trove in the words of the civilians, to be "vetus depositio pecuniæ." This difference clearly arises from the different intentions which the law implies in the owner. A man, who hides his treasure in a secret place, evidently does not mean to relinquish his property in it; but reserves a right of claiming it again, when he sees occasion; and if he dies, and the secret also dies with him, the law gives such treasure to the sovereign as part of the royal revenue. But a man who casts his treasure into the sea, or scatters it upon the public surface of the earth, is construed to have absolutely abandoned his property, and returned it into the common stock, without any intention of reclaiming it: and therefore it belongs, as in a state of nature, to the first occupant or finder; unless the owner appear and assert *his right, thus proving that the [*358] loss was by accident merely.

Formerly all treasure-trove belonged to the finder(g); as was also the rule of the civil law(h). Afterwards it was judged expedient for the purposes of the state, and particularly for the coinage, to allow part of what was so found to the crown: which part was assigned to be all hidden treasure; such as is casually lost and unclaimed, and also such as is designedly abandoned, still remaining the right of the fortunate finder. And that the prince shall be entitled to this hidden treasure is now grown to be, according to Grotius(i), "jus commune et quasi gentium." The finding of deposited treasure was much more frequent, and the treasures themselves were more considerable, in the infancy of our constitution, than at present. When the Romans, and other inhabitants of the countries which composed their empire, were driven out by the northern tribes, they concealed their money under ground; with a view of resorting to it again when the heat of the irruption should be over, and the invaders driven back to their deserts. But, as this never happened, the treasures were never claimed; and on the death of the owner of treasure thus concealed the secret also died with him. The conquering generals, being aware of the value of these hidden mines, made it highly penal to secrete them from the public service. In England therefore, as among the feudists(k), the punishment of such as kept secret the finding of hidden treasure was formerly no less than death; but now it is only fine and imprisonment(1).

[*359]

(XI.) Waifs.

XI. Waifs, bona waviata, are goods stolen, and waived or thrown away by the thief in his flight, for fear of *being apprehended. These are given to the crown by the law, as a punishment upon the owner, for not himself pursuing the felon, and taking away the goods from him(m).(95) And therefore if the party robbed do his diligence (1) 3 Inst. 133; see Reg. v. Thomas, L. & C. 313. (m) Cro. Eliz. 694.

(g) Bracton, 1. 3, c. 3; 3 Inst. 133.

(h) Dig. 41, 1. 31.

(i) De Jure Bell. et Pac. 1. 2, c. 8, s. 7. (k) Glanv. 1. 1, c. 2; Crag. 1, 16, 40.

(95) The finder of personal property which has been casually lost by the true owner can hold it as against every person but such owner; and he may maintain an action for its recovery, or for its conversion, by a third person who wrongfully detains, or has unlawfully converted it. Armory v. Delamirie, 1 Stra. 505; 1 Smith's Lead. Cas. 470, and notes; Mathews v. Harsell, 1 E. D. Smith, 393; McLaughlin v. Waite, 9 Cow. 670; 5 Wend. 404; Ellery v. Cunningham, 1 Metc. 112; Clark v. Malony, 3 Harr. 68; Bridges v. Hawkesworth, 7 Eng. Law & Eq. 424; 15 Jur. 1079; 21 L. J. Q. B. 75; see Hendricks v. Decker, 35 Barb. 298. The place of finding is of no importance, for the finder is entitled to the property as to

immediately to follow and apprehend the thief (which is called making fresh suit), or convict him afterwards, or procure evidence to convict him, he shall have his goods again(n). Waived goods moreover do not belong to the sovereign, till seized by somebody for his use; for if the party robbed can seize them first, though at the distance of twenty years, the crown shall never have them(o). If the goods are hid by the thief, or left any where by him, so that he had not them about him, when he fled, and therefore did not throw them away in his flight, these are not bona waviata, but the owner may have them again when he pleases (p). The goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs (g); 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.

XII. 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 sovereign as the general owner, and lord paramount (XII.) Estrays. of the soil, in recompense for the damage which they may have done therein though they now most commonly belong to the lord of the manor by special grant from the crown(r). But, in order to vest an absolute property in the sovereign or his grantees, the animals thus found [ *360] straying 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 crown or its substitute without redemption (s); even though the owner were a minor, or were under any legal incapacity(t). If the owner claims an estray within the year and day, he must pay the charges of finding, keeping, and proclaiming it(u). (96) The king or lord has no property in it till the year and day passed:

(n) Finch. L. 212. (0) Ib.

(p) Constable's Case, 5 Rep. 109.

(7) Fitzh. Abr. tit. Estray, 1; 3 Bulstr. 19. (r) It is confirmatory of this origin of the right of taking estrays, that the king's cattle

are not liable to be taken as estrays. 1 Roll. Abr. 878.

(8) Mirr. c. 3, s. 19.

(t) Constable's Case, 5 Rep. 108; Bro. Abr. tit. Estray; Brownlow v. Lambert, Cro. Eliz. 716.

(u) Dalt. Sher. 79.

all but the true owner, even though he found it upon the land or in the store or shop of another person. Bridges v. Hawkesworth, 7 Eng. Law & Eq. 424; 15 Jur. 1079; 21 L. J. Q. B. 75; Mathews v. Harsell, 1 E. D. Smith, 393; see Hendricks v. Decker, 35 Barb. 298.

(96) In many, and probably in most, of the states, there are statutes which provide for the care and disposition of estrays. One who finds a horse, takes possession of, and uses him, so that he is injured, is liable to the owner for such injury. Murgoo v. Cogswell, 1 E. D. Smith, 359. To divest the title of the owner of an estray under the provisions of a statute, such statute must be strictly pursued. McMillan v. Andrew, 50 Ill. 282; Hyde v. Pryor, 13 id. 64; Smith v. Ewers, 21 Ala. 38; Harryman v. Titus, 3 Mis. 302; Crook v. Peebly, 8 id. 344; Newsom v. Hart, 14 Mich. 233.

If horses or cattle stray upon the lands of a person not their owner, he need not take them up nor impound them, but may turn them loose into the highway, and he will not be liable for a conversion of them, though they be afterward lost to the owner. Stevens v. Curtis, 1 8 Pick. 227; Humphrey v. Douglass, 10 Vt. 71; 11 id. 22.

One who takes up and properly provides for an estray is entitled to a compensation which will indemnify him. Amory v. Flyn, 10 Johns. 102; Rice v. Underwood, 27 Mis. 551; Hahler v. Holden, 20 Ill. 363; Ford v. Ford, 3 Wis. 399; Garabrant v. Vaughn, 2 B. Monr. VOL. I.-30

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 other lord cannot take it again(x). 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(y) 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(z); whence swans 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 who takes an estray is bound, so long as he keeps it, to find it in provisions, and preserve it from damage(a); and may not use it by way of labour, but is liable to an action for so doing(b). Yet he may milk a *cow, or the like; for that tends to the preservation, and is for the benefit of the animal (c).

[* 361]

XIII. A thirteenth branch of the ordinary revenue of the sovereign, said to be grounded on the consideration of his guarding and protecting the seas from pirates and robbers, is the right to royal fish, which are whale (XIII) Royal fish. and sturgeon: and these, when either thrown ashore, or caught near the coast, belong to the crown in virtue of their superior excellence (d). Indeed, our ancestors seem to have entertained a very high notion of the importance of this right; it being a prerogative of the kings of Denmark and the dukes of Normandy(e); and from one of these it was probably derived to our princes. It is expressly claimed and allowed in the statute de prærogativá regis(ƒ); and the most ancient treatises of law make mention of it(g).

XIV. Another maritime revenue, founded partly upon the same reason, is derivable from wrecks, which are declared to belong to the crown by the same prerogative statute 17 Edw. 2, c. 11, and were so, long before, at (XIV.) Wreck. the common law. It is worthy of observation, how greatly the law concerning wrecks has been altered, and the rigour of it gradually softened in favour of the distressed proprietors. Wreck, by the ancient common law, was where any ship was lost at sea, and the goods or cargo were thrown upon the land; in which case these goods, so wrecked, were adjudged to belong to the crown for it was held that, by the loss of the ship, all property was gone out of the original owner(h). But this was undoubtedly adding sorrow to

(x) Finch. L. 177.

(y) L. 1, c. 43.

(z) Case of Swans, 7 Rep. 17.

(a) 1 Roll. Abr. 878.

(b) Cro. Jac. 147.

(c) Cro. Jac. 148; Noy. 119.

(d) Plowd. 315.

(e) Stiernh. de jure Sueonum. 1. 2, c. 8; Gr. Coustum. cap. 17.

(f) 17 Edw. II. c. 11.

(g) Bracton, 1. 3, c. 3; Britton, c. 17; Fleta,

1. 1, cc. 45, 46; Memorand. Scacch'. H. 24 Edw.

1, 37, prefixed to Maynard's year-book of Edward II.

(h) Dr. & St. d. 2, c. 51.

327. So where the inanimate property of one person is borne, without his fault, as by a flood, upon the lands of another, the owner may elect to abandon the property, in which case he is not liable to the owner of the lands for the injury thus occasioned; or he may reclaim it, but if he does so, he must make good the injuries so caused. Sheldon v. Sherman, 42 N. Y (3 Hand) 484; 42 Barb. 368.

sorrow, and was consonant neither to reason nor to humanity. Wherefore it was *first ordained by king Henry I. that if any person escaped alive [ *362] out of the ship it should be no wreck (i); and afterwards king Henry II., by his charter(k), declared, that if on the coasts of either England, Poictou, Oleron, or Gascony, any ship should be distressed, and either man or beast should escape or be found therein alive, the goods should remain to the owners, if claimed by them within three months; but otherwise should be esteemed wreck, and should belong to the king, or other lord of the franchise. This was again confirmed with improvements by king Richard I., who, in the second year of his reign (7), not only established these concessions, by ordaining that the owner, if he was shipwrecked and escaped, " omnes res suas liberas et quietas haberet," but also, that, if he perished, his children, or in default of them his brethren and sisters, should retain the property; and, in default of brother or sister, then the goods should remain to the king(m). And the law, as laid down by Bracton in the reign of Henry III., seems still to have improved in its equity. For then, if a dog (for instance) escaped, by which the owner might be discovered, or if any mark were set on the goods, by which they might be known again, it was held to be no wreck (n). And this is certainly most agreeable to reason; the rational claim of the crown being only founded upon this, that the true owner cannot be ascertained. Afterwards, in the statute of Westminster I.(o), the time of limitation of claims, given by the charter of Henry II., is extended to a year and a day, according to the usage of Normandy(p) and it enacts, *that if a man, a dog, or a cat, escape alive, [*363] the vessel shall not be adjudged a wreck. These animals, as in Bracton, are only put for examples(9), for it was held (r), that not only if any live thing escaped, but if proof could be made of the property in any of the goods or lading which came to shore, they should not be forfeited as wreck. The statute further ordains that the sheriff of the county shall be bound to keep the goods a year and a day, so that if any man can prove a property in them, either in his own right or by right of representation(s), they may be restored to him without delay; but if no such property be proved within that time, they then shall belong to the crown. If the goods are of a perishable nature, the sheriff may sell them, and the money shall be liable in their stead (t). This revenue from wrecks was frequently granted out to lords of manors, as a royal franchise. It is to be observed that, in order to constitute a legal wreck, the goods must come to land. If they continue at sea, the law distinguishes them by the barbarous and uncouth appellations of jetsam, flotsam, and ligan or lagan. Jetsam is where goods are cast into the sea to lighten the ship(u), and there sink and remain under water; flotsam is where they continue swimming on the surface of the waves; ligan or lagan is where they are sunk in the sea or tied to a cork or buoy, in order to be found again(x). These also belong to the crown, if no

(1) Spelm. Cod. apud Wilkins, 305.

(k) 26 May, A. D. 1174; 1 Rym. Foed. 36. (7) Rog. Hoved, in Ric. Í.

(m) In like manner Constantine the Great, finding that by the imperial law the revenue from wrecks was given to the prince's treasury or fiscus, ordered by an edict (Cod. 11, 5, 1), that wreck should remain to the owner, adding this humane expostulation, "quod enim jus habet fiscus in alienâ calamitate, ut de re tum luctuosa compendium sectetur?"

owner appears to claim them; but if any owner appears, he is entitled to recover the possession. For even if goods be cast overboard, without any mark or buoy, in order to lighten the ship, the owner is not by this act of necessity construed to have renounced his property in them(y); *much less can things [ *364] ligan be supposed to be abandoned, since the owner has done all in his power to assert and retain his property. These three are therefore accounted so far distinct from the former, that by a grant from the crown of wrecks, things jestam, flotsam, and ligan will not pass(2).

Wrecks, in their strict legal acceptation, even formerly were not frequent, for if any goods came to land, it rarely happened that the owner was not able to assert his right to them within the year and a day limited by law. And in order to preserve this property entire for him, and if possible to prevent wrecks at all, our legislature made many humane regulations(a); in a spirit quite opposite to those savage customs which formerly prevailed in the northern regions of Europe, permitting the inhabitants to seize on whatever they could get as lawful prize: or as an author of their own expresses it, "in naufragorum miseria et calamitate tanquam vultures ad prædam currere"(b).

The statute now operative upon this subject-which has been amended by subsequent enactments(c)-is the 17 & 18 Vict. c. 104, by which wreck is defined to include "jetsam, flotsam, ligan, and derelict(d), found in or on the shores of the sea, or any tidal water "(e). In accordance with the provisions of the principal statute(f), all *matters relating to wreck are under the [ *365] general superintendence of the board of trade, who appoint district officers denominated receivers of wreck, to perform the various duties assigned to them by the legislature. (97) Amongst such duties may be specified the rendering of assistance to a vessel stranded or in distress, the taking possession of her cargo, and protecting it from plunder(g), the receiving of wreck or seizure of it if concealed (h), the giving notice of wreck to any lord of the manor, or other person who may be entitled to it if unclaimed by the owner(i), and effecting the sale of goods which are perishable or of small value(k). The proceeds of the sale of wreck which has become vested in the crown by reason of non-claim are, during the life of her majesty, to be carried to and form part of the consolidated fund, unless where they belong to the queen in right of her duchy of Lancaster, in which case they are to be paid to the receiver-general of such duchy, and to be dealt with as part of the revenue thereof, or unless

(a) See these statutes collected Maclachlan, Merc. Ship. 553 n. (3).

(b) Stiernh. de jure Sueon. 1. 3, c. 5.

(c) See 17 & 18 Vict. c. 120; 18 & 19 Vict. c. 91; 24 & 25 Vict. c. 10; 25 & 26 Vict. c. 63. (d) Goods are derelict "which have been voluntarily abandoned and given up as worthless, the mind of the owner being alive

to the circumstances at the time." Per Tindal, C. J., Legge v. Boyd, 1 C. B. 112.

(e) Sect. 2. Timber found floating without an apparent owner at sea, having drifted from its moorings in a river, is not wreck as defined by the 17 & 18 Vict. c. 104, s. 2. Pal. mer v. Rouse, 3 H. & N. 505.

(f) 17 & 18 Vict. c. 104, s. 439.
(g) Sects. 441-447.

(h) Sects. 450, 451.

(i) Sect. 454. See also 25 & 26 Vict. c. 63,

8. 52.

(k) Sect. 453.

(97) See act of congress March 3, 1825, 4 Stat. at Large, 115, providing for the punishment of offenses committed on board of vessels, or for stealing, destroying, etc., goods belonging to a vessel in distress.