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the usage would have had its appropriate and beneficial effect. In the actual circumstances, it is a hard case for the libellants; but as they have not sustained their title, I must dismiss their cause, and, in consideration of the point being an old one in this court, with costs. Libel dismissed, with costs.

SECTION II.

WRECK.

WILKINS, LEG. ANG.-SAX. 305. — Of Wreck of the Sea in the time of Henry I. and King Stephen. In these days (i. e., A. D. 1139, in the fourth year of King Stephen), in a very great storm it happened that a certain ship loaded with a variety of goods from Rumenel, an estate of the Archbishop of Canterbury, was cast in a broken condition on land of the Church De Bello in the lathe of Shepway, a part of Wye (the men barely escaping). But it is to be known that this is to be observed for law from ancient times on the sea-coasts, that when a ship is broken by the waves, if those who escape shall not have repaired her, within the required term and time, the ship and whatever shall have come to shore shall belong without suit to that land and be held Wreck. But King Henry aforesaid, disapproving greatly this custom in his time, throughout the extent of his realm made an edict that if but one person should have escaped alive from the wrecked vessel, he should have all the goods. But a new King came in and a new law; For when he was dead, the chief lords of the realm, having overthrown the late edict, adopted for themselves the practice which had in ancient times been observed. Whence it happened that the men of the lathe of Shepway, according to the customs of the sea and the royal dignities, took by force the aforesaid Wreck of the Church De Bello. From the Chronicle of the Monastery De Bello.

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LETTER OF HEN. II. (1174), 1 RYM. FŒD. 36. We will and firmly order for ourselves and our heirs that whenever it may happen in the future that any ship is cast away within our realm either on the coast of England, or on the coast of Picardy, or on the coast of the Island of Oleron, or on the coast of Gascony, and from the ship so cast away any man shall escape alive, and shall come to land, all the goods and chattels in that ship contained shall continue and be the property of those whose they were before, and shall not be lost to them under the name of Wreck. And if from a ship so cast away no man escapes alive, but it happens that some other [sic] beast escapes alive, or is found alive in that ship, then those goods and chattels, by the hands of the bailiffs of ourselves or of our heirs, or by the hands of the bailiffs

• Constables. Case

of those on whose land the ship shall have been cast away, shall be delivered to four good men, to be kept for the term of three months, so that if those whose those chattels were shall within that term come to demand those chattels and can prove that the chattels are theirs, then they shall be delivered them. But if within the said term no one shall come to demand those chattels, then they shall belong, under the name of Wreck, to us and our heirs or to such other person as may have the right of having Wreck. And if from that ship so cast away no man or other beast shall escape alive, as aforesaid, then the goods and chattels in that ship contained shall belong, by the name of Wreck, to us and our heirs, or to such other person where the ship was cast away, as shall have the privilege of having Wreck, as aforesaid.

BRACT. LIB. 3, c. 3, fol. 120. And it should be known what can be called wreck, that is, derelict, so that if anything (for the sake of lightening a ship) shall have been thrown from the ship by any one, without the intention of keeping it, or of getting it back, that may properly be called wreck, since the thing thrown away may be held for derelict. And whether it may be held for derelict may appear by presumptions, as if a book shall have been thrown away, whether it is found shut or opened, when it could conveniently and well be shut; and so of like things. Again, it may more properly be called wreck, if a ship is broken up, and from it no one has escaped alive, and especially if the owner of the things has been drowned; and whatever thence comes to land from it shall belong to our Lord the King, nor can any other person claim or have anything of it against our Lord the King, although he possesses an estate near the sea-shore, unless he enjoys a special privilege to have wreck. And that things of this sort ought to be called wreck is true, unless it be that the true owner, coming from elsewhere, by certain proofs and signs can show that things are his, as if a dog is found alive, and it can be shown that he is the owner of the dog, it is presumed from this that he is the owner of the dog and of the goods. And in the same manner if certain marks have been placed on the merchandise and other things. And what has been said will have effect if the things are found on the sea-shore, and the same if near the shore or farther off in the sea; provided, nevertheless, it can in truth be shown that they are to be referred [essent applicanda] to the shore. But if they are found in the sea farther off from the shore, so that it cannot be proved to what land or district they are to be referred, then whatever shall have been so found shall belong to the finder, because it may be said to be no man's goods [nullius in bonis], and is called by the sailors lagan, and is therefore given to the finder, because there is no one who can have any privilege in it, the King no more than a private person, on account of the uncertain result of the matter. But as to a sturgeon, the rule is that the King shall have the whole of it, by reason of his prerogative; but of a whale, it is enough, according to some, if the King has its head, and the Queen its tail.

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ST. 3 EDW. I. c. 4. - Concerning Wrecks of the sea, it is agreed that where a man, a dog, or a cat escape quick out of the ship, that such Ship nor Barge, nor any thing within them, shall be adjudged Wreck: (2) but the goods shall be saved and kept by view of the sheriff, coroner, or the King's bailiff, and delivered into the hands of such as are of the town, where the goods were found; (3) so that if any sue for those goods, and after prove that they were his, or perished in his keeping, within a year and a day, they shall be restored to him without delay; and if not, they shall remain to the King, and be seized by the sheriffs, coroners, and bailiffs, and shall be delivered to them of the town, which shall answer before the Justices of the Wreck belonging to the King. (4) And where Wreck belongeth to another than to the King, he shall have it in like manner. (5) And he that otherwise doth, and thereof be attainted, shall be awarded to prison, and make fine at the King's will, and shall yield damages also. (6) And if a Bailiff do it, and it be disallowed by the Lord, and the Lord will not pretend any title thereunto, the bailiff shall answer, if he have whereof; and if he have not whereof, the Lord shall deliver his bailiff's body to the King.

ST. 17 Edw. II. c. 11.- Also he [the King] has wreck of the sea throughout the whole realm, whales and sturgeons taken in the sea or elsewhere within the realm, certain places privileged by the Kings excepted.1

ST. 27 Edw. III. c. 13. Item, we will and grant, That if any merchant, privy or stranger, be robbed of his goods upon the sea, and the goods so robbed come into any parts within our realm and lands, and he will sue for to recover the said goods, he shall be received to prove the said goods to be his own by his marks, or by his chart or cocket, or by good and lawful merchants, privy or strangers. (2) And by such proofs the same goods shall be delivered to the merchants, without making other suit at the common law. (3) And in case that any ships going out of the said realm and lands, or coming to the same, by tempest or other misfortune, break upon the sea-banks, and the goods come to the land, which may not be said wreck, they shall be presently without fraud or evil device delivered to the merchants to whom the goods be, or to their servants, by such proof as before is said, paying to them that have saved and kept the same, convenient for their travel; that is to say, by the discretion of the sheriffs and bailiffs, or other our ministers in places guildable, where other lords have no franchise, and by the advice and assent of four or six of the best or most sufficient discreet men of the country (4) and if that be within the franchise of other lords, then it shall be done by the stewards and bailiff, or wardens of the same franchise, and by the advice of four or six discreet men of the country, as afore is said, without any delay.

1 Of the sturgeon it is the rule that the king shall have the whole of it, on account of the royal privilege. But of the whale it is enough if the king has the head, and the queen the tail. — FLETA, lib. i. cc. 45, 46.

wat wrack floating extween high and low tide greste shove you. through adiviality court. That washed by law of land.

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SIR HENRY CONSTABLE'S CASE.

KING'S BENCH. 1601.

[Reported 5 Co. 106 a.]

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SIR HENRY CONSTABLE brought an action of trespass against Gamble, and declared that King Philip and Queen Mary were seised of the manor of Holderness in the county of York in their demesne as of fee, as in right of the crown of England; and by their letters patent granted the said manor and fee, with wreck of the sea within the said manor and fee, to Henry, Earl of Westmorland, in fee, who conveyed them to Sir John Constable, father of the plaintiff, whose heir he is, in fee; and further declared that certain goods, scil. twelve shirts and five cloaks, were wreck and cast on the land within the manor of Barnston, which is within the said fee of Holderness, and that the defendant took the said goods, &c. The defendant pleaded to issue, and thereupon a special verdict was found to this effect, scil. that the conveyance to the plaintiff of the manor and fee aforesaid was true as he had declared; and that the said manor of Barnston was within the said fee; and further that parcel of the said goods were wreck, and cast super arenas aqua falsa minime coopertas manerii de Barneston infra fluxum et refluxum maris in manerio de Barneston, and for other parcel of the goods that they were floating super aquas maris refluentes ex arenis ejusd' manerii de Barnest' infra fluxum & refluxum maris, &c. And the defendant took all the said goods and seised them to the use of the Lord Admiral, &c., and assessed damages entirely for all; and si super totam materiam, &c. And this case was often well argued at bar and bench, and at last judgment was given against the plaintiff. And in this case five points were resolved:

1. That nothing shall be said wreccum maris, but such goods only which are cast or left on the land by the sea; for wreccum maris significat illa bona, quæ naufragio ad terram appelluntur: flotsam is when a ship is sunk, or otherwise perished, and the goods float on the sea; jetsam is when the ship is in danger of being sunk, and to lighten the ship the goods are cast into the sea, and afterwards notwithstanding the ship perish. Lagan (vel potius ligan) is when the goods which are so cast into the sea, and afterwards the ship perishes, and such goods cast are so heavy that they sink to the bottom, and the mariners, to the intent to have them again, tie to them a buoy, or cork, or such other thing that will not sink, so that they may find them again, & dicitur lig. a ligando; and none of these goods which are called jetsam, flotsam, or ligan, are called wreck so long as they remain in or upon the sea; but if any of them by the sea be put upon the

land, then they shall be said wreck. So flots., jetsam, or ligan, being cast on the land, pass by the grant of wreck; and where it is provided by the stat. of 15 R. 2, c. 3, that the Court of Admiralty shall not have cognisance or jurisdiction of wreck of the sea, yet it shall have conusance and jurisdiction of flots., jets., and ligan; for wreck of sea is, when the goods are by the sea cast on the land, and so infra comitať, whereof the common law takes conusance, but the other three are all on the sea, and therefore of them the Admiral has jurisdiction. Bracton, lib. 3, c. 3, fol. 120. Item magis proprie dici poterit wreccum, si navis frangatur, & ex quâ nullus vivus evaserit, & maximè si domin' rerum submersus fuerit, & quicquid inde ad terram (note these words) venit, erit domini Regis. And that also appears by the Book of Entries, fol. 611, 612. Trespass in Wreck. Always when wreck is claimed by prescript. (as by law it may be) the plead. is bona wreccata super mare, & ad terram project. And another prescript. is there habere omnimod' wreccum maris infra præcinctum manerii, sive dominii præd' project', & flotsam maris infra eund' præcinct devenienť; by which the difference between wreck and flots. appears. Vide 9 E.

4, 22.

Wreck is when it is cast on the land. 11 H. 4, 16; 5 E. 3, 3, & 29; 21 H. 6; Prescript. 14 E. 2, in Trespass, 236; 5 H. 7, 36; (35) 39 H. 6, 37, & 9 H. 7, 20, acc'. Vide Regist. int' brevia de transgress. 102 b. the writ saith, Ostensurus quare cum idem Tho. dominus manerii, de Estombavent existat & ibidem habere debeat, ipseque & antecessores sui domini manerii praæd' a tempore quo, &c. non existat memoria, hucusque habere consueverunt wrecc' maris infra præcinct maner' præd', præd' Joceus & Robert. bona & catalla ad valenc' cent' solid. apud S. infra præcinct' ejusd' manerii ad terram project' & quæ ad ipsum Tho. tanquam wreccum pertinere deberent, vi & armis ceperunt & asportaverunt. Also the stat. of

15 R. 2, c. 3, proves it also, where it is enacted and declared that wreck of the sea shall be tried and determined by the laws of the land, which cannot be extended to flots., jets., or ligan, for they are in or upon the sea, and therefore cannot be tried and determined by the common law (for there trial fails), but are to be determined before the Admiral.

2. In this case it was resolved by the whole court that the soil on which the sea flows and ebbs: sc. between the high water mark and low water mark, may be parcel of the manor of a subject, 16 El. Dy. 326, b, acc'. And so it was adjudged in Lacy's case, Trin. 25 El. in this court. And yet it was resolved that when the sea flows, and has plenitudinem maris, the Admiral shall have jurisdiction of every thing done on the water, between the high water mark and low water mark, by the ordinary and natural course of the sea; and so it was adjudged in the said case of Lacy that the felony committed on the sea ad plenitud' maris, between the high water mark and the low water mark, by the ordinary and natural course of the sea, the Admiral should have jurisdiction of; and yet when the sea ebbs, the land may belong to a

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