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. Peningtons Case a very personal view needeth not in an Assize if upon examination of the Jurors it may appear that a competent number of them know the grounds in question in such sort as they can put the party in possession if he recover but in an Action of Waste an express personal view is both required and requisite for the words of that Writ directs the Sheriff 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 4 Ed. 1. and to set down which be Copyholds which be Freeholds c. whereby it appeareth that a Surveyor is an actor and not a looker on as Mr. Fitzherbert would have him so by these descriptions the Commissioners may inform themselves what is meant by the word Survey put in the Statute And many of our Statutes take notice of such an Officer as a Surveyor For in the Statute of Bridges and highways there be such Officers appointed and in the Statute made for the erection of the Court of Wards and Liveries there is a grave Officer appointed who is called the Surveyor general of that Court and he is a Judge in matters there handled 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
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 Cato parti proficiat sufficit and therefore this Objection I thus Answer That these new works are not to be undertaken but upon urgent necessity in defence of the countrey or for the safety thereof so that the Commonwealth be therein deeply interessed and ingaged and things which concern the Commonweal are of greater accompt in the Law then the interest of private persons And so it is 13 H. 8. fol. 16. That the Commonwealth 13. H. 8. shall be preferred before the private Estate and for the good of the Commonwealth a private person shall receive damage if otherwise it cannot be eschewed as a private mans house shall be pulled down if the next house thereto be on fire to save the Town and the Suburbs of a City may be pulled down in time of War to save the City and Bulwarks may be raised on private mens grounds for defence of the Realm And what greater enemy can there be then the Sea who threatens with his merciless waves to swallow up all before it but that the hand of the Almighty hath tied 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. 27 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 3 Jac. to London and although these Statutes hold not in the general Cases of Sewers but are applied to the said particular matters therein expressed yet they may serve as good Rules to direct our Commissioners to imitate upon like occasion happening 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
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 Chart. of Rumney down every particular mans ground in certain and their just pag. 50. quantities and accordingly were the parties severally taxed 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 37 and 31 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 Fitz. Nat. bre is a Writ directed by the King to his Officers and Ministers forbidding them that they take not any Toll Murage or Pontage of Ecclesiastical Parsons Vicars and such like and the said Writ sheweth that by the Custom of the Realm no such exactions ought to be taken of them And there is another Writ there to discharge them for paying Customs de bonis suis Ecclesiasticis vel de aliis pro sustentatione sua emptis And also they have this priviledge That the Sheriff nor any Lay-Officer are not permitted to meddle with their Ecclesiastical possessions for in 20 H. 6. fol. 20. and in many other Books it is held that in a Writ of Summons the Sheriff may not Summon a Spiritual person on his Spiritualities but he must rather that he is Clericus beneficiatus non habens laicum feodum and upon this return the party is to take a Writ directed to the Bishop to Summon him on his Spiritualties And therefore if the possessions of Spiritual persons are had in such great esteem in our Law what then shall be done with Tythes which are said to be due 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 18 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 26 H. 8. like is now paid to the King as Supreme head and Governor of the Church here on earth So here be charges paid out of the Tythes but they be Spiritual charges And in Mr. Seldens History of Tythe pag. 13. it appears by Collection and Connexion of Stories divine That the first or Selden the first year Tythe was paid to the Levite The second to Feast at Jerusalem and the third to the Poor And had not the Statute of 43 of 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
dispose of them Fourthly the Commissioners have a Clerk proper to themselves to Register their Laws Fifthly the Commissioners have power to make Orders and Decrees which are Judgements in effect and some of them cannot be reversed but by Act of Parliament And lastly Writs of Error have been brought to reverse Judgement given in that Court For all which causes I do conclude That the Commissioners of Sewers have a Court of Record although it be not holden in aliquo loco certo So was the Kings Bench a Court of more Eminency then this But ubicunque fuerimus in Angliae and for express Authority in the point of Gregories Case in the 6 Report of Cook chief Justice that the Sewers is a Court of Record Imprisonment imposed by the Commissioners of Sewers IT is a point of high consequence whether Commissioners of Sewers have power by these Laws to Imprison the body of a man for any thing touching the same for that Imprisonment of the body seemeth to sway somewhat against the grand Charter of England and against the liberty of a free-born Subject and it is said in Bonhams case 28 H. 8. in Dyer that liberty is a thing which the Law much favoreth and I finde in our Books of Law That the Judges have been very careful and curious in not extending words contained in Charters to the Imprisonment of mens bodies unless they were express in the point And therefore in Clerks case in Sir Ed. Cooks 5 Report fol. 64. Clarks Case The case is That the Term was to be kept at St. Albans and the Major there and his brethren did assess every townsman towards erecting and building of the Courts of Justice and made an Order That he which should refuse to assist and pay should be imprisoned and one being Arrested and imprisoned brought his Action of false imprisonment against the Major who pleaded in effect That they were incorporate by King Edward 6. and had power granted to them in their Major of St. Albans Charters to make Ordinances by reason whereof they made the said Order and so justified the imprisonment But it was adjudged against the Major for that by the said Charter they had not any power to make an Ordinance to imprison a mans body for that were against the grand Charter in Magna Charta cap. 29. Quod nullus liber homo imprisonetur Magna Charta nisi per legem terrae But by that Book they might have inflicted a penalty and have distrained or brought an Action of Debt for it In Doctor Bonhams case in the 8. Report King Hen. 8. incorporated the Physitians of London and gave them power by Charter to examine the Imperites to finde out the defects Et pro delictis suis in non bene exequendo faciendo utendo illos per punitionem eorum delinquentium per fines amerciamentum imprisonomentum corporum suorum So hereby it appears that by the Kings Letters Patents they had power to imprison the Body but I finde their Charters confirmed by Act of Parliament Yet in 2 Eliz. Dier fol. 175. the Case is That the Queen did award a Commission directed to certain Commissioners to Hear and Determine the controversies betwixt Scrogs and Colshil touching the Office of the Exigenter and that if Scrogs should refuse to obey to make answer before them they should commit him to Prison but the validity of this last Commission I much doubt of I am of Opinion That the Commissioners of Bankrupts and charitable uses have no power to commit any man but if any abuse or misdemeanor be committed in contempt or derogation of their Authorities they may make Certificate thereof into the Chancery and refer the punishment thereof to the will and discretion of the Lord Chancelor or Lord Keeper for the time being In Godfreys Case in the 11 Report there is a discourse what Godfreys Case Courts have power to Imprison and which not and there it is said Some Courts may Fine but not Imprison as the Courts Leet and Sheriff turn some others could neither Fine nor Imprison as Courts Baron and County Courts and some could neither Fine Imprison nor Amerce as Ecclesiastical Courts And some may Imprison and not Fine as chief Constables at their Petty Sessions for an affray done in disturbance of them And other Courts there were which might Fine Imprison and Amerce as the eminent Courts of Westminster So that Imprisonment is not incident to every Court nor to every offence Yet I am of opinion that the Commissioners of Sewers may Imprison the body for it is not only a Court of Record but is authorized by Act of Parliament and I suppose that there be words in the Commission and Statute which will bear this construction which are as follow viz. And all such as ye shall finde negligent gainsaying or rebelling in the works reparation or reformation of the premises or negligent in the due execution of the Commissioners That ye Compel them by Distress Fines and Amerciaments and by other Punishments ways or means c. Which words are strong and large enough to authorize the Commissioners of Sewers upon just Cause to Imprison the body But here they are to be careful and not to think that they may Imprison Fine or Amerce in any case because the words be generally put together But this construction must be thereof made That they may Imprison where Imprisonment is due and Fine in cases Fineable and Amerce in cases Amerciable and Distrain where a Distress properly lyeth by the Rules of Law and they may not Imprison where by the Laws Imprisonment is not due but every one of the said punnishments is to be used in its proper kinde for these words promiscuously put together must be ordered by a just and legal construction according to the Rules of Law and Reason And I have known the words of a Statute generally and promiscuously put together have been marshalled according to their distributive operations as the Statute of 1 Rich. 3. which is That all Feoffments Gifts Grants Releases and Confirmations of Lands made by Cestui que use should be good Yet though these words were generally put together notwithstanding the wise and discreet Sages and Expositors of our Laws have so Marshalled the words of this Statute that they made construction thereof according to the Rules and reason of the Laws That is That Cestui que use in Possession might make a Feoffment and that Cestui que use in Reversion or Remainder might grant the Land and Cestui que use of a discontinued Estate might release or confirm and yet the words of this Statute were general howsoever Reason must be the Expositor that every thing be done in due form of Law and not in preposterous maner And these matters being thus passed over I shall endeavor my self to declare in what cases Commissioners of Sewers may Imprison Fine and Amerce and where not Imprisonment Fine and Amerciament Fines IF one
Disposition and of good Estate should be put into these Commissions of Sewers the Statute did make choice of four Honorable persons to have and take the nomination of such as should for their Integrity Learning Wealth Wisdom and Experience be worthy to be put into this Commission And therefore the Lord Chancellor Lord Treasurer and the two Lord chief Justices for the time being have by this Statute the nomination of our Commissioners But as these great persons of Honor by their high places are most commonly busied in matters of great importance they many times refer these matters to others by means whereof divers persons in some countreys have of late years crept into Commission which this Statute doth not allow of which do not only want knowledge and experience but which are also transported and carried away with selfwill and serve most commonly to make a faction of the greater number to carry away businesses when the graver and wiser sort are forced being overladen with popular voices to give way to run into contrary courses and are made to surcease from making good and wholsom Laws and Ordinances and sometimes are as it were forced to agree to those which are whose even as the Roman Dictator Fabius having joyned to him the froward Minutius was by the violent stream of his colleague so crossed and overswayed not out of judgement but selfwill that he was forced to give way to Minutius frowardness though it tended almost to the hazard and the overthrow of the whole Roman Army And because the Commissioners are the persons through whose hands the execution of all these Laws must passe I thought it therefore very convenient to take into examination this part of the Statute which touch and concern them And I intend to purge the Commission of such of them as these Laws have disalowed and to that purpose I have framed this insuing case which I take it will give us occasion to call them all into question and to sever the just from the unjust the sufficient from the unsufficient and the learned from the illiterate The Case A. demiseth to B. and C. Land of the yearly value of Sixty pounds cum stauro of the value of Two hundred pounds for their lives the Remainder to D. a free Citizen of Lincoln B. and D. disseise C. of the Land and take the stock C. releaseth to D. the goods absolutely and the Land upon Condition D. dieth in Exile E. his son and heir enters B. and C. who enter for the Condition broken E and Francis Countes Dowager of Warwick and three other Commissioners of the Quorum of Sewers make a Law to raise a Were erected upon a River navigable at the costs of the party because it hindred the current of waters My conclusion is That here be competent Commissioners in number and in Estate which made this Law and that this Law is well decreed within this Statute The case I do distribute in these points viz. Three at the Common Law and four upon this Statute the points I intend by the Common Law are these First whether the Sixty pounds stock can be demised and letten for life with the Remainder over as this case is Secondly whereas B. and C. be two Joyntenants in possession whether one of the Joyntenants and a stranger can so disseise the other Ioyntenant as to transfer thereby an interest and Estate to the stranger Thirdly because the Release dependeth upon the disseisin the question is in what maner it doth inure and whether it shall expel B. out of that moyety because it is made to the stranger and then what is reduced by the Condition whether a possession action or a right Points upon this Statute First whether the Son of the free Citizen exiled is a disabled Commissioner in respect of his person and whether he hath such an Estate either in Lands or goods as will satisfie this Law Secondly whether the Countess may be a competent Commissioner within this Statute Thirdly whether a joynt interest in Lands or goods will make the Ioyntenant a sufficient inabled Commissioner within this Statute Fourthly whether the Were as this case is be raced down or not And hereupon I intend to lay open the whole division touching the Lets Impediments and Annoyances which this Statute speaketh of Argumentum Lectoris I meant it not for a point in this case whether goods might be let with Land nor whether a stock might be leased with a Farm because I finde the Books of 1 H. 6. 1. and many others full in the point that they may And although by the taking of them back again by the Lessor they will thereby suspend no rent yet in the original demise they may be a cause to increase the rent but my point herein is double First whether they will passe in Remainder as my case doth limit them Secondly whether they will inable B. and C. to be Commissioners of Sewers alowed by this Statute I do not onely finde stock let with Farms but also joyned in Real actions with Land for in the Writ of Assize the words be Quod vicecomes faciat Tenement ' illud reseisiri de catallis quae in ipso capta fuerint ipsum Tenement ' cum catallis esse in pace usque c. These doubtless were such goods as stocked the grounds and which usually went with the same for in ancient times when any farmed grounds they usually farmed the stock thereon going and this appears by ancient presidents Sed nunc aliud tempus In the Writ of Ejectione firmae in the Register be contained these words Ostensum quare vi armis manerium de Dale quod C. prefat ' A. dimisit ad terminum qui nondum preteriit intravit bona catalla ejusdem A. ad valentiam c. in eodem manerio inventa caepit asportavit So that in those Writs of Assize and Exjectione firmae the one to recover the Freehold the other the Leasehold We finde goods which went with the Manor or Farm made parcel of the plaint and I take it damages shall be increased therefore for these were such goods as stockt the Farms And in Wrotsly and Adams Case in Plo. Com. Exception was Wrotsley and Adams Case taken in abatement of the Writ because the words bona Catalla were left out of the same Yet in my opinion no estate neither in presenti nor in remainder can be made of Goods or Cattel neither shall they go with the Land in point of Estate but shall passe to the Lessee and after to him in the remainder as a dependancy upon the Farm And the Heir shall have Heir-looms together with the Mansion House as things necessary concurrent therewithal yet the Heir-looms have no descending qualities but they do go with and wait upon the house as necessary Instruments fitting to be used therewith neither can it be gathered by the Book of 37 H. 6. fol. 30. that the Book called The Grail which