coke b the case OF swan Trin Elizabeth a prescription to have all wile swan  which be fierce nalurce and not mark building their nest breed and frequent  within a particular creek be not good all white swan not mark have gain their  natural liberty and swim in au open and common river may be seize to the king  use by his prerogative a swan be a royal fowl and whale and sturgeon be royal  fish every one who have swan within his private water have a property in they  a man may prescribe to have a game of swan within his manor and may prescribe  that his swan may swim within the manor of another a swan may be a estray  cygnet belong equal to the owner of the cock and the owner of the hen and  shall be divide betwixt they between the queen and the lady Joan young late  the wife of sir John young knight decease and Thomas Saunger defendant the  case be such a office be find at W in the county of Dorset that of September  and Elizabeth before sir coke report a er p Matthew Arundel and other  commissioner of the queen under the great seal quod a villan de Abbotsbury in  prd eom Dorset usque ad mare er islander de Portland in eoden Com be qudam  ostuaria England a mere or fleet in how mare fluit et to flow back in how  indeed cestuaria are measure quorum are white et are cignetti et quod all men  predicti eigni et cignelli are in possession I Younget though Saunger et quod  who the dawn be valor S d uodque major pars tempore eaplionis speech  inquisilionis too little fuer mark which office be certify into the exchequer  a writ be direct to the sheriff of the same county to seize all the white swan  by force whereof the sheriff return that he have seize four hundred white swan  to which afterward sure Hilary Elizabeth the say coke a Joan young and though  Saunger plead quod prd stuaria to be thrown or cast in paroch de Abbotsbury in  come Dorset and abut it and that before the inquisition take the abbot of  Abbotsbury be seize de prd stuaria et de bank et solon the same in fee and  that at the time of the inquisition and time out of mind to be et thus far be  quidam flight a measure et cignettor to bear peremptory or urgent call a game  of wile swan in stuaria sive water that et bank et solon the same to build a  nest gignen et to visit frequently England haunt de quo indeed volalu cignor  et cigneltor prod abhas et all men prdecessores Himself abbot monastery prd  per Greek weight unit time predict to have et to rejoice fiberuii et to have  et to rejoice to become used tot prfic et increment all et singulor cignor et  cignettor to bear in stuaria prd to build a nest gignen et frequent who indeed  measure et cignelli per lolum time prd to be fer nature et infra idem time the  same measure et cignetti seu the dawn in some way to some place battle  standard non use to be nec to become used a sculptor nisi quod prd recently  abhasprdecessores Himself prd per totan time prod ad the dawn it pleases quosd  seu some de minorib cignettis annuatin pullulant quos ad use et culino et  hospitality sum to cause to stand expendend in haec manner annuatin to set a  mark upon to become used et use to be videlicet to cut around middle junduram  One alce England to cut off the pinion of one wing pron  interrog  libel ankle  cignetti Edward ntentione quod cignetti such to cut around too little to be  strong to fly away and afterward the say abbot surrender the premise to king h  who year that of his reign grant to Giles a day a Strangways Esq by his letter  patent inter alian totan that liberan pescariam our men in water peremptory or  urgent call the fleet in Abbotsbury prod ac in all respects message aquas fish  et clera hreditam our men qucunque in Abbotsbury in dict come Dorset fact  recently monastery c to such a degree plene et integre c et in lamb  opportunity modus et form and that the say Giles die and it descend to Giles  Strangways his cousin and heir who demise to the defendant the say game of  swan for one year c and pray quod manus speech lord king to move away upon  which the queen attorney do demurrer in the law it be resolve that all white  swan not mark which have gain their natural liberty and be swim in a open and  common river may be seize to the king use by his prerogative because winged  queen are fer nature alian are regalia alian communia and so living in water  alian are regalia alian communia as a swan be a royal fowl and all those the  property whereof be not know do belong to the king by his prerogative and so b  day a Stamf Prrog b a   b Plowd b b whale and sturgeon be royal fish and  belong to the king by his prerogative and there have be a ancient officer of  the king call magister deduclus a measure coke b which continue to this day  but it be resolve also that the subject may have property in white swan not  mark as some may have swan not mark in his private water the property of which  belong to he and not to the king and if they escape out of his private water  into a open and common river he may bring they back and take they again and  therewith agree Bracton lib c fol si autem animal feran fanctam to be to be  used to the hand et ex consueludine going et Of persons volant et to fly back  ut are stag measure peacock et columbo et to come to know Interrog  to have  mind see revertor  but if they have gain their natural liberty and be swim in  open and common river the king officer may seize they in the open and common  river for the king for one white swan without such pursuit as aforesaid can be  know from another and a swan can be know the same be of its nature a fowl to  the king and in this case the book of h b be vouch where sir John tiptoft  bring a action of trespass for wrongful take of his swan coke report a er p  the defendant plead that he be seize of the lordship of S within which  lordship all those who estate he have in the say lordship have have time out  of mind all estrays be within the say manor and we say that the say swan be  estraying at the time in the place where c and we as landlord do seize and  make proclamation in fair and market and so soon as we have notice that they  be your swan we deliver they to you at such a place the plaintiff reply that  he be seize of the manor of b join to the lordship of S and we say that we and  our ancestor and all those c have use time out of mind to have swan swim  through all the lordship of S and we say that long time before the take we put  they in there and give notice of they to the defendant that they be our swan  and pray his damage and the opinion of strange there be well approve by the  court that the replication be good for when the plaintiff may lawful put his  swan there they can be estrays no more than the cattle of any can be estrays  in such place where they ought to have common because they be there where the  owner have a interest to put they and in which place they may be without  negligence or laches of the owner out of which case these point be observe  concern swan that every one who have swan within his manor that be to say  within his private water have a property in they for the writ of trespass be  of wrongful take his swan sure quare measure swine c that one may prescribe to  have a game of swan within his manor as well as a warren or park that he who  have such a game of swan may prescribe that his swan may swim within the coke  a manor of a a keb a another that a swan may be a estray and so can any other  fowl as I have read in any book in b Cr Elizabeth b r b a the Lord strange and  sir John Charlton bring a action of trespass against three because the  defendant have take and carry away cygnet of the plaintiff in the county of  buck to his damage of one of the defendant plead that the water of the Thames  run through the whole realm and that the county of Buckingham be adjoin to the  Thames and that the custom of the say county of Buckingham be and have be time  out of mind that every swan for cignet in the book be take for a swan which  have its course in any water which water run to the Thames within the same  county that if any swan come on the land of any man and there build and have  cygnet on the same land that then he who have the property of the swan shall  have two of the cygnet and he who have the land shall have the three cignet  which shall be of less value than the other two and that be adjudge a good  custom because the possessor of the land suffer they to build there where he  may drive they off and by this judgement it also appear that a man may allege  a custom or prescribe in swan or cygnet and in the same case it be say that  the truth of the matter be that the ford strange have certain swan which be  cock and sir John Charleton certain swan which be hen and they have cygnet  between they and for these cygnet the owner do join in one action for in such  case by the general custom of the realm which be the commonlaw in such case  the cygnet do belong to both the owner in common equal see to the owner of the  cock and the owner of the hen and the cygnet shall be divide betwixt they and  the law thereof be find on a reason in nature for the cock swan be a emblem or  representation of a affectionate and true husband to his wife above all other  fowl for the cock swan hold himself to one female only and for this cause  nature have confer on he a gift beyond all other that be to die so joyful that  he sing sweet when he die upon which the poet say sweet drink diminution  modulator song tongue cantator cygnus burial ipse Himself c and therefore this  case of the swan do differ from the case of cow or other bruit beast vide  Henry and it be agree that none can have a swan mark which in Latin be call  cigninota unless it be by the grant of the king or of his officer authorize  thereto or by prescription and if he have a lawful swan coke report b er p  mark and have swan swim in open and common river lawful mark therewith they  belong to he ration privilegi but none shall have a swan mark or game of swan  unless he have land or tenement of a estate of freehold of the yearly value of  five mark above all charge on pain of forfeiture of his swan whereof the king  shall have one moiety and he who seize shall have the other moiety and that be  by the state of Edward cap and he who have such swanmark may grant it over and  thereof I have see a notable precedent in the time of h which be such notum  sit omnib hominib prsentib et going to be quod ego I steward mile to give away  et coke b concession though fill meo birthright et hredib nest cigninot of me  armour Meor prout in margin lateral it wearies queen I jure hreditar descendeb  post mort I steward will pairis urinate habend Himself et hredib nest One cum  omnib tionis et ciglnicul cum dictam notam bacilli to furnish with knots mark  sub condition quod quilib feria sun durame vita a gulan Augusli usque ad  Cornisprivium at dom of me de Darford One cignicut bene mark I or meis to  weigh well quod si to withdraw tunc volunteers quod hoc prsens own handwriting  empty inside et pro nothing to have in of whom rei testimony ad instant Matild  wife man meum sigil secret Christ crucifix prsentib to make to put at haec  testib b clergyman I d Conyers of workman et all that a put dom of me  mansional de Darf in vigilia S dunst ep and royal power king Henpost conquest  England Sextius and in the margin be print a little ragged staff and in this  case it be resolve that in some of they which be sermon naturm a man have law  quality a right of property and in some of they a man have law privilegi a  right of privilege and there be three manner of right of property sure  property absolute property qualify and property possessory a man have not  absolute property in any thing which be Jerm naturce but in those which be  domilm natarm property qualify and possessory a man may have in those which be  fer nature and to such property a man may attain by two way by industry or  ration impotentim et loci by industry as by take they or by make they to be  used to the hand I e a hand to which one is accustomed or dome c I e to  domesticate to which one is accustomed but in those which be fer nature and  byindustry be make tame a man have but a qualify property in they sure so long  as they remain tame for if they do attain to their natural liberty and have  not mind see revertor  the property be lose ration impotentim et loci as if a  man have young shovelers or goshawks or the like which be sermon naturm and  they build in my land I have possessory property in they for if one take they  when they can fly the owner of the soil shall have a action of trespass quare  boscum suum to break in pieces et tres darkgray cloth espervor to sew or  aidear to sew price so much nupe in eod bosco to build a nest to take in hand  et carry away and therewith agree the king and f n b l king Edward Edward h b  Stamf b c vide h h but when a man have savage beast ration privilegi be by  reason of a park warren c he have not any property in the deer or cony or  pheasant or partridge and therefore in a action quare sparing warrennum c to  break in pieces et enter et Damas hare abounding in rabbits phasianos  partridge to take in hand et to carry away he shall not say swine a Acc Sutton  v moody I Com Rep Hallack v Eastlei salk a for he have no property in they but  they do belong to he rationeprivil for his game and pleasure so long as they  remain in the privilege place for if the owner of the park die his heir shall  have they and not his executor or administrator because without they the park  which be a coke a inheritance be not complete nor can felony be commit of they  but of those which be make tame in which a man by his industry have any  property felony may be commit and therewith agree the rule of the book in h b  e b h which be in report and e vide ass h Elizabeth dyer e vide e title  distress e avowry but a man may have property in some thing which be of so  hase nature that no felony can be commit of they and no man shall lose life or  member for they as of a bloodhound or mastiff molessus h vide h b of those  beast or bird that be fer nature but reclaim and make tame or domestic and  serve for food larceny may be commit as deer cony pheasant partridge but then  it must be when he that steal they know they to be tame and so of reclaim hawk  and likewise of the young of such larceny may be commit but of the young of  those beast or bird that be fer nature though in a park and though the owner  have a kind of property ration loci privilegi ten weakness yet larceny can be  commit of they as of young fawn in a park young cony in a warren of young  pigeon in a dove coat fish in a trunk or net larceny may be commit h PC of  wile swan nor of their young larceny can be commit but if they be make tame  and domestic or if they be mark and pinion it be felony to take they or their  young but it seem that if they be mark and yet fly swan that range abroad out  of the precinct and royalty of the owner it be not felony to kill and take  they because they can be know to belong to any dalt cap p   PC p hale PC  larceny can be commit in some thing whereof the owner may have a lawful  property and such whereupon he may maintain a action of trespass in respect of  the baseness of their nature as mastiff spaniel greyhouds bloodhound or of  some such thing wile by nature yet reclaim by art or industry as hear fox  ferret c or their whelp or calf because though reclaim they serve not for food  but pleasure and so differ from pheasant swan c make tame which though wile by  nature serve for food h PC and accord in king v scare Russ and Ry c c r the  judge hold that ferret though tame and saleable can not be the subject of  larceny steal dog render the offender liable upon a summary proceed to fine or  imprisonment and whip Geo c Vid burn justice title dog it seem that a action  of trover will lie for any reclaim animal Com dig action sur trover c and in  trover for a dog it need not be aver that it be tame Ireland v Higgins cro  Elizabeth b but he who steal the egg of swan out of the nest shall be coke  report b er p imprison for a year and a day and fine at the will of the king  one moiety to the king the other to the owner of the land where the egg be so  take and that be by the stat of h cap and it have be say of old time that he  who steal a swan in a open and common river lawful mark the same swan if it  may be or another swan shall be hang in a house by the beak and he who steal  it shall in recompense thereof be oblige to give the owner so much wheat that  may cover all the swan by put and turn the wheat on the bead of the swan until  the bead of the swan be cover with the wheat and it be resolve that in the  principal case the prescription be insufficient for the effect of the  prescription be to have all wile swan which be fer nature and not mark to  build a nest to produce et to visit frequently within the say creek and such  prescription for a warren will be insufficient sure to have all pheasant and  partridge to build a nest to produce and frequent within his manor but he  ought to say to have free warren of they within his manor for although they be  to build a nest to produce and frequent within the manor he can have they jure  privilegi but so long as they be within the place but it be resolve that if  the defendant have allege that within the say creek there have be time out of  mind a game of wile swan not mark building and breed add then have prescribe  that such abbot and all his predecessor c have use at all time to have and  take to their use some of the say game of wile swan and their cygnet within  the say creek it have be good for although swan be royal fowl yet in such a  manner a man may prescribe in they for that may have a lawful beginning by the  king grant for in rot parliament Edward part num the king grant to c W all  wile swan mark between Oxford and London for seven year in eoden rot and r p  num the like grant of wile swan mark in the county of Cambridge to b Bereford  Kt in eoden roll and h p num a grant make to I Venn to survey and keep all  wile swan mark ita quod de prficuo to answer ad Scaccarium coke b by which it  appear that the king may grant wile swan mark and by consequence a man may  prescribe in they within a certain place because it may have a lawful  beginning and a man may prescribe to have royal fish within his manor as it be  hold in Edward for the reason aforesaid and yet without prescription they do  belong to the king by his prerogative coke report b er p