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land), was entitled to an old altar-piece made of silver, remarkable for a Greek inscription and dedication to Hercules. His grace became entitled to it as treasure-trove within his said manor. This altar-piece had been sold by one who had got the possession of it to the defendant, a goldsmith at Newcastle, but who had notice of the Duke's claim thereto. The Duke brought a bill in equity to compel the delivery of this altar-piece in specie, undefaced.
The defendant demurred as to part of the bill, for that the plaintiff had his remedy at law by an action of trover or detinue, and onght not to bring his bill in equity; that it was true, for writings savoring of the realty a bill would lie, but not for anything merely personal, any more than it would for an horse or a cow. So a bill might lie for an heirloom, as in the case of Pusey v. Pusey, 1 Vern. 273. And though in trover the plaintiff could have only damages, yet in detinue the thing itself, if it can be found, is to be recovered; and if such bills as the present were to be allowed, half the actions of trover would be turned into bills in chancery.
On the other side it was urged that the thing here sued for was matter of curiosity and antiquity; and though at law only the intrinsic value is to be recovered, yet it would be very hard that one who comes by such a piece of antiquity by wrong, or it may be as a trespasser, should have it in his power to keep the thing, paying only the intrinsic value of it, — which is like a trespasser's forcing the right owner to part with a curiosity or matter of antiquity or ornament, nolens volens. Besides, the bill is to prevent the defendant from defacing the altarpiece, which is one way of depreciating it; and the defacing may be with an intention that it may not be known, by taking out or erasing some of the marks and figures of it. And though the answer had denied the defacing of the altar-piece, yet such answer could not help the demurrer. That in itself nothing can be more reasonable than that the man who by wrong detains my property, should be compelled to restore it to me again in specie ; and the law being defective in this particular, such defect is properly supplied in equity:
Wherefore it was prayed that the demurrer might be overruled, and it was orerruled accordingly.
WOOD V. ROWCLIFFE.
(Reported 2 Phil. 382.1 The principal object of this suit was to restrain the sale of certain furniture by the defendant Rowcliffe, and to have it delivered up to the plaintiff as the rightful owner.
Rowcliffe claimed the furniture under a bill of sale, by way of mortgage, from the defendant Elizabeth Wright who was at the time in possession of it as apparent owner, but who, as the plaintiff alleged, had no property in it, having been left in charge of it merely as his agent during his absence abroad. The bill represented that the furniture was still in the hands of Elizabeth Wright, and that Rowcliffe had advertised it for sale. His answer, however, stated, and it was proved, that he had taken possession of it soon after the execution of the bill of sale, and that he had ever since retained such possession by keeping a man in the house where it was, although Elizabeth Wright, who resided there, was allowed the use of it.
Elizabeth Wright, by her answer, disclaimed all interest in the furniture.
At the hearing of the cause before Vice-Chancellor Wigram, by whom an injunction bad been previously granted, a decree was made, by which it was ordered, among other things, that the bill should be retained, with liberty to the plaintiff to bring an action of trover for the furniture, and the defendant was, on the trial, to admit conversion.
On the hearing of an appeal by Rowcliffe from that decree, the following two points, amongst others, were made by the counsel for the appellant: First, that the plaintiff's remedy was at law, and that a bill in equity did not lie to restrain the sale of specific chattels, unless they possessed some peculiar value which could not be compensated by damages, as in the case of the Pusey horn. 1 Vern. 273. Secondly, that admitting such a bill would have lain had the goods been still in the possession of Elizabeth Wright as the plaintiff's agent for their custody, yet at all events the equity was gone as soon as they had changed hands and passed into the possession of a stranger. And in support of this they referred to the doubt expressed by the Vice-Chancellor himself in overruling a demurrer to this very bill, as to whether his decision would have been the same if the bill had alleged that the goods were in the hands of Rowcliffe.
In reference to these points,
The LORD CHANCELLOR said: The cases which have been referred to are not the only class of cases in which this court will entertain a suit for delivery up of specific chattels; for where a fiduciary relation subsists between the parties, whether it be the case of an agent or a trustee or a broker, or whether the subject-matter be stock or cargoes or chattels of whatever description, the court will interfere to prevent a sale either by the party intrusted with the goods, or by a person claiming under him, through an alleged abuse of power. In this case there is great reason to believe that Elizabeth Wright never had any right to the goods except as the plaintiff's agent, for she has disclaimed all interest in them by her answer, and there is nothing to show how she had acquired any property in them. But, says Rowcliffe, I purchased under circumstances which give me a legal right to the goods. If that be so, the equity of the plaintiff will be intercepted by a prior legal right. In such a case this court begins by putting the matter into a course of investigation to ascertain that legal right. That is what the Vice-Chan
cellor has done. And in that respect I see no ground for impeaching the decree.
[His Lordship then proceeded to comment on some subordinate parts of the case, in the course of which he made the following observation] : I observe the decree gives the plaintiff liberty to bring an action, but gives no directions as to what is to be done if he does not proceed ; whereas it ought to have directed that if he did not proceed within a certain time, the bill should be dismissed.
Mr. Parker and Mr. H. Clarke were for the appellant.
ACQUISITION OF RIGHTS NOT UNDER FORMER OWNER.
NOTE. - In this chapter are considered the cases in which the chattel in question either had no former owner, or in which, if it had a former owner, the present claimant does not derive his title from him.
CHATTELS HAVING NO FORMER OWNER.
(Inst. II. 1, 12 & 13.)
12. Wild beasts, therefore, and birds and fishes, that is to say, all animals that live on the earth, in the sea or in the air, as soon as they are caught by any one, become his at once by virtue of the law of nations. For whatever has previously belonged to no one, is granted by natural reason to the first taker. Nor does it matter whether a man catches the wild beasts or birds on his own ground, or on another's ; although a person purposing to enter on another's land for the purpose of hunting or fowling may of course be prohibited from entering by the owner, if he perceive him. Whatever, then, you have caught of this kind, is regarded as yours so long as it is kept in your custody ; but when it has escaped from your custody and reverted to its natural freedom, it ceases to be yours, and again belongs to the first taker. And it is considered to have recovered its natural freedom when it has either escaped out of your sight, or is still in sight, but so situated that its pursuit is difficult.
13. It has been debated whether a wild beast is to be considered yours at once, if wounded in such manner as to be capable of capture; and some have held that it is yours at once, and is to be regarded as yours so long as you are pursuing it, but that if you desist from pursuit, it ceases to be yours, and again belongs to the first taker. Others have thought that it is not yours until you have actually caught it. And we adopt the latter opinion, because many things may happen to prevent your catching it.
THE CASE OF SWANS.
7 Co. 15 6, 17 a (1592). — And in the same case it is said that the truth of the matter was that the Lord Strange had certain swans which were cocks, and Sir John Charleton certain swans which were hens, and they had cignets between them; and for these cignets the owners did join in one action, for in such case by the general custom of the realm, which is the common law in such case, the cignets do belong to both the owners in common equally, sc. to the owner of the cock and the owner of the hen; and the cignets shall be divided betwixt them. And the law thereof is founded on a reason in nature; for the cock swan is an emblem or representation of an affectionate and true husband to his wife above all other fowls; for the cock swan holdeth himself to one female only, and for this cause nature hath conferred on him a gift beyond all others; that is, to die so joyfully, that he sings sweetly when he dies ; upon which the poet saith,
Dulcia defecta modulatur carmina lingua,
Cantator, cygnus, funeris ipse sui, etc. And therefore this case of the swan doth differ from the case of kine, or other brute beasts. Vide 7 Hen. IV. 9.
YOUNG V. HICHENS.
[Reported 6 Q. B. 606.] TRESPASS. — The first count charged that defendant, with force, &c., seized and disturbed a fishing sean and net of plaintiff, thrown into the sea for fish, wherein plaintiff had taken and inclosed, and then held inclosed in his own possession, a large number of fish, to wit, &c., and that defendant threw another fishing sean and net within and upon plaintiff's sean and net, and for a long time, to wit, &c., prevented plaintiff from taking the fish, so taken and inclosed, out of his sean and net, as he could otherwise have done; and drove, &c., the fish; whereby part of them died, part were injured, and part escaped ; and the sean and net was injured. Second count, that defendant with force, &c., seized, took, and converted fish of plaintiff.
Pleas 1. Not guilty. Issue thereon.
2. To the first count, as to preventing plaintiff from taking the fish alleged to be inclosed in his possession, and driving, &c., the said fish : that the fish were not plaintiff's fish, and he was not possessed of them, in manner, &c. Conclusion to the country. Issue thereon.