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subject, and every thing done on the land when the sea is ebbed shall be tried at the common law, for it is then parcel of the county, and infra corp' comitat', and therewith agrees 8 E. 4, 19, a. So note that below the low water mark the Admiral has the sole and absolute jurisdiction; between the high water mark and low water mark, the common law and the Admiral have divisum imperium, interchangeably, as is aforesaid, sc. one super aquam, and the other super terram. And Sir J. Popham, Chief Justice, said that on a trial at Nisi Prius between the city of Bristol and the Lord Berkeley, it was held by the Justices of Assise that where the Lord Berkeley had a manor adjoining to the Severn, and prescribed to have wreck within his manor, and certain goods floated between the high water mark and low water, and the city of Bristol had flotsam there, that the said goods were not wreck as long as they were floating upon the water between the high water mark and low water mark. See the book in 5 E. 3, 3, a, in a replevin brought by William de Newport of London against Sir Henry Nevil, and declared that the defendant took 3 lasts of herrings, and a ship; the defendant pleaded that he was lord of the manor of Walring, and prescribed to have wreck within his manor a tempore cujus, &c., and that the herrings and ship were wreck within his manor. To which the plaintiff said that they were our goods in the keep of our mariners which arrived by the sea, and we say that he took them out of their custody judgment if he can claim as wreck? To which the defendant said that we took them as wreck, out of all custody; on which book I observe 3 things: 1. That wreck may be claimed by prescription. 2. That forasmuch as a ship cannot be wreck, sc. cast on the land, but between the high water and low water mark, thence it follows that that was parcel of the manor. 3. If the ship perishes, yet if any of the servants escape, the law saith that they have the custody of the goods, and they are not wreck, 39 E. 3, 35, a, b. One prescribed to have royal fish, as porpes, &c., found within his manor, which seems to be between the high water and low water mark.

3. It was resolved that the King should have flotsam, jetsam, et ligan when the ship perishes, or when the owner of the goods is not known, for in 46 E. 3, 15, it appears that goods cast into the sea for fear of tempest are not forfeited. Vide F. N. B. 112; c. 5 E. 3, 33; 9 E. 4, 22, that the ship ought to perish, which is called shipwreck : and that is also proved by the said act of West. 1, c. 4, where it is said, if a man, dog, or cat escape alive (which is to be intended when the ship perishes); and therewith agrees Bract. lib. 2, c. 18, fol. 41: Item sine traditione res habita pro derelicť, ubi dominus statim desinit esse dom', si autem causa navis alleviandæ, non sic, quia non eû voluntate ejecit quis, ut desinat esse dom', &c. And a man may have flotsam and jetsam by the King's grant, and may have flotsam within the high water and low water mark by prescription, as appears before. And those of the west country prescribe to have wreck in the sea so far as they may see a Humber barrel.

4. It was resolved that the stat. of West. 1, c. 4, by which it is enacted that of wreck of the sea it is agreed that where a man, a dog, or a cat, escape alive out of a ship, that such ship, nor barge, nor any thing within them shall be adjudged wreck, but the goods shall be saved and kept by view of the Sheriff, Coroner, or King's Bailiff, so that if any sue for those goods, and after can prove that they were his, or perished in his keeping within a year and a day, they shall be restored to him without delay, &c., was but a declaration of the common law; and therefore all that which is provided as to wreck, extends also to flots., jetsam, and lagan. Bract., who wrote in the time of H. 3, before the making of the said act, speaking of wreck, saith, et quod hujusm' dici debet wreccum, verum est, nisi sit, quod verus dom' aliunde veniens et certa indicia et signa donaverit res esse suas, ut si canis vivus inveniat, et constare poterit, quod talis sit dom' illius canis præsumptive, ex hoc illum esse dom' illius canis et illarum rerum; eodem modo si certa signa imposita fuerint mercibus: by which it appears that the stat. of Westm. 1, which was made 3 E. 1, was but a declaration of the common law against the opinion in Dr. and Stud. lib. 2, fo. 118, and if the owner dies, his executors or administrators may make their proofs. And in many cases concerning time, the common law gives a year and a day for a convenient time; as in the case of a stray, if the owner (proclamation being made) do not claim it within a year and a day, it is forfeited. So a year and day is given in case of appeal, and in a case of descent after entry or claim; of nonclaim on a fine, or writ of right at the common law; of a villain dwelling in ancient demesne; of the death of a man who has a blow or wound; of protections, essoins of the King's service, and in many other cases and the year and day in case of wreck shall be accounted from the taking or seizure of them as wreck; for although the property is in law vested in the lord before seizure, yet until the lord seises, and takes it into his actual possession, it is not notorious who claims the wreck, nor to whom the owner shall repair to make his claim, and to show to him his proofs. And if the wreck belongs to the King, the party may have a commission to hear and determine the truth of it, and that by the verdict of 12 honourable men, for no proof is allowable by law but the verdict of 12 men: and if it belongs to other than the King, then if the owner cannot satisfy him who claims them as wreck by his mark or cocket, or by the book of customes, or by testimony of honest men, then the owner may have such commission or bring his action at the common law, and prove it by the verdict of a jury; and if the commission be awarded, or the action be brought within the year and day, although the verdict be given for him afterwards, it is sufficient. Vide Regist. and F. N. B. 12. For the commission vide stat. West. 1, c. 4; 4 E. 1, de Offic. Coronat; 15 R. 2, c. 3; 27 E. 3, c. 13; Britton, c. 17; 33 Stamf. Prærog. Regis. Et nota that the act de Prærog. Regis made in 17 E. 2, c. 11, enacts, Quod Rex hab' wrecc. maris per tot regn' &c., is but a declaration

and an affirmation of the common law. For notwithstanding that stat. being made within time of memory, a man may prescribe to have wreck, as appears in 11 H. 4, 16, Stamf. 38; F. N. B. 91, d; 5 H. 7, 36; 5 E. 3, 3, & 59; 9 E. 4, 12, &c.

5. It was resolved in the case at bar that part of the goods passed by the name of wreck, and part of the goods were flotsam and did not pass by the grant of wreck, and damages were intirely assessed for all. And in trespass the plaintiff shall recover damages only for the value of the goods; wherefore here judgment was given against the plaintiff. And the book 21 H. 7, 34, b, was cited, where the case is, that in trespass the defendant justified as to one thing, and pleaded not guilty to another, and they were at issue, and the jury inquired of one thing only, and taxed the damages for both entirely. Fineux held the verdict good for the thing found, and of that he should have a writ of inquiry of damages, Quod fuit negatu' per tot' cur. Dy. 22, El. 269, in eject. custod. agrees with this judgment. And it was adjudged M. 14 & 15 El. in this court in trespass by Pooley against Osburn, for breaking his close and beating his servant, and doth not say, per quod servitium amisit, the defendant pleaded not guilty, and the jurors found him guilty and assessed damages entirely; and because the plaintiff had not cause of action for beating of his servant, because he had not averred that he lost his service, for that cause the plaintiff took nothing by his bill. And Catl. then Chief Justice, caused the reason and cause of the judgment to be noted in the margent of the record, 9 H. 7, 3, in Rescous acc'. And it was adjudged accordingly, M. 30 & 31 El. between More and Bedell, in an action on the case on Assumpsit, which began in the King's Bench, M. 28 & 29 El. Rot. 476, where the defendant promised to do divers things, and the plaintiff alleged two breaches, one whereof was insufficient, the defendant pleaded Non assumpsit, the jury gave damages generally. It was resolved, 1. That it should be intended that they gave damages for both. 2. That forasmuch as the plaintiff had no cause of damages for the one, for that cause the judgment given for the plaintiff in the King's Bench was reversed by a writ of error in the Exchequer-chamber.

Note, reader, at first the common law gave as well wreck, jetsam, flotsam, and lagan upon the sea, as estray (which Bracton calls animalia vagantia, or as others call them animalia vacantia, quia domino vacari debent), treasure-trove, and the like to the King, because by the rule of the common law, when no man can claim property in any goods, the King shall have them by his prerogative. And therefore Bract., lib. 3, cap. 3, saith, Sunt alia quædam quæ in nullius bonis esse dicunt', sicut wreccum maris grossus piscis, sicut sturgio, et balana, et aliæ res quæ dominum non habent, sicut animalia vagantia, quæ sunt dom. Regis propter privilegium. So that it appears by Bracton that the King shall have wreck as he shall have great fish, &c., because they are nullius in bonis, or as he shall have animalia vagantia, sive vacantia, scil. estrays, because none claims the property. And note that wreck

is estray on the sea coming to land, as estray of beasts is on the land coming within any privileged place; and the law gives in both cases a year and a day to claim them. And Bracton in eod' lib. 3, cap. 33, fol. (120) 135, saith, Navis, nec batellus, nec alia catalla de his qui submersi sunt mari, nec in salsa nec in dulci aqua, wreccum erit, cum sit qui catalla illa advocet, & hoc docere poterit; and so he properly before resembled it to an estray: and if the goods of an infant, feme covert, executrix, man in prison or beyond sea, estray and are proclaimed according to the law, if none claim them within the year and the day, they shall be all bound. The same law of wreck of sea, for the law is strict and binding in both cases; but it appears by the opinion of Bract. and Britt. also, that flotsam, jetsam, and lagan, so long as they are in or upon the sea, do not belong to the King, sed occupanti concedunt, quia non est aliquis qui inde privileg' habere possit, Rex non magis quam privata persona propter incert' rei eventum (& paulo ante reddit inde ration') eo quod constare non possit ad quam regionem essent applicanda. And Britton, lib. 1, c. 17, of treasure hid in the ground, we will that it be ours; and if it be found in the sea, be it to the finder. But as it appears before by the resolution of the whole court, the King shall have flotsam, jetsam, and lagan, as is aforesaid, by his prerogative, although they be in or upon the sea; for the sea is of the King's allegiance, and parcel of his crown of England, as it is held 6 R. 2, Protect. 46, & Britt. c. 33, well agrees with the opinion of Bract., sc. that wreck is of a thing in nullius bonis; for there he saith, it is also purchased by franchise granted, by name of a thing found in no man's goods, as wreck of sea, and cattle estraying, coneys, hares, partridges, and other savage beasts, by franchise to have wreck found in his soil, and waif and stray found in his fee, warrens, and in his demesne lands.

That if jetf. can identify the goods after they have where wacked on he may reover, upon paying salvage!

HAMILTON v. DAVIS.

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A MOTION had been made, last term, for a new trial. been tried before John Morton, Esq., Chief Justice of Chester, and Taylor White, Esq., the other judge of that circuit.

The report of the case and evidence was as follows (it came from Mr. Morton): —

Robert Hamilton and Thomas Smyth against John Davis. In trover. The plaintiffs declare that on December 20, 1770, they were possessed of three hogsheads of tallow, value £100. That the goods came into the possession of the defendant, which he converted to his own use, to the plaintiff's damage £100.

Defendant pleaded "Not guilty."

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The plaintiffs claimed the goods in question as consignees thereof by Dennis Moylan of Cork; and to prove their case they called William Jackson, captain of an Irish trading vessel, who knew the vessel called the Hill-House, and Captain Penny, the master of her in her last voyage in November, 1770.

Is then shown the following bill of lading; and proves the name William Penny, subscribed thereto, to be the handwriting of the said Captain Perry.

The bill of lading read; and is as follows, viz. : —

CORK, November 27th, 1770.

Shipped by Dennis Moylan on the ship Hill-House, Master William Penny, and now lying in Cork, bound for Liverpoole, 20 hogsheads of tallow, for account and risque as per invoice marked D. M. No. I. A. 20, of tallow, branded on the head, D. Moylan.

To be delivered, &c., at the port of Liverpoole, to Messrs. Hamilton and Smith. WILLIAM PENNY.

Weight unknown.

That the Hill-House sailed from Cork in November or December last, and has never since been heard of; and, as he believes, foundered and was totally lost.

John Stokes was next called, who said the plaintiffs were partners in Liverpoole on the 9th of December last.

That he was sent by the plaintiffs to enquire after the ship and goods. That he made inquiry for some days in Cheshire, and then returned to the plaintiffs, and gave them account of divers of the goods being on shore, in the possession of different persons.

Returned with their orders to demand the goods and a proper salvage.

That all but Davis, the defendant, delivered up the goods on demand, on a salvage paid them.

That he saw in Davis's possession the three hogsheads of tallow, branded and marked as in the bill of lading, which Davis refused to agree to deliver on the terms the others had done.

That on the 19th day of December he saw Davis at Heylach in company with others who had got, in all, ten hogsheads of tallow in their possession.

That he then made a demand of all, and tendered them five guineas for their trouble and salvage.

Davis refused to deliver his part, which was the three hogsheads belonging to the plaintiffs.

On the next day a second demand was made on Davis; and if he refused the former offer, the witness offered to leave the salvage to be settled by any three justices of the peace of his own naming.

But Davis absolutely refused to deliver them unless he was compelled to do it.

That in pursuance of the order so received from Mr. Smith, one of

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