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Finch. L. 212. If the goods are hid by the thief, or left any where by him, so that he had them not about him when he fled, and therefore did not throw them away in his fight, these also are not bona waviata, 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 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 viatoribus obviis, deinde in proxima villa vel pago, postremo coram ecclesia vel judicio ; and the space of a year was allowed for the owner to reclaim his property. Stiernh., De jur. 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 an estray three-quarters of a year, and within the year it strayeth again, and another lord getteth it, the first lord cannot take it again. Finch. 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, swine, and horses, which we in general call cattle ; and so Fleta (L. 1, C. 43) 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. Com. 300.- By this [a deodand) is meant whatever personal 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, 1. 1, c. 25); though formerly destined to a more superstitious purpose. It seems to have 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. i 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 ;? 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 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 sispence), 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 Omnia, quæ movent ad mortem, sunt Deo danda. Bracton, 1. 3, c. 5.
2 Æschin. cont. Ctesiph. Thus too hy our ancient law a well in which a person was drowned was ordered to be filled up, under the inspection of the coroner. Flet., l. 1, c. 25, $ 10; Fitzh., Abr., t. corone, 416.
1 A similar rule obtained among the ancient Goths : Si quis, me nesciente, quocun. que meo telo vel instrumento in perniciem suam abutatur; vel ex adibus meis cadat, vel inculat in puteum meum, quantumvis tectum et munitum, vel in cataractam, et sub molendino meo confringatur, ipse aliqua mulcta plectar ; ut in parte infelicitatis mere numeretur, habuisse vel ædificasse aliquod quo homo periret. Stiernhook de jure Goth. 1. 3, c. 4.
2 See Stimson, Am. Statute Law, SS 145, 1162. — Ed.
HUGHES v. CORNELIUS.
KING'S BENCH, 1680.
[Reported 2 Show. 232.) TROVER brought for a ship and goods, and on a special verdict there is found a sentence in the admiralty court in France, which was with the defendant.
And now per Curiam agreed and adjudged, that as we are to take notice of a sentence in the admiralty here, see Ladbroke v. Crickett, 2 Term Rep. 649, so ought we of those abroad in other nations, and we must not set them at large again, for otherwise the merchants would be in a pleasant condition ; for suppose a decree here in the Exchequer, and the goods happen to be carried into another nation, should the courts abroad unravel this? It is but agreeable with the law of nations that we should take notice and approve of the laws of their countries in such particulars. If you are aggrieved, you must apply yourself to the king and council; it being a matter of government, he will recommend it to his liege ambassador if he see cause; and if not remedied, he may grant letters of marque and reprisal.
And this case was so resolved by all the court upon solemn debate; this being of an English ship taken by the French, and as a Dutch ship in time of war between the Dutch and the French.1
Judgment for the defendants.
i The special verdict was, that one William Gault, a denizen of England, was owner of the ship at the time she was taken ; that the master of the ship was a native of Holland, but made a denizen of England ; that two of the sailors were Dutchmen, and the mate, with the eight other mariners, Englishmen ; that the ship was Dutch-built, and taken during the war between Holland and France, and condemned as a Dutch prize in the court of admiralty in France, and sold to the plaintiff Hughes under that sentence ; and that on her arrival in England, the defendant Cornelius and others, as the servants of William Gault, took and converted the ship to their own use. 8. c. Raym. 473. The sentence of the admiralty was produced under seal. 2 Ld. Raym. 893. But the court would not suffer this verdict to be argued, but ordered judgment to be entered for the plaintiff ; for sentence in a court of admiralty ought to bind generally, according to jus gentium, s. C. Skinner, 59, although the facts found by the special verdict were contrary to, and falsified the sentence in, the admiralty court. S. C. cited by Holt, C. J., who was counsel for the plaintiff, 2 Ld. Raym. 893, for the property is thereby altered, though the sentence be unjust. S. C. cited Ewer v. Jones, 2 Ld. Riym. 936. Carth. 225. 9 Mod. 66. Bull. N. P. 244, 245. It has, however, been determined that a sentence of condemnation in a foreign court of admiralty is not conclusive evidence that a ship was not neutral, unless it appear that the condemnation went upon that ground, Bernarde v. Motteux, Dougl. 54; but such a sentence is conclusive as to every thing that appears on the face of it, Barzillay v. Lewis, Park. GRIFFITH V. FOWLER.
SUPREME COURT OF VERMONT. 1846.
(Reported 18 Vt. 390.) TRESPASS for taking a shearing machine. The case was submitted upon a statement of facts, agreed to by the parties, from which it appeared, that in 1836 the defendant, being the owner of the machine in question, lent it to one Freeman, to use in his business as a clothier, who was to pay a yearly rent therefor, and in whose possession it remained until the year 1841, when it was sold at sheriff's sale, on execution, as the property of Freeman, and one Richmond became the purchaser; that Richmond, in January, 1842, sold the machine to th plaintiff, who at the same time purchased of Freeman the building, in which the machine was situated, and took possession thereof; and that the defendant, in February, 1842, took the machine from the plaintiff's possession, claiming it as his property. The value of the machine was admitted to be fifty dollars.
Upon these facts the county court, — HEBARD, J., presiding, rendered judgment for the defendant. Exceptions by plaintiff.
Ins. 359 ; so, where no special ground is stated in the sentence, but the ship is condenned generally as good and lawful prize, Saloucci v. Woodhouse, Park. 362 ; unless manifestly, upou the face of it, against law and justice, Saloucci v. Johnston, Park. Ins. 364 ; or contradictory to itself, Mayne v. Walter, Park. 363. And see the case of Burton v. Fitzgerald, Stra. 1078. — Note by Thomas Leach.
NOTE. “ When a tribunal, no matter whether in England or a foreign country, has to determine between two parties, and between them only, the decision of that tribunal, though in general binding between the parties and privies, does not affect the rights of third parties ; and if in execution of the judgment of such a tribunal process issues against the property of one of the litigants, and some particular thing is sold as being his property, there is nothing to prevent any third person setting up his claim to that thing, for the tribunal neither had jurisdiction to determine, nor did determine, any. thing more than that the litigant's property should be sold, and did not do more than sell the litigant's interest, if any, in the thing. All proceedlings in the courts of common law in England are of this nature, and it is every day's experience that where the sheriff, under a fieri facias against A, has sold a particular chattel, B may set up his claim to that chattel either against the sheriff or the purchaser from the sheriff. And
if this may be done in the courts of the country in which the judgment was pronounced, R
it follows, of course, that it may be done in a foreign country. But when the tribunal has jurisdiction to determine not merely on the rights of the parties, but also on the disposition of the thing, and does in the exercise of that jurisdiction direct that the thing, and not merely the interest of any particular party in it, be sold or transferred, the case is very different.
“It is not essential that there should be an actual adjudication on the status of the thing Our courts of admiralty, when property is attached and in their hands, on a proper case being shown that it is perishable, order that it shall be sold and the proceeds paid into court to abide the event of the litigation. It is almost essential to justice that such a power should exist in every case where property, at all events perishable property, is detained." Per BLACKBURN, J., in Castrique v. Imrie, L. R. 4 H. L. 414, 427, 428 (1870).
See Mcgee v. Beirne, 39 Pa. 50.