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SIR HENRY CONSTABLE'S CASE.
KING's BENCH, 1601.
[Reported 5 Co. 106 a.] 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' munerii de Barnesť 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 woreccum maris, but such goods only which are cast or left on the land by the sea; for ureccuir maris sig, nificat illa bona, quæ naufragio ad terram appelluntur: fotsam 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 heing 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 projecť. And another prescript. is there habere omnimod voreccum maris infra præcinctum manerii, sive dominii præd' project, & flotsam maris infra eund' præcinct devenient; 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. inť brevia de transgress. 102 b. the writ saith, Ostensurus quare cum idem Tho. dominus mdnerii, de Estombavent existat & ibidem habere debeat, ipseque & antecessores sui domini nanerii praæd' a tempore quo, &c. non existat memoria, hucusque habere consueverunt wrecc' maris infra præcincť maner prod', præd' Joceus & Robert. bona & catalla ad valenc' cenť solid. apud S. infra præcinct ejusdl manerii ad terram projecte que 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 w 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
subject, and every thing done on the land when the sea is ebbed shall he tried at the common law, for it is then parcel of the county, and infra corp' comitať, 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 crjus, &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 eâ 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 liis, 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 inveniať, 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 canyot 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 bis 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 bad 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 balæna, et aliæ res que
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