coke a the case OF the isle OF ely mich James see Hudson v tabor QBD QBD  attorneygeneral v Tomline Ch d Ch d commissioner of sewer can make a new river  when a old sewer be new to be make or cleanse some small alteration in respect  of the natural change of the current may be make when a old wall by the  violence of the water be break down another wall in case of inevitable  necessity may be make to defend the level but if the danger may be avoid by  the reparation of the old wall a new one ought not to be erect nun can be tax  towards the repair c but those who have prejudice or damage c by the nuisance  and who may have benefit by the repair the assessment ought to be accord to  the quantity of their land c accord to the rate of every person portion tenure  or profit or of the quantity of the common of pasture or fish c a tax general  of a several sum in gross upon a town be not warrant by the commission a case  be refer by the lord of the Council to coke chief justice of the common plea  Daniel and foster justice of the common plea concern a decree make by the  commissioner of sewer for make a new river within the isle of Ely and in  effect the case be such the commissioner of sewer have decree that a new river  shall be cut out of the old river of owse and through the main land within the  same isle for seven mile to another part of the same river and for the do  thereof they have several tax as well fen Drayton Samsey OverWivelingbam  Rampton Cottenham and nine other town within the county of Cambridge out of  the say isle as the inhabitant of the say isle and the tax be general know so  much of one town and so much of another and such de one and in this case two  question be move if the commissioner of sewer may by force of their commission  make such new river or not if such general taxation upon the town be lawful or  not as to the first we must consider what may have be do by the commonlaw  before any statute make thereof and it be to be know that by the commonlaw  before the statute of h c the king ought of right to save and defend his realm  as well against the sea as against the enemy that it shall not be drown or  waste and also to provide that his subject have their passage through the  realm by bridge and highway in safety and therefore if the seawalls be break  coke b or the sewer be not scour that the fresh water can have their direct  course the king ought to grant a commission to inquire and to hear and  determine these default which commission appear in the register among the  commission of oyer and terminer in which it be say our eastern quod ration  rank noshce Regice ad providend salvation Reg nostri circumquaque to be to  draw tight c and with that agree the statute of h c and the statute of h c and  as to that vide a notable precedent pasch e Mid cor ring prcept be viscount  quod to draw asunder a b elsewhere quod Self diminution walliarum towards land  urge to get again et si Self sufficient non to be quod distrin all men to hold  terrar c who defension convenience salvamen well damnum ration reparal seu non  reparation wallice prd to have seu to some place modus to have polerint ita  quod who to hold prodjuxta magnitude tenurce sum ibidem payment prfat a b et  other ad wallias that faciend to get again to make indilat which record be  before any coke report a er p Act of parliament that limit any form of  commission the second thing observable in the say commission at the commonlaw  be this clause ad hujusmodi wallias fossala gulterus suer pontes calcela  etgurgites in region relative a reparand whenever et where necessefiterit de  novofacienda by which it appear that by the commission in the register at the  commonlaw that the ancient wall gutter and sewer may be repair or newniade but  do due wall gutter or sewer by force of the say commission may be make then we  must consider in what case the statute have make provision in these case and  it be to be know that the statute of h c enlarge the commission which be at  the commonlaw for where these word de to make new to make refer only to old  wall gutter sewer c the say Act have these word eaden et alian quoliescunque  etubi necessefuerit de novofaciendo which word et alian be add to the former  commission ive the commissioner power to make new wall gutter sewer c but this  Act continue but ten year b and by h c the like commission be establish for  ten year and by h c for fifteen year and by e c for fifteen year and by h for  twentyfive year and by h c for ten year and until the next parliament and  afterward the statute of h c be make which recite none of the former act as  the other do but enact that there shall be for the future a commission of  sewer accord to the manner tenor form and effect hereafter ensue and rehearse  the form of the Commission de word in coke a word which commission omit the  say word alian and follow the commission in that point which be at the  commonlaw the word of the Act of h be and also to reform repair and amend the  say wall ditch bank gutter sewer c and the same omit these word and other as  often and where need shall be to make new and the former clause concern  execution of the former statute and ordinance be restrain with these a in Yeaw  v holland black Rep it be hold that commissioner of sewer have no jurisdiction  over sewer run into a navigable stream such sewer not be themselves navigable  and not within two mile of London Vid stat James c and there be in they no ebb  or flow of the tide but this must be understand where they be not necessary or  useful in navigation for in do v grey TR it be determine that they have  jurisdiction over a sewer communicate with a navigable stream or with the sea  above the point where the tide ebb and flow if the sewer be useful to the  navigation and the party over who land the work be do be or be likely to he  benefit by it b by stat Elizabeth c all commission of sewer be to continue in  force for ten year unless soon determine by supersedeas or a new commission  and all law ordinance and constitution make by force of such commission be  write in parchment indent and under seal c shall continue in force  notwithstanding the determination of the commission by supersedeas until alter  or repeal by new commissioner and that without such certificate c as be  require by h c and all such law ordinance and constitution write in parchment  c shall without certificate c continue in force for one year after the  expiration of such commission by lapse of ten year from the testae in a case  upon this Act king v Somerset commissioner east it be hold that the law  ordinance and constitution mention in this Act mean the same as the law act  decree and ordinance mention in h c by which last Act it be enact that such  law act decree and ordinance as shall be make by the commissioner shall stand  good and be put in execution so long as their commission endure and no long  and therefore the court decide that a decree make by commissioner under a  foreign commission which have expire by lapse of ten year direct a seawall to  be resound which have be destroy by a violent tempest and inundation and the  sum necessary for its construction to be advance by those who be before bind  to sustain it ration tenur6e and who do advance the money accord and that a  rate shall be make on tile level for their reimbursement can not be enforce by  commissioner under a new commission issue more than a year after the  expiration of the former commission as to so much of it as remain unexecuted  though good to the extent to which it have be execute and therefore the court  refuse a mandamus to the new commissioner to direct a rate to be levy on the  level for the reimbursement direct by the decree coke report b er p word touch  the premise which refer only to repair the old wall or sewer or to make they  new and also a subsequent clause that all and every statute c heretofore make  concern the premise which restrain that clause ut above not be contrary to  this present Act nor heretofore repeal shall stand and be good and effectual  for ever so that it be resolve by the say justice that by force of the say  commission find upon the Act of h the commissioner can not make the say new  river out of the main land for four reason that this Act prescribe the manner  and for in of the commission in express word which extend only to the  reparation and new make of old wall gutter c that these word etalia which be  include in statue of h and all the say act be leave out of this commission all  the former act be for a time but this Act which establish this commission be  make perpetual by the statute of e c and therefore it will be bare to enlarge  it beyond the word and to give power to commissioner to try new invention at  the charge of the country which perhaps will never take good effect but way  third string be to look at it appear by the register in the writ of ad quod  damnum foe and f n b e that if a old ditch or trench come from the sea to a  town by which boat or vessel use to pass to the say town now if it be stop by  the outrage of the sea and a man will sue to the king to have leave to make a  new trench and to stop the old trench he ought first to sue ad quod damnum to  know what damage it will be to the king or other by which and by the writ in  the register de old t trench obstruendd et novd faciendd seu habendd j appear  that no such new trench or river which run to the sea can be make without the  writ of ad quod damnum and thereupon to obtain the king licence to make it c  for if any commissioner may do it ex duty great inconvenience thereupon for  private lucre may ensue as well as for public damage as stop of haven which be  the gate of the kingdom coke b and other common river as particular nuisance  and prejudice to private man by drown of their land and inheritance and  therefore such new river can be make without the king licence ground upon a  writ of ad quod damnum vide the writ of ad quod damnum in such case because  optimum but it be resolve that as new invention as of a artificial mill to  cast out the water or of a great river out of the main land and other the like  be not warrant by the say commission upon the say Act of h because nothing  semel invention be etpeifectum so when a old sewer be new to be make or  cleanse some small alteration in respect of the natural change of the current  or otherwise for the public good of such place and so in the like case S may  be make so when a old wall by the extreme rage of the water be break down to  preserve the land within the same level from inundation another wall in case  of inevitable necessity for the public good of that part may be make to defend  the people and their land within the same level for this manner of defence by  wall be no new invention but the old way and mean well approve of by  experience and upon the matter it be but a new make of the old wall in a place  by inevitable necessity more fit than the other but if by the timely  reparation of the old wall the extreme danger may be avoid no other ought to  be make for si assuelis nederi to be able novan non are to feel the pulse but  when new invention be propose as be aforesaid if they be apparent c S p  contraper Popham Anderson Dugdale on Embankment contraCallis send for style  and Vid Reg v inhabitant of Westham Mod where the court say the commissioner  of sewer have no power to make a river navigable nor even to improve the  navigation of a river beyond what it be before preserve it they may in the  state it be by remove obstruction and by other natural way but they can even  help the navigation by erect lock or any such artificial method the  commissioner may however if necessary erect a old bank or wall in a new form  anon style Commins v Masham marsh king v Somerset commissioner TR whatever  work the commissioner may be authorize to make the property in the work be not  vest in they nor have they such a possession as be sufficient to enable they  to maintain a action of trespass duke of Newcastle v clarke taunt SC b more  and Vid Hollis v goldfinch barn Cress SC dow Ryl coke report a er p profitable  no owner of the land there will deny to make contribution for his advantage  and then it ought to be make by their voluntary consent and charge and not by  constraint by force of the say commission of sewer upon the say Act of h but  sometime when the public good be pretend a private benefit be intend and if  any such new invention be in truth quod seldom or never fit good for the  commonwealth and yet no consent can be obtain for the make of it then there be  no remedy but to complain in parliament and there to provide relief as sir  John Popham late chief justice of England do who exhibit a bill in parliament  year James for make a new river in the say isle which he himself at his great  charge begin know that without a Act of parliament none can be compel by force  of the commission of sewer to contribute to such new attempt but the bill be  utter reject it be also resolve that none can be tax towards the reparation c  but those who have prejudice damage or disadvantage by the say nuisance or  default and who may have coke a benefit and profit by the reformation or  remove of they d also the a tax assessment and charge ought to have these  quality it ought to be accord to the quantity of their land tenement and rend  and by the number of acre and perch accord to the rate of every person portion  tenure or profit or of the quantity of the common of pasture or of fish or  other commodity and therefore it be clear resolve by they that the say tax  general of a several sum in gross upon a town be not warrant by their  commission but it ought to have be particular accord to the express word upon  every owner or possessor of land tenement rend c observe the quality aforesaid  e d and accord it be hold in master v Scroggs m S that commissioner of sewer  can assess a person in respect of drain which communicate with other drain  that fall into the great sewer if the level of his drain be so much above the  sewer that the stop of the sewer can not possible throw back the water so as  to injure his premise and if he be not and it do not appear that he be likely  to he benefit by the work do upon the sewer Vid Anselm v Barnard keb the  decree of the commissioner be not conclusive against a party reside within the  district over which they preside that he derive benefit from the sewer on  account of which he be rate but he may show the contrary in a action against a  person who take his good to satisfy the rate Stafford v hamston Brod bing SC b  more a Calais sect e he say it be by they resolve that a general taxation upon  a town to pay so much towards the repair of the sea bank be not warrant to be  do by the commissioner of sewer but that the same must be upon every  particular person accord to the quantity of his land and by number of acre and  perch and accord to the portion of the profit which every one have there if  this shall be law it give a great blow to the power of that commission and may  bring much mischief with it for if a sudden inundation of the sea happen and  the wall and bank against the sea be carry away by the sudden violence of the  stream if the commissioner of sewer shall stay their taxation for the repair  of the wall and bank till every man land be know and till every acre or perch  be by survey divide and number which can be thework of one day but of many  month the whole country haply may be drown and therefore in case of necessity  the law allow those way that be of most expedition and of quick dispatch which  be by settle a general tax and then the landholder among themselves to rate  themselves in particular that the work may go on with speed Lord Ellesmeres  observation pp accord to Calais et seq a assessment may be make in general  upon such a town and afterward the party liable may apportion it among  themselves or the commissioner may afterward make a decree for apportion it so  in the case of the level oh bull strange a order to levy nine penny per acre  to be pay to the clerk to be apply towards defray charge in and about the  execution of the commission be hold to be good Vid commissioner of sewer  Neubard coke report b er p and it be to be observe that there be three manner  of statute which concern sewer the first consist in to ward off et to get  again wallias seweras c the in to tear down et to move away nocumenta c the  which concern both the point tam in to tear down how in to ward off of the  first sort be great Charta c h c h c h c e c h c h c of the second sort be  great Charta c e c e c two c h c a e c the three sort of statute which concern  both the former sort be h c h c e c and Elizabeth c