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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 conceclunť, 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.
(Reported, 5 Burr. 2732.] A MOTION had been made, last term, for a new trial. The cause had 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."
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 Moglan 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
the plaintiffs, he did obtain several other hogsheads of the same mark, for the same salvage, as he had offered Davis, and carried them with him to Liverpoole, for the plaintiffs.
He said J. Blundell was with him at the time of the above transaction.
And Blundell, being called, confirmed Stokes's evidence in all particulars; and also proved the value of the tallow to be £30 per hogshead on an average.
The plaintiff rested his case on this evidence. The defendant called no witness, but objected to the plaintiff's right to recover on the case he had thus made ; insisting by his counsel,
First, that it appearing the ship had been totally lost, and that no living creature had come alive from the ship to the shore, the ship and the goods therein were a wreck, and thereby became the property of the crown or its grantee (under whom Davis, the defendant, acted), by and under the provisions of the statute of the 3 Edw. I. c. 4th.
Secondly, that supposing the plaintiff not to have lost his property by the ship being a wreck, yet under all the circumstances of this case the plaintiff's ought not to recover in this action, as they had not shewed that they had complied with the requisites either of the statute 27 Edw. III. c. 13, or of the 12th Ann. c. 18.
But Mr. Justice White and I were of opinion, under the circumstances of this case, that the plaintiffs were intitled to recover in this action if the jury were satisfied with the proof made of their property in the goods; and that they had tendered a reasonable sum for the expense of salvage; and that under the circumstances of this case none of the provisions of the statutes, either of the 27th Edw. III., or the 12th Ann., were any bar to the plaintiff's having a verdict on the evidence he had laid before the jury.
The jury were satisfied with the proof of the plaintiff's property, and that he had tendered a reasonable salvage; and found a verdict for the plaintiff, with damages for £79 88. 6d.
We allowed the defendant leave to move for a new trial, without costs, in case we were mistaken in our opinion with respect to the objections made by the defendant's counsel to the plaintiff's right to recover.
Mr. Wallace and Mr. Davenport shewed cause, on behalf of the plaintiffs, why there ought not to be a new trial.
Mir. Dunning, Mr. Kenyon, Mr. Atherton, and Mr. Owen argued on behalf of the defendant for a new trial.
LORD MANSFIELD. There is no sort of doubt concerning the true ownership of these goods, which were cast away in a storm and recently pursued. Everybody else restored to the true owner the proportions that they had got of them, upon a proper salvage offered ; this defendant refused to deliver the share that he had got, being forfeited, according to his apprehension, as a wreck, because no live animal came ashore. He likewise objects to the plaintiff's recovering, because cer
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 wus 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 tulis 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.
WAIFS, ESTRAYS, AND DEODANDS.
1 Bl. Com. 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 procure evidence to convict him, he shall have his goods again. Finch. L. 212. Waved goods do also not belong to the king till seized by 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.