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amerce any stranger driving the estray out of the manor, in the manor court (a).

As the right of property in an estray is not changed within the year and day, the lord cannot work the beast (b), without being subject to an action of trespass (c); but if a cow be taken it may be milched, because that tends to the preservation of the animal (d).

And it should seem that the king's prerogative gives him a property in an estray, even before seisure (e).

An estray should be kept in loco aperto, on land in the lord's possession, being part of the demesnes of the manor; and the bailiff of the lord cannot delegate his authority, or deliver the estray to be kept by another (ƒ).

Should an estray be unruly, the lord may use restraint, as by fettering a colt, but in the same way only as he would fetter his own beasts, to prevent their breaking down fences (g).

Gosmore, 12 Co. 101. Anon.
(c) Oxley v. Watts, 1 T. R. 12.

If two tenants in common be of a manor to which estrays belong, no action would lie by the one against the other tenant in common who should alone seise an estray, unless by prescription the one is to have the first estray, and the other the second, and one of them should take the beast pertaining to the other (h). Keb. 589: And see Bul. N. P. 33, where it is said that a lord who seises an estray or wreck, may before the year and day expired maintain trover against a stranger; for he has more than a possession, viz. a possession that will turn into a property; [cites Sir William Courtney's case, C. B. Salk. MSS. Pye & Pleydel, Berks 1750. per Clarke, Bar. S.P.] Vide also 2 Williams's Saund. 47 a. n. 1. 2 Taunt. 306-9. 7 T. R. 398.

(d) Bagshaw v. Goward, Noy 119. Cro. Jac. 148. (sup). So a sheep taken as an estray might be sheared, Ib. per Noy, Att. Gen. citing Prideux's case.

(e) Dy. 338 b. pl. 40.

(f) See Taylor v. James, in Godb. and Noy, (ubi sup.)

(g) Winch 68, 125, in Pleadal v. Gosmore; Hobart, C. J. contrà, cit

(a) Dy. 199 b, cites 29 H. 8. Benl. ing Harvey v. Blacklole, ubi sup. Rep. [23 pl. 38.] (k) Co. Lit. 200 a.

(b) Bagshan v. Goward (or Gawin), Cro. Jac. 147. Noy. 119. Yelv. 96. And see Godb. 151, in Taylor v. James, Win. 68, in Pleadal v.

See as to estrays belonging to infants or others under disability, Post. p. 784. n. (c.) tit. 'Wreck.'

WAIF. (Bona fugitivorum.) Waifs are, in strictness, such stolen goods only as a felon upon hue and cry, or other pursuit, waives or casteth from his person (a).

These are forfeited to the king, or to the lord of the franchise (b); but are only to be claimed by special grant or by prescription, and do not belong to the lord of a hundred or manor, by reason of the hundred or manor (c).

And even these shall be restored to the owner, if he make fresh suit, that is, if he pursue the felon as soon as he has notice of the theft (d), and whether he be taken or not, and this at common law; so also by the stat. 21 H. 8, c. 11, if the owner give evidence upon the indictment, and the felon be attainted (e) :—but after seisure by the king or the lord, the owner cannot retake the goods, though upon fresh suit (ƒ); for by the seisure the property is changed (g).

If, however, the owner challenge the goods upon fresh suit, and before seisure, they shall not be forfeited (h).

In an action against the lord of a manor for misusing a horse stolen from the plaintiff, who alleged that he made fresh suit, the court held that the defendant ought to have traversed the fresh suit whereof the plaintiff had declared, the property being thereby preserved (i).

And in trover for goods seised, ut bona waiviata, it was

(a) Br. Estray & Wayfe, pl. 2. Foxley's case, 5 Co. 109. S. C. Cro. Eliz. 694. Either the stealing or the waiving may be traversed. Br. issues joines, pl. 68, cites 12 E. 4. 5. Ib. Traverse per &c. pl. 241, cites S. C.

(b) Br. Forfeit. de terres, pl. 110, cites 21 E. 4. 16. Ib. Estray & Wayfe, as above.

(c) Br. Estray, pl. 2, cites 44 E. 3. 19. As to prescriptive title, see Co. Lit. 114 b.

(d) 7 H. 4. 44. Br. Fresh suit, pl. 4. Ib. Estray & Wayfe, pl. 7, cites 21 E. 4. 16. Rooke v. Denny, 2

Leo. 192.

(e) Scroggs 130. Br. Estray & Wayfe 8, cites Dr. and Stud. lib. 2. ca. 3 & 51.

(f) Hale H. P. C. 541. Br. Forfeiture de terres, pl. 110, cites 21 E. 4. 16. Stamf. f. 186. A. Kitch. 80. (g) Rastal Restitution 2. Kitch. 80. (h) Dickson's case, Hetl. 64-5. In this case the court was divided as to the forfeiture, the goods being seised before the owner came, and the fresh suit not being wholly within view of the felon.

(i) Rooke v. Denny, 2 Leo. 192.

adjudged without argument, that the defendant ought to allege a felony committed, &c., and that the goods were waived by the felon (a).

But if the goods are not seised by the king or the lord, he who was robbed may seise them, even twenty years after (b).

Goods stolen and left in the house of the felon, or of another person, or in another's custody, or secreted, even if the felon flce, are not, properly speaking, waifs; and these may be retaken by the owner without fresh suit (c).

The goods of a merchant alien cannot be forfeited as waifs, and if waived by the felon after the alien's death, they belong to the executor of the alien (d).

It is the better opinion that the lord may have trespass or trover against a stranger, for waif taken out of his manor, even without any seisure (e); but that the property is not changed before seisure, so as to give the lord a title as against a second lord, into whose franchise it should stray (ƒ).

Bona fugitivorum are the proper goods of him who flies for felony, and they cannot be taken as waifs (g); and the lord of a hundred or manor, although he may prescribe for waifs (h), cannot prescribe for goods of felons and fugitives (i). These, however, may be forfeited to the lord, under a special grant from the crown; but not until it is found upon indictment that the party fled for the felony (k).

(a) Davies' case, Cro. Eliz. 611. (b) Br. Forfeiture de terres, pl. 110, cites 21 E. 4. 16. Kitch. 80.

(c) Foxley's case, ubi sup. S. C. Mo. 572. But it has been held, that if a thief leave my horse or his own horse, in an inn, for a certain sum by the week for his meat, it is not any waif; yet if he leave it there without any agreement for his meat, it is a waif. P. 1 Ja. B. 22 Vin. Abr. (Waife) 408, pl. 1, 2.

(d) Per Doderidge, J. in Waller

v. Hanger, 3 Bulst. 19. Vide also Scroggs 130.

(e) F. N. B. 91 B. Kitch. 80. Scroggs 132. Ante p. 779.

(f) 12 H. 8. 10. F. N. B. 91 B. n. a. Ante, pp. 779, 781.

(g) Br. Estray & Wayfe, pl. 2, cites 44 E. 3. 19. But see contrà, Ib. pl. 9, cites 29 E. 3. 29, & M. 37 H. 8. (h) Ante, p. 781.

(i) Br. Estray & Wayfe, as sup.

n. (g).

(k) 5 Co. 110 b. in Foxley's case.

WRECK.-It should seem to have been a principle of common law, that the fragments of a vessel wrecked at sea, and the lading thereof, were forfeited to the king, in virtue of his prerogative right to all goods of which the ownership could not be established (a); and this identification, when the art of navigation was very imperfect, was necessarily a matter of great difficulty. But it has been supposed that goods wrecked upon the sea were given to the king, to compensate for the great charges incurred by the state in scouring the seas of pirates (b).

The better opinion is, that even at common law, if any person, or any animal, escaped from the vessel, whether alive or dead, whereby the ownership of the lading could be traced, neither the vessel nor the lading were wreck; and the statute of Westm. 1. (3 E. 1.) c. 4. has clearly established that principle, declaring that where a man, a dog, or a cat, escape quick out of the ship, such ship, nor barge, nor any thing within them, shall be adjudged wreck; and that this act was only a declaration of the common law, may be inferred from various books of great authority, particularly from Bracton, written before the statute, and the Mirror, written after it (c).

And in a very ancient case it was adjudged, that if a ship be pursued by enemies, and after being taken and ransacked is put adrift, and subsequently is cast on land, where her crew arrive, there shall be no wreck (d).

(a) And this prerogative right would not pass by general words of all privileges, royalties, &c. in a grant from the crown of the seigniory. Marquis of Winchester's case, 3 Co. 4 b. Ford & Sheldon's case, 12 Co. 2. 2 Rol. Abr. 195 E. Com. Dig. Grant. (G. 6.) Sir W. Jones, 349. 2 Vol. Ca. & Opin. 451. Per Bayley, J. in Scratton v. Brown, 4 Barn. & Cress. 497. And see Alcock v. Cooke, 5 Bing. 340, which case has decided that a grant of Duchy lands, is subject to the same incidents as a grant of lands belonging to the crown. And see 8 Barn. & Cress. 743. 757,

in Rowe & Brenton. Com Dig. Franchises (D. 3).

(b) 2 Inst. 167. Hamilton & Smyth v. Davis, 5 Burr. 2738.

(c) See Bract. lib. 3. f. 120. Britt. f. 7. 26. 85. Flet. lib. 1. c. 41. Mirr. c. 1. s. 13. and c. 3. s. de wrecks. Vide also 2 Inst. 166-7. Sir H. Constable's case, 5 Co. 107 b. Sutton v. Buck, 2 Taunt. 311.

(d) Fishlake's case, 5 R. 2, cited 2 Inst. 167. But see the Bailiffs, &c. of Dunwich v. Sterry, post p. 786.

See further as to what constitutes wreck, 22 Vin. Abr. 537 et seq.

And when goods are cast on land,

Although the above statute speaks generally of a wreck, it extends to the three cases of flotsam, jetsam, and lagan, (or ligan) (a).

Flotsam maris is where a ship perishes, and the goods float upon the sea. Jetsam is where the goods of a ship, which afterwards perishes, are cast into the sea for disburthening it. Lagan (or ligan) is when any ponderous goods of a vessel, which afterwards perishes, are cast into the sea, and with a view to recover them, a cork or buoy is fastened to them; and none of these goods are called wreck, unless driven upon shore (b).

When goods are taken as wreck, the owner should prove his right to the property within a year and a day after the seisure (c); or his executors or administrators, in case he should die within that period (d).

The king is an exception to this limitation of time, and may prove his right of property at any period (e).

And if the goods seised as wreck be bona peritura, the sheriff may sell such goods within the year and day (ƒ).

and are not wreck, and are stolen, the owner may have a commission of oyer and terminer, directed to certain persons to inquire of those who did the trespass, and to hear and determine the same, and to make restitution to the party; and a writ to the sheriff to return probos et legales homines, &c. before the said justices. F. N. B. 112. C. 2 Inst. 168.

(a) 2 Inst. 167. "And of them the Admiral has jurisdiction." Sir II. Constable's case, 5 Co. 106 b.

(b) See Sir H. Constable's case, sup. And even then the right to them will be preserved by any indicia of ownership. Hamilton & Smyth v. Davis, 5 Burr. 2732. Sutton v. Buck, 2 Taunt. 311.

(c) The year and a day is given by the stat. Westm. 1. c. 4. Ante, p. 783. Infrà, p. 786 n. (c). Though a

(special) property is in law vested in the lord before seisure, yet the year and day is accounted from the seisure, as it is by that act alone the owner can know where to make his claim. 2 Inst. 168, citing 35 H. 6. 27. And see Br. Wreck, pl. 2. Bailiffs, &c. of Dunwich v. Sterry, post p. 786.

The property of infants and others under disabilities is equally bound, after the year and day, as well in the case of wreck, as of an estray. Sir II. Constable's case, 5 Co. 108 b. (d) 2 Inst. 168.

(e) Ib. Br. Wreck. pl. 2, cites 35 H. 6. 27. Kitch. 24, cites 45 H. 6. 32.

(f) 2 Inst. 168. Plow. Com. 466. Kitch. 24. And see a provision as to the sale of perishable goods, 1 & 2 Geo. 4. c. 75. § 27.

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