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but the lord could not prescribe to amerce any stranger driving the estray out of the manor in the manor court (u).
As the right of property in an estray is not changed within the year and day, the lord cannot work the beast (x), without being subject to an action of trespass (y); but if a cow be taken, it may be milched, because that tends to the preservation of the animal(2).
And it should seem that the king's prerogative gives him a property in an estray, even before seizure (a).
An estray should be kept in loco aperto on land in the lord's possession, being part of the demesnes of the manor; and the bailiff of the lord cannot delegate his authority, nor deliver the estray to be kept by another (6).
Should an estray be unruly, the lord may use restraint, as by fettering a colt, but in the same way only as he would fetter his own beasts, to prevent their breaking down fences (c).
If two tenants in common be of a manor to which estrays belong, no action would lie by the one against the other tenant in common who should alone seize an estray, unless by prescription the one is to have the first estray, and the other the second, and one of thein should take the beast pertaining to the other (d).
Waif.-(Bona fugitivorum ) (e).—Waifs are, in strictness, such stolen goods only as a felon upon hue and cry, or other pursuit, waives or casteth from his person (f).
33, where it is said that a lord who seizes (a) Dy. 338 b, pl. 40. an estray or wreck may, before the year (b) See Taylor v. James, in Godb. & and day expired, maintain trover against Noy, sup a stranger, for he has more than a posses- (c) Winch, 68, 125, in Pleadal v. Gossion, viz. a possession that will turn into more; Hobart, C. J. contra, citing Hara property (cites Sir William Courtney's vey v. Blacklole, ubi sup. case, C. B. Salk. MSS.; Pye & Pleydel, (d) Co. Lit. 200 a. Berks, 1750, per Clarke, Bar. S.P.). Vide See as to estrays belonging to infants or also 2 Williams's Saund. 47 a, n. 1; 2 others under disability, post, p. 652, n. (i), Taunt. 306, 309; 7 T. R. 398.
tit.“ Wreck." (u) Dy. 199 b, cites 29 Hen. 8; Benl. (e) This royalty is not specified in the Rep. (23 pl. 38.]
82d clause of 4 & 5 Vict. c. 35, among
the (1) Bagshaw v. Goward (or Gawin), manorial rights excluded from the operaCro. Jac. 147; Noy, 119; Yelv. 96. And tion of the act, unless expressly commuted, see Godb. 151, in Taylor v. James ; Win. but it is embraced by the general words, 68, in Pleadal v. Gosmore; 12 Co. 101,
other manorial rights whatever.” Anon.
(1) Br. Estray and Wayfe, pl. 2; Fox(y) Oxley v. Watts, 1 T. R. 12. ley's case, 5 Co. 109; S. C. Cro. Eliz. 694.
(2) Bagshaw v. Goward, Noy, 119; Either the stealing or the waiving may be Cro. Jac. 148, sup. So a sheep taken as traversed; Br. Issues Joines, pl. 68, cites an estray might be sheared ; ib.
12 Ed. 4,5; ib. Traverse, per &c. pl. 241, Att. Gen., citing Prideux's case.
cites S. C.
These are forfeited to the king, or to the lord of the franchise (9); but are only to be claimed by special grant or by prescription, and do not belong to the lord of a hundred or manor by reason of the hundred or manor (h).
And even these shall be restored to the owner if he make fresh suit, that is if he pursue the felon as soon as he has notice of the theft (i), and whether he be taken or not, and this at common law; so also by the stat. 21 H. VIII. c. 11, if the owner give evidence upon the indictment, and the felon be attainted (k); but after seizure by the king or the lord, the owner cannot retake the goods, though upon fresh suit (1), for by the seizure the property is changed (m).
If, however, the owner challenge the goods upon fresh suit, and before seizure, they shall not be forfeited (n).
In an action against the lord of a manor for misusing a horse stolen from the plaintiff, who alleged that he made fresh suit, the court held that the defendant ought to have traversed the fresh suit whereof the plaintiff had declared, the property being thereby preserved (o).
And in trover for goods seized, ut bona waiviata, it was adjudged without argument that the defendant ought to allege a felony committed, &c, and that the goods were waived by the felon (p).
But if the goods are not seized by the king or the lord, he who was robbed may seize them, even twenty years after (9).
Goods stolen and left in the house of the felon, or of another person, or in another's custody, or secreted, even if the felon flee, are not, properly speaking, waifs; and these may be retaken by the owner without fresh suit (r).
The goods of a merchant alien cannot be forfeited as waifs, and if
(8) Br. Forfeit. de Terres, pl. 110, cites 21 Ed. 4, 16; ib. Estray and Wayfe, as above.
(1) Br. Estray, pl. 2, cites 44 Ed. 3, 19. As to prescriptive title, see Co. Lit. 114 b.
(i) 7 Hen. 4, 44; Br. Fresh Suit, pl. 4; ib. Estray and Wayfe, pl. 7, cites 21 Ed. 4, 16; Rooke v. Denny, 2 Leo. 192.
(k) Scroggs, 130 ; Br. Estray and Wayfe, 8, cites Dr. & Stud. lib. 2, ca. 3 & 51.
(1) Hale, H. P. C. 541; Br. Forfeiture de Terres, pl. 110, cites 21 Ed. 4, 16; Stanf. f. 186, A.; Kitch. 80.
(m) Rastal Restitution, 2; Kitch. 80.
this case the court was divided as to the
(0) Rooke v. Denny, 2 Leo. 192.
(9) Br. Forfeiture de Terres, pl. 110, cites 21 Ed. 4, 16; Kitch. 80.
(r) Foxley's case, ubi sup. ; S. C. Mo. 572. But it has heen held that if a thief leave my horse or his own horse in an inn for a certain sum by the week for his meat, it is not any waif; yet if he leave it there without any agreement for his meat, it is a waif; P. 1 J. B. 22 Vin. Abr. (Waife) 408, pl. 1, 2.
waived by the felon after the alien's death, they belong to the executor of the alien (s).
It is the better opinion that the lord may have trespass or trover against a stranger for waif taken out of his manor, even without any seizure (t); but that the property is not changed before seizure, so as to give the lord a title as against a second lord, into whose franchise it should stray (u).
Bona fugitivorum are the proper goods of him who flies for felony, and they cannot be taken as waifs (w); and the lord of a hundred or manor, although he may prescribe for waifs (y), cannot prescribe for goods of felons and fugitives (2). These, however, may be forfeited to the lord under a special grant from the crown, but not until it is found upon indictment that the party fled for the felony (a).
WRECK (6).— It should seem to have been a principle of common law, that the fragments of a vessel wrecked at sea, and the lading thereof, were forfeited to the king, in virtue of his prerogative right to all goods of which the ownership could not be established (c); and this identification, when the art of navigation was very imperfect, was necessarily a matter of great difficulty. But it has been supposed that goods wrecked upon the sea were given to the king, to compensate for the great charges incurred by the state in scouring the seas of pirates (d).
The better opinion is, even at common law, if any person, or any animal, escaped from the vessel, whether alive or dead, whereby the ownership of the lading could be traced, neither the vessel
(s) Per Doderidge, J. in Waller v. Hanger, 3 Bulst. 19. Vide also Scroggs, 130.
(1) F. N. B.91 B.; Kitch. 80; Scroggs, 132; ante, p. 648.
(u) 12 Hen. 8, 10; F. N. B. 91 B. n. a; ante, pp. 643, 649.
(1) Br. Estray and Wayfe, pl. 2, cites 44 Ed. 3, 19. But see contra, ib. pl. 9, cites 29 Ed. 3, 29, and M. 37 Hen. 8.
(y) Ante, p. 650.
(6) This royalty is not specified in the 82nd clause of 4 & 5 Vict. c. 35, among the manorial rights excluded from the operation of the act, unless expressly commuted, but it is embraced by the general words “or any other manorial rights whatever.”
(c) And this prerogative right would not pass by general words of all privileges, royalties, &c. in a grant from the crown of the seigniory; Marquis of Winchester's case, 3 Co. 4 b; Ford & Sheldon's case, 12 Co. 2; 2 Roll. Abr. 195 E.; Com. Dig. Grant, (G. 6;) Sir W. Jones, 349; 2 Ca. & Opin. 451 ; per Bayley, J. in Scratton v. Brown, 4 Barn. & Cress. 497; and see Alcock v. Cooke, 5 Bing. 340, which case has decided that a grant of duchy lands is subject to the same incidents as a grant of lands belonging to the crown; and see 8 Barn. & Cress. 743, 757, in Rowe 8 Brenton; Com. Dig. Franchises (D. 3); 2 Cr. & Jerv. (Ex.,) 302, in Att.-Gen. v. Parsons.
(d) 2 Inst. 167; Hamilton & Smith v. Davis, 5 Burr. 2738.
nor the lading were wreck; and the statute of Westm. 1, (3 E. I.,) c. 4, has clearly established that principle, declaring that where a man, a dog, or a cat, escape quick out of the ship, neither such ship, nor barge, nor anything within them, shall be adjudged wreck; and that this act was only a declaration of the common law, may be inferred from various books of great authority, particularly from Bracton, written before the statute, and the Mirror, written after it (e).
And in a very ancient case it was adjudged, that if a ship be pursued by enemies, and after being taken and ransacked is put adrift, and subsequently is cast on land, where her crew arrive, there shall be no wreck (f).
Although the above statute speaks generally of a wreck, it extends to the three cases of flotsam, jetsam, and lagan, or (ligan) (g).
Flotsam maris is where a ship perishes, and the goods float upon the sea. Jetsam is where the goods of a ship, which afterwards perishes, are cast into the sea for disburthening it. Lagan (or ligan) is when any ponderous goods of a vessel, which afterwards perishes, are cast into the sea, and with a view to recover them a cork or buoy is fastened to them; and none of these goods are called wreck, unless driven upon shore (h).
When goods are taken as wreck, the owner should prove his right to the property within a year and a day after the seizure (i); or his executors or administrators, in case he should die within that period (k).
(e) See Bract. lib. 3, f. 120; Britt. f. 7, stable's case, 5 Co. 106 b. 26, 85; Flet. lib. 1, c. 41; Mirr. c. 1, (h) See Sir H. Constable's case, sup. s. 13, and c. 3, s. De Wrecks. Vide also And even then the right to them will be 2 Inst. 166, 167; Sir H. Constable's case, preserved by any indicia of ownership. 5 Co. 107 b; Sutton v. Buck, 2 Taunt. Hamilton & Smyth v. Davis, 5 Burr. 311.
2732; Sutton v. Buck, 2 Taunt. 311. () Fishlake's case, 5 R. 2, cited 2 (i) The year and a day is given by Inst. 167; but see the bailiffs, &c. of the stat. Westm. 1, c. suprà ; infrà, Dunwich v. Sterry, post, p. 654.
p. 654, n. (t). Though a (special) proSee further as to what constitutes perty is in law vested in the lord before wreck, 22 Vin. Abr. 537 et seq.
seizure, yet the year and day are accounted And when goods are cast on land, and from the seizure, as it is by that act alone are not wreck, and are stolen, the owner the owner can know where to make his may have a commission of oyer and ter- claim; 2 Inst. 168, citing 35 Hen. 6, miner, directed to certain persons to in- and see Br. Wreck, pl. 2; Bailiffs, quire of those who did the trespass, and &c. of Dunwich v. Sterry, post, p. 654. to hear and determine the same, and to The property of infants and others unmake restitution to the party; and a writ der disabilities is equally bound, after the to the sheriff to return probos et legales year and day, as well in the case of homines, &c. before the said justices; wreck, as of an estray; Sir H. Constable's F. N. B. 112, C.; 2 Inst. 168.
case, 5 Co. 108 b. (8) 2 Inst, 167. « And of them the (k) 2 Inst. 168. admiral has jurisdiction.” Sir H. Con
The king is an exception to this limitation of time, and may prove his right of property at any period (1).
And if the goods seized as wreck be bona peritura, the sheriff may sell such goods within the year and day (m).
Although wreck of the sea is the property of the king by common law right (n), yet like waifs and estrays it may belong to a subject by grant (0), or by prescription (p). And it has been adjudged that by prescription wreck may belong to the Lord High Admiral (q).
When a subject is intitled to wreck by grant or prescription, he is said to have a constructive possession, and also a special property
(1) Ib.; Br. Wreck, pl. 2, cites 35 Hen.6, the language of an ancient grant be ob27; Kitch. 24, cites 45 Hen. 6, 32. scure or doubtful, constant usage may be
(m) 2 Inst. 168; Plow. Com. 466; resorted to, to expound, though not to Kitch. 24; and see a provision as to the control the deed." sale of perishable goods, 1 & 2 Geo. 4, [And see 1 & 2 Geo. 4, c. 75, s. 25, 26.] c. 75, s. 27.
A grant by the crown to the lord of a (n) Scroggs, 127. “ The king shall
manor of “ wreck of the sea," will not pass have wreck of the sea throughout the
such wreck as jetsam, &c., previously bewhole realm; and sturgeons taken in the longing to the office of Lord High Admiral, sea, or otherwhere within the realm, except but a claim is good as to wreck cast on the some privileged places, be the king's;" land, or found floating in creeks within Kitch. 24. “The king by his prerogative
the limits of the manor; Reg. v. Forty is intitled to large fish, as whales and stur- Casks of Brandy, 3 Hag. (Adm.,) 257. geons;" Bract. 1. 3, f. 120.
To constitute “wreck,” the goods must (0) See several opinions on adverse come on shore, and be within the land claims to the right to wreck within the jurisdiction ; but if beyond low waterhonour of Bramber, under grants from the mark, it is deemed to be on the high crown, 2 Ca. & Op. 452, &c. And note seas, and to belong to the Admiralty; su that those adverse claims gave rise to the if floating between high and low watercase of Biddulph & Ather, 2 Wils. 23, mark; otherwise if fixed on the land, alin which it was held that two allowances though water may be round it; Reg. v. in eyre, and a judgment in trespass 400 Two Casks of Tallow, ib. 294. years since, were not conclusive evidence (p) Co. Lit. 114 b; 2 Inst. 168; Br. against usage for 92 years past to have Wreck, pl. 1, citing 11 Hen, 4, 16. See wreck of the sea.
further as to wreck by prescription, 2 Ca. Vide also Chad v. Tilsed, 2 Brod. & Op. 456; Saunders' case, Mo. 224. A Bing. 403, in wbich an exercise of a right right to wreck on another man's lands, of over a small bay for 40 years, was held to necessity gives a right of way over the be evidence from which anterior usage lands to take it; 6 Mod. 149, Anon. ought to be presumed, to induce a liberal (9) Wiggan v. Branthwaite, 12 Mod. interpretation of a grant of wreck made 260; S. C. 1 Lord Raym. 474; S. C. by Hen. 8, in favour of the proprietory Holt, 758. In this case, Holt, C. J. said, right claimed; but Dallas, C. J. observed, he made no doubt but some wreck might that what is done under usurpation, and belong to the Admiral by prescription, in opposition to the clear words of a grant, as that about the Cinque Ports, and such could not constitute legal usage, but that places, where he was most conversant in long usage might be the best exposition ancient times, grounding his opinion on of a grant of remote antiquity containing the antiquity of the office. Vide 1 & 2 general words,-the rule being, that " if Geo. 4, c. 75, s. 24.