coke a KEIGHLEYS case mich James in c b see Hudson v tabor QBD QBD  NitroPhosphate company v London and saint Katherine dock company Ch d follow  Reg v commissioner of sewer for Essex QBD App Cas if one be bind by  prescription to repair a wall c against the flow of the sea and there be no  default in he but by reason of the sudden and unusual increase of water the  wall be break the commissioner of sewer ought to tax all who hold land or  tenement or common of pasture c or have or may have any loss damage c accord  to the quantity of their land if any fault be in he and the danger be not  inevitable but he may well repair it the commissioner may charge he only to  repair it if through his fault the danger become inevitable or he can repair  it by which all be charge c every one charge may have a action on the case  against he the several commissioner of sewer throughout England be not bind to  follow the law and custom of Romney marsh the word in the Act h c videlicet  accord to your wisdom and discretion be to be intend and interpret accord to  law and justice this term upon evidence to a jury of Essex in the case of one  Keighley it be resolve per totan cur de common banc that if one who be bind by  prescription to repair a wall contra a fluxummaris and he keep the wall in  good repair and of such height and as sufficient as it be accustom and by the  sudden and unusual increase of water salt or fresh the wall be break or the  water overflow the wall that in this case the commissioner of sewer ought to  tax all such person who hold any land or tenement or common of pasture or  profit of fish or have or may have any loss damage or disadvantage by any  manner of mean in the same place accord to the quantity of their land c for no  fault in this case be in he who ought to repair it a and the statute of a h  cap first authorize the commissioner to inquire by the oath of the honest and  lawful man c through who default the say hurt or damage have happen c and who  have or hold any land or tenement c or have or may have any hurt loss or  disadvantage c c side b but it shall not be intend that they be erect before  the time of Edward inhabitant of Oldbury v Stafford side d   a dal pl dal in  kelw pl dal in ash pl Bulstr a and accord where a seabank or wall which the  owner of particular land be bind to repair be destroy by tempest the  commissioner of sewer may order a new one and if necessary in a different form  to be erect at the expense of the whole level king v Somerset commissioner TR  Vid anon style but unless the damage sustain by a extraordinary tide and  tempest have be without the default of the party bind to repair the other  landowner in the level can be call upon to contribute to the repair of the  wall so damage king v Essex commissioner barn Cress SC dow Ryl note b rook  case   a a before a   Bulstr Cr James Calais chosen f coke report b er p and  all those person and every of they to tax c which ought thus to be intend that  when and by prescription or coke b otherwise b ought to repair any wall sewer  c that he ought to do it but if he be not able to do it and for inevitable  necessity it ought to be repair in prevention of a great and public hurt or if  no default be in he by reason of the extraordinary rage and violence of the  water that the commissioner of sewer in such case have power by the say Act to  charge all who have any loss c accord to the quantity of their land c but when  one be bind by prescription or otherwise to repair a wall c if any fault be in  he and the danger be not inevitable but that he himself may well repair it the  commissioner may by the true intent of the Act charge he only to repair it and  if through his fault the danger become inevitable or that he himself be not  able to repair it by which as it hath be say all be charge c every one of they  may have a action on the case against he who be so bind to repair the wall c  and shall recover their damage accord to their loss c in b e a I action on the  case be bring against b and the plaintiff declare that the say b be seize of  certain land in king by reason whereof he and his ancestor and all the  terretenants a tem over p cujus c have make and repair when need shall be so  many perch of the wall of the sea in king c and for want of reparation c the  water enter and drown the plaintiff land the defendant traverse the  prescription upon which they be at issue and it be find for the plaintiff and  that there be a defect in the wall for not repair of it for which the  plaintiff recover his damage and a writ be award to the sheriff to distrain b  to repair the wall there where there be need and a fault notam reader this  judgement in a action on the case and the reason thereof be pro good public  for a salus poplar tree be funeral rites law and therefore it be part of the  judgement in this action on the case that the defendant shall be distrain to  repair the wall and in the case at bar the law be ground upon great reason for  although by the law one be bind to keep and repair it yet b powerless excuse  law and that which come by the act of God and be so inevitable that by no  providence or industry of he that be bind it can be prevent shall not charge  he and therefore if tenant for life or year do not c repair a seawall so that  by his fault the land be drown and become unprofitable it be waste but if the  lan be drown by the extraordinary rage and violence of the sea without his  fault it be no waste no more than if a house be burn by lightning or overthrow  by the rage of the wind or tempest without fault in the lessee it be no waste  d and many time great tide be occasion by strong wind and therewith coke a as  to waste agree the opinion of the court of common plea in a Reg Elizabeth in d  justice Dallisons report and the court have consideration of another clause in  the say Act of e h c and to make and ordain statute ordinance c after the law  and custom b as where the lessee covenant to pay all assessment charge and tax  towards or concern the reparation of the premise for such covenant be within  their jurisdiction but where the covenant be mere collateral as if a man who  be a stranger covenant to pay char es for repair c it be out of their  jurisdiction Commins v Hassan march vin ab sewer d c Vid Fitzherb nat brey in  notorious facts vin ab nuisance a h pl b style a Noy b   a   a   a   b a    light a Ilard c Acc f n b f n Inst d Acc griffith case more pl anon more pl    Litt b but if lessee suffer a little breach in the wall to continue by mean  whereof the violence of the sea afterward break all the wall and surround the  land it seem reasonable that it be waste per dyer anon more pl d Dall pl Dall  in kelw pl Dall in ash pl more pl pl pl   light b e Ant a a   buist Cr James  Calais chosen f   b coke report b er p of RomneyMarsh in the county ken or  otherwise after your own wisdom and discretion and it be resolve clear that  the several commissioner of sewer throughout England be not bind to follow the  law and custom of f RomneyMarsh but in case where some particular place within  their commission have such law and custom as RomneyMarsh have there they may  follow they for g custom loci be observanda last it be resolve that these word  in the say Act know accord to your wisdom and h discretion be to be intend and  interpret accord to law and justice for every judge or commissioner ought to  have duos sale videlicet salem sapientice ne sit insipidus salem conscientice  ne sit devil e also discretion as it be well describe be to know per law quid  sit juslum and therefore the commissioner of sewer ought to pursue as well  their commission as the oath express in the say Act of h which they take to  execute their commission in the same manner as it be there prescribe and  therewith agree the description of discretion in book be case in the five part  of my report f a and it be well observe that every statute ordinance and  provision which be make by force of the commission of sewer ought to consist  upon four cause the material cause and that be the substance the formal cause  and that be the manner with convenient circumstance the efficient cause and  that be their authority accord to their commission the final cause and that be  pro good publico et never proprivato and whereas the opinion of walmesley  justice in book be case aforesaid be that if the owner of the land be by  prescription bind to repair the river bank that yet upon such commission award  the commissioner ought not to charge he only with the whole upon conference  with walmesley and Fleming chief justice Yelverton William and other justice  it be agree by walmesley himself and all the other that the say resolution  upon the difference aforesaid be good in law and walmesley explain his opinion  in rook case that the commissioner ought not to charge he who be bind by  prescription only that he mean where there be no default in he for that agree  with the word of the say Act of h and no inevitable necessity coke b for  insufficiency or otherwise but if he himself can do it there he himself shall  be only charge by force of the say commission and he say that his reason f  Inst Calais chosen g   b   a   a a Bulstr ob Calais chosen   light b   a Inst  before f a hard Cr James e it be now clear establish that the court of  commissioner of sewer like other inferior jurisdiction be subject to the  discretionary coercion of the court of king bench for wherever any new  jurisdiction be erect be it by private or public Act of parliament it be  subject to the inspection of the court of king bench by writ of error or by  certiorari and mandamus case of cardiff bridge salk SC I l raym smith case  vent black command and if commissioner of sewer proceed after a certiorari  deliver out of KB a attachment will issue against they and they may be fine  smith case where sup sc  lev SC Mod SC keb sc t raym vin ab sewer e pl Com dig  sewer I the court of king bench before it grant a certiorari inquire into the  nature of the fact that no mischief may happen by inundation in the mean time  but this be only a discretionary execution of their authority Cardiff bridge  case where sup the preponderance therefore must be very strong against the  propriety of a order of commissioner of sewer to induce the court of KB to  remove it the court of chancery will not entertain jurisdiction against  commissioner of sewer to restrain they from remove a float or tumble bay upon  a river although such removal be state to be irreparable mischief Kerrison v  sparrow Cooper c c in the execution of their office commissioner of sewer and  those who work under they be bind to conduct themselves with proper skill and  care therefore where it be necessary to repair a sewer in the neighbourhood of  house they must take all such precaution for secure they as skilful person  will do and in default thereof they be liable to a action Jones v bird barn  Ald SC dow and Ryl and Vid Doswell v impey barn Cress SC dow Ryl coke report a  er p give in book be case imply as much know for otherwise it may be that all  the country will be drown which reason import his meaning that all who have  land in danger shall not be charge but in case of insufficiency of he who be  bind or for other inevitable necessity