
sesse
:
But
if
after
the
general
sesse
be
laid
,
the
same
be
after
assessed
upon
particular
persons
by
particular
sums
by
the
said
Commissioners
,
then
upon
default
of
payment
,
their
Lands
making
default
may
be
decreed
from
them
by
the
power
of
this
Statute
.
If
an
assesse
or
charge
of
payment
be
laid
upon
certain
Lands
without
mentioning
the
Owner
,
the
Lands
cannot
be
decreed
from
him
by
this
Law
;
for
the
words
of
the
Statute
be
(
That
if
any
person
or
persons
assessed
to
any
Lot
or
Charge
do
not
pay
)
So
that
I
shall
take
it
,
that
no
decree
for
sale
of
Land
can
be
made
but
where
there
is
a
person
certainly
assessed
by
name
.
Lands
cannot
be
decreed
away
from
the
owners
for
default
of
payment
of
Fines
,
Amerciaments
or
Pains
;
for
though
these
be
sums
of
money
or
charges
imposed
by
the
Commissioners
of
Sewers
of
persons
certain
for
matters
touching
these
Laws
,
yet
because
they
were
not
sessed
or
rated
towards
the
repairs
of
any
works
of
Sewers
,
but
be
set
upon
the
parties
as
mulcts
and
punishments
,
and
be
due
to
the
King
,
therefore
no
decree
of
Lands
can
be
made
for
any
of
them
.
Now
the
second
part
of
this
clause
is
,
what
Lands
may
be
decreed
by
the
authority
of
the
said
Statute
;
and
thereby
it
appears
they
must
be
such
Lands
as
lie
and
be
within
the
power
of
this
Commission
of
Sewers
;
and
herein
rests
a
difference
between
the
case
of
a
Distresse
for
a
sesse
which
may
be
taken
in
any
place
within
this
Realm
,
and
the
decree
of
sale
of
Lands
for
Non-payment
of
a
sesse
which
must
lie
within
the
bounds
and
extent
of
the
Commission
;
for
this
Distresse
is
circumscribed
to
the
extent
of
the
Statute
,
which
is
over
the
whole
Realm
,
and
the
sale
is
tyed
to
the
limits
of
the
Commission
:
And
I
am
also
of
opinion
,
that
no
Land
can
be
sold
away
by
the
decree
of
the
Commissioners
of
Sewers
,
but
such
as
were
charged
with
the
sesse
.
If
one
hold
his
Lands
in
Comitat'
Eborum
to
repair
a
Sea-bank
in
the
County
of
Lincoln
,
and
the
Owner
is
assessed
therefore
,
and
makes
default
of
payment
,
the
Commissioners
of
Sewers
in
the
county
of
Lincoln
may
give
warrant
to
distrain
for
this
sesse
in
the
county
of
York
;
but
they
cannot
decree
away
by
sale
those
Lands
lying
there
which
were
charged
with
the
sesse
.
A
Copyholders
Land
cannot
be
decreed
against
him
by
this
Law
,
for
if
it
might
,
then
these
customary
Lands
should
be
transferred
from
one
to
another
,
contrary
to
the
Customs
of
the
Manors
whereof
they
be
parcel
;
and
it
would
infringe
that
rule
which
is
delivered
in
Heidons
Case
The
third
Branch
of
this
clause
is
the
direct
point
in
my
case
(
viz.
)
What
persons
&
what
estates
be
bound
by
these
decrees
?
And
first
of
the
Heirs
in
Tail
,
whether
they
be
bound
by
a
decree
made
against
the
Donees
in
Tail
their
Ancestors
,
is
the
question
;
In
the
handling
whereof
I
hold
it
sitting
,
to
shew
in
what
cases
the
Heirs
in
Tail
have
been
bound
by
the
act
of
their
Ancestors
,
and
the
reasons
and
causes
thereof
.
And
therefore
if
a
Disseisor
make
a
Gift
in
Tail
,
and
the
Donee
in
Tail
grant
a
Rent
to
the
Dissessee
for
release
of
his
right
,
this
will
binde
the
Heir
in
Tail
,
for
that
by
this
release
his
Estate
which
before
was
defeisable
is
now
confirmed
,
as
by
the
Books
of
44
Ed.
3.
22.
and
20
Ed.
4.
13.
By
the
Statute
of
16
R.
2.
cap.
5.
The
Lands
and
Tenements
A
Judgement
in
Debt
against
Tenant
in
Tail
,
or
if
he
be
bound
in
a
Statute
or
in
a
Recognizance
in
the
nature
of
a
Statute
,
the
Lands
Intailed
were
not
extendable
nor
to
be
held
in
extent
by
the
Statutes
of
Westminster
2.
Acton
Burnel
,
or
by
the
Statute
de
Mercatoribus
by
any
of
the
general
words
of
these
Laws
;
but
the
Statute
of
33
H.
8.
cap.
39.
by
expresse
words
bindeth
the
heir
in
Tail
,
for
their
Lands
But
the
Statute
of
26
H.
8.
cap.
13.
Enacts
,
That
every
one
which
shall
be
attainted
of
Treason
,
shall
forfeit
the
Lands
whereof
he
is
seized
of
any
Estate
of
Inheritance
;
and
by
this
Statute
Intailed
Lands
were
forfeited
;
and
the
words
(
Of
any
Estate
of
Inheritance
)
were
the
words
which
gave
that
forfeiture
,
the
one
in
Fee
simple
,
the
other
in
Fee
tail
;
and
the
word
(
any
)
presupposeth
more
Estates
of
Inheritance
then
one
.
But
whether
a
Decree
of
sale
of
Lands
made
by
Commissioners
of
Sewers
shall
binde
the
heirs
in
Tail
,
is
the
point
of
my
case
;
and
in
my
opinion
I
think
they
shall
be
barred
,
for
the
causes
and
reasons
following
:
First
,
the
words
of
the
Statute
of
Sewers
be
,
That
such
a
Decree
shall
binde
all
and
every
person
and
persons
that
at
the
making
of
the
same
Decree
had
any
interest
in
such
Lands
,
Tenements
&
Hereditaments
in
Uso
,
Possession
,
Remainder
or
Reversion
,
their
heirs
and
assigns
:
So
that
by
expresse
words
it
bindes
the
heirs
;
and
it
would
have
bound
the
heirs
of
a
Tenant
in
Fee
simple
,
without
the
word
(
Heirs
)
expressed
in
the
Statute
;
therefore
the
word
(
Heirs
)
needed
not
,
but
onely
for
the
binding
of
the
heirs
in
Tail
.
Also
if
these
Lands
were
charged
by
Prescription
,
as
many
Lands
be
,
then
were
the
Lands
originally
bound
,
and
the
heirs
in
Tail
stand
charged
with
these
sesses
,
as
well
as
Land
in
Fee
simple
.
And
lastly
,
this
is
a
Law
enacted
for
the
preservation
of
the
Commonweal
,
and
is
more
to
be
favored
then
particular
Estates
of
heirs
in
Tail
:
But
the
case
of
the
Premunire
was
penal
in
point
of
a
forfeiture
,
which
is
to
be
strictly
taken
for
the
King
,
and
favorably
for
the
subject
;
and
therefore
in
my
opinion
,
the
heirs
in
Tail
shall
be
bound
in
these
cases
of
sale
,
and
the
rather
because
they
be
within
the
words
of
the
Statute
,
videlicet
,
Heirs
generally
put
,
which
extends
to
heirs
in
Tail
,
as
well
as
to
heirs
in
Fee
simple
;
and
because
the
sesse
and
charge
shall
binde
both
alike
,
so
in
my
opinion
the
sale
shall
binde
both
,
in
regard
the
sale
depends
upon
the
charge
and
sesse
.
If
a
Prebend
,
Parson
or
Vicar
,
Dean
,
Bishop
or
such
like
,
which
be
seized
of
Lands
in
their
politique
capacity
be
sessed
to
repairs
of
works
of
Sewers
,
their
Lands
cannot
be
decreed
away
from
them
in
such
sort
as
to
binde
their
successors
;
for
as
this
Statute
of
Sewers
extend
to
binde
Lands
by
decrees
in
perpetuity
,
so
the
Statute
of
1
and
13
and
14
Eliz.
restrain
Alienations
,
and
where
those
Statutes
restrain
them
,
I
am
of
opinion
,
that
this
general
Statute
of
Sewers
doth
not
dispence
with
those
Statutes
.
In
Croft
A
forciori
If
there
be
two
Tenants
in
Common
which
be
sessed
towards
the
repairs
of
a
Wall
,
Bank
or
such
like
work
of
Sewers
,
and
one
of
them
do
neglect
to
pay
his
proportionable
part
,
Whether
Commissioners
may
decree
a
moyety
without
partition
both
of
the
sesse
and
Land
,
is
a
question
;
for
their
Estates
are
several
,
though
there
be
a
community
in
taking
of
the
profits
:
And
therefore
the
matter
is
,
whether
the
assesse
shall
attend
upon
the
possession
which
is
in
Common
,
or
upon
their
Estates
which
be
several
:
And
although
Commissioners
in
assesse
be
not
bound
to
take
notice
of
their
Estate
,
yet
if
they
take
upon
them
to
decree
a
mans
Lands
from
him
,
they
are
then
to
take
notice
of
his
Estate
,
and
of
all
other
circumstances
necessarily
depending
thereupon
:
In
22
H.
6.
fol.
12.
if
a
Trespasse
be
done
upon
Lands
which
are
held
in
Common
,
they
are
to
joyn
in
an
Action
,
but
if
one
of
them
die
that
Action
shall
survive
,
for
though
they
were
joynt
in
the
personalty
,
yet
they
disjoyned
in
the
realty
;
And
if
two
Tenants
in
Common
of
Land
joyn
in
a
grant
of
Ten
pounds
rent
charge
out
of
their
Lands
,
the
Grantee
shall
have
Ten
pounds
yearly
of
either
by
the
opinion
of
Mr.
Perkins
:
But
if
a
sesse
of
Ten
pounds
be
laid
and
imposed
upon
them
by
this
Law
of
Sewers
,
this
sesse
shall
not
double
as
the
Rent
should
;
yet
in
this
case
of
a
joynt
assess
imposed
upon
Tenants
in
Common
,
and
one
would
pay
his
moyety
,
and
his
companion
refuseth
,
the
Commissioners
of
Sewers
cannot
sell
a
moyety
of
the
Land
,
for
that
it
is
a
joynt
sess
,
and
was
not
imposed
by
moyeties
,
and
the
sale
doth
depend
upon
the
sess
,
and
all
may
not
be
sold
;
for
that
one
Tenant
in
Common
cannot
prejudice
his
companion
in
things
of
Realty
.
The
fourth
matter
is
to
whom
Lands
may
be
decreed
by
this
Law
;
for
by
the
words
of
the
Statute
it
appeareth
,
That
the
Commissioners
have
power
to
decree
Lands
for
default
of
payment
for
years
,
for
life
,
in
Tail
,
or
in
Fee
simple
;
whereby
the
Law
intended
they
should
make
their
decrees
for
sale
,
according
to
the
quantity
of
the
sess
,
and
so
should
use
moderation
in
the
Estates
they
made
or
sold
therefore
;
and
it
was
not
intended
they
should
sel
the
Feesimple
away
for
sess
which
might
be
satisfied
with
the
making
of
a
less
Estate
.
And
I
am
of
opinion
,
that
this
decree
doth
make
the
Estate
,
with
the
help
of
this
Statute
,
according
to
the
limitation
which
should
therein
be
declared
,
and
that
the
party
shall
have
Estate
according
as
the
same
is
thereby
limited
unto
him
;
and
this
is
no
equitable
decree
which
bindes
the
person
onely
,
as
Chancery
decrees
be
,
but
it
bindes
the
Land
;
and
therefore
the
Commissioners
may
not
decree
Lands
to
a
Corporation
,
as
to
a
Major
and
Commonalty
,
Dean
and
Chapter
or
such
like
,
which
be
Mortmain
,
for
the
general
words
of
this
Statute
do
not
repeal
the
Statute
of
Mortmain
in
my
opinion
.
And
herein
I
shall
end
my
Argument
touching
decrees
;
and
I
take
it
,
though
the
interest
of
E.
was
intail
,
yet
the
sale
thereof
might
be
made
by
this
Statute
for
the
causes
and
reasons
aforesaid
:
And
now
only
remains
under
my
censure
to
declare
my
opinion
,
whether
the
Commissioners
of
Sewers
did
Justice
,
in
refusing
to
admit
of
Pleas
of
discharge
which
were
tendred
to
them
by
A.
and
E.
wherein
may
come
justly
into
our
considerations
these
things
,
(
viz.
)
Whether
Traverses
,
Pleas
of
Exemptions
,
and
other
legal
proceedings
,
may
be
had
in
this
Court
of
Sewers
,
or
not
;
saving
I
adde
this
,
that
these
decrees
of
sale
being
binding
,
must
be
certified
into
the
Chancery
,
with
the
Kings
Royal
assent
had
thereto
.
Legal
proceedings
.
Traverse
.
TO
enter
into
these
parts
of
my
Law
,
I
think
it
fit
to
begin
with
Traverse
,
and
to
deliver
my
opinion
,
whether
such
Pleas
and
Proceedings
are
to
be
admitted
into
this
Court
;
for
a
Traverse
is
a
Plea
of
the
party
,
containing
matter
to
the
contrary
of
that
that
the
party
stands
accused
of
,
or
which
is
laid
to
his
charge
:
And
in
some
cases
our
books
and
authorities
of
Law
admit
the
party
to
a
Traverse
,
and
in
other
cases
the
same
is
to
be
denyed
;
for
in
the
5
H.
7.
fol.
9.
&
45
Ed.
3.
fol.
&
28
H.
8.
in
Dier
,
fol.
13.
if
one
be
presented
in
a
Leet
Court
for
a
Blowipe
or
any
other
personal
Fitz
,
Assiz
.
plac
.
442.
and
8
Ed.
4.
5.
and
the
reason
thereof
is
delivered
in
5
H.
7.
because
no
Processe
is
there
awardable
against
the
party
to
call
him
to
answer
:
Yet
in
the
same
Book
of
5
H.
7.
it
is
said
,
That
if
a
Presentment
be
made
which
toucheth
a
mans
Freehold
,
he
may
there
Traverse
the
same
.
But
I
take
it
the
party
must
first
remove
the
Presentment
into
the
Kings
Bench
,
and
there
Traverse
it
;
for
in
the
Court
Leet
,
in
my
opinion
,
there
can
be
no
Traverse
taken
or
tryed
,
no
more
where
the
Presentment
toucheth
Freehold
,
then
where
it
only
concerneth
a
personal
wrong
:
Therefore
the
reason
alleaged
in
5
H.
7.
cannot
be
the
true
cause
wherefore
in
personal
wrongs
the
Presentments
cannot
be
traversed
;
but
the
very
true
reason
therein
is
,
as
I
take
it
,
because
these
petty
Presentments
be
of
such
petty
trifling
matters
,
that
in
avoidance
of
trouble
the
Law
esteemed
them
not
worthy
of
Traverse
and
Tryal
;
and
Justice
Fairfax
in
5
H.
7.
is
of
opinion
,
That
a
Presentment
made
before
Iustices
of
Peace
in
a
Sessions
is
traversable
:
and
with
this
agreeth
Stanford
,
fol.
183.
and
in
other
Courts
of
Law
there
oftentimes
fall
out
matters
which
one
shall
not
be
admitted
to
take
a
Traverse
unto
,
and
in
some
other
cases
he
shall
,
as
by
these
succeeding
authorities
may
appear
.
In
the
37
Assiz
.
plac
.
7.
a
Presentment
was
taken
before
Green
and
Ingham
,
Justices
of
the
Kings
Bench
,
That
I.
S.
who
had
killed
A.
had
goods
to
the
value
of
Eighty
pounds
in
the
hands
of
one
John
Lombard
;
and
upon
this
Presentment
a
Scire-facias
was
awarded
against
John
Lombard
,
to
shew
cause
wherefore
these
goods
should
not
be
seized
to
the
Kings
use
:
John
Lombard
came
in
and
tendred
a
Plea
to
the
Presentment
,
that
these
goods
were
not
the
felons
,
but
that
they
were
delivered
to
him
to
keep
to
the
use
of
a
Cardinal
of
Rome
,
and
he
was
there
admitted
to
this
Plea
;
and
with
this
agreeth
45
Ed.
3.
fol.
26.
expresly
:
Yet
in
that
book
and
Mr.
Stanford
,
fol.
185.
it
is
holden
for
Law
,
That
if
it
be
presented
before
a
Coroner
that
I.
S.
killed
A.
B.
and
fled
for
the
same
fact
,
and
after
upon
his
tryal
he
is
acquit
,
yet
he
shall
forfeit
his
goods
upon
the
Fugam
fecit
before
the
Coroner
,
and
he
shall
not
be
received
to
take
any
traverse
to
the
said
Presentment
in
that
point
.
The
difference
in
which
two
cases
is
this
in
my
opinion
,
that
a
stranger
,
as
Iohn
Lombard
was
,
in
the
the
first
Case
,
shall
not
be
peremptorily
concluded
;
for
it
were
no
reason
one
mans
goods
should
be
forfeited
in
another
mans
default
,
and
he
should
have
no
answer
thereunto
:
But
in
the
other
Case
,
in
Terror
of
Felons
,
though
he
be
acquitted
of
the
Felony
,
yet
he
is
not
acquitted
of
the
flying
,
and
he
may
be
guilty
notwithstanding
his
acquittal
.
There
be
other
cases
in
the
Law
which
admit
no
Traverse
,
as
in
James
Bags
case
Cook
11.
Rep.
James
Bag●
Case
.
where
a
Writ
was
directed
to
the
Major
and
Burgesses
of
Plymouth
to
restore
Bag
to
his
Aldermans
place
there
,
which
they
had
put
him
from
,
and
they
return
a
cause
sufficient
to
bar
him
,
which
notwithstanding
is
false
;
yet
he
shall
not
be
received
to
his
Traverse
therein
;
neither
could
a
Traverse
be
admitted
in
the
Certificate
of
the
Bishop
,
wherein
was
contained
,
that
I.
A.
Parson
of
Dle
had
refused
to
pay
his
dismes
to
the
King
,
by
means
whereof
the
Parson
lost
his
benefice
,
which
case
is
in
Br.
cases
,
temp.
He.
8.
pl.
332.
Dier
,
fol.
116.
and
7
H.
4.
fol.
4.
and
21
H.
7.
8.
and
many
other
Books
be
,
that
no
Averments
shall
be
taken
to
the
returns
of
Sheriffs
to
take
any
Issue
thereupon
.
And
in
Dr
Bonhams
case
upon
a
Habeas
corpus
the
Physitians
returned
the
cause
of
his
imprisonment
,
which
was
false
;
yet
he
could
not
be
admitted
to
traverse
the
same
.
But
yet
by
the
opinion
of
these
Books
,
an
Action
upon
the
case
lieth
against
the
Major
and
Aldermen
,
&
against
the
Bishop
,
for
their
certificates
,
and
against
the
Sheriff
for
their
false
returns
;
and
if
Justifications
be
made
by
them
they
may
be
traversed
:
But
these
will
not
reduce
the
parties
to
their
former
liberties
(
viz
)
not
the
Alderman
to
his
place
,
nor
the
Parson
to
his
Church
,
but
damages
in
those
cases
are
only
recoverable
.
These
cases
I
have
put
as
Reasons
and
Arguments
against
our
Case
of
Sewers
;
But
yet
I
am
of
opinion
,
that
a
Traverse
may
be
taken
to
a
Presentment
made
in
this
Court
of
Sewers
,
and
herein
this
Court
may
be
resembled
to
a
Sessions
of
the
peace
:
And
this
Commission
of
Sewers
gives
the
Commissioners
of
Sewers
power
to
hear
&
to
determine
at
the
Kings
suit
,
as
well
as
at
the
suit
of
the
party
;
and
a
Traverse
lyeth
of
a
Presentment
found
before
Commissioners
of
Oyer
and
Terminer
,
and
is
triable
before
them
by
the
Books
of
29
Assiz
.
pl.
33.
and
12.
lib.
Assiz
.
21.
and
Assiz
.
pl.
Com.
the
Earl
of
Leicesters
Case
in
Plow
.
Com.
fol.
397.
and
the
words
of
this
Statute
are
sufficient
to
yield
the
party
the
benefit
of
a
Traverse
if
there
be
cause
;
and
for
president
in
the
point
,
Chart.
of
Romney
Marsh
pag.
23
,
and
24.
one
Godfrey
Ro.
Marsh
.
being
presented
that
he
ought
to
repair
a
Bank
or
Wall
,
and
that
he
did
neglect
to
do
the
same
,
and
he
came
in
and
pleaded
a
Plea
thereto
before
the
said
Commissioners
,
and
in
19
lib.
Assiz
.
plac
.
6.
there
were
divers
Presentments
before
Commissioners
of
Oyer
and
Terminer
for
Nusances
done
in
the
River
of
Lee
,
and
the
same
were
there
traversed
and
tryed
:
And
the
Statute
of
1
H.
4.
cap.
12.
That
in
case
if
any
feel
himself
greived
by
execution
or
otherwise
against
right
and
reason
,
let
him
pursue
and
he
shall
have
right
:
But
I
verily
suppose
,
that
those
things
which
the
Justices
of
Sewers
do
by
their
view
,
or
by
survey
and
discretion
,
are
so
binding
as
in
those
cases
no
Traverses
are
to
be
admitted
,
because
these
things
are
meerly
the
acts
of
the
Court
,
and
of
the
Justices
themselves
:
and
if
they
Fine
a
man
for
his
contempt
in
Court
by
a
Record
of
their
own
view
,
and
not
upon
a
Presentment
,
the
party
shall
not
be
received
to
Traverse
this
:
and
in
Doctor
Bonhams
Case
it
is
said
,
That
the
act
of
a
Judge
is
not
Traversable
,
if
he
be
the
absolute
Judge
of
the
Cause
;
But
in
cases
done
or
certified
by
such
as
be
no
absolute
Judges
of
the
Cause
,
as
Commissioners
of
Bankrupts
,
which
certifie
one
a
Bankrupt
he
may
Traverse
this
in
an
action
brought
,
as
was
done
in
the
Case
of
Cut
and
Delaber
in
7
Jac.
in
the
Mar.
Dier
,
fol.
89.
no
Averment
could
be
taken
to
the
certificate
of
a
Judge
;
and
with
this
agreeth
7
H.
7.
fol.
4.
But
although
a
Traverse
may
be
taken
to
a
Presentment
in
the
Court
of
Sewers
,
yet
times
and
seasons
must
be
observed
;
for
if
a
Presentment
be
there
made
,
it
may
be
Traversed
for
the
reasons
,
cause
&
presidents
formerly
mentioned
;
Yet
if
the
cause
have
been
there
so
far
proceeded
in
as
the
Commissioners
make
a
decree
thereupon
,
I
take
it
then
no
Traverse
at
all
can
be
taken
,
because
a
decree
is
the
final
Judgement
of
the
Court
,
and
is
an
act
Judicial
which
cannot
be
traversed
and
tryed
by
a
Jury
,
for
that
were
to
refer
the
Judgement
of
the
Court
to
be
examined
by
a
Jury
,
which
may
not
be
admitted
;
and
at
the
Common
Law
,
after
Judgement
no
Traverse
can
be
taken
:
And
if
one
be
Indicted
at
the
general
Session
of
the
Peace
,
this
is
traversable
;
but
if
the
party
suffer
himself
to
be
Outlawed
upon
the
said
Indictment
there
,
no
Traverse
lieth
,
but
a
Writ
of
Error
:
So
if
in
our
Sessions
of
the
Sewers
,
the
cause
proceed
to
a
decree
,
the
party
grieved
is
to
take
his
way
by
preferring
a
Bill
of
Reversal
in
maner
as
is
done
in
the
High
Court
of
Chancery
,
and
so
he
may
have
the
cause
here
throughly
examined
.
Other
legal
proceedings
.
THe
words
of
the
Statute
which
give
the
legal
proceedings
be
these
(
viz.
)
That
the
Commissioners
of
Sewers
may
hear
and
determine
all
and
singular
the
Premises
,
as
well
at
our
suit
,
as
at
the
suit
of
any
other
complaining
before
them
,
after
the
Laws
and
Customs
aforesaid
,
or
otherwise
,
by
any
other
ways
or
means
;
these
words
give
the
party
remedy
to
sue
before
the
Justices
of
Sewers
for
such
things
as
are
contained
within
these
Laws
,
and
which
have
their
dependency
thereon
:
In
Colshils
case
in
Dier
,
fol.
175.
the
party
preferred
his
Eliz.
cap.
8.
yet
if
I.
S.
be
bound
So
by
our
Statute
of
Sewers
an
Action
of
Trespass
lieth
not
for
a
Trespass
done
within
the
reach
of
this
Commission
,
yet
Distinguendum
est
;
for
put
the
case
a
sesse
is
laid
upon
a
man
,
and
the
goods
of
I.
S.
not
chargeable
thereto
be
taken
and
distrained
,
who
is
not
chargeable
to
the
payment
thereof
,
I.
S.
in
my
opnion
(
though
this
case
have
but
the
countenance
of
this
Commission
)
may
have
his
Action
or
prefer
his
complaint
before
the
Commissioners
in
this
Court
of
Sewers
for
the
recovery
of
his
damages
:
And
although
this
be
but
a
private
Action
,
yet
the
Distress
being
taken
by
an
authority
drawn
from
the
power
of
this
Commission
,
the
party
distrained
may
have
his
remedy
in
this
Court
by
his
private
Action
,
because
it
sprung
by
the
colour
of
the
general
power
of
this
Court
.
If
A.
B.
have
a
several
Pischary
in
the
River
of
Witham
,
which
is
a
River
within
the
Commission
of
Sewers
,
and
the
said
Pischary
by
these
Laws
is
chargeable
to
the
repairs
thereof
,
if
C.
D.
disseiz
him
thereof
,
or
commit
a
Trespasse
by
Fishing
therein
,
A.
B.
can
neither
have
an
Assize
nor
Action
of
Trespasse
within
this
Court
.
So
if
a
Royal
or
common
River
hath
his
current
through
the
town
of
Dale
,
and
one
A.
B.
is
tyed
to
repair
the
Banks
there
by
Tenure
,
Prescription
or
otherwise
,
which
notwithstanding
in
his
default
are
broken
down
,
and
the
waters
breaking
out
overflow
the
grounds
of
C.
D.
thereto
adjoyning
,
yet
C.
D.
hath
not
any
remedy
to
recover
his
damages
against
A.
B.
in
this
Court
for
the
losse
of
his
grounds
,
but
he
is
put
to
his
private
Action
therefore
at
the
Common
Law
;
and
with
this
agreeth
the
Case
of
Keighley
:
But
if
A.
B.
be
presented
therefore
before
our
Commissioners
of
Sewers
,
they
may
order
A.
B.
to
repair
the
breach
,
but
cannot
award
damages
to
C.
D.
for
our
Commissioners
of
Sewers
are
herein
like
to
Justices
of
Peace
,
and
to
Stewards
of
Leets
and
Law-days
,
which
have
power
originally
to
meddle
only
with
the
publike
wrong
;
Yet
by
the
power
of
their
Commission
,
and
of
this
Statute
,
they
many
times
accidentally
meet
with
private
injuries
,
as
by
the
insuing
cases
may
appear
.
If
a
Township
be
assessed
by
a
Law
of
Sewers
,
and
the
goods
of
one
of
the
Inhabitants
be
taken
for
the
sesse
,
that
party
upon
his
complaint
to
these
Justices
of
Sewers
may
have
processe
out
of
this
Court
to
call
before
them
the
rest
of
the
Inhabitants
which
were
subject
to
the
said
sess
,
to
cause
them
to
contribute
towards
the
parties
damage
who
was
solely
distrained
for
them
all
,
for
otherwise
this
Court
should
fail
of
justice
in
his
own
proper
materials
;
&
the
Statute
of
1
H.
4.
c.
12.
saith
,
That
he
which
is
grieved
,
let
him
have
remedy
:
And
if
the
goods
of
a
man
taken
for
his
tax
or
Rom.
Marsh
.
If
the
Commissioners
of
Sewers
appoint
the
Officers
to
take
so
many
trees
of
I.
S.
at
such
a
price
,
for
the
repairing
of
a
defence
against
the
sea
,
or
to
make
a
trench
over
the
grounds
of
I.
D.
and
thereto
erect
something
toward
these
actions
,
I.
S.
hath
remedy
to
come
by
his
moneys
in
this
Court
,
and
the
other
party
over
whose
grounds
this
trench
is
made
,
may
be
relieved
in
recompence
to
be
made
to
him
for
the
hurt
in
his
grounds
.
If
Laborers
or
Workmen
,
as
Carpenters
,
Masons
,
Smiths
,
Dikers
,
or
other
persons
be
set
on
work
by
the
power
of
these
Laws
,
they
may
by
the
same
power
recover
their
wages
before
the
Justices
of
Sewers
;
for
the
original
cause
sprung
out
of
the
power
of
this
Commission
,
and
this
is
there
determinable
,
as
incident
to
the
authority
of
that
Court
:
But
if
the
original
cause
did
not
arise
out
of
this
Commission
,
as
in
some
of
the
preceding
cases
they
did
not
,
then
hath
this
Court
no
Jurisdiction
of
the
matters
depending
thereon
:
And
I
do
ground
this
diversity
upon
the
reason
of
the
Book
case
put
in
1
R.
3.
fol.
4.
where
it
is
said
,
That
if
the
original
cause
do
belong
to
the
Court
Christian
,
although
in
the
proceedings
therein
some
matters
happen
which
depend
on
the
principal
,
which
do
belong
to
the
Temporal
Court
,
Yet
Accessarium
sequitur
suum
principale
,
and
these
matters
shall
also
be
determined
in
the
Court
Christian
:
And
so
if
in
a
cause
at
the
Temporal
Law
,
as
in
a
Quare
impedit
,
and
in
the
proceedings
therein
,
some
matter
do
arise
depending
on
the
principal
cause
,
which
belongeth
to
the
Court
Christian
,
yet
the
Temporal
Court
shall
continue
his
Jurisdiction
thereof
:
And
with
this
diversity
agreeth
Kelleways
Report
,
fol.
110.
so
in
our
Court
of
Sewers
,
although
a
thing
happen
in
the
proceedings
,
which
if
it
stood
meerly
of
it self
would
not
pertain
ad
eor'
examen
,
notwithstanding
if
it
be
but
a
matter
accidental
,
and
have
his
dependance
upon
a
principal
matter
which
is
determinable
in
this
Court
,
the
other
also
sha
be
here
determinable
.
Exemptions
.
IT
may
be
a
grand
question
,
Whether
these
Laws
of
Sewers
will
permit
any
Exemptions
to
any
person
or
persons
,
and
by
the
strict
penning
of
the
words
of
this
Commission
it
seems
to
oppose
all
such
priviledges
and
discharges
,
as
Exemptions
be
;
The
ancient
Commission
which
is
in
the
Register
,
and
in
Fitz.
Nat.
Br.
are
exceeding
strict
;
for
the
words
therein
be
,
Ita
quod
aliquibus
tenentibus
terrarum
seu
Tenementum
seu
communiam
pasturae
seu
Pischariae
habentibus
diviti
vel
pauperi
vel
alteri
cujuscunque
fuerit
conditionis
Status
aut
dignitatis
qui
defension'
habere
potuerint
per
predict'
Wallias
Guttur
as
Fossata
sueras
portes
calceta
&
gurgites
seu
etiam
damnum
per
trencheas
predict'
sustinent
vel
poterint
sustinere
sive
fuerint
infra
libertates
sivè
extra
non
parcantur
in
hac
parte
;
And
the
words
in
our
Statute
be
in
effect
,
And
all
such
which
reap
profit
or
sustain
damage
,
shall
be
assessed
;
which
words
seem
not
to
admit
of
discharges
:
Yet
in
my
opinion
out
of
the
strict
words
of
these
Commissions
there
be
some
Exemptions
,
though
not
expressed
in
words
,
yet
supplyed
in
reason
,
and
are
to
be
added
in
construction
.
First
,
for
the
grounds
lying
betwixt
the
Seabanks
and
the
Seas
are
in
reason
exempted
from
the
charge
of
the
Banks
and
Walls
,
because
they
can
take
no
safety
thereby
.
Secondly
,
those
grounds
which
be
upon
an
assent
,
and
not
on
the
Level
,
are
also
by
the
rule
of
reason
exempted
from
assesses
to
be
imposed
only
by
the
power
of
these
Laws
.
Thirdly
,
where
one
or
moe
be
tyed
to
repair
a
Bank
,
Wall
or
other
defence
by
Custom
,
Prescription
,
Tenure
or
otherwise
,
all
others
be
in
Law
and
reason
exempted
.
Fourthly
,
a
Parson
&
Vicar
with
cure
are
not
to
be
assessed
for
their
Tythes
,
and
divers
of
the
Hereditaments
formerly
mentioned
in
Assesses
be
by
the
rule
of
reason
exempted
.
Fifthly
,
but
whether
one
may
be
discharged
and
exempted
from
the
repairs
of
the
works
of
Sewers
by
any
special
Custom
or
Prescription
,
is
a
great
question
of
our
case
,
in
regard
both
the
old
and
new
Commissions
Quod
nullus
in
hac
parte
parcatur
seem
to
Toll
all
Prescriptions
and
Customs
of
discharge
,
and
to
admit
of
none
of
them
:
And
the
Charter
of
Romney
Marsh
pag.
31
,
32
,
and
33.
beareth
the
same
exposition
;
for
there
Godfrey
pleaded
a
Plea
to
discharge
him
of
the
repairs
of
the
Walls
and
Watergauges
,
because
he
claims
his
Lands
by
Charter
from
the
King
,
and
also
prescribed
generally
in
non
reparando
,
but
he
durst
not
abide
his
Plea
;
for
there
pag.
39.
it
is
said
,
That
all
having
Lands
should
contribute
,
and
that
none
might
be
spared
;
and
also
pag.
53.
be
these
words
,
Quod
starent
ordinationi
Jurator'
predictor'
nulla
consuetudine
resistente
;
which
words
be
direct
in
the
point
against
such
general
discharges
claimed
by
blinde
customs
:
Yet
I
have
been
credibly
informed
,
that
Sir
George
Fitzwilliams
Knight
,
had
a
Custom
in
his
Town
and
Manor
of
Mabblethorp
in
the
County
of
Lincoln
,
called
Swiftage
,
whereby
he
challenged
to
be
freed
from
being
charged
to
the
repairs
of
the
Seabanks
,
because
in
consideration
thereof
he
and
his
Ancestors
have
used
in
regard
of
their
Manor
there
to
do
some
other
repairs
as
beneficial
for
the
Commonwealth
;
and
in
my
opinion
,
in
such
a
special
Custom
one
may
be
exempted
;
like
to
the
case
of
Tithes
,
wherein
one
could
not
by
the
Common
Laws
prescribe
in
a
non
decimando
,
yet
in
a
modus
decimandi
he
may
,
because
there
is
some
competent
consideration
given
in
lieu
thereof
;
And
so
in
my
opinion
one
cannot
generally
prescribe
or
alleage
a
Custom
to
be
freed
and
clearly
exempted
from
the
repairs
of
Sewers
,
but
by
special
Custom
he
may
,
as
in
the
said
case
of
sir
George
Fitzwilliams
.
And
therefore
the
Commissioners
of
Sewers
in
my
case
did
very
justly
and
discreetly
refuse
the
said
general
pleas
of
discharge
tendred
to
them
by
A.
and
E.
and
so
I
super
totam
materiam
conclude
my
Argument
as
I
did
my
Case
,
That
the
Commissioners
of
Sewers
did
administer
true
Justice
in
all
the
parts
of
these
Laws
.
Finis
hujus
tertiae
Lecturae
.
Lectura
quarta
.
IT
appeareth
by
this
Statute
I
read
on
,
that
the
Law
makers
made
it
not
the
least
part
of
their
care
to
have
such
persons
put
in
trust
with
the
execution
thereof
,
as
should
be
of
great
wisdom
and
approved
experience
.
And
because
that
persons
of
profound
wisdoms
,
deep
Experience
,
tryed
Learning
,
generous
Disposition
,
and
of
good
Estate
,
should
be
put
into
these
Commissions
of
Sewers
,
the
Statute
did
make
choice
of
four
Honorable
persons
to
have
and
take
the
nomination
of
such
as
should
for
their
Integrity
,
Learning
,
Wealth
,
Wisdom
and
Experience
,
be
worthy
to
be
put
into
this
Commission
.
And
therefore
the
Lord
Chancellor
,
Lord
Treasurer
,
and
the
two
Lord
chief
Justices
for
the
time
being
,
have
by
this
Statute
the
nomination
of
our
Commissioners
;
But
as
these
great
persons
of
Honor
by
their
high
places
are
most
commonly
busied
in
matters
of
great
importance
,
they
many
times
refer
these
matters
to
others
,
by
means
whereof
divers
persons
in
some
countreys
have
of
late
years
crept
into
Commission
,
which
this
Statute
doth
not
allow
of
,
which
do
not
only
want
knowledge
and
experience
,
but
which
are
also
transported
and
carried
away
with
selfwill
,
and
serve
most
commonly
to
make
a
faction
of
the
greater
number
to
carry
away
businesses
,
when
the
graver
and
wiser
sort
are
forced
(
being
overladen
with
popular
voices
)
to
give
way
to
run
into
contrary
courses
,
and
are
made
to
surcease
from
making
good
and
wholsom
Laws
and
Ordinances
,
and
sometimes
are
as
it
were
forced
to
agree
to
those
which
are
whose
;
even
as
the
Roman
Dictator
Fabius
having
joyned
to
him
the
froward
Minutius
,
was
by
the
violent
stream
of
his
colleague
so
crossed
and
overswayed
,
not
out
of
judgement
,
but
selfwill
,
that
he
was
forced
to
give
way
to
Minutius
frowardness
,
though
it
tended
almost
to
the
hazard
and
the
overthrow
of
the
whole
Roman
Army
:
And
because
the
Commissioners
are
the
persons
through
whose
hands
the
execution
of
all
these
Laws
must
passe
,
I
thought
it
therefore
very
convenient
to
take
into
examination
this
part
of
the
Statute
which
touch
and
concern
them
:
And
I
intend
to
purge
the
Commission
of
such
of
them
as
these
Laws
have
disalowed
,
and
to
that
purpose
I
have
framed
this
insuing
case
,
which
I
take
it
will
give
us
occasion
to
call
them
all
into
question
,
and
to
sever
the
just
from
the
unjust
,
the
sufficient
from
the
unsufficient
,
and
the
learned
from
the
illiterate
.
The
Case
.
A.
demiseth
to
B.
and
C.
Land
of
the
yearly
value
of
Sixty
pounds
cum
stauro
of
the
value
of
Two
hundred
pounds
for
their
lives
,
the
Remainder
to
D.
a
free
Citizen
of
Lincoln
,
B.
and
D.
disseise
C.
of
the
Land
and
take
the
stock
,
C.
releaseth
to
D.
the
goods
absolutely
,
and
the
Land
upon
Condition
;
D.
dieth
in
Exile
,
E.
his
son
and
heir
enters
,
B.
and
C.
who
enter
for
the
Condition
broken
,
E
and
Francis
Countes
Dowager
of
Warwick
,
and
three
other
Commissioners
of
the
Quorum
of
Sewers
,
make
a
Law
to
raise
a
Were
,
erected
upon
a
River
navigable
at
the
costs
of
the
party
,
because
it
hindred
the
current
of
waters
.
My
conclusion
is
,
That
here
be
competent
Commissioners
in
number
and
in
Estate
which
made
this
Law
,
and
that
this
Law
is
well
decreed
within
this
Statute
.
The
case
I
do
distribute
in
these
points
,
viz.
Three
at
the
Common
Law
,
and
four
upon
this
Statute
;
the
points
I
intend
by
the
Common
Law
are
these
:
First
,
whether
the
Sixty
pounds
stock
can
be
demised
and
letten
for
life
,
with
the
Remainder
over
,
as
this
case
is
.
Secondly
,
whereas
B.
and
C.
be
two
Joyntenants
in
possession
,
whether
one
of
the
Joyntenants
and
a
stranger
can
so
disseise
the
other
Ioyntenant
as
to
transfer
thereby
an
interest
and
Estate
to
the
stranger
.
Thirdly
,
because
the
Release
dependeth
upon
the
disseisin
,
the
question
is
,
in
what
maner
it
doth
inure
,
and
whether
it
shall
expel
B.
out
of
that
moyety
,
because
it
is
made
to
the
stranger
;
and
then
what
is
reduced
by
the
Condition
,
whether
a
possession
,
action
,
or
a
right
.
Points
upon
this
Statute
.
First
,
whether
the
Son
of
the
free
Citizen
exiled
is
a
disabled
Commissioner
,
in
respect
of
his
person
;
and
whether
he
hath
such
an
Estate
,
either
in
Lands
or
goods
,
as
will
satisfie
this
Law
.
Secondly
,
whether
the
Countess
may
be
a
competent
Commissioner
within
this
Statute
.
Thirdly
,
whether
a
joynt
interest
in
Lands
or
goods
will
make
the
Ioyntenant
a
sufficient
inabled
Commissioner
within
this
Statute
.
Fourthly
,
whether
the
Were
,
as
this
case
is
,
be
raced
down
or
not
.
And
hereupon
I
intend
to
lay
open
the
whole
division
,
touching
the
Lets
,
Impediments
and
Annoyances
which
this
Statute
speaketh
of
.
Argumentum
Lectoris
.
I
meant
it
not
for
a
point
in
this
case
,
whether
goods
might
be
let
with
Land
,
nor
whether
a
stock
might
be
leased
with
a
Farm
,
because
I
finde
the
Books
of
1
H.
6.
1.
and
many
others
full
in
the
point
that
they
may
.
And
although
by
the
taking
of
them
back
again
by
the
Lessor
they
will
thereby
suspend
no
rent
,
yet
in
the
original
demise
they
may
be
a
cause
to
increase
the
rent
:
but
my
point
herein
is
double
.
First
,
whether
they
will
passe
in
Remainder
,
as
my
case
doth
limit
them
.
Secondly
,
whether
they
will
inable
B.
and
C.
to
be
Commissioners
of
Sewers
alowed
by
this
Statute
.
I
do
not
onely
finde
stock
let
with
Farms
,
but
also
joyned
in
Real
actions
with
Land
:
for
in
the
Writ
of
Assize
the
words
be
,
Quod
vicecomes
faciat
Tenement'
illud
reseisiri
de
catallis
quae
in
ipso
capta
fuerint
&
ipsum
Tenement'
cum
catallis
esse
in
pace
usque
,
&c.
These
doubtless
were
such
goods
as
stocked
the
grounds
,
and
which
usually
went
with
the
same
,
for
in
ancient
times
when
any
farmed
grounds
,
they
usually
farmed
the
stock
thereon
going
,
and
this
appears
by
ancient
presidents
;
Sed
nunc
aliud
tempus
.
In
the
Writ
of
Ejectione
firmae
in
the
Register
be
contained
these
words
,
Ostensum
quare
vi
&
armis
manerium
de
Dale
quod
C.
prefat
'
A.
dimisit
ad
terminum
qui
nondum
preteriit
intravit
&
bona
&
catalla
ejusdem
A.
ad
valentiam
,
&c.
in
eodem
manerio
inventa
caepit
&
asportavit
.
So
that
in
those
Writs
of
Assize
and
Exjectione
firmae
,
the
one
to
recover
the
Freehold
,
the
other
the
Leasehold
:
We
finde
goods
which
went
with
the
Manor
or
Farm
made
parcel
of
the
plaint
;
and
I
take
it
,
damages
shall
be
increased
therefore
;
for
these
were
such
goods
as
stockt
the
Farms
.
And
in
Wrotsly
and
Adams
Case
in
Plo.
Com.
Exception
was
in
presenti
nor
in
remainder
can
be
made
of
Goods
or
Cattel
,
neither
shall
they
go
with
the
Land
in
point
of
Estate
,
but
shall
passe
to
the
Lessee
,
and
after
to
him
in
the
remainder
,
as
a
dependancy
upon
the
Farm
:
And
the
Heir
shall
have
Heir-looms
,
together
with
the
Mansion
House
,
as
things
necessary
concurrent
therewithal
,
yet
the
Heir-looms
have
no
descending
qualities
,
but
they
do
go
with
and
wait
upon
the
house
,
as
necessary
Instruments
fitting
to
be
used
therewith
;
neither
can
it
be
gathered
by
the
Book
of
37
H.
6.
fol.
30.
that
the
Book
called
The
Grail
(
which
was
devised
by
will
to
A.
one
of
the
executors
So
in
Paramore
and
Yardleys
Case
in
the
Com.
and
Paramore
.
Yardleys
case
.
Mannnings
case
.
in
Matthew
Mannings
Case
in
Cooks
Reports
,
a
Term
of
years
could
not
be
devised
to
A.
for
life
,
the
Remainder
thereof
to
B.
for
his
life
,
to
passe
in
this
maner
in
point
of
Estate
;
neither
could
these
Estates
be
made
thereof
,
but
by
construction
the
same
was
disposed
of
to
go
by
way
of
executory
devise
;
and
so
the
stock
in
my
case
was
not
transferred
in
point
of
Estate
with
the
Land
,
but
in
point
of
executory
disposition
of
the
Occupation
and
use
thereof
onely
;
and
therefore
if
one
let
a
stock
of
cattel
or
sheep
with
grounds
at
the
end
of
the
Term
,
the
goods
as
accessary
with
the
Land
as
principal
shall
return
to
the
Lessor
,
and
during
the
Term
the
Lessor
hath
the
property
of
them
,
and
the
Lessee
the
possession
thereof
,
and
the
Lessee
shall
have
the
yearly
profits
thereof
for
his
Rent
;
and
here
I
do
end
this
first
point
,
and
will
proceed
to
the
rest
.
The
second
Point
.
There
be
two
Joyntenants
,
and
one
of
them
and
an
estranger
do
disseise
the
other
;
what
interest
the
stranger
gaineth
thereby
is
the
question
.
I
am
clear
of
Opinion
,
as
many
books
be
,
That
one
Joyntenant
may
disseise
his
companion
by
an
expresse
Ouster
,
but
when
a
stranger
joyneth
therein
,
in
what
part
that
doth
alter
the
case
is
the
matter
;
for
if
the
stranger
should
get
a
joynt
Estate
in
possession
with
the
Joyntenant
whom
he
joyned
withal
,
that
were
to
make
a
double
Joynt-tenancy
in
uno
eodemque
gradu
:
for
the
Joyntenant
which
committed
the
disseisin
,
which
hath
the
possession
,
and
the
Joyntenant
which
was
disseised
and
which
hath
the
right
,
do
hold
Joyntenancy
still
;
for
by
36
Ed.
3.
right
may
hold
The
third
Point
.
But
admit
the
stranger
did
get
a
moyety
of
a
moyety
by
joyning
in
the
disseisin
,
then
what
alteration
this
release
will
work
in
my
case
is
the
next
question
.
It
is
true
as
Mr.
Littelton
saith
,
That
if
there
be
two
So
if
two
be
admitted
to
a
Copyhold
by
Tort
,
or
to
an
Office
in
a
Court
of
Justice
unlawfully
,
though
their
entry
be
unlawful
,
yet
because
they
came
in
by
admittance
,
which
is
at
the
door
of
Justice
;
I
suppose
therefore
,
that
if
a
release
be
made
to
one
of
them
by
the
disseisee
,
it
shall
inure
to
both
,
because
they
had
some
colour
and
countenance
to
enter
,
more
then
expresse
disseisors
or
intrudors
have
.
But
if
a
Son
and
a
Stranger
disseise
the
Father
,
and
after
the
Father
dyeth
,
and
the
right
descend
to
the
son
,
by
this
release
in
Law
,
and
by
the
accession
of
the
right
by
descent
to
the
tortious
possession
,
it
doth
inure
only
to
the
son
;
and
although
this
release
was
upon
condition
,
which
by
the
breach
thereof
seemeth
to
set
the
Relessor
in
the
same
state
he
was
before
,
yet
it
doth
not
admit
the
Joynt
disseisor
which
was
expelled
thereby
to
become
a
copartner
again
with
his
fellow
:
As
if
the
son
and
a
stranger
disseise
the
father
,
and
the
father
dyeth
,
the
stranger
hereby
is
expelled
by
the
descent
of
this
right
to
the
son
;
yet
if
after
a
more
near
Heir
is
born
,
as
the
Elder
brother
dyed
his
wife
Einsent
with
a
son
,
which
after
the
decease
of
the
Grandfather
is
born
,
whereby
the
Inheritance
of
this
Land
is
his
;
yet
the
other
Joynt
disseisor
which
was
expelled
by
the
descent
of
the
right
of
his
fellow
disseisor
,
by
the
departure
of
the
right
with
the
possession
,
cannot
enter
upon
his
fellow
disseisor
,
in
my
opinion
.
But
now
the
question
is
further
,
what
is
reduced
by
this
condition
,
the
right
only
which
was
released
,
or
the
possession
together
with
this
right
;
for
if
but
a
right
be
reduced
,
then
a
descent
hapning
may
perchance
Toll
the
entry
of
the
Relessor
,
and
so
he
may
be
put
to
his
Writ
of
right
in
Fee
:
And
if
it
be
a
right
of
an
inferior
degree
;
as
in
our
case
it
was
but
for
life
,
then
he
should
be
with
out
remedy
.
But
in
my
opinion
where
the
release
doth
inure
by
way
of
Assiz
.
pl.
2.
17.
Ed.
3.
entry
and
Feoffment
being
upon
condition
,
it
may
in
that
case
by
the
breach
of
the
condition
reduce
the
possession
,
and
give
the
Relessor
a
Re-entry
,
because
in
Intelligenti
a
legis
the
Land
was
passed
thereby
,
and
not
a
right
only
;
But
if
it
had
inuted
by
way
of
Mitter
le
droit
only
,
I
take
it
And
so
I
end
my
Common
Law
points
,
and
I
will
now
in
hand
with
my
Statute
.
The
parts
of
the
Statute
whereupon
I
do
ground
my
subsequent
matters
,
doth
contain
in
it
these
words
(
viz.
)
That
if
any
person
or
persons
of
what
Estate
or
Degree
soever
he
or
they
be
of
,
that
from
henceforth
do
take
upon
him
or
them
to
sit
by
vertue
of
the
said
Commissions
,
not
being
first
sworn
according
to
the
Tenor
of
the
Oath
expressed
in
the
Statute
;
or
if
any
person
so
named
and
sworn
do
sit
,
not
having
Lands
,
Tenements
or
other
Hereditaments
in
Fee-simple
,
Fee
tail
,
or
for
term
of
life
,
to
the
clear
yearly
value
of
Forty
Marks
above
all
charges
to
his
own
use
,
Except
he
be
Resciant
and
Free
of
any
City
,
Borough
or
Town
Corporate
,
have
moveable
substance
of
the
clear
value
of
One
hundred
pounds
,
or
else
be
learned
in
the
Laws
of
this
Realm
,
in
and
concerning
the
same
;
That
is
to
say
,
admitted
in
one
of
the
principal
Inns
of
Court
for
an
utter
Barrister
,
shall
forfeit
Forty
pounds
for
every
time
that
he
shall
attempt
so
to
do
,
the
one
moyety
to
the
King
,
the
other
moyety
to
the
party
that
will
sue
therefore
,
&c.
So
that
by
this
clause
it
is
manifest
,
that
every
one
that
is
not
qualified
in
one
of
these
degrees
,
is
no
competent
Commissioner
within
this
Statute
.
First
,
that
he
be
an
utter
Barrister
in
one
of
the
four
Inns
of
Court
.
Secondly
,
or
have
Lands
,
Tenements
or
Hereditaments
of
the
clear
yearly
value
of
Forty
Marks
above
all
charges
,
in
Fee
simple
,
Fee
tail
,
or
for
life
.
Thirdly
,
or
be
Free
or
Resciant
in
some
City
,
Borough
or
Town
Corporate
,
and
have
moveable
substance
of
the
clear
value
of
One
hundred
pounds
.
And
that
person
which
is
not
within
one
of
the
said
three
parts
,
and
yet
doth
take
upon
him
to
sit
in
the
execution
of
this
Commission
,
incurs
two
penalties
:
The
one
,
the
forfeiture
of
his
discretion
for
his
presumption
.
The
other
,
of
Forty
pounds
for
his
contempt
.
And
therefore
for
the
more
clear
examination
of
these
things
,
I
will
observe
that
method
in
my
Argument
,
which
my
Case
hath
formerly
prescribed
to
me
.
And
first
of
all
,
I
shall
proceed
to
the
personal
abilities
,
and
first
of
the
son
of
the
free
Citizen
of
Lincoln
,
I
am
of
opinion
,
that
every
Commissioner
of
this
kinde
must
be
indowed
with
these
three
qualities
.
|
First
,
he
must
be
free
of
a
City
,
&c.
|
If
he
want
any
of
these
,
then
he
is
out
of
this
Branch
of
this
Statute
.
|
|
Secondly
,
he
must
be
there
Resciant
,
and
|
|
Thirdly
,
he
must
have
in
clear
moveable
Substance
,
One
hundred
pounds
;
and
|
Therefore
what
person
is
such
a
Freeman
,
is
now
to
be
handled
.
|
I
am
of
opinion
,
that
every
Subject
born
within
the
Kings
Dominion
is
a
Freeman
of
this
Realm
,
as
appeareth
by
the
Grand
Charter
,
cap.
14.
yea
though
he
be
a
Bondslave
to
a
Subject
;
but
a
stranger
born
is
no
Freeman
of
the
Kingdom
,
till
the
King
have
made
him
Denizen
,
in
whose
power
alone
,
without
the
help
of
any
other
,
one
may
be
made
free
:
And
to
be
a
Freeman
of
the
Realm
,
the
place
of
his
birth
is
held
more
material
then
the
quality
of
his
Parents
;
for
if
Aliens
have
a
childe
in
England
it
is
free
of
the
Kingdom
:
yet
by
the
Opinion
of
Hussey
Chief
Justice
in
1
R.
3.
fol.
4.
and
in
Calvins
case
of
the
Post
Nati
,
it
is
holden
for
Law
,
That
if
Ambassadors
of
this
Realm
have
children
born
in
France
,
or
elswhere
where
the
Father
and
Mother
be
natural
born
Subjects
,
the
children
are
free
of
the
Realm
of
England
;
but
if
either
the
Father
or
the
Mother
of
such
children
were
an
Alien
,
then
are
not
those
children
free
.
One
out
of
the
Kings
protection
,
is
,
as
I
take
it
,
for
that
time
no
Freeman
of
the
Realm
:
But
in
what
case
a
man
Exiled
is
in
,
sorteth
the
nearest
to
our
question
.
Exile
is
one
of
the
Eight
Punishments
which
the
Roman
Laws
did
inflict
upon
Strangers
,
which
be
videlicet
,
-
1.
Damnum
.
-
2.
Imprisonamentum
.
-
3.
Plagae
.
-
4.
Compensatio
.
-
5.
Ignominia
.
-
6.
Exilium
.
-
7.
Servitudo
.
-
8.
Mors.
Mr.
Bracton
doth
in
this
maner
describe
Exile
,
that
is
,
Certi
loci
interdictio
,
and
doth
distribute
it
into
Four
heads
;
That
is
to
say
,
1.
Specialis
,
hoc
est
interdictio
talis
provinciae
Civitatis
Burgi
aut
villae
.
2.
Generalie
,
Interdictio
totius
Regni
&
aliquando
est
.
3.
Temporaria
,
pro
duobus
tribus
quatuor
aut
pluribus
annis
aut
,
&c.
4.
Perpetua
,
pro
termino
vitae
&
Exilium
est
aliquando
ex
arbitrio
principis
sicut
in
exiliando
Duces
Hertferdiae
&
Norfolciae
per
Regem
Richardum
secundum
,
Et
aliquando
per
Judicium
terra
ut
sit
in
casu
Piers
de
Gaveston
&
etiam
in
casu
Hugonis
de
le
Spencer
junioris
qui
ambo
fuorunt
exilit'
per
Judicium
in
Parliamento
.
Abjuration
also
was
a
legal
Exile
by
the
Judgement
of
the
Common
Law
,
as
also
by
the
Statute
Law
;
and
in
the
Statute
of
Westminster
the
Second
,
Cap.
35.
He
which
ravisheth
a
Ward
,
and
cannot
render
the
Ward
unmarried
,
or
the
value
of
his
Mariage
,
must
abjure
the
Realm
;
and
this
is
a
general
Abjuration
:
And
by
a
Statute
made
in
31
Ed.
1.
But
I
must
put
this
Case
to
a
further
question
,
which
is
,
What
a
man
Exiled
doth
forfeit
thereby
?
And
in
my
opinion
he
forfeits
these
things
following
;
First
,
he
loseth
thereby
the
freedom
and
liberty
of
the
Nation
out
of
which
he
is
Exiled
.
Secondly
,
he
forfeits
his
Freedom
in
the
Borough
or
City
where
he
was
free
;
for
he
which
forfeits
the
Freedom
of
the
whole
Realm
,
by
consequence
forfeits
his
Freedom
in
every
part
thereof
.
Thirdly
,
he
is
of
as
little
esteem
in
our
Law
as
if
he
were
dead
,
for
his
Heir
may
enter
,
and
so
may
his
Wife
enter
into
her
own
Lands
,
and
may
sue
an
Action
as
a
woman
sole
,
by
31
Ed.
1.
&
1
H.
4.
And
fourthly
,
in
my
opinion
he
shall
forfeit
those
Lands
to
the
King
,
which
he
shall
purchase
in
the
Realm
during
his
Banishment
,
qued
vide
15
Ed.
3.
Fitz.
Petition'
plac
.
2.
But
there
in
that
case
Hugh
Spencer
was
banished
by
a
Judgement
in
Parliament
,
which
gave
a
forfeiture
of
his
Lands
;
howsoever
I
take
him
as
strongly
barred
from
purchasing
in
the
Realm
during
his
Banishment
,
as
an
Alien
is
,
for
fit
alienigina
by
his
Banishment
,
and
he
is
in
a
worse
case
then
an
Alien
,
because
he
taketh
with
him
Indignatio
principis
:
But
a
banished
man
forfeits
neither
Title
of
Honor
,
as
Knighthood
,
which
is
de
jure
gentium
,
nor
the
Lands
he
had
before
he
was
Exiled
,
unless
by
special
Judgement
given
in
a
legal
course
they
be
so
decreed
.
Then
our
case
goes
further
,
That
E.
is
not
Exiled
himself
,
but
D.
his
Father
was
Exiled
,
whose
Heir
E.
is
:
now
whether
by
the
Exilement
of
the
Father
,
the
liberty
and
freedom
which
E.
might
claim
in
the
City
of
Lincoln
by
being
the
Son
and
Heir
of
a
Freeman
,
be
forfeit
for
his
Fathers
Banishment
,
or
not
,
is
the
matter
of
my
Case
.
A
Freeman
of
a
City
or
Borough
may
be
made
divers
maner
of
ways
,
as
appeareth
in
the
Case
of
the
City
of
London
in
Sir
Edward
Cooks
8
Report
,
fol.
126.
That
is
to
say
,
First
,
by
Service
in
his
Apprentiship
.
Secondly
,
by
Birth
,
by
being
the
Son
of
a
Freeman
.
Thirdly
,
by
Purchase
,
and
that
is
by
the
Common
.
Councel
of
the
City
:
And
at
Bristol
by
Mariage
.
In
the
Chronicles
in
the
Raign
of
Richard
the
2.
it
is
said
,
Freedom
was
obtained
but
by
two
means
,
videlicet
,
By
Service
,
and
by
Birth
;
yet
it
seems
it
may
be
obtained
by
purchase
,
because
the
Centurion
claimed
his
Freedom
thereby
in
the
22
Chapter
of
the
Acts
of
the
Apostles
.
In
the
Irish
Reports
,
That
one
may
be
a
Freeman
by
Birth
,
Mariage
and
Service
:
Saint
Paul
indeed
was
born
at
Tarsus
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
Freedom
,
which
is
such
a
general
Freedom
,
as
Calvin
being
born
in
Scotland
claimed
&
had
in
England
,
because
he
was
born
under
the
obedience
of
the
King
of
England
;
But
that
made
not
Saint
Paul
Free
of
the
private
Customs
,
Priviledges
and
Franchises
of
Rome
,
no
more
then
Calvins
birth
made
him
a
free
Citizen
of
Lincoln
to
the
peculiar
Customs
of
that
City
.
If
one
be
born
in
a
City
of
Parents
that
are
not
free
,
the
childe
hereby
is
no
Citizen
by
birth
;
and
if
one
be
born
of
Free
Parents
out
of
the
place
of
Priviledges
,
as
out
of
Lincoln
,
he
yet
is
a
Freeman
by
Birth
:
Yet
in
the
Charter
Grant
of
Yarmouth
the
words
were
,
Concessimus
Burgensibus
de
Magna
Yermutha
de
villa
predict'
oriundis
,
that
they
should
have
such
Liberties
and
such
;
so
that
it
may
be
the
special
words
of
the
Charter
may
alter
the
case
:
yet
in
the
case
of
the
City
of
London
,
Cooks
8.
Report
,
the
King
But
whether
those
that
are
Free
by
Birth
,
Service
or
Mariage
be
Freemen
within
my
Statute
,
or
not
,
is
a
question
;
because
the
words
thereof
be
absolutè
posita
to
all
purposes
:
And
therefore
I
take
it
,
that
this
Statute
intends
it
of
such
as
have
challenged
their
Freedom
,
and
which
have
taken
the
Freemans
Oath
,
and
are
admitted
into
the
Society
and
fellowship
of
the
Freemen
,
Citizens
and
Burgesses
;
for
in
James
Bags
Case
in
the
11
Rep.
such
a
one
is
taken
for
a
perfect
Freeman
,
and
no
other
:
So
in
my
opinion
E.
the
son
of
D.
is
no
competent
Freeman
of
the
City
of
Lincoln
within
the
branch
of
this
Statute
;
But
admit
he
were
,
then
it
may
be
objected
to
me
,
that
by
the
Exilement
of
the
father
the
Freedom
of
the
son
was
forfeit
,
by
reason
he
was
by
this
Exilement
become
no
free
Citizen
.
But
in
answer
thereunto
I
say
briefly
,
That
if
theson
had
attained
this
Freedom
by
the
death
of
his
father
,
as
a
thing
descendible
,
then
it
had
been
forfeit
by
his
fathers
Banishment
,
but
the
son
had
this
Freedom
by
his
own
birth
,
as
a
purchase
,
and
not
by
the
death
of
his
father
by
descent
,
Ergo
,
it
was
not
forfeited
by
his
fathers
Exilement
.
Like
to
the
case
where
I.
S.
hath
many
children
,
and
then
he
confesseth
himself
Villain
to
I.
D.
in
a
Court
of
Record
,
yet
his
children
formerly
born
are
Freemen
and
no
Villains
,
because
they
were
free
by
their
own
births
,
but
the
Inheritance
is
inthralled
,
because
it
is
to
come
to
the
Heir
by
descent
:
So
that
I
am
of
opinion
,
that
if
E.
had
otherwise
been
a
competent
Freeman
,
as
he
was
not
,
then
the
Exilement
of
his
father
could
not
have
disabled
him
.
Our
Freeman
which
this
Statute
speaketh
of
,
must
not
only
be
Free
of
the
City
or
Borough
,
but
he
must
also
there
be
resciant
;
for
these
words
are
materially
placed
in
the
said
Law
,
and
here
E.
was
the
son
of
D.
a
Free
Citizen
of
Lincoln
,
who
did
there
reside
and
dwell
,
and
every
childe
is
part
of
the
fathers
family
,
for
the
Husband
and
Wife
,
Father
and
Children
,
Master
and
Servant
are
of
a
Family
;
and
a
Ward
is
part
of
his
Gardians
family
:
But
in
our
case
when
D.
was
Banished
,
he
then
forewent
his
local
Habitation
,
and
so
his
said
son
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
requireth
an
actual
habitation
or
resciancy
,
and
not
a
Mathematical
or
Imaginary
resciancy
,
such
a
one
as
was
in
Geffries
Case
in
Cooks
5
Report
;
for
there
the
case
was
,
That
one
did
personally
and
locally
dwell
and
reside
at
Dale
and
occupied
Lands
in
Sale
;
here
the
party
was
in
Law
,
but
not
in
fact
,
an
Inhabitant
in
Sale
,
and
was
there
assessed
as
an
Inhabitant
to
the
repair
of
that
Church
;
But
this
Commissioner
of
ours
is
bound
to
such
resciancy
as
a
Minister
is
to
his
resciancy
,
which
in
Butler
and
Goodhals
Case
in
Cooks
Report
ought
to
be
locally
and
personally
abiding
in
the
Parish
where
his
Parsonage
or
Vicarage
house
is
,
for
resciancy
or
residency
have
a
like
signification
,
and
be
both
of
them
words
of
that
efficacy
,
as
they
tie
a
man
to
his
personal
and
actual
abode
and
habitation
with
their
family
:
But
put
the
case
that
in
Lincoln
there
be
places
exempt
out
of
the
Freedom
of
the
City
,
and
yet
within
the
Circle
of
the
Walls
,
as
Saint
Martins
doth
in
London
,
I
take
it
if
a
Freeman
dwell
there
,
this
is
no
resciancy
intended
within
this
Statute
,
because
the
words
of
our
Law
be
,
That
he
be
Resciant
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
not
extend
to
Saint
Martins
,
because
it
was
In
but
not
Of
London
,
Doctor
Graunts
Case
,
Cooks
11
Report
.
Our
Freeman
must
also
have
in
clear
moveable
substance
to
the
value
of
a
hundred
pounds
;
this
word
(
Substance
)
would
have
extended
as
well
to
ones
real
Estate
as
to
his
personal
,
if
it
had
gone
alone
;
but
being
coupled
with
the
word
Moveable
,
declares
plainly
that
it
onely
extends
to
the
personal
Estate
:
And
I
take
it
,
that
these
words
(
Moveable
substance
)
doth
not
onely
contain
and
extend
to
such
things
Quae
dese
movere
possint
,
as
live
goods
,
Horses
,
Oxen
,
Sheep
,
and
such
like
,
but
also
to
such
things
quae
de
se
movere
non
possint
,
as
Plate
,
Jewels
,
ready
money
,
Utensils
of
house
,
Mercery
,
Drapery
,
and
other
wares
and
goods
of
value
,
Hay
,
Corn
,
goods
of
Husbandry
,
and
Housewifery
;
but
Birds
and
Beasts
of
Parks
and
Warrens
,
and
Doves
in
Dovehouses
,
be
not
valueable
sustance
;
a
Hive
of
Bees
,
and
a
Villain
for
years
,
and
a
Captive
taken
in
the
Wars
be
,
for
there
shall
be
paid
for
him
a
Ransom
,
as
is
mentioned
in
the
Register
,
fol.
102.
Moneys
due
upon
Statutes
,
Judgements
,
Recognizances
,
Bonds
,
Bills
or
Contracts
,
be
not
valueable
substances
within
this
Statute
;
for
by
this
Statute
it
must
be
clear
,
and
not
doubtful
or
accidental
,
as
Moneys
out
of
hand
be
,
which
is
like
to
a
Bird
in
the
Bush
;
yet
these
be
all
valueable
,
and
are
valued
in
Inventories
taken
in
the
Ecclesiastical
Courts
:
But
yet
the
Executors
or
Administrators
shall
not
be
charged
for
assets
for
them
,
till
they
have
received
them
:
And
in
25
H.
8.
in
Dier
,
fol.
5.
Obligations
are
not
held
valueable
,
but
things
in
action
;
and
if
one
Neither
do
the
goods
of
the
Church
inable
the
Parson
,
Vicar
or
Curate
,
nor
the
goods
of
a
Corporation
do
not
inable
the
Major
and
Aldermen
,
or
Citizens
of
a
City
,
or
Town
Corporate
,
for
these
do
not
belong
to
their
particular
persons
,
neither
did
this
stock
in
my
case
,
which
is
demised
to
B.
and
C.
make
them
competent
Commissioners
within
this
Statute
,
because
they
had
not
the
property
therein
,
but
onely
the
use
and
occupation
thereof
.
And
although
in
this
Statute
it
is
not
declared
in
what
place
these
goods
which
should
inable
a
man
to
be
a
Commissioner
of
Sewers
should
be
in
,
it
will
suffice
if
the
party
have
them
in
any
place
within
the
Realm
,
for
this
very
Law
calls
them
Moveable
substance
:
And
herein
I
end
my
Free
Citizen
,
and
in
my
opinion
E.
had
neither
Freedom
in
his
person
,
nor
real
Estate
in
Land
,
nor
moveable
substance
in
any
sort
to
make
him
a
competent
Commissioner
within
this
Law
;
yet
if
a
Freeman
be
destitute
of
goods
,
or
want
perfection
in
his
Freedom
,
if
notwithstanding
he
have
Lands
to
the
value
of
forty
Marks
per
annum
,
then
he
shall
be
allowed
a
Commissioner
within
this
Statute
:
Touching
which
point
of
Lands
I
now
intend
to
proceed
in
.
In
the
handling
of
this
matter
it
is
to
be
considered
,
which
be
Hereditaments
within
this
Law
;
for
the
other
two
words
Lands
and
Tenements
need
no
exposition
;
wherein
I
am
of
opinion
,
That
Messuages
,
Cortages
,
To●●s
,
Crofts
,
Houses
,
Land
,
Meadow
,
Pasture
,
Feedings
,
Moors
,
Marishes
,
Heaths
,
Furs
,
Mills
,
Orchards
,
Gardens
,
Hopyards
,
Rents
of
Annuities
,
Prima
vestura
terrae
,
Pischaries
,
Tythes
,
Pensions
,
Portions
,
Proxies
,
Parks
,
Warrens
are
all
of
them
Hereditaments
within
this
part
of
this
Law
,
for
the
word
Hereditament
is
a
word
of
the
larger
size
and
largest
extent
in
our
Law
,
being
Omne
quod
Haereditari
potest
;
and
yet
every
Hereditament
is
not
within
this
branch
,
for
it
hath
two
other
words
joyned
therewithal
(
videlicet
)
yearly
value
:
And
therefore
Franchises
and
Liberties
,
as
Waifs
,
Strayes
,
Felons
goods
,
Deodans
,
Fines
,
Amerciament
,
Profits
of
Courts
,
Fairs
,
Markets
,
Ferries
,
Hundreds
,
Leets
,
and
such
like
,
are
all
of
them
out
of
this
Statute
in
this
point
,
because
they
be
not
of
a
certain
yearly
value
,
but
be
accidental
and
depend
in
contingency
,
by
the
opinion
in
Butler
and
Bakers
Case
Cooks
3
Report
;
But
as
it
is
there
said
,
If
these
things
have
heretofore
been
usually
letten
and
demised
for
certain
yearly
Rents
,
then
they
may
be
Hereditaments
of
clear
yearly
value
within
this
Law
.
All
Offices
and
Vocations
,
as
Physitians
,
Chyrurgions
or
Trades
,
as
Merchants
,
Mercers
,
Grocers
,
Drapers
,
and
such
like
,
be
neither
Hereditary
,
nor
of
certain
yearly
value
,
and
therefore
they
be
not
within
this
Law
,
though
perhaps
one
gain
thereby
Five
hundred
pounds
per
annum
.
Also
dry
reversions
or
remainders
depending
upon
Estates
for
lives
are
out
of
this
branch
,
for
the
words
of
the
Statute
be
(
having
)
which
is
in
praesenti
and
not
futuro
.
Neither
is
an
Advowson
of
force
in
this
point
,
though
it
be
assets
in
a
Formdon
,
yet
it
is
no
assets
in
an
Action
of
debt
brought
against
Executors
;
Homages
,
Fealties
,
Escuages
,
Heriots
,
Reliefs
,
Nomine
paenes
,
and
such
like
,
be
Hereditaments
,
but
because
they
are
not
of
yearly
value
,
they
are
not
therefore
within
this
Law
.
Also
if
a
Commissioner
of
Sewers
be
seised
of
a
Rent
or
Annuity
payable
every
second
year
,
it
doth
not
inable
him
to
sit
because
it
is
not
Annual
,
which
is
intended
yearly
,
and
every
year
,
as
the
Pryor
of
Plymptons
Case
in
Dier
,
fol.
133.
is
,
but
if
one
do
grant
to
I.
S.
an
Annuity
or
Rent
of
Forty
Marks
in
Fee
,
payable
at
the
feast
of
Easter
yearly
,
if
the
grantee
will
then
come
for
it
to
such
a
place
,
is
of
certain
yearly
value
within
this
Law
.
But
put
the
case
that
A.
is
seised
of
Land
in
Fee
,
and
grant
to
B.
Forty
Marks
per
annum
for
his
life
only
;
I
am
of
opinion
that
B.
is
no
sufficient
qualified
Commissioner
within
this
Law
.
But
if
A.
be
seised
of
a
Rent
of
Forty
Marks
per
annum
in
Fee
,
and
he
grant
the
same
to
B.
for
his
life
,
he
is
a
competent
Commissioner
within
this
Law
differentia
apparet
.
Our
Statute
goeth
on
in
these
words
,
That
the
Commissioner
which
would
sit
without
exception
,
must
have
in
Lands
,
Tenements
or
Hereditaments
of
the
clear
yearly
value
of
Forty
Marks
to
his
own
use
;
Therefore
a
man
seised
of
Lands
to
that
value
in
the
right
of
his
wife
,
although
he
take
the
Rents
and
Profits
to
his
own
use
,
yet
this
will
not
inable
him
to
be
a
Commissioner
within
this
Law
,
but
he
must
have
them
in
ejus
usu
&
ad
ejus
usum
.
A
Feoffee
to
a
use
before
the
Statute
of
27
H.
8.
of
uses
,
was
no
competent
Commissioner
within
our
Statute
,
for
he
had
the
Land
then
to
another
mans
use
;
Neither
was
Cestui
que
use
sufficiently
qualified
to
be
a
Commissioner
.
Two
Tenants
in
common
,
or
coparceners
of
Forty
pounds
Lands
per
annum
are
neither
of
them
of
sufficient
ability
to
be
Commissioners
within
this
Law
.
And
the
like
Law
is
of
two
Joyntenants
of
Land
of
that
yearly
value
,
for
though
they
be
seised
per
my
and
per
tout
,
yet
in
truth
,
and
in
a
legal
construction
,
either
of
them
be
seised
but
of
a
moyety
:
So
that
if
two
Joyntenants
,
Tenants
in
common
,
or
coparceners
be
seised
of
Lands
of
the
yearly
value
of
Threescore
pounds
,
either
of
them
may
sit
by
this
Commission
.
A
Dean
and
Chapter
,
Major
and
Commonalty
,
Master
of
a
Colledge
and
Fellows
,
which
be
seised
of
Lands
and
Tenements
of
the
yearly
value
of
a
Hundred
pounds
per
annum
are
not
in
respect
thereof
to
sit
.
If
a
Bishop
,
Dean
,
Chancellor
,
Archdeacon
,
Prebend
,
Parson
or
Vicar
be
seised
of
Lands
in
Jure
Ecclesiae
of
the
clear
yearly
value
of
Forty
Marks
,
I
suppose
these
may
sit
Commissioners
by
this
Statute
,
for
they
have
these
Lands
in
eorum
usu
during
the
time
they
continue
in
their
places
,
which
in
intendment
of
Law
is
for
their
lives
;
but
yet
by
the
intendment
of
Law
they
are
not
to
sit
in
the
execution
of
any
humane
affairs
,
and
therefore
seeing
their
persons
are
out
of
the
intendment
of
this
Law
,
so
likewise
should
their
Church
livings
be
:
but
this
is
but
a
conceit
,
for
although
they
be
not
persons
having
these
Lands
within
the
Statute
of
32
H.
8.
of
Wills
,
which
is
a
having
to
dispose
,
yet
they
may
be
within
our
Statute
,
which
is
a
having
to
retain
.
If
an
Executor
have
a
Villain
for
years
which
purchaseth
Land
of
Forty
Marks
per
annum
,
he
may
sit
in
the
execution
of
this
Commission
,
for
till
his
Lord
enter
he
hath
them
to
his
own
use
;
but
if
the
Executor
enter
,
then
neither
the
Villain
nor
Executor
can
sit
a
Commissioner
by
this
Law
.
If
an
Alien
purchase
Lands
of
sufficient
value
in
Fee
,
he
in
respect
of
his
person
is
a
disabled
person
to
sit
,
neither
is
he
a
person
having
Lands
,
because
he
is
not
seised
thereof
to
his
own
use
,
but
to
the
use
of
the
King
;
But
if
he
be
made
a
Denizen
,
then
in
his
person
he
is
made
capable
.
The
Warden
of
the
Fleet
who
hath
Lands
belonging
to
his
Office
,
may
in
respect
thereof
sit
a
Commissioner
by
this
Law
.
But
shall
a
Termor
or
Lessee
for
years
of
Land
of
good
value
be
thrust
out
of
Commission
,
and
be
counted
neither
a
sufficient
Landed
man
,
nor
his
Term
and
Lease
to
be
accepted
moveable
substance
,
and
not
only
so
,
but
that
his
Farm
shall
be
a
further
disablement
unto
him
,
as
the
Statute
of
13
El.
cap.
9.
seemeth
to
purport
;
the
words
of
which
Statute
be
,
That
no
Farmer
or
Farmers
for
Term
of
years
,
of
any
Maners
,
Lands
or
Tenements
,
lying
or
being
within
the
Precincts
or
Limits
of
any
such
Commission
of
Sewers
,
which
be
or
which
hereafter
may
be
ordered
and
chargeable
by
any
Laws
,
Ordinances
and
Constructions
made
or
to
be
made
by
vertue
of
any
such
Commission
wherein
he
or
they
shall
be
named
or
appointed
Commissioner
or
Commissioners
,
not
having
Estate
in
Freehold
within
the
Realm
,
of
or
in
Manors
,
Lands
or
Tenements
of
the
yearly
value
of
Forty
pounds
,
shall
any
time
hereafter
have
power
to
sit
,
or
in
any
wise
intermeddle
with
the
execution
of
such
Commission
or
Commissions
,
during
the
time
he
or
they
shall
continue
or
be
such
Farmer
or
Farmers
of
any
such
Maner
,
Lands
and
Tenements
,
and
shall
not
have
Estate
of
Freehold
as
aforesaid
;
but
that
every
such
Commission
having
respect
only
to
every
such
person
or
persons
for
such
and
so
long
time
as
he
or
they
shall
be
or
continue
Farmer
or
Farmers
of
any
such
Manors
,
Lands
or
Tenements
,
shall
be
denied
and
judged
in
Law
as
void
.
But
yet
in
the
closing
up
of
that
Statute
of
13
El.
there
is
a
Proviso
to
this
effect
,
Provided
always
,
that
it
shall
be
lawful
for
any
Commissioner
,
being
also
a
Farmer
,
and
not
having
Lands
or
Tenements
to
the
clear
yearly
value
of
Forty
pounds
of
Freehold
,
to
sit
by
vertue
of
the
said
Commission
,
and
have
his
voice
and
full
authority
with
others
to
make
and
establish
Ordinances
for
Sewers
,
according
to
the
Tenure
of
the
Commission
touching
and
concerning
all
Lands
and
Tenements
within
the
Precinct
of
every
such
Commission
,
other
then
such
Lands
and
Tenements
as
he
or
they
for
the
time
hold
and
enjoy
as
Farmer
,
as
he
or
they
might
have
done
before
the
making
of
that
Statute
;
but
he
could
not
have
sitten
in
execution
of
this
Commission
before
the
making
of
this
Statute
,
unless
he
had
besides
his
lease
Lands
to
the
value
of
Forty
Marks
per
annum
:
And
therefore
a
Lease
for
years
is
no
inablement
at
all
,
but
a
disablement
,
as
this
Statute
declares
.
But
the
times
when
this
having
of
Lands
,
&c.
will
suffice
to
qualifie
a
Commissioner
to
sit
within
this
Law
,
is
now
to
be
considered
of
,
wherein
I
am
opinion
,
that
the
When
having
must
be
referred
to
the
Then
sitting
:
For
the
words
of
the
Statute
be
,
That
none
take
upon
him
to
sit
,
not
having
Lands
to
the
yearly
value
of
Forty
Marks
;
so
that
if
he
have
not
Lands
of
that
value
when
he
is
first
made
a
Commissioner
,
yet
if
he
have
so
much
when
he
sitteth
upon
the
Commission
it
will
satisfie
this
Law
;
and
if
once
he
have
Land
of
that
value
and
sitteth
,
and
after
sell
the
Land
away
,
or
if
they
be
evicted
from
him
,
he
is
then
disabled
to
sit
as
a
Commissioner
by
this
Statute
:
And
so
if
he
were
but
Tenant
for
the
life
of
I.
S.
and
I.
S.
dieth
,
he
ought
not
to
sit
:
In
12
H.
7.
7.
a
Juror
which
was
to
pass
upon
tryal
of
Land
was
to
have
Forty
shillings
per
annum
of
Freehold
,
and
That
none
do
presume
to
sit
,
unless
he
have
Lands
of
that
value
,
or
be
,
&c.
therefore
when
he
sits
he
must
have
the
Lands
.
And
if
A.
do
bargain
and
sell
his
Lands
to
B.
by
Deed
intended
of
that
value
,
and
before
the
Inrolment
of
the
Deed
B.
do
sit
as
Commissioner
,
and
after
the
Deed
is
Inrolled
,
yet
this
doth
not
qualifie
his
offence
,
and
the
relation
of
the
working
of
this
Deed
doth
not
assist
him
to
take
off
the
penalty
of
this
Law
.
Also
a
man
disseised
is
during
the
Disseisin
disabled
to
sit
,
for
he
had
not
then
power
to
devise
the
Lands
by
the
Statute
of
32
H.
8.
of
Wills
,
for
that
Statute
doth
as
ours
doth
,
use
the
word
Having
in
presenti
,
and
not
in
futuro
.
And
thus
much
I
thought
convenient
upon
this
occasion
to
deliver
my
opinion
,
when
the
Commissioner
must
have
his
Lands
of
Forty
Marks
per
annum
to
inable
him
to
sit
as
a
Commissioner
within
this
Statute
.
To
Treat
of
the
utter
Barister
I
need
not
,
for
when
he
hath
taken
the
Oath
mentioned
in
the
Statute
,
he
is
an
absolute
and
compleat
Commissioner
within
this
Law
,
to
all
purposes
,
although
he
have
neither
Lands
or
Goods
,
according
as
the
Statute
appointeth
others
to
have
.
The
second
question
.
The
second
question
in
my
case
touching
this
Statute
,
is
,
Whether
the
Countess
of
Warwick
be
a
compatible
Commissioner
within
this
Statute
.
Although
it
is
uncouth
in
our
Law
to
have
women
Justices
and
Commissioners
,
and
to
sit
in
places
of
Judicature
,
yet
by
the
Authorities
ensuing
you
shall
finde
this
a
point
worth
insisting
upon
,
both
in
Humane
and
in
Divine
learning
;
for
in
Genesis
,
Chapter
the
first
,
after
the
creation
Let
us
make
man
in
our
own
Image
,
after
our
likeness
,
and
let
him
have
Dominion
over
the
fish
of
the
Sea
,
and
over
all
the
Earth
,
and
every
creeping
thing
that
creepeth
upon
the
Earth
:
So
God
Created
man
in
his
own
Image
,
in
the
Image
of
God
Created
he
him
,
Male
and
Female
Created
he
them
;
and
said
unto
them
,
Be
fruitful
and
multiply
,
and
replenish
the
earth
,
and
subdue
it
,
and
have
Dominion
over
the
fish
of
the
Sea
,
and
over
the
foul
of
Heaven
,
and
over
every
living
thing
that
moveth
upon
the
earth
:
This
was
the
first
Commission
that
ever
was
granted
,
and
it
passed
under
the
Divine
immediate
Seal
of
the
Almighty
,
&
extended
over
the
whole
world
;
and
by
the
vertue
of
the
word
Dominamini
in
the
Plural
number
,
God
coupled
the
woman
in
Commission
with
the
man
.
But
in
the
18
Chapter
of
Exodus
,
Verse
21.
Jethro
adviseth
and
counselleth
to
provide
out
of
all
the
people
men
of
truth
,
hating
covetousness
,
and
place
such
over
them
to
be
Rulers
of
Thousands
,
Rulers
of
Hundreds
and
over
Fifties
&
Tens
;
where
by
the
word
Men
twice
repeated
by
Jethro
,
and
this
place
of
Scripture
seemed
to
exclude
wholly
from
Government
,
and
the
former
Commission
extended
over
Fishes
,
Birds
and
Beasts
,
and
neither
over
men
nor
women
:
And
in
the
first
of
the
Corinthians
,
Chapter
14.
it
is
said
by
Saint
Paul
,
Let
the
women
keep
silence
in
the
Churches
,
for
it
is
not
permitted
to
them
to
speak
.
And
in
Grendons
Case
in
the
Comment.
fol.
497.
Dyer
saith
,
That
women
could
not
administer
the
Sacraments
,
nor
were
they
permitted
to
say
Divine
Service
.
And
in
the
second
Chapter
of
Timothy
,
Verse
12.
he
saith
,
We
suffer
not
the
woman
to
rule
over
the
man
;
but
this
last
of
Timothy
may
be
most
aptly
applyed
to
husband
and
wife
.
I
remember
out
of
the
Abbey
Book
of
Evesham
this
Note
worthy
of
observation
,
Quod
Alicia
Peeres
Regis
miniona
supra
modum
mulierum
nimis
supergressa
,
sui
etiam
sexus
&
fragilitatis
feminiae
Immemor
,
nunc
Justiciarios
Regis
,
nunc
in
foro
ecclesiastico
juxta
doctores
sedendo
,
&
pro
defensione
causarum
suadere
&
etiam
contra
jus
postulare
minime
verebatur
,
unde
propter
scandalum
petierunt
à
rege
in
Parliament'
tent
'
An.
50.
Ed.
3.
penitùs
amoveri
;
but
hereby
I
collect
,
that
she
was
not
in
Commission
with
the
Judges
Temporal
or
Spiritual
,
but
was
a
favorite
of
the
Kings
,
and
took
upon
her
to
intermeddle
in
businesses
nothing
concerning
her
:
But
whether
the
Text
meant
it
for
a
woman
to
sit
Judge
in
a
Court
of
Justice
,
was
contra
modum
mulierum
,
or
because
she
sate
there
to
wrest
righteous
Judgement
,
I
refer
to
the
readers
of
that
History
;
For
Debora
was
Judge
of
Israel
,
and
Judged
the
people
as
the
fourth
of
Judges
hath
it
.
Dyer
indeed
saith
in
Grendons
Case
,
That
divers
Churches
were
appropriated
to
Prioresses
and
Nanneries
,
whereof
women
were
the
Governesses
;
whereby
and
by
the
said
Chapter
of
the
Corinthians
it
appears
,
that
women
might
be
admitted
to
have
Rule
and
Government
over
the
possessions
and
persons
Temporal
and
Ecclesiastical
,
but
were
not
admitted
to
have
curam
animarum
,
nor
to
meddle
with
the
administration
of
the
Service
or
Sacraments
.
And
for
Temporal
Governments
,
I
have
observed
women
to
have
from
time
to
time
been
admitted
to
the
highest
places
;
For
in
ancient
Roman
Histories
I
finde
Endochia
and
Theodora
admitted
at
several
times
into
the
sole
Government
of
the
Empire
:
and
here
in
England
our
late
famous
Queen
Elizabeth
whose
Government
was
most
renowned
:
And
Semiramis
governed
Syria
;
and
the
Queen
of
the
South
which
came
to
visit
Solomon
,
for
any
thing
that
appears
to
the
contrary
,
was
a
sole
Queen
:
And
to
fall
a
degree
lower
,
we
have
presidents
that
King
Richard
the
first
,
and
King
Henry
the
fifth
appointed
and
deputed
by
Commissions
their
Mothers
to
be
Regents
of
this
Realm
in
their
absence
in
France
:
And
the
wise
and
renowned
Lady
Margaret
,
Countess
of
Richmond
was
put
in
Commission
,
and
Humfrey
de
Bohune
Earl
of
Hereford
was
by
Tenure
Constable
of
England
,
which
is
a
Judge
in
Martial
affairs
,
and
he
died
without
issue
Male
,
by
reason
whereof
the
Office
(
amongst
other
things
)
descended
to
his
two
Daughters
and
Co-heirs
:
And
in
the
12
of
Elizabeth
,
in
Dier
,
it
is
holden
for
Law
,
That
although
this
was
an
Office
of
Justice
,
yet
they
might
execute
the
same
by
deputy
;
for
in
truth
women
were
unfit
Martialists
to
judge
of
matters
of
that
nature
;
and
yet
it
is
clear
,
a
deputy
doth
nothing
in
his
own
name
,
but
in
the
name
of
his
Master
or
Mistriss
,
therefore
the
Martial
Court
was
to
be
kept
in
their
names
:
But
yet
I
will
descend
a
step
lower
;
doth
not
our
Law
Temporal
and
Spiritual
admit
of
women
to
be
Executrixes
and
Administratrixes
?
and
hereby
they
have
the
rule
or
ordering
of
great
Estates
,
and
many
times
they
are
Gardianesses
in
Chivalry
,
and
have
thereby
also
the
government
of
many
great
Heirs
in
the
Kingdom
,
and
of
their
Estates
.
And
in
10
H.
7.
a
man
devised
his
Lands
to
be
sold
by
a
Commission
of
Sewers
shall
be
granted
by
the
King
to
such
person
and
persons
as
the
said
Lords
should
appoint
;
So
the
words
persons
stands
indifferently
for
either
Sex
;
And
therefore
although
by
the
weakness
of
their
Sex
they
are
unfit
to
travel
,
and
they
be
for
the
most
part
uncapable
of
learning
to
direct
in
matters
of
Judicature
,
for
which
causes
they
have
been
discreetly
spared
,
yet
I
am
of
opinion
,
for
the
authorities
,
reasons
and
causes
aforesaid
,
that
this
honorable
Countess
being
put
into
Commission
of
the
Sewers
,
the
same
is
warrantable
by
the
Law
;
and
the
Ordinances
and
Decrees
of
Sewers
made
by
her
and
the
other
Commissioners
of
Sewers
,
are
not
to
be
impeached
for
that
cause
of
her
Sex
.
And
I
conclude
here
,
that
although
in
discretion
women
have
been
secluded
as
unfit
,
yet
they
are
not
in
Law
to
be
excluded
as
uncapable
.
If
an
Infant
above
the
age
of
Fourteen
,
and
under
the
age
of
One
and
twenty
be
made
a
Commissioner
,
his
infancy
shall
be
no
cause
to
disable
the
Laws
made
by
him
;
yong
Daniel
was
Judge
over
both
the
Elders
.
And
in
Little
Brook
,
fol.
The
case
is
,
a
Parson
or
Prebend
being
within
age
made
a
Lease
for
years
of
his
benefice
,
and
would
but
could
not
after
avoid
it
for
his
Nonage
,
for
seeing
the
Church
had
made
him
of
full
age
to
discharge
the
spiritual
Office
,
our
Common
Law
thought
it
fit
to
inable
him
to
dispose
of
his
Temporalties
:
and
in
21
H.
7.
fol.
12
&
13.
I
will
give
them
children
to
their
Princes
,
and
babes
to
rule
over
them
;
noting
thereby
an
unfitness
in
them
to
govern
,
but
debarred
them
not
of
the
place
:
and
of
this
matter
this
shall
suffice
.
But
now
admit
,
as
oftentimes
it
falls
out
,
that
Commissioners
shall
sit
in
the
execution
of
this
Commission
of
Sewers
,
which
have
not
taken
the
Oath
,
which
have
not
Lands
of
value
,
or
which
is
not
a
free
Citizen
,
and
yet
there
be
Ordinances
,
Decrees
,
and
Laws
made
at
those
times
;
Now
whether
those
Laws
and
Ordinances
so
made
by
a
disabled
Commissioner
be
void
or
not
,
is
the
question
;
or
whether
the
disabled
Commissioner
shall
only
undergo
the
penalty
of
Forty
pounds
.
There
was
a
Statute
made
in
6
H.
8.
cap.
10.
whereby
it
That
the
Chancellor
of
England
for
the
time
being
should
make
no
Commission
to
any
person
or
persons
(
except
he
had
Lands
and
Tenements
of
Estate
of
Freehold
to
the
yearly
value
of
Twenty
pounds
,
or
else
be
Justice
of
the
Quorum
)
within
any
of
the
shires
where
he
should
be
made
a
Commissioner
;
and
if
any
such
Commission
were
directed
to
any
person
or
persons
not
having
Lands
or
Tenements
to
the
yearly
value
of
Twenty
pounds
,
or
not
being
one
of
the
Justices
learned
of
the
Quorum
,
as
aforesaid
,
That
then
every
such
Commission
,
and
all
Presentments
and
Accusations
had
and
presented
before
any
such
Commissioners
,
be
utterly
void
and
of
none
effect
.
But
this
Statute
is
in
time
expired
long
ago
,
and
therefore
it
is
no
interruption
to
our
Commissioner
;
for
although
the
Statute
of
23
H.
8.
which
I
read
on
hath
a
Clause
in
it
in
effect
,
That
all
&
every
Statute
and
Ordinance
heretofore
made
concerning
the
Premises
,
made
in
the
time
of
the
said
King
,
or
of
any
of
his
Progenitors
,
not
being
contrary
to
that
Statute
,
should
stand
in
force
;
yet
these
words
do
not
set
on
foot
a
Statute
expired
in
time
,
as
that
of
6
H.
8.
is
:
Also
in
the
said
Statute
of
13
Eliz.
if
a
Termor
or
Lessee
for
years
be
in
Commission
,
all
Laws
made
which
concern
Lands
whereof
he
is
a
Farmer
are
void
as
to
him
vide
antea
.
But
to
relie
on
our
Statute
of
23
H.
8.
in
my
opinion
it
But
now
my
case
proceeds
to
the
next
point
or
step
,
and
that
is
touching
the
Law
and
Ordinance
made
to
race
the
said
Were
;
I
inferred
this
clause
in
my
case
,
because
I
had
not
formerly
occasion
or
fit
opportunity
to
treat
of
the
Lets
,
Impediments
and
Annoyances
which
be
contained
within
this
Statute
of
23
H.
8.
and
therefore
I
took
this
occasion
to
close
up
this
days
exercise
with
the
discourse
of
them
.
These
by
name
are
such
Impediments
&
Annoyances
as
this
Statute
speaketh
of
,
-
1.
Streams
.
-
2.
Mills
.
-
3.
Bridges
.
-
4.
Ponds
.
-
5.
Fishgarths
.
-
6.
Mildams
.
-
7.
Locks
.
-
8.
Hebbingweres
.
-
9.
Hecks
,
and
-
10.
Floodgates
.
And
the
rest
must
be
cōprised
within
these
general
words
(
videlicet
)
Other
like
Lets
and
Impediments
.
And
the
discourse
upon
all
these
will
rest
most
upon
the
Statutes
heretofore
made
touching
the
same
.
And
the
first
Statute
thereof
made
is
in
Magna
Charta
,
Mag.
Chart.
cap.
23.
cap.
23.
Omnes
kidelli
deponantur
de
cetero
penitus
per
Thamesiam
&
Medweyam
&
per
totam
Angliam
nisi
per
costeram
maris
;
keddles
per
keble
in
13
H.
7.
35.
what
this
word
kidellum
signifieth
,
appeareh
by
the
title
of
that
Statute
,
which
is
Weres
.
The
next
Statute
to
this
is
,
25
Ed
3.
cap.
4.
which
doth
Enact
,
That
all
Mills
,
Weres
,
Stanks
,
Stakes
&
Kiddels
were
levied
and
set
in
the
time
of
King
Edward
(
that
Kings
Grandfather
)
and
after
,
whereby
Ships
and
Boats
were
disturbed
,
that
they
might
not
pass
the
Rivers
as
they
were
wont
,
should
be
cut
and
pulled
down
without
being
relieved
.
The
said
first
Statute
is
general
,
that
all
Weres
should
be
put
down
but
by
the
Seacosts
,
yet
this
word
(
All
)
are
intended
of
such
only
as
were
erected
without
lawful
Warrant
;
and
the
said
Statute
of
25
Ed.
3.
doth
explain
the
generality
of
the
said
former
Statute
;
For
thereby
it
appears
,
That
Weres
erected
in
Navigable
Rivers
where
Ships
and
Boats
were
wont
to
sail
,
should
be
extirped
,
because
they
were
a
hinderance
to
Navigation
;
but
this
extends
only
to
Navigable
Streams
which
have
been
Navigable
by
use
and
Custom
;
and
it
is
manifest
by
this
Statute
,
that
these
Weres
which
were
so
to
be
put
down
must
be
only
such
as
were
erected
in
the
time
of
Ed.
the
first
and
sithence
,
because
those
seemed
to
be
erected
without
lawful
authority
,
and
being
but
erected
in
those
times
,
they
had
not
the
countenance
of
Custom
and
Prescription
to
strengthen
them
.
The
next
Statute
in
time
is
that
of
45
Ed.
3.
cap.
2.
which
confirms
the
said
Statute
of
25.
Ed.
3.
and
then
adding
thereto
,
that
if
any
such
annoyance
be
done
,
it
shall
be
pulled
down
,
and
that
he
which
shall
relevy
such
annoyance
,
and
be
thereof
duly
attainted
,
he
shall
incur
the
penalty
of
One
hundred
Marks
to
the
King
,
to
be
levied
by
the
Estreats
of
the
Exchequer
;
and
the
penalty
is
thereby
given
for
the
inhauncing
of
such
Weres
,
Mills
,
Stanks
,
Stakes
and
Kiddels
:
This
Statute
is
in
part
a
confirmation
of
the
said
Statute
of
25
Ed.
3.
and
in
other
part
thereof
it
is
a
new
First
,
in
the
forfeiture
of
a
Hundred
Marks
.
Secondly
,
this
is
the
first
Statute
in
my
opinion
made
against
inhauncing
of
such
things
which
are
counted
annoyances
.
And
Thirdly
,
it
gives
the
like
penalty
against
him
which
shall
relevy
the
annoyance
,
as
against
the
inhauncer
:
And
because
this
Statute
depends
upon
the
said
Statute
of
25
Ed.
3.
it
extendeth
therefore
but
to
Navigable
Streams
.
The
Statute
of
1
H.
4.
cap.
12.
is
a
Statute
in
these
points
of
great
consequence
,
and
it
doth
also
confirm
the
said
two
former
Statutes
of
Ed.
3.
and
doth
thereto
also
make
additions
in
these
insuing
points
:
First
,
that
Justices
should
be
assigned
to
survey
and
keep
the
waters
and
great
Rivers
,
and
to
correct
and
amend
the
defaults
,
as
well
by
survey
,
advice
and
and
discretion
,
as
by
inquest
.
Secondly
,
to
survey
the
Weres
,
Mills
,
Stanks
,
Stakes
and
Kiddels
in
old
time
made
and
levied
before
the
time
of
Ed.
the
first
,
and
them
which
they
should
finde
too
much
inhaunced
or
straitned
,
to
correct
,
pull
down
and
amend
;
saving
always
a
reasonable
substance
of
Weres
,
Mills
,
Stanks
,
Stakes
and
Kiddels
so
in
old
time
made
and
levied
.
Thirdly
,
and
if
any
such
annoyances
of
Weres
,
Mills
,
Stanks
,
Stakes
and
Kiddels
of
passages
,
and
straitning
in
old
time
made
and
levied
,
be
adjudged
and
awarded
by
the
said
Justices
to
be
pulled
down
&
amended
,
he
that
hath
the
Freehold
of
the
same
shall
make
thereof
Execution
at
his
own
costs
within
half
a
year
after
notification
thereof
made
,
upon
pain
of
a
Hundred
Marks
;
and
he
which
shall
relevy
,
or
inhaunce
or
straiten
them
against
the
said
judgement
,
shall
forfeit
One
hundred
Marks
to
the
King
,
to
be
paid
into
the
Exchequer
.
Fourthly
,
and
he
which
shall
finde
himself
grieved
by
Execution
or
otherwise
in
this
behalf
against
right
and
reason
,
he
may
pursue
and
have
right
.
First
,
by
this
Statute
I
collect
these
matters
;
First
if
that
a
Were
,
Mill
,
Stank
,
Stake
or
Kiddel
be
newly
or
of
late
years
built
and
erected
in
any
Streams
without
Warrant
or
lawful
authority
,
the
same
may
be
caused
to
be
pulled
down
by
Order
of
the
Commissioners
of
Sewers
,
at
the
costs
of
the
party
which
erected
the
same
.
Secondly
,
If
Weres
,
Mills
,
Stanks
,
Stakes
or
Kiddels
have
stood
and
been
time
out
of
memory
in
Rivers
or
Streams
,
and
so
have
Warrant
from
Custom
and
Prescription
,
these
may
not
be
cut
up
or
pulled
down
by
the
Commissioners
of
Sewers
,
because
long
use
and
Custom
,
which
is
a
Law
of
this
Kingdom
,
hath
established
them
.
Thirdly
,
If
there
have
been
Weres
,
Mills
,
Stanks
,
Stakes
or
Kiddels
time
out
of
memory
in
Rivers
or
Streams
,
which
of
late
years
have
been
inhaunced
,
inlarged
,
or
otherwise
exceeded
the
ancient
size
and
accustomed
compasse
,
the
excesse
in
those
cases
is
only
to
be
abated
and
pulled
down
;
but
so
far
as
the
ancient
Size
did
extend
to
is
not
to
be
impeached
:
For
the
words
of
the
said
Statute
be
,
That
there
be
reserved
always
the
reasonable
substance
thereof
in
old
times
accustomed
.
And
in
my
opinion
the
generality
of
the
said
Statute
of
Magna
Chart.
cap.
23.
is
restrained
by
the
succeeding
Statutes
,
if
the
exposition
should
have
been
as
large
as
the
letter
is
.
And
these
three
distinctions
do
fully
declare
the
true
effect
of
the
said
preceding
Statutes
.
Then
next
in
Order
of
time
is
the
Statute
of
4
H.
4.
That
by
Weres
,
Stakes
and
Kiddels
in
the
water
of
Thames
,
and
in
other
great
Rivers
through
the
Realm
,
the
common
passage
of
Ships
and
Boats
be
disturbed
,
and
much
people
perished
;
and
also
the
yong
fry
of
fish
destroyed
,
and
against
reason
wasted
and
given
to
swine
to
eat
;
Therefore
this
Statute
Enacts
,
That
all
former
Statutes
thereof
made
be
holden
,
kept
and
put
in
execution
.
Here
be
two
things
which
none
of
the
former
Statutes
took
order
for
;
The
one
is
the
perishing
of
the
Kings
people
;
The
other
the
destroying
of
the
Fry
of
Fish
which
were
occasioned
by
the
erecting
of
these
Weres
,
Mills
,
&c.
Yet
these
are
businesses
which
are
otherwise
provided
for
,
and
be
not
pertinent
to
these
Laws
of
Sewers
:
And
therefore
I
shall
passe
them
over
without
any
other
further
explanation
thereof
.
The
Statute
of
12
H.
4.
cap.
7.
doth
confirm
all
the
said
former
Statutes
made
against
Lets
,
Impediments
and
Annoyances
;
That
if
contrary
to
the
Award
,
Rule
or
Judgement
of
the
Commissioners
made
according
to
the
Statute
of
1
H.
4.
it
be
found
,
that
any
Weres
,
Fishgarths
,
Mills
,
Mildams
,
Locks
,
Hebbingweres
,
Stakes
,
Kiddels
,
Hecks
or
Floodgates
be
made
,
levied
,
inhaunced
,
straitned
or
inlarged
against
the
said
Statute
,
the
offendors
therein
contrary
to
the
aforesaid
Award
,
Rule
and
Judgement
being
warned
by
the
Sheriff
or
under
Sheriff
of
the
County
upon
a
Scire
facias
to
that
purpose
directed
where
those
annoyances
be
,
and
within
three
Moneths
after
such
garnishment
do
not
wholly
amend
,
break
down
and
avoid
the
said
making
,
levying
and
inhauncing
,
straitning
or
inlarging
,
That
the
party
being
defective
in
that
behalf
shall
forfeit
One
hundred
Marks
to
the
King
,
to
be
levied
by
Estreats
out
of
the
Exchequer
;
and
if
the
Offendor
,
his
Heirs
,
Assignee
or
Assigns
,
or
any
of
them
do
defer
or
continue
the
same
default
,
contrary
to
the
Award
,
Rule
and
Judgement
of
the
Commissioners
,
he
or
they
shall
forfeit
One
hundred
Marks
,
the
one
moyety
to
the
King
,
the
other
moyety
to
the
party
that
will
sue
for
the
same
.
And
also
it
was
further
enacted
,
That
if
any
person
or
persons
,
other
then
such
against
whom
such
Award
,
Rule
or
Judgement
was
made
,
or
any
of
them
,
do
presume
to
occupy
or
continue
any
of
the
Weres
,
Fishgarths
and
Impediments
aforesaid
,
or
other
incumbrances
,
he
shall
forfeit
for
every
default
for
every
Moneth
One
hundred
Marks
,
the
one
half
to
the
King
,
the
other
half
to
the
party
that
will
sue
.
It
appeareth
,
that
this
Statute
speaketh
of
Milldams
,
Locks
,
Hebbingweres
,
Hecks
and
Floodgates
,
which
the
other
Statute
never
speaketh
of
;
so
in
extent
thereof
it
hath
more
inlargement
:
And
in
my
opinion
all
the
foresaid
Statutes
did
extend
only
to
Navigable
Streams
and
Rivers
,
with
ships
and
Boats
.
In
the
Tenth
Report
of
Sir
Edward
Cook
,
the
case
of
Chester
Mills
upon
the
River
of
Dee
,
was
as
insueth
,
That
a
Causey
or
Milstank
of
stone
in
the
River
of
Dee
,
in
the
City
of
Chester
,
was
made
and
erected
for
the
necessary
maintenance
of
certain
Mills
,
some
of
the
Kings
,
others
of
the
Subjects
,
which
stood
at
the
end
of
the
Causey
;
were
of
late
by
the
Decree
of
the
Commissioners
of
Sewers
Ordered
,
That
a
breach
therein
of
ten
Roods
or
Pearches
should
be
made
,
which
Causey
or
Milstank
was
by
the
agreement
of
all
parties
erected
before
the
time
of
Edw.
the
first
,
and
so
had
continuance
without
any
inhauncing
or
exaltation
:
And
whether
this
Decree
was
warranted
by
any
of
the
said
Statutes
or
not
,
was
the
question
,
which
was
referred
by
the
Lords
of
the
Counsel
to
the
two
Chief
Justices
,
Fleming
and
Cook
,
and
to
Tanfield
the
Lord
Cheif
Baron
,
to
be
considered
on
;
and
the
said
Chief
Justices
and
chief
Baron
declared
their
opinion
,
That
the
said
decree
was
not
warranted
by
any
of
the
said
Statutes
;
for
they
said
that
the
two
Statutes
of
25
Ed.
3.
&
45
Ed.
3.
extended
but
to
such
impediments
as
were
set
up
and
erected
in
the
time
of
Ed.
1.
and
after
;
and
that
the
generality
of
the
Statute
of
Mag.
Char.
,
cap.
23.
was
restrained
by
these
two
Statutes
;
And
that
the
Statute
of
1
H.
4.
extended
to
such
Weres
,
Kiddels
,
&c.
and
other
lets
as
were
erected
before
the
Raign
of
King
Ed.
the
first
,
and
which
have
been
inhanuced
and
exalted
sithence
,
and
so
was
out
of
all
those
Laws
,
because
there
was
no
such
inhauncing
.
And
the
Statute
of
23
H.
8.
which
I
now
read
on
,
did
not
alter
the
former
Statutes
in
these
points
;
But
provided
,
That
all
and
every
Statute
,
Act
and
Ordinance
heretofore
made
concerning
the
Premises
in
that
Act
recited
,
not
being
contrary
nor
before
then
repealed
,
should
stand
then
in
force
:
But
the
said
Judges
did
hold
opinion
,
that
all
the
said
Statutes
stood
unrepealed
,
and
acordingly
made
their
Report
to
the
Lords
of
the
Councel
.
There
be
many
private
Statutes
made
for
the
abating
private
Weres
in
some
Streams
which
are
not
within
my
intent
to
recite
,
further
then
by
naming
of
them
,
because
I
take
it
they
are
not
confirmed
by
the
Statute
I
read
on
;
As
11
H.
7.
cap.
5.
Southampton
:
14
H.
8.
cap.
13.
23
H.
8.
cap.
18.
Havens
:
25
H.
8.
cap.
7.
for
killing
Fry
of
Salmons
,
27
H.
8.
Rastal
Havens
9
,
10
,
11.
In
19
Jacobi
Regis
there
was
a
great
Cause
depending
in
the
Court
of
the
Dutchy
at
Westminster
,
between
Benedict
Hall
Esquire
,
Plaintiff
,
and
Iohn
Mason
,
George
Worral
,
and
Thomas
Powel
,
Defendants
;
which
was
in
effect
as
followeth
,
That
Queen
Mary
was
seized
of
the
Manor
of
Monmouth
,
with
the
Appurtenances
in
that
County
,
and
of
a
Free
fishing
in
the
River
of
Wye
,
and
of
a
Were
and
a
Fish
yard
there
,
which
were
erected
in
the
time
of
the
said
Queen
,
in
the
place
where
an
old
Foundation
of
an
ancient
Were
did
stand
:
This
Were
had
been
letten
by
the
said
Queen
,
and
also
by
Queen
Elizabeth
,
under
the
Seal
of
the
said
Dutchy
by
yearly
Rents
,
and
so
there
were
ancient
presidents
shewn
in
that
Court
,
whereby
it
appeared
,
that
the
ancient
Were
there
had
been
letten
to
Farm
by
the
Earls
and
Dukes
of
Lancaster
,
and
by
the
Kings
and
Dukes
for
a
long
time
for
yearly
Rents
:
So
that
it
was
manifest
that
it
was
an
ancient
Were
time
out
of
memory
:
And
this
Were
and
Fishyard
,
and
the
Profits
of
Fishing
were
letten
by
the
Kings
Majesty
that
now
is
,
under
the
Seal
of
the
Dutchy
of
Lancaster
,
in
the
Tenth
year
of
his
Raign
,
to
one
Iohn
Abrahall
Esquire
,
for
One
and
thirty
years
,
for
and
under
the
yearly
Rent
of
Six
pounds
thirteen
shillings
and
four
pence
payable
to
his
Majesty
his
Heirs
and
Successors
;
And
the
said
Abrahal
being
so
thereof
possessed
,
did
afterwards
in
the
Tenth
year
assign
the
same
to
one
William
Hall
Esquire
,
by
reason
whereof
the
said
William
Hall
was
thereof
possessed
;
and
in
the
12.
year
of
this
King
,
made
his
last
Will
and
Testament
,
and
did
thereby
ordain
the
complainant
his
Executor
,
and
after
dyed
;
by
and
after
whose
decease
the
Complainant
came
to
be
possessed
of
the
said
Lease
and
Term
therein
to
come
;
and
in
the
Nineteenth
Jacobi
Regis
,
the
Commissioners
of
Sewers
in
those
parts
caused
a
Jury
to
be
impanelled
and
sworn
;
touching
this
Were
&
Fishyard
,
and
gave
therein
a
Verdict
to
this
effect
;
that
is
,
That
Benedict
Hall
the
complainant
was
possessed
of
the
said
Were
,
called
Monmouth
Were
,
upon
the
River
of
Wye
,
which
was
excessive
high
and
hurtful
,
and
was
an
impediment
to
the
common
passage
of
Boats
,
Barks
and
Ballangers
up
and
down
the
said
River
,
and
by
means
thereof
they
could
not
passe
but
in
great
danger
,
which
if
the
said
Were
were
not
,
Boats
of
two
or
three
Tuns
might
passe
the
River
;
and
that
the
said
Were
had
been
the
death
&
drowning
of
one
of
the
Kings
Subjects
,
and
is
the
cause
of
the
scarcity
,
dearness
and
want
of
Salmons
,
and
other
fish
within
the
said
River
,
by
reason
many
of
them
were
taken
in
gins
of
the
said
Were
,
when
they
were
out
of
season
,
and
that
the
same
was
a
great
abuse
,
wrong
,
enormity
and
annoyance
to
the
whole
Country
.
Whereupon
the
said
Commissioners
made
an
Ordinance
or
Decree
,
setting
forth
thereby
in
effect
as
followeth
,
That
whereas
it
did
appear
to
them
,
as
well
by
the
examination
of
Witnesses
,
as
by
the
said
Verdict
of
the
Jurors
,
and
by
their
view
,
that
the
said
Were
was
a
great
let
and
hinderance
to
the
common
passage
of
Boats
and
Ballangers
up
and
down
the
River
,
indangering
of
the
lives
of
the
Kings
Subjects
,
and
to
the
destruction
of
Fish
,
as
the
Salmons
and
Fry
thereof
;
They
therefore
Ordered
,
That
the
said
Were
should
be
overthrown
,
and
that
the
Timber
and
Stone
thereof
should
be
removed
,
whereby
the
Channel
should
be
cleared
for
passage
of
Boats
;
And
accordingly
did
direct
their
Warrant
under
their
Hands
and
Seals
to
the
defendants
,
Authorizing
them
thereby
to
overthrow
the
said
Were
,
which
they
performed
accordingly
:
And
all
this
matter
of
the
verdict
of
the
Jury
,
and
Decree
of
the
Commissioners
were
set
forth
at
large
in
the
Defendants
answers
;
and
after
examination
and
publication
of
witnesses
,
the
Cause
came
to
be
heard
in
the
said
Dutchy
Court
before
Sir
Humfrey
May
Knight
,
Chancellor
of
the
Dutchy
,
Sir
John
Denham
Knight
,
one
of
his
Highness
Barons
of
the
Exchequer
,
an
assistant
to
that
Court
,
and
Sir
Tho:
Chamber
lain
Knight
,
one
of
the
Kings
Justices
of
his
Bench
,
another
assistant
of
the
said
Court
,
and
Sir
Edward
Mosley
Knight
,
Attorney
of
the
said
Court
,
who
were
of
opinion
,
That
the
said
Were
being
an
anclent
Were
by
Prescription
and
Custom
,
it
ought
not
to
have
been
overthrown
by
the
Decree
of
the
Commissioners
of
Sewers
,
and
that
the
said
verdict
of
the
Jurors
was
defective
,
because
though
they
presented
the
said
Were
to
be
over
high
and
inhaunced
,
yet
in
regard
they
did
not
present
in
quanto
nor
in
qua
parte
,
the
said
Were
was
inhaunced
above
the
ancient
assize
,
therefore
they
esteemed
the
said
Verdict
of
no
validity
.
But
now
it
comes
next
in
time
and
turn
to
declare
my
opinion
touching
and
concerning
Bridges
,
Mills
,
Mil-Dams
,
Milstanks
,
Floodgates
,
Hecks
,
Locks
and
Hebbingweres
,
which
in
the
said
Statutes
be
set
forth
for
Lets
,
Impediments
and
Annoyances
,
wherein
they
are
to
receive
their
exposition
according
to
the
said
cases
of
Weres
,
without
other
distinctions
;
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
Custom
,
confirmed
by
long
use
,
and
to
remain
established
without
overthrowing
or
destroying
:
But
if
they
have
been
inhaunced
or
inlarged
over
their
ancient
and
accustomed
assize
,
then
the
inlargement
and
excess
is
onely
to
be
abated
,
and
no
more
;
for
the
Statute
of
1
H.
4.
saith
,
That
there
must
be
left
sufficient
substance
of
the
ancient
:
And
if
any
new
Were
,
Stank
,
Stake
,
Floodgate
,
Kiddel
,
or
other
thing
have
of
late
been
erected
on
the
Rivers
,
which
is
an
annoyance
or
hurtful
,
then
the
same
may
be
ordered
by
the
Commissioners
to
be
abated
,
overthrown
,
destroyed
and
pulled
down
,
because
the
same
was
erected
without
lawful
warrant
or
authority
:
And
so
as
I
take
it
,
these
few
distinctions
do
fully
declare
my
opinion
touching
those
matters
.
The
Statute
of
23
H.
8.
which
I
read
on
touching
and
concerning
Lets
,
Impediments
and
Annoyances
,
hath
these
words
in
it
in
effect
,
And
the
Commission
giveth
Authority
to
Edmond
Lord
Sheffield
,
Sir
Philip
Tyrwhit
,
Sir
Nicholas
Sanderson
,
Knights
and
Baronets
,
Sir
Richard
Aurcots
,
Sir
John
Thorold
,
Sir
John
Read
,
Sir
Charls
Bouls
,
Sir
Ralph
Maddison
,
Sir
William
Hansord
,
Sir
Francis
South
,
Knights
,
Thomas
Tyrwhit
,
John
Bolles
,
and
Nicholas
Hamerton
,
Esquires
,
whereof
the
said
Baronet
and
Baronets
were
of
the
Quorum
,
to
survey
the
Walls
,
Streams
,
Ditches
,
Banks
,
Gutters
,
Sewers
,
Goats
,
Calceys
,
Bridges
,
Trenches
,
Mills
,
Mildams
,
Floodgates
,
Ponds
,
Locks
,
Hebbingweres
,
and
other
Impediments
,
Lets
and
Annoyances
,
and
the
same
to
cause
to
be
made
,
corrected
,
repaired
,
amended
,
put
down
or
reformed
,
as
cause
shall
require
,
after
their
wisdoms
and
discretions
;
and
therein
to
ordain
and
do
after
the
form
,
tenor
and
effect
of
all
and
singular
the
Statutes
or
Ordinances
made
before
the
first
day
of
March
,
in
the
23
year
of
H
8.
touching
the
Premises
,
or
any
of
them
;
as
also
to
inquire
by
the
Oaths
of
honest
and
lawful
men
of
the
said
shire
or
shires
,
place
or
places
,
where
such
defaults
or
annoyances
be
,
as
well
within
liberties
as
without
,
by
whom
the
truth
may
rather
be
known
through
whose
default
the
said
hurt
and
damages
have
happened
;
and
who
hath
or
holdeth
any
Lands
or
Tenements
,
or
Common
of
Pasture
,
or
profit
of
fishing
,
or
hath
or
may
have
any
hurt
,
loss
or
disadvantage
by
any
maner
of
means
in
the
said
places
,
as
well
near
to
the
said
Dangers
,
Lets
and
Impediments
,
as
inhabiting
or
dwelling
near
about
the
said
Walls
,
&c.
and
Impediments
aforesaid
,
and
all
those
persons
to
tax
,
assess
and
distrain
.
In
a
former
clause
of
this
Statute
,
the
Commission
giveth
power
to
survey
the
Walls
,
Banks
,
Ditches
,
Gutters
,
Sewers
,
Goats
,
Calceys
,
Bridges
,
Streams
;
In
which
clause
these
as
necessary
Defences
are
ordered
to
be
repaired
.
Then
comes
another
clause
,
wherein
these
things
are
recited
as
Lets
and
Impediments
,
videlicet
,
Streams
,
Mills
,
Bridges
,
Ponds
,
Fishgarths
Mildams
,
Locks
,
Hebbingweres
,
Hecks
and
Floodgates
;
So
that
by
these
two
clauses
,
the
first
sort
were
to
be
maintained
and
not
destroyed
,
and
the
second
sort
should
have
been
destroyed
and
not
repaired
.
And
if
these
two
first
clauses
had
been
alone
,
then
the
Commissioners
had
been
bound
to
maintain
the
one
and
destroy
the
other
,
without
any
toleration
;
but
then
came
in
the
said
third
clause
,
which
is
the
clause
of
moderation
,
and
therein
as
well
the
Defences
,
as
the
Lets
and
Impediments
,
come
all
in
one
clause
promiscuously
put
together
;
and
so
the
words
(
amend
,
correct
,
repair
and
put
down
)
is
therein
referred
to
them
all
:
so
as
in
my
opinion
all
defences
,
as
Walls
,
Banks
,
Sewers
,
Calceys
,
Goats
,
&c.
be
not
to
be
maintained
,
because
in
tract
of
time
some
may
prove
unnecessary
and
unuseful
,
which
for
that
cause
may
be
pulled
down
:
so
all
Mills
,
Mildams
,
Floodgates
,
Weres
,
Stanks
,
Stakes
,
Kiddels
,
and
such
like
,
are
not
to
be
put
down
and
overthrown
,
but
such
as
are
ancient
and
are
thereby
grown
to
be
the
proper
inheritances
of
men
,
and
such
also
which
are
useful
and
necessary
are
to
be
maintained
,
kept
and
repaired
;
for
in
some
great
Havens
and
Ports
,
great
abundance
of
Piles
and
Timberposts
are
set
in
the
waters
to
stay
the
rage
,
force
and
violence
of
the
waters
for
the
safegard
of
the
Port
and
Haven
.
It
were
a
very
ridiculous
exposition
of
this
Law
,
to
urge
the
Commissioners
to
overthrow
those
things
which
are
helpful
;
and
not
hurful
;
for
this
Statute
did
foresee
,
that
these
Mildams
,
Stakes
,
Stanks
,
Floodgates
,
Weres
,
&c.
were
not
at
all
times
and
in
all
places
hurtful
,
and
therefore
was
the
said
clause
of
the
Statute
inserted
,
which
gave
the
Commissioners
power
to
put
down
such
as
were
Lets
and
Annoyances
in
truth
,
and
where
they
were
used
for
strengths
and
were
of
good
use
to
maintain
the
same
:
And
this
construction
I
take
it
is
fully
maintained
by
this
Statute
,
but
more
especially
by
the
Statute
of
7
Jacobi
,
cap.
20.
where
Peres
,
Piles
,
Jetties
,
and
the
like
,
set
for
fortifications
Jac.
Reg.
cap
20.
and
strengths
,
are
expresly
ordered
to
be
maintained
.
And
upon
this
part
of
this
Law
I
do
collect
these
insuing
matters
:
First
,
that
if
one
do
erect
and
build
a
Were
,
Mill
,
Mildam
,
or
other
thing
on
a
River
Navigable
,
to
the
hinderance
of
Navigation
;
or
if
there
was
an
ancient
Were
which
was
inhaunced
of
late
years
,
the
Commissioners
of
Sewers
are
to
order
him
that
did
erect
the
one
,
and
he
which
did
inhaunce
the
other
,
to
pull
down
the
first
,
and
to
abate
the
excess
of
the
other
at
the
Costs
and
charges
of
the
owner
:
and
if
he
or
his
Assigns
or
Heir
,
shall
contrary
to
the
Decree
,
Order
or
Judgement
of
the
Commissioners
,
after
the
same
hath
been
reformed
,
relevy
the
same
again
,
or
do
continue
the
same
contrary
to
order
,
the
punishment
of
One
hundred
Marks
is
to
be
imposed
upon
the
offendors
,
as
by
the
Statute
of
1
H.
4.
and
12
H.
4.
formerly
appeareth
.
And
if
one
which
is
a
stranger
of
his
meer
malice
or
own
Et
ita
factum
fuit
,
in
42
lib.
Assiz
.
plac
.
15.
and
lib.
Assiz
.
this
Statute
extendeth
to
Rivers
and
Streams
Navigable
,
as
well
as
to
such
as
be
not
Navigable
.
And
touching
the
removing
of
Nusances
,
I
shall
put
the
Commissioners
some
presidents
ruled
and
adjudged
in
our
Books
of
Law
which
come
fully
to
the
purpose
of
the
matters
and
things
I
now
treat
of
.
In
32
Ed.
3.
fol.
8.
an
assize
of
Nusans
was
brought
by
A.
against
B.
for
that
B.
had
made
a
Trench
over
a
River
,
Et
quod
defendens
capiatur
;
out
of
which
case
I
observe
these
things
:
First
,
though
an
assize
was
a
private
Action
,
yet
the
Nusans
was
tam
querenti
quam
populo
to
the
Plaintiff
,
for
drowning
and
surrounding
of
his
grounds
;
to
the
people
,
in
changing
or
diverting
the
ancient
course
of
the
waters
,
so
that
for
the
people
the
offendor
was
ordered
to
reform
the
Nusans
,
to
the
King
he
was
fined
,
and
the
Plaintiff
for
his
own
private
wrong
recovered
his
damages
.
In
19
Ed.
3.
lib.
Assize
,
plac
.
6.
A
presentment
was
found
by
Jury
before
Commissioners
,
that
certain
persons
by
In
19
Ed.
3.
fol.
23.
in
the
Action
upon
the
Case
for
a
Nusans
done
,
the
judgement
in
part
was
,
That
the
Nusans
should
be
removed
&
cum
hoc
concordat
,
7
H.
4.
8.
upon
these
three
cases
I
observe
,
That
be
the
Action
private
or
popular
,
always
one
part
of
Judgement
was
,
That
the
Nusans
should
be
removed
at
the
costs
and
charges
of
him
or
them
which
did
it
.
Therefore
these
cases
do
fully
maintain
my
opinion
formerly
delivered
:
And
although
in
all
the
said
cases
it
appeareth
,
that
there
was
a
legal
course
taken
to
remove
the
Nusances
,
yet
there
is
another
course
alowed
of
by
the
Law
,
and
that
is
by
abating
of
the
Nusans
,
in
pulling
or
cutting
the
same
down
;
and
the
Law
is
expresse
so
in
the
point
in
9
Ed.
4.
fol.
35.
as
if
it
be
a
Nusans
done
to
I.
S.
he
or
some
To
make
a
stream
navigable
.
BUt
it
hath
been
objected
to
me
by
way
of
Interogation
,
Can
the
Commissioners
of
Sewers
make
an
unnavigable
River
or
Stream
to
become
or
to
be
made
Navigable
by
these
Laws
of
Sewers
,
yea
or
no
?
Touching
which
I
shall
deliver
my
opinion
as
followeth
:
If
this
could
have
been
done
by
the
Commissioners
of
Sewers
,
then
what
should
it
have
needed
to
have
procured
Acts
of
Parliament
for
the
doing
thereof
,
as
9
H.
6.
cap.
9.
to
make
the
River
of
Lee
Navigable
,
and
6
H.
8.
cap.
17.
a
Statute
to
make
the
River
at
Canterbury
Navigable
;
and
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
Navigable
at
Plymouth
;
and
in
3
Jac.
10.
cap.
for
making
Thames
Navigable
in
the
Counties
of
Oxford
,
Berks
,
Wilts
,
and
Glocester
:
These
in
truth
are
good
Arguments
,
but
not
convincing
Proofs
;
for
I
am
of
opinion
,
that
if
Streams
cannot
be
made
Navigable
unless
there
were
certain
Mills
,
Weres
,
Stanks
or
Kiddels
removed
which
be
the
Inheritances
of
private
persons
,
and
have
had
continuance
time
out
of
memory
,
then
directly
the
Commissioners
of
Sewers
have
not
power
to
raze
or
impair
these
by
the
removing
thereof
,
to
make
the
Stream
Navigable
:
But
in
these
cases
a
new
private
Act
of
Parliament
must
be
obtained
for
the
effecting
thereof
,
which
was
the
occasion
many
of
the
said
private
Statutes
were
obtained
:
But
if
none
of
these
Inheritable
incumbrances
stand
in
the
way
,
but
that
by
the
cleansing
or
deeper
casting
of
the
Channel
the
same
may
be
made
Navigable
,
Then
I
am
of
opinion
,
the
Commissioners
of
Sewers
have
power
to
do
the
same
,
and
there
be
words
in
our
Statute
will
bear
this
Exposition
(
videlicet
)
And
to
cleanse
and
purge
the
Trenches
,
Streams
,
Sewers
,
Gutters
and
Ditches
,
in
all
places
necessary
.
And
herewithal
I
intend
to
close
up
this
days
exercise
with
this
short
conclusion
;
that
is
,
That
E.
was
no
sufficient
Freeman
,
nor
was
resciant
,
nor
had
goods
of
value
to
make
him
a
competent
Commissioner
;
That
notwithstanding
B.
and
C.
and
the
Countesse
of
Warwick
were
competent
Commissioners
,
and
they
joyning
with
Three
of
the
Quorum
had
power
to
make
and
ordain
Laws
of
Sewers
;
and
because
this
Were
was
newly
erected
,
therefore
the
Law
and
Ordinance
made
to
raze
it
and
to
pull
it
down
was
a
good
Law
,
and
warranted
by
this
Statute
,
&c.
Finis
hujus
quartae
Lecturae
.