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confess and be absolved by the priest and to receive the extreme unction, that thing which had been the occasion of his death was given to God, from whence it is called a deodand; but it was a gift to the church, to be distributed by the priests in charities to almsmen to pray the soul of the deceased out of purgatory (t).
It is the duty of the coroner to inquire not only of the death of man, but of deodands, wreck of the sea, and treasure trove (u); and nothing can be forfeited as a deodand till found by such inquest to have been the occasion of death (x); but after such inquisition the sheriff is answerable for the value of the thing forfeited, and may levy the same on the town where it fell, so that the inquest ought to find the value of it (y).
It should seem that the inquisition has relation to the death, and that the forfeiture cannot be saved by any intermediate alienation (z); therefore where the finding by the inquest was eleven months after the seizure, such after-finding was held to be a good justification in trespass against the officer (a). But nothing is forfeited where the party receiving an injury does not die within a year and a day (b).
The right of property in deodands cannot be claimed by prescription (c), but is in the king or such lords of manors and others as have grants thereof inrolled in the crown office (d); and when forfeited to the king, they were formerly disposed of for some charitable, or per haps superstitious uses, by the king's chief almoner ; but they are now appropriated as part of the casual revenues of the crown (e).
It was an ancient rule that where a person within the age of discretion, viz. fourteen years, was killed by an ox, horse or the like, the animal was forfeited as a deodand; but that if the death were at
(t) Lex Man. 72. Lord Coke's defi- And this rule has been acted upon in sevenition of deodands is in these words :- ral recent instances. “When any moveable thing inanimate, or (u) 4 Inst. 271. beast animate, do move to or cause the (x) Foxley's case, 5 Co. 110 b; 2 Bac. untimely death of any reasonable creature Abr. 294. by mischance in any county of the realm, (y) Hawk. P. C. c. 26, s. 8; 5 Co. 110 (and not upon the sea, or upon any salt b, in Foxley's case; 1 Hale H. P. C. c. water,) without the will, offence or fault
419. of himself, or of any person, they being so (2) Arg. Plow. Com. 260 b, in Hales found by lawful inquisition of twelve men, v. Petit; 2 Bac. Abr. 294; Hawk. P. C. being pretium sanguinis, the price of blood, c. 26, s. 7. are forfeited to God, that is to the king, (a) Keilw. 68 b. God's lieutenant on earth, to be distributed (6) Hawk. P. C. c. 26, s. 7. in works of charity for the appeasing of (c) Foxley's case, 5 Co. 110 b. God's wrath ;" 3 Inst. 57.
(d) Co. Lit. 114 b. See extract from Being founded in superstition rather 4 & 5 W. & M. c. 22, ante, tit. “ Felo than on principles of sound reason and de se." policy, the Court of King's Bench sanc- (e) Lex Man. 72; Molloy, 225, c. 1, tions the finding of as small a sum only as s. 13; Fost. Cr. Law, 265 266. possible; Fost. Cr. L. 266; 2 Barnard. 82.
tributable to the absence of discretion, as if it were occasioned by a fall from a horse which he was incapable of managing, then there was no deodand (f); but this distinction no longer prevails (g).
All the ancient authorities are agreed that in aquâ dulci a vessel or boat may become a deodand, but that in aquâ salsá, even if it be an arm of the sea within a county, there can be no deodand, because of the perils to which persons are exposed by winds and tempests (h). The rolls of parliament furnish numerous instances of petitions founded on the latter distinction(i), which, however, would appear to be a principle of common law (k).
Consistently with this diversity it was resolved upon a trial at bar, that a ship lying at Redriff, in Kent, which at low water turned over, and occasioned the death of one of the shipwrights at work under her, was a deodand to Lord Salisbury, the lord of the manor (I).
The above rule that omnia quæ movent ad mortem sunt deodunda has been of late years much relaxed; for though formerly, wherever the thing which was the occasion of a person's death was in motion at the time, not only that part which was the immediate occasion of the death was forfeited, but also all things moving together with it(m); yet at this day if a man be killed by the wheel of a coach going over him, the wheel only is a deodand to the king or the lord of the manor, as being the only immediate cause of the death; and the value set by the coroner's inquest on the wheel or other thing forfeited is taken in lieu thereof (n).
Apart from the natural influence of the superstition on which the (1) 8 E. 2, tit. Coron. 389; 3 Inst. they all moved ad mortem. In this case 57.
the Chief Justice at first doubted whether (g) 1 Hawk. P. C. c. 26, s. 4.
the cart was a deodand, but is reported to (h) Bract. 1. 3, c. 5, 122 a; 3 Inst. 57; have grounded his opinion on the recol1 Hal. H. P. C. 422—424; Hawk. P. C. lection of a case where a man was thrown c. 26, s. 6; 2 Molloy, 225, c. 1, s. 13. by his horse in a river (but not by the
(i) 51 E. 3, number 73; 1 R. 2, nu. violence of the streaın), and carried by the 106; 4 R. 2, nu. 33; 1 H. 5, nu. 35 ; stream to a mill, and there killed by the Prynu's Abr. of Cott. Rec. 150, 164, 192, wheel, and both horse and wheel were for537; 3 Inst. 58.
feited. Vide also 1 Hale's H. P. C. 420, (k) 3 Inst. 58.
citing 8 E. 2, Coron. 308, 403, 3 E. 3, (1) 2 Molloy, 225, c. 1, s. 13.
Coron. 326, 342, that where a cart fell (m) See the case of the lord of the ma- upon or ran over a man and killed him, nor of Hampstead, 1 Salk. 220, where a both cart and horses were forfeited; and cart endeavouring to pass a loaded wag- where Hale also notices that if the timber gon was driven on a bank and overturned, which hung a bell fell and killed a man, and a person in the cart was thrown under the timber and bell were both forfeited; the wheels of the waggon and killed ; and but see contrà, Rex v. Crosse & another, Pollexfen, C. J., and Gregory, to whom 1 Sid. 207; post, p. 646. the point was referred on the home cir- (n) Rex v. Rolfe, Fost. Cr. Law, 266 ; cuit, gave their opinion that the cart, wag- Rex v. Grew, Say, 249; ante, p. 644, n. gon and all the horses were deodands, as (y).
deodand has been shown to be founded (0), it would be difficult to account for this singular practice of distinguishing between the wheel of a vehicle and the body to which it is attached, the weight of which body may be deemed to have moved to the death in a far greater degree than the action of the wheel; and for which reason it is said, that where a thing not in motion causes a person's death, that part only which is the immediate cause is forfeited; but that if a man be killed by a bruise from a waggon wheel, being in motion, the loading also would be forfeited, because the weight thereof made the hurt the greater (p).
It is quite clear that when a person is killed by a fall from a carriage or from a horse, the carriage or horse is a deodand (9); but there is this distinction, namely, that if a man riding through a river is thrown by the violence of the stream and drowned, then the horse or carriage is not considered to have moved to the death, and shall not be forfeited (r).
And when a person is killed by the fall of part of the loading of a waggon or cart, the part only which fell, and not the whole of the load, is a deodand (s).
It is immaterial to whom that which is the immediate cause of death may belong; therefore if A. kill B. with the weapon of C., the weapon is a deodand, although there be no blame attaching to C.(t).
In a recent case (u) four coroner’s inquisitions found that the deaths of four persons were respectively caused on a certain day by a steam engine, and each inquisition imposed on the engine a deodand of 1251. The deodands having been estreated into the Court of Queen's Bench, under the 3 & 4 W. IV. c. 99, s. 29, the court refused to stay proceedings on three of the inquisitions, on payment of 125l., on the ground that the instrument moving to the death of the party could not be twice forfeited for the same accident, but left the parties to their remedy, by traversing or setting aside the inquisition.
Whatever forms part of, or is affixed to, the freehold cannot be forfeited as a deodand, unless severed before the accident occurs (x);
(0) Ante, p. 643; 644, n. (t).
(p) Hawk. P. C. c. 26, s. 6. So it is said that a ship, by a fall from which a man is drowned in fresh water, shall be forfeited, but not the merchandize therein, because they no way contribute to his death; ib.
(9) Hawk. P. C. c. 26, ss. 3, 4; 1 Hal. H. P. C. 420.
(*) Lord Chandos's case, Cro. Jac. 483 ;
S. C. Poph. 136; S. C. (The King o. Lord Cavendish), 2 Roll. Rep. 23; S. C. cited 1 Salk. 220. And see Poph. 136.
(s) Fitz. Forfeiture, pl. 20. And see Jenk. 64, pl. 21; 1 Sid. 207.
(t) Br. Forfeiture de terre, pl. 112, cites Doct. & Stud. lib. 2, c. 51, f. 157.
(u) The Queen v. The Eastern Counties Railway Company, 2 Dowl. N. S. 293.
(.x) Hawk. P. C. c. 26, s. 5; 1 Sid. 207.
so that if a man be killed by the sail of a windmill, neither the sail, nor the linen affixed to it, shall be forfeited (y).
So also if a door or gate cause the death of any person, it will not be a deodand (2). So again, if a man be hanged by a bell rope in a church, the better opinion is that the bell shall not be forfeited (a).
ESTRAYS (6).-An estray is any beast, not being wild, found wandering within some lordship or manor without authority (c); and swans or cygnets may be taken as estrays (d), but no other fowl(e).
When no one can make title to estrays, called animalia vagantia (f), the law gives them to the king, or to lords of manors claiming under a grant from the crown, or by prescription (g), in order that the cattle may not perish.
Within a convenient time, of which a court of law is to adjudge(h), and properly at the next market-day of the nearest market-town (i), the lord should cause proclamation to be made of the seizure of the estray, which proclamation should show the description of the estray, as a horse, cow, &c., and state such other particulars as may enable the owner to recover his property (k), on tender of a reasonable com(y) 1 Sid. 207.
(e) 4 Inst. 280.
(f) Bract. l. 3, f. 120; Godb. 150. (a) Ib. Axminster Parish case; S. C. (g) Taylor v. James, Godb. 150; Engle1 Lev. 136; Lord Raym. 97. And see field's case, W. Jones, 285; Haslewood's 6 Mod. 187, in The Queen o. Wheeler ; case, Ow. 14; Co. Lit. 114 b. See plea Hawk. P. C. c. 26, s. 5.
in bar to an action of trespass, alleging If a man fall from a bay rick and is seisin in fee of the manor, and a prescripkilled, it has been said (but not adjudged) tion to have estrays, Lex Man. App. 123, that the rick shall be forfeited; Hale, H. ca. 39. Estrays cannot be claimed in P. C. 422, cites 3 E. 3, Coron. 348. gross by prescription; Tottersall's case,
(6) This royalty is not specified in the W. Jones, 283. 82d clause of 4 & 5 Vict. c. 35, among the (h) Per Hobart, C. J. in Pleadal v. manorial rights excluded from the opera- Gosmore, Win. 68. tion of the act, unless expressly commuted, (i) Henly v. Walsh, Holt, 564. But but it is embraced by the general words, according to some cases, the proclamation " or any other manorial rights whatever." should be in the two nearest market towns;
(c) If persons have commonable rights Br. Estray, pl. 10; Finch's Law. 45; within the manor,
the lord is to take notice Kitch. 79; Brownlow v. Lambert, Cro. whether the beasts are beasts of the com- Eliz. 716. In three markets adjoining, mon or not, having the mark of the com- Bacon's Use of the Law, 65. Once in the moner; Br. Estray, pl. 3; S. C. (Sir John church and twice in the markets, Kitch. 79. Tiptoft's case) 7 Co. 16 b. And by Kitch. Proclamation in markets and church of the 79, “ one cannot take the king's beasts parish, 39 Ed. 3, 3; Br. Estray, pl. 4; for a stray, though they were within the Britt. 26; Kitch. 78, 79; Scroggs, 133; manor by two years; 39 Ed. 3, fol. 4."
Brownlow v. Lambert, sup. And see Fitz. Abr. Estray, pl. 3; 10 Vin. (k) Taylor v. James, sup. The owner 487, 488.
may claim at any time after the year and (d) 7 Hen. 6, 27, 28; Kitch. 79; Fitz. a day if proclamation be not made ; Britt. Bar. pl. 6; Br. Double Plee, pl. 41. 26; Kitch. 79.
pensation for the expense of pasturage, &c.; and until such tender be made, the lord is justified in retaining the estray (2). But if any difference arise as to the amount of compensation, the lord should demand a certain sum, in order that the reasonableness of the amends may be tried (m), for the owner cannot be presumed to know what sum would make proper satisfaction to the lord (n).
The owner should make sufficient proof of the identity of his property, by reference to marks, or by the testimony of his neighbours, &c.; and the lord must, at his peril, restore it, and he cannot put the owner to his oath (0).
If no claim be made within a year and a day (p), the estray belongs to the lord, but he has not an absolute property in it until the year and a day are passed (q); and if the beast should again stray, though the lord may chase it back, yet it has been said that he could not recover it from another into whose possession it should come; and that if it should be seized by the lord of another manor, such second lord should proclaim de novo (r).
But it should seem that if the estray is taken from the lord, he may maintain a special action on the case for such taking (s), and that trespass will lie upon the constructive possession, even before seizure(t);
(1) Br. Justification, pl. 17, cites 44 Ed. 3, 12; Kitch. 79; Pleadal v. Gosmore, sup. ; 10 Vin. Abr. 490 (E.) pl. 5. Holt, 564, in Henly v. Walsh.
(m) Taylor v. James, sup. ; S. C. Noy, 144; S. C. cited 11 Mod. 89, in Henly v. Welch (or Walsh).
(n) Henly v. Walsh, 2 Salk. 686; S. C. Holt, 564. And see Co. Entr. 40, 170(B.)
(0) Taylor v. James, ubi sup. Indeed it should seem that it is sufficient for the owner to prove his right of property on the trial; 2 Salk. 686.
(p) Henly v. Welch, 11 Mod. 90; S.C. Holt, 564. According to this case the year and day is to be computed from the first proclamation; yet some suppose that the relation is to the time of the seizure; see Sir H. Constable's case, 5 Co. 107 b; Mo. 11, pl. 43. In the latter case the right of property was held to have relation to the time of seizure, so as to entitle the executors of a lessee for life of a manor to an estray in preference to the reversioner. Vide contra, as between a lessor and lessee of a manor, 12 Co. 100, Anon.
But note, “if an estray happen within
the manor of the wife, if the husband die before seizure, the wife shall have it, for that the property was not in the wife before seizure;" Co. Lit. 351 b, cites 43 Ed. 3, 8; 10 Hen. 6, 11; 39 Ed. 3, 17.
(9) Br. Estray, pl. 11, cites 33 Hen. 8; Kitch. 79; Finch's Law, 45; Bacon's Use of the Law, 65; 12 Co. 101, Anon.; Burdet v. Mathewman, Clayt. 107. According to this case the lord could not maintain trespass until the year and day had passed.
(r) Pleydell v. Gosmore (or Pleadal & Gosmore), Hutt. 67, ante; Harvey v. Blacklole, Brownl. 236. And see Br. Abr. sup. n. (c). If an estray escape into another franchise before seizure, the better opinion is that the second lord shall have it, the property not being changed; F.N. B. 91 B. n. a; Dy. 338 a, pl. 40.
(s) Burdet v. Mathewman, sup.
(1) F. N. B. 91 B. And see Smith v. Milles, 1 T. R. 480; Harvey v. Blacklole, Brownl. 236. But see Dy. 338 a, pl 40, marg. per Noy, Att. Gen. But even trover lies against a stranger for an estray without actual seizure; per Keeling, C. J. obiter, 2 Keb. 589. And see Bul. N. P.