tain forms, which he says were requisite to be performed, have not, as he alledges, been properly performed. The first question is "Whether these goods are forfeited." Now, no case is produced, either at common law, or on the construction of the statute of 3 Edw. I., c. 4, to prove that the goods were forfeited because no dog or cat or other animal came alive to shore. I will therefore presume that there never was any such determination, and that no case could have been determined so contrary to the principles of law, justice, and humanity. The very idea of it is shocking. And there is no ground for such a forfeiture upon the distinction that has been so much urged, between a man or other animal coming to shore alive, or not alive. The coming to shore of a dog or a cat alive can be no better proof than if they should come ashore dead; the escaping alive makes no sort of difference. If the owner of the dog or cat or other animal was known, the presumption of the goods belonging to the same person would be equally strong, whether the animal was alive or dead. If no owner could be discovered, the goods belonged to the king. But there ought to be a reasonable time allowed to the owner to come in and claim them; and it was proper that the time should be limited. The old limitation was a year and a day, which was the time limited in many other cases. The mode of proof was as it might happen. Goods are now generally marked; perhaps in ancient days it might not be so common, or so accurate; and then a dog or cat might be a presumption towards the ascertaining the owner of the goods. Bracton, who wrote in the time of H. III., says: Magis propriè dici poterit wreccum, si navis frangatur &c.; nisi ita sit, quod verus dominus aliunde veniens, per certa indicia et signa docuerit res esse suas; ut si canis vivus inveniatur &c.; et eodem modo, si certa signa apposita fuerint mercicibus et alijs rebus. And Bracton's opinion has been recognized by later writers. Lord Coke, in his fifth Report, 107, says that it appears from Bracton that the statute of W. I. was but a declaration of the common law; and cites the same passage from Bracton. Et quòd hujusmodi dici debet wreccum, verum est, nisi sit quod verus dominus aliunde veniens, certa indicia et signa donaverit res esse suas; ut si canis vivus inveniatur, et constare poterit quod talis sit dominus illius canis; presumptivè ex hoc, illum esse dominum illius canis et illarum rerum; eodem modo, si certa signa imposita fuerint mercibus. Thus it stands at the common law. Then, has the statute of 3 Edw. I. c. 4, altered the common law? No: quite otherwise. And this act was made in favour of the owner. It enacts (negatively) "That it shall not be wreck, if man, dog, or cat escape alive;" but it has no contrary (positive) provision, "That if neither man, dog, or cat &c., escape alive, it shall belong to the king." This statute has been recognized as declaratory of the common law. The words of it are: "Concerning wreck 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; but the goods shall be saved and kept, &c., 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." Lord Coke says that "These three instances (of a man, dog, or cat) are put but for examples; for besides these two kinds of beasts, all other beasts, fowls, birds, hawks, and other living things are understood, whereby the ownership or property of the goods may be known." And this is agreeable to the charter of King Henry the Second, which includes every animal whatsoever. And this escape of a dog, or cat, or other animal is considered as a medium of proof, whereby the ownership or property of the goods may be known. If this was a recent statute, it ought to be construed according to reason and justice. For the court ought not, unless they are absolutely obliged to it, to construe an act of parliament directly contrary to the plain and clear principles of justice and humanity, which the construction urged on the part of the defendant in this case would undoubtedly be, in the highest degree. But this is a statute of very ancient standing, and was declaratory of the common law (as appears from Bracton, who wrote before the making of it), and has been since sufficiently recognized, and no case produced to the contrary, nor any authority in point. The other two statutes are out of the case; they do not relate to this matter. Besides, here the defendant has insisted upon property. I am very clear that the direction was right, and that the rule for a new trial ought to be discharged. - Mr. Justice ASTON and Mr. Justice ASHHURST concurred with his Lordship. All the judges present being clear and unanimous, the rule to shew cause why there should not be a new trial was discharged. construction SECTION III. WAIFS, ESTRAYS, AND DEODANDS. 1 BL. COм. 297.- Waifs, bona waviata, are goods stolen, and waved or thrown away by the thief in his flight, for fear of being apprehended. These are given to the king by the law, as a punishment upon the owner for not himself pursuing the felon and taking away his goods from him. Cro. Eliz. 694. And therefore if the party robbed do his diligence immediately to follow and apprehend the thief (which is called making fresh suit), or do convict him afterwards, or waifs belong to procure evidence to convict him, he shall have his goods again. Finch. king L. 212. Waved goods do also not belong to the king till seized by male pursues somebody for his use; for if the party robbed can seize them first, though at the distance of twenty years, the king shall never have them. Goods fiaden Finch. L. 212. If the goods are hid by the thief, or left any where by or belonging him, so that he had them not about him when he fled, and therefore to foreigners did not throw them away in his flight, these also are not bona waviata, not waife but the owner may have them again when he pleases. 5 Rep. 109. The goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs (Fitz., Abr., tit. Estray, 1. 3 Bulstr. 19); the reason whereof may be, not only for the encouragement of trade, but also because there is no wilful default in the foreign merchant's not pursuing the thief; he being generally a stranger to our laws, our usages, and our language. Estrays are such valuable animals as are found wandering in any manor or lordship, and no man knoweth the owner of them; in which case the law gives them to the king as the general owner and lord paramount of the soil, in recompense for the damage which they may have. done therein; and they now most commonly belong to the lord of the manor, by special grant from the crown. But in order to vest an absolute property in the king, or his grantees, they must be proclaimed in at is find the church and two market towns next adjoining to the place where they are found; and then, if no man claims them, after proclamation and a year and a day passed, they belong to the king or his substitute without redemption (Mirr. c. 3, § 19), even though the owner were a minor, or under any other legal incapacity. 5 Rep. 108. Bro., Abr., tit. Estray. Cro. Eliz. 716. A provision similar to which obtained in the old Gothic constitution with regard to all things that were found, which were to be thrice proclaimed: primum coram comitibus et viaOwner must-toribus obviis, deinde in proxima villa vel pago, postremo coram ecclepaych sia vel judicio; and the space of a year was allowed for the owner to reclaim his property. Stiernh., Dejur. Gothor., 1. 3, c. 5. If the owner claims them within the year and day, he must pay the charges of finding, keeping, and proclaiming them. Dalt. Sh. 79. The king or lord has no property till the year and day passed; for if a lord keepeth Become fup an estray three-quarters of a year, and within the year it strayeth again, 7 fender age and another lord getteth it, the first lord cannot take it again. Finch. yeaaay. L. 177. Any beasts may be estrays that are by nature tame or reclaimable, and in which there is a valuable property, as sheep, oxen, must be landswine, and horses, which we in general call cattle; and so Fleta (L. 1, animal o voli) defines them pecus vagans, quod nullus petit, sequitur, vel advocat. For animals upon which the law sets no value, as a dog or cat, and animals feræ naturæ, as a bear or wolf, cannot be considered as estrays. So swans may be estrays, but not any other fowl (7 Rep. 17, 19); whence they are said to be royal fowl. The reason of which distinction seems to be that cattle and swans being of a reclaimed nature, the owner's property in them is not lost merely by their temporary escape; and they also, from their intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them the year and day. For he that takes an estray is bound, so long as he keeps it, to find it in provisions and preserve it from damage (1 Roll. Abr. 889); and may not use it by way of labor, but is liable to an action for so doing. Cro. Jac. 147. Yet he may milk a cow, or the like; for that tends to the preservation, and is for the benefit of the animal. Cro. Jac. 148. Noy. 119. 1 BL. COм. 300.- By this [a deodand] is meant whatever personal Instruments chattel is the immediate occasion of the death of any reasonable creature; which is forfeited to the king, to be applied to pious uses, and distributed in alms by his high almoner (1 Hal. P. C. 419. Fleta, l. 1, c. 25); though diach formerly destined to a more superstitious purpose. It seems to have forfiilid been originally designed, in the blind days of popery, as an expiation for the souls of such as were snatched away by sudden death; and for that purpose ought properly to have been given to holy church (Fitzh., Abr., tit. Enditement, pl. 27. Staunf. P. C. 20, 21); in the same manner as the apparel of a stranger, who was found dead, was applied to purchase masses for the good of his soul. And this may account for that rule of law, that no deodand is due where an infant under the age of discretion is killed by a fall from a cart, or horse, or the like, not being in motion, (3 Inst. 57. 1 Hal. P. C. 422) ; whereas, if an adult person falls from thence and is killed, the thing is certainly forfeited. For the reason given by Sir Matthew Hale seems to be very inadequate, viz., because an infant is not able to take care of himself; for why should the owner save his forfeiture, on account of the imbecility of the child, which ought rather to have made him more cautious to prevent any accident of mischief? The true ground of this rule seems rather to have been, that the child, by reason of its want of discretion, was presumed incapable of actual sin, and therefore needed no deodand to purchase propitiatory masses; but every adult, who died in actual sin, stood in need of such atonement, according to the humane superstition of the founders of the English law. Thus stands the law if a person be killed by a fall from a thing standing still. But if a horse, or ox, or other animal, of his own motion, kill as well an infant as an adult, or if a cart run over him, they shall in either case be forfeited as deodands;1 which is grounded upon this additional reason, that such misfortunes are in part owing to the negligence of the owner, and therefore he is properly punished by such forfeiture. A like punishment is in like cases inflicted by the Mosaical law (Exod. xxi. 28): "If an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten." And, among the Athenians, whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic. Where a thing not in motion is the occasion of a man's death, that part only which is the immediate cause is forfeited; as if a man be climbing up the wheel of a cart, and is killed by falling from it, the wheel alone is a 2 1 Omnia, quæ movent ad mortem, sunt Deo danda. Bracton, 1. 3, c. 5. 2 Æschin. cont. Ctesiph. Thus too by our ancient law a well in which a person was drowned was ordered to be filled up, under the inspection of the coroner. Flet., 1. 1, c. 25, § 10; Fitzh., Abr., t. corone, 416. deodand (1 Hal. P. C. 422); but, wherever the thing is in motion, not only that part which immediately gives the wound (as the wheel, which runs over his body), but all things which move with it and help to make the wound more dangerous (as the cart and loading, which increase the pressure of the wheel) are forfeited. 1 Hawk. P. C. c. 26. It matters not whether the owner were concerned in the killing or not; for if a man kills another with my sword, the sword is forfeited' as an accursed thing. Dr. and St., d. 2, c. 51. And therefore, in all indictments for homicide, the instrument of death and the value are presented and found by the grand jury (as, that the stroke was given by a certain penknife, value sixpence), that the king or his grantee may claim the deodand; for it is no deodand, unless it be presented as such by a jury of twelve men. 3 Inst. 57. No deodands are due for accidents happening upon the high sea, that being out of the jurisdiction of the common law; but if a man falls from a boat or ship in fresh water, and is drowned, it hath been said, that the vessel and cargo are in strictness of law a deodand. 3 Inst. 58. 1 Hal. P. C. 423. Molloy, de Jur. Maritim. 2, 225. But juries have of late very frequently taken upon themselves to mitigate these forfeitures, by finding only some trifling thing, or part of an entire thing, to have been the occasion of the death. And in such cases, although the finding by the jury be hardly warrantable by law, the court of King's Bench hath generally refused to interfere on behalf of the lord of the franchise, to assist so unequitable a claim. Foster of Homicide, 266.2 1 A similar rule obtained among the ancient Goths: Si quis, me nesciente, quocunque meo telo vel instrumento in perniciem suam abutatur; vel ex adibus meis cadat, vel incidat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et sub molendino meo confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis meæ numeretur, habuisse vel ædificasse aliquod quo homo periret. Stiernhook de jure Goth. 1. 3, c. 4. 2 See Stimson, Am. Statute Law, §§ 145, 1162. — Ed. |