To accomplish the purposes for which they are created; the commissioners have power to appoint a clerk, and various offi cers called surveyors, collectors, bailiffs, &c.; and they themselves, or any six of them, when duly assembled, constitute a court of record. By their own view, or the report of their surveyor, they may as certain what old defences need repair, what new ones are necessary, what im pediments or annoyances require removal, what money or materials must be pro vided for such purposes. To form a court, ten days' notice to the owners or occupiers of lands within the district who are required to attend are necessary, ex cept in a case of emergency, when it may be summoned by two commissioners im mediately. It is the duty of the sheriff, on receipt of the precept of the commis sioners, to summon a jury from the body of the county to attend in their court. Before any charge can he laid, the com missioners must further inquire, through means of the jury, by witnesses examined on oath before them, where it is that any defence is needed or any nuisance exists ; and by whose neglect or default, if any, such things have occurred, and what par ties are liable to contribute to the ex penses of putting all in a proper condition. The general fundamental criterion by which the liabilities of parties to contri bute must be ascertained, is the circum stance of their deriving benefit or avoid ing injury from the works of sewers. When a party has been once presented as liable by a jury, he is presumed to continue liable during the existence of that commission. The liabilities of parties to contribute may arise either by holding lands on condition of con tributing to repairs of a bank, &c. ; or by custom, or prescription, or by cove nant. If a man holding lands charge them by covenant for himself and his heirs, and the lands descend to the heir, he is liable to their amount. Parties also may be charged by reason of their ownership of the bank, &c , requiring re pairs, or because they have the use or profit of it ; or because they are fronta gers, that is, have lands joining the sea where the defences are needed. If no one appears to be liable for any of these causes, the expenses are then to be im pmed on all the level, that is, all the land lying upon the same level. The reason for this imposition is, that all such land is liable alike to suffer by any injury to the defences against the sea, or by any defect in the drainage, and benefits alike by their restoration and maintenance ; the whole of it therefore ought to contribute towards the expenses incurred. Even in those cases where a special liability, sach as has been above stated, rests on particular individuals, the whole level is still bound to contribute in any case of immediate danger; or where, in spite of the due repairs having been done by the party liable, an injury has occurred by some sudden and inevitable accident, as an extraordinary tide or flood, or where the land liable is insufficient for the ex penses necessary. Any new work also must be made and maintained at the ex pense of the whole level ; and where ex traordinary repairs are necessary to a great part of the sea, not the level only, but the whole county is liable. The parties liable within the level are all those who have within it any lands or tenements, or profits a prendre, such as rights of com mon, of fishery, &c., provided they re ceive benefit by the repair or injury by the non-repair ; but a party may be ex empted from contributing to a general assessment, on the ground of a special ens tom under which he is bound to do some particular act, such as repairs of a bank for the general service. The duty of the jury, after hearing witnesses, is to pre sent the parties liable to repair ; and in cases where the whole level is liable, to present the particular quantity of land or other profit that every one has who is liable within the level. It is sufficient to charge the ostensible owner or occupier. These presentments may be traversed or contested by the party whom they charge, and he may attempt to disprove the facts stated in them, and so show that he is not liable to the extent charged, or not liable at all. After the necessary facts are ascer
tained, the commissioners make a decree for the assessment of every person in the proportion to which he appears to be liable. The apportionment must be made by the commissioners : it is not sufficient for them to assess a certain sum upon a township or other district, leaving it to the parties themselves to apportion. Where, by reason of immediate necessity, works have been done without any pre sentment of a jury, the commissioners may afterwards make a rate to defray the expenses. In cases of emergency, the commissioners, by their order, may com pel the service of carts, horses, and la bourers : they may take soil, &c., and cut down timber within the level, if ne cessary for their purposes, subject of course to a proper remuneration, which may be recovered before them.
After an assessment has been duly made and demanded, the commissioners may by their warrant direct their bailiff to distrain and sell the goods of those who neglect to pay (the distress may be made without the district of the commissioners) ; or the party may be amerced for non payment, or the lands themselves which are liable may be sold. In case of such a sale, a certificate of it must be made by the commissioners into Chancery. Con stables within the district are bound to obey the orders of the commissioners. In cases where an obstruction or impedi ment has been, after presentment by the jury, ordered to be removed, the party causing it may be amerced ; or if he is unknown, then the person who most suf fers by the injury may be empowered by the commissioners to remove it ; or the surveyor, after notice, may do what re pairs, &c., are necessary, at the expense of the parties making the default : and for any act of negligence or default or mis feazance, an amercement may be imposed by the jury. The commissioners them selves may enforce parties to fulfil the duties lawfully imposed upon them. Thus they may fine a juryman who refuses to act, or a sheriff who fails to summon a jury ; and they may maintain order in their court by fining and imprisoning those persons who attempt openly to dis turb it.
If the commissioners make an order in a matter out of their jurisdiction, the order may be removed by certiorari into the Court of King's Bench, and there quashed ; and the commissioners are fineable for contempt if they proceed after a certiorari has been allowed. But a certiorari cannot be demanded of right : it is within the discretion of the Court of King's Bench to refuse it, and the impro priety of the order must be made out very distinctly before a certiorari will be granted. Where the order is for repairs, and is made upon an inquisition before a jury who find that the party ought to repair, the court will not proceed in the matter unless the party charged consents to repair in the meantime. If it after wards appears that he ought not to repair, he will be entitled to reimbursement, which may be awarded to him by the commissioners. An order which is good in part may be confirmed for so much, although it is quashed for the remainder.
An action may be brought against the commissioners for anything done by them beyond their authority. They may sue and be sued in the name of their clerk, who, nevertheless, may be a witness for them. (Callis On Sewers ; 4 Inst.; Comyns's Digest, Sewers; Viuer's Abr., ' Sewer?) The sewers of the city of London and its liberties are under the care of commis sioners appointed by the corporation, who were first empowered to make the ap pointment by the 19 Chas. IL, c. 31, the act for rebuilding the city after the great fire. They were entrusted with this power by that Act for seven years only. A few years afterwards it was made per petual ; and by 7 Anne, c. 9, the commis sioners of sewers for the city of London were invested within the city and its liberties with all the authorities possessed by the ordinary commissioners elsewhere. The Roman law (Dig. 43, tit. 12, 13, 14, 15, 21, 23) contains certain provisions as to public rivers, cuts for navigation, and private and public drains in towns (claim).