Page:Prerogatives of the Crown.djvu/167

Ch.VIIL] Franchises.— Waifs. 147 not in his possession when he fled, the King's prerogative does not apply, and the owner is, at all events, entitled to the pro- perty (rt). But the goods waived need not be the identical pro- perty stolen, for if a felon in flight waive his own goods, and the King seize them, they also are a species of waifs, for they are relinquished, and the property is in nobody (6). But these are ^^Toi^Qvly fugitive' s goods, and not forfeited, till it be found before the coroner, or otherwise of record, that he fled for the felony {c). But waifs vest in the Crown without ofiice found (d). The King acquires no property in the goods waived until they are seized by some one to his use ; and if the owner of the stolen property can seize them first, though at any dis- tance of time, the King shall not have them(^). This prerogative was given to the King, that the owner of the goods might be induced to bring the felon to justice to re- gain them. Therefore, though the property is seized and in the hands of the Crown, yet the owner is entitled to restitu- tion, if he used all reasonable diligence in pursuing the thiefi or if he bring him to justice by procuring his conviction, or produce evidence which causes it {/), Hence it will be re- marked, tha,t this royal prerogative is rather limited, and can only obtain where the party robbed is guilty of that negligence and torpitude, which our law reprehends in every instance, but more especially in those cases where they may occasion the escape of villainy from punishment. The goods of a foreign merchant, though stolen and thrown away in flight, shall never be waifs (^). "The reason whereof," observes Sir Wm. Blackstone (^), " 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." All waifs are prima facie the property of the Crown, and are not necessarily incident to a leet (/), though they are fre- («) 5 Rep. 109. Cro. El. 694. 1 (/) Finch L. 212. 1 Bla. Com. 29C. Bla. Com. 296. st. 21 Hen. 8. c. 11. (A) Bro. Estray, 9. 29 Edw. 3. 19, (g) Filz. Abr. tit. Estray, 1. 3 Bulstr. (c^ Hawk. P. C. 481. B. 2. c. 49. 19. s. 14. ' (A) 1 Bla. Com. 296. (rf) 5 Co. 109. (j) Year Book, 8 Hen. 7. 1. Bro. Es- (*) 21 Edw. 4. 16. Kitchen. 82. tray, 15. L 2 quently