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vested in him even before seizure, so that he may have his action of trespass or trover against any person taking it away (r), even though the goods should be part of the cargo of a ship from which some person escaped alive to land (s).
It is clear therefore that if a stranger take possession of wreck after seizure, an action either of trespass or trover lies against him (t); but the absolute property in wreck is not vested in the lord until after the year and day (u).
In the parish of East Dean in Sussex, there is a custom for the lord of the manor, when a ship is wrecked there, and cast on the lands held of the manor between the flux and reflux of the sea, to bury the dead, and to take care of those who åre living and cast on the land, being either sick or wounded, and to preserve the shipwrecked goods for the use of the owners, and for this the lord to have the best anchor and cable ; and this has been held to be a good custom, it not being unreasonable to have some manner of recompense even for a charitable act (x). But where in trover for an anchor and cable, the defendant pleaded a custom in the manor of Miching in Sussex, that if any ship or boat sailing on the sea strikes on the land held of the manor and perishes, though it is not wreck, yet the best anchor and cable, &c. belong to the lord of the manor, the plea was
(r) F. N. B. 91 D.; Smith v. Milles, 1 sheriffs, coroners and bailiffs, and shall be T. R. 480; Bul. N. P. 33; ante, p. 648, delivered to them of the town, which shall n. (t); p. 652; but see Hawk. Pl. C. 93, answer before the justices of the wreck bec. 33, s. 24, who says, it seems that the longing to the king. And where wreck taking of wreck before seizure cannot be belongeth to another than to the king, he felony, because no one has property of the shall have it in like manner. And he that goods at the time of the taking; and see otherwise doth, and thereof be attainted, Kitch. 49, citing 22 Ass. 99.
shall be awarded to prison, and make five (8) And though the owners within the at the king's will, and shall yield damages prescribed period (1 & 2 Geo. 4, c. 75, also. And if a bailiff do it, and it be diss. 26] claimed and identified them, and allowed by the lord, and the lord will not though the taking was before the seizure pretend any title thereunto, the bailiff by the grantee; The Bailiffs, &c. of Dun- shall answer if he have whereof, and if he wich v. Sterry, 1 Barn. & Adolp. 831. have not whereof, the lord shall deliver
(t) 10 Hen. 7,6; Kitch. 24. The stat. his bailiff's body to the king. By anWest. 1, c. 4, (already cited) further swering before the justices is meant, that enacts, that the goods shall be saved and wreck shall not be tried in the admiralty kept by view of the sheriff, coroner, or the court, but before the king's justices at king's bailiff, and delivered into the hands common law; 2 Inst. 168; and see 15 of such as are of the crown, where the R. 2, c. 3; Kitch. 24. goods were found; so that if any sue for (u) Vaugh. 168; Scroggs, 127; see 6 those goods, and after prove that they & 7 Will. 4, c. 60, post, 655. were his, or perished in his keeping, within (r) Simpson v. Bithwood, 3 Lev. 307. a year and a day, they shall be restored to See the pleadings in this case in Appenhim without delay; and if not, they shall dix to Lex Man. pl. 41, p. 126. remain to the king, and be seized by the
adjudged ill, no custom of salvage being found, and the alleged custom being void for want of any manner of consideration to support
The lord of a manor has been held not to be intitled to salvage for taking charge of wreck against the owner's consent, and therefore not in the instance of parts of a ship being thrown on the land within the manor, when the servants of the owner are there to take care of them for him (z).
By a recent statute (a), after reciting that goods found derelict, and articles under the denomination of goods jetsam, flotsam, and lagan, are frequently picked up at sea and brought into port, which, if not claimed by any owner within the period limited by law, belonged of right to bis majesty in his office of admiralty, but by reason of the smallness of their value would, if prosecuted to condemnation in the High Court of Admiralty, be wholly unproductive, it was enacted, that whenever any such goods, whether picked up at sea or on the shore within the flow of the sea, should be reported to the officers of the customs, notice thereof should be forthwith given by them to the receiver general of droits of admiralty, and that all such goods should be placed at his disposal, subject however to the payment of the duties with which they should be respectively chargeable; and that in case the right owner thereof should prove his claim thereto to the satisfaction of the said receiver general, within the period of twelve calendar months from the day on which they should be so reported, such goods should be restored to the owner, on payment of the duties and necessary charges attending the care of the same, and a reasonable compensation to the amount of one-third of the net value, (after abating the duties and charges aforesaid,) to the salvors thereof; but if no such claim should be established within the period aforesaid, then such goods should be deemed and taken and be condemned to his majesty as droits of admiralty, and might be sold by the said receiver general without any process from the High Court of Admiralty; and the net proceeds thereof, after payment of duties, salvage, and other charges as aforesaid, should be disposed of by him, and carried to the credit of the consolidated fund, in like manner as droits of admiralty were by the therein mentioned act of parliament directed to be applied.
TREASURE TROVE (b).— It would appear by several ancient au
(y) Geere v. Burkensham, 3 Lev. 85. (z) Sutton v. Buck, 2 Taunt. 302.
(a) 6 & 7 Will. 4, c. 60, s. 7. Note,The practice and jurisdiction of the High Court of Admiralty was much improved
and extended by 3 & 4 Vict. c. 65.
(6) This royalty is not specified in the 82nd clause of the 4 & 5 Vict. c. 35, among the manorial rights excluded from the operation of the act, unless expressly
thors (c), that treasure trove, at some far distant period, belonged to the finder ; but even before the Conquest, (with perhaps some exceptions) (d), it was a rule of common law, that treasure trove belonged to the king by his prerogative (e), or to some lord of a manor or liberty by special grant (s), or by prescription (g).
The term treasure is restricted to gold and silver (h), but it may be either in bullion (i), coin, or plate; and the right of the king or the lord presupposes the impossibility of an identification of the property of the person who concealed it (k); but it is immaterial whether it be found hidden in the ground, or in the walls or roof, or ruins of any house, or other building, or elsewhere (1); though treasure found in the sea still belongs to the finder (m).
We are told by Glanvill and Bracton, that the fraudulent concealment of treasure trove was an offence punishable by death; but it was long since adjudged that the punishment should be by fine and imprisonment only (n).
FAIRS, MARKETS, TOLLS, &c. ().-These franchises are annexed to many manors, but are to be claimed only by grant from the crown (p), or by prescription (q); and even if the grant of a fair or
commuted, but it is embraced by the ge- the king may have the ore (other than tin neral words other manorial rights in Devon and Cornwall) paying the price whatever."
stated in the act. (c) Staunf. f. 39; Glanv. I. 1, c. 1; (k) Stath. tit. Coron.; Kitch. 78; or 1. 14, c. 2; Britt. 7, 26, 85; Bract. 1.3, by his executors, Fitz. Abr. Coron. 446, f. 120; 2 Inst. 168; 3 Inst. 132.
cites 22 Hen. 6. (d) 3 Inst. 133.
(l) Bract. I. 2, f. 10; 3 Inst. 132. (e) Kitch. 78; 3 Inst. 132, 133.
(m) Britt. f. 26; Kitch. 78; 2 Inst. 168. (J) Ib.; Fitz. Abr. tit. Co ne, pl. 241, (n) Stath. tit. Coron.; Fitz. Abr. Coron. 436, cites 22 Ed. 3; 8 Ed. 2; Kitch. 78. 265, cites 22 Ed. 3; 3 Inst. 133; Kitch.
(8) Co. Lit. 114 b; 3 Inst. 132, 133, 49. Treasure trove as well as wreck shall cites 21 Hen. 6, tit. Prescription, 4; 22 be inquired of by the coroner; 3 Inst. 133; Ed. 3, cor. 241; 1 Hen. 7, 33 ; 9 Hen. 7, ante, pp. 643, 644, (tit. “Deodand "). 20; 46 Ed. 3, 16; Stamf. pl. cor. 39 b, (0) The royalties of "fairs and marlib. fo. 109 b.
kets " (of course including “ tolls ") are (h) 3 Inst. 132.
specified in the 82nd clause of 4 & 5 Vict. (i) “ Veins of gold and silver in the c. 35, among the manorial rights excluded ground of subjects also belong to the king from the operation of the act, unless exby his prerogative, for they are royal pressly commuted. mines ;" 3 Inst. 132. But this has been (p) As an evil rather than a good doubted, unless the quantity of gold or might result from the establishing of adsilver was of greater value than the quan- ditional fairs or markets, it is usual, pretity of base metal; Plowd. 336; 1 Bl. vious to a grant by the king, to have a Com. 294. And now by 1 W. & M. st. 1, writ of ad quod damnum issued and rec. 30, and 5 W. & M. c. 6, mines of cop- turned; The King v. Butler, 3 Lev. 222; per, &c., shall not be looked upon as royal 2 Vent. 344; and see 3 Burr. 1818, in mines, though gold or silver may be ex- Rex v. Marsden, 7 Barn. & Cress. 49, n. tracted from them in any quantities ; but (9) Co. Lit. 114 b; 2 Inst. 220; and
market be preceded by a writ of ad quod damnum, or the usual words quod non sit ad nocumentum, &c. be omitted in the grant, yet the patent shall be repealed by scire facias, if it be to the nuisance of the king or others (r). But it has been held, that an uninterrupted user for twenty years gives a prima facie right to a fair or market, and affords a sufficient answer to an indictment for a nuisance to a highway, although the party is liable to be proceeded against for the usurpation of the franchise (s).
The grantee or owner for the time being of the franchise of a market may have an action on the case against a person who erects a stall upon his own ground near to the market for selling meat, &c., though he should not take toll or usurp a franchise (t). And by grant or prescription, the owner of such a market may prevent persons, being inhabitants of the place, from selling in private houses (u). In the case of Dorking market, tried before Heath, J.(x), a man had fitted up an inner room in a public house, and corn was pitched and sold there ; and the plaintiff recovered against him in an action on the case on the same ground as in the Prior of Dunstable's case, because it was done secretly.
And in the case of the Bailiffs of Tewkesbury v. Bricknell(y), it was held that an action on the case for toll lies equally against the seller of corn by sample as the seller of corn pitched in bulk.
A custom to erect booths on the waste during fairs has been held to be good. In Tyson v. Smith (z) trespass was brought for breaking and entering the plaintiff's close, and erecting stalls, posts, booths and tables there, and the defendant justified under a custom that at
see Hill v. Smith, 10 East, 476; 1 Wils. 112. Tenants in ancient demesne have a qualified exemption from toll; ante, pp. 582, 583.
(r) 2 Inst. 406; Rex v. Butler, ubi sup.; 2 Roll. Abr. 140, pl. 2; Com. Dig. Market (C. 2). And notwithstanding the issuing of the writ, an action would lie by the private owner of a market that was injured; 1 Sir W. Bl. 581. If a fair or market was set up without patent, to the nuisance of another, the party aggrieved might have had an assise of nuisance, returnable into the King's Bench; F. N. B. 184, A.
(s) Rex v. Smith et al, 4 Esp. 111; and see Yard v. Ford, 2 Saund. 172; ib. 175, n. 2.
A quo warranto will not lie merely for encouraging and promoting the holding of a market, it being at most a misdemea
nour, and no usurpation of a franchise ; Rex v. Marsden, 3 Burr. 1812; S. C. 1 Sir W. Bl. 579. And it seems doubtful whether an information in nature of a quo warranto, for a usurpation upon the crown by holding a fair or market, can be granted · on the application of a private person ; ib.
(1) Mosley 0. Chadwick & others, 7 Barn. & Cress. 47, n. (a).
(u) Sir Oswald Mosley v. Walker, 7 Barn. & Cress. 40; 9 Dow. & Ry. 863. And see Prior of Dunstable's case, 11 Hen. 6, 13; Br. Abr. Prescription, pl. 98; 7 Barn. & Cress. 47, n.; Com. Dig. tit. Market (F 2); Vin. Abr. tit. Market (B.); 2 Roll. Abr. tit. Market (B.), pl. 1.
(x) 2 Taunt. 133.
(y) 2 Taunt. 120. And see Moseley v. Pierson, 4 T. R. 104.
(z) 6 Adol. & Ell. 745.
fairs holden at certain times of the year on some part of the commons and waste of a manor to be named by the lord of the manor, (the locus in quo being parcel of such commons and waste, and named by the lord,) every liege subject exercising the trade of a victualler might enter at the time of the fairs and erect a booth, &c., and continue the same for a reasonable time after the fairs for the more conveniently carrying on his calling, paying 2d. to the lord :—and the court of B. R. held that the custom was reasonable and the plea good.
But it is at least very doubtful whether the grantee of a newly created market can maintain an action for the disturbance of his franchise against a person selling marketable articles in his own shop within the limits of the market place on the market day (a).
It has been adjudged that if a grantee of a market suffer another to erect a market in his neighbourhood, and to use it uninterruptedly for three and twenty years, he is barred of an action on the case for disturbance of his franchise (6).
The lord of a manor having a grant of a fair or market generally, may hold it at any place where it can be most conveniently held (c); and if the grant prescribe a particular vill, the lord may remove the fair or market to any situation within the precinct of his grant; and after notice may have trespass against any person going upon his soil in the old market-place (d).
Upon the grant of a fair or market the lord shall have a court of Piepoudre (or Pipowders) as incident thereunto without any special words, it being for the advancement of justice and not of a private interest (e).
And the right to appoint a clerk to the fair or market is also incident to the franchise, and he will be intitled to his reasonable fees(f).
(a) The Mayor, &c. of Macclesfield v. before the steward, and its jurisdiction Pedley, 4 Barn. & Adol. 397. And see consisteth in these four essentials: 1. The Prince v. Lewis, 2 Car. & Pay. 66.
cause of action must arise in the time of (6) Holcroft v. Heel, 1 Bos. & Pul. the particular fair or market. 2. It must 400.
relate to things which concern the marWhen equity will interfere to enforce ket; therefore, if one slander particular the lord's right to tolls, see Mayor, &c. wares to the injury of another previous to of Reading v. Winkworth, 5 Pri. 473; the market, the court has no jurisdiction. Duke of Norfolk v. Myers, 4 Madd. 83;. 3. It must arise within the precinct of the ante, pt. 1, p. 535.
fair or market. 4. The plaintiff or his (c) Dixon v. Robinson, 3 Mod. 107; attorney must take an oath according to Rex v. Cotterill, 1 Barn. & Ald. 67. the stat. 17 Ed. 4, c. 2, and 1 R. 2, c. 6;
(d) Curwen v. Salkeld, 3 East, 538. but this does not conclude the defendant;
(e) 2 Inst. 221; 4 ib. 271. The Court Hall & Jones's case, cited 4 Inst. 272. of Pipowders is incident to a fair or mar- And see Hall v. Pyndar, Dy. 133 a, and ket as a Court Baron is to a manor. It is, the several cases there referred to. however, a court of record, to be holden (5) 4 Inst. 273, c. 61.