SWAN LAWS. 209 



very old case — Lord Strange versus Sir John Charlton* — which is 

 referred to by Sir Matthew Arundel in his judgment on " The Swan 

 case." 



A custom for the owner of land, on which cygnets are hatched, to 

 have the third is good, and was adjudged reasonable j because, if 

 swans go upon a stranger's land he may chase them out ; but if he 

 suffers them to hatch there, it is a reasonable custom that he should 

 have a third for the sufferance. f 



When swans are lawfully taken into the possession of a private 

 person, he may be said to have a property in them ; but if they be 

 at liberty, they belong to the Queen by royal prerogative.^ 



He who hath a lawful swan-mark, and hath swans lawfully 

 marked, swimming in open and common rivers, they belong to him 

 ratione prwilegii.^ 



The swan-mark cannot be legally impressed without grant or pre- 

 scription. And there is this distinction : one who has a right to the 

 swan-mark may grant it over, or transfer it, by deed. 



A subject may have a property in white swans which are not 

 marked, as some persons may have unmarked swans in their private 

 waters ; and if they escape, and go to an open or common river, he 

 may take them again, and bring them back — that is, if he do so 

 before they have gained their natural liberty : "Si autem animalia 

 fera facta fuerint mansueta, et ex consuetudine eunt et redeunt, 

 volant et revolant (ut sunt servi, cigni, pavones, et columba?, et 

 hujusmodi), eousque nostra intelligantur quamdiu habuerint animum 

 revertendi."|| 



No other fowl than a swan can be an estray.H 



All wild-swans (unmarked) which may be in any open waters, 

 either public or private, belong to the Queen, as roj^al fowls, except 

 where there is a prescription to the contrary ; and there are several 

 instances on record in which grants have been given by the Crown, 

 of all swans within a certain district, or for a certain number of 

 years. For instance, in Rot. Parliament, 30 Ed. III., part 2, No. 

 20, the King granted to C. W. all wild swans unmarked, between 

 Oxford and London, for seven years. In eodem Rot., an. 16 R. 

 II., p. 1, No. 39, a similar grant of wild swans unmarked, in the 

 County of Cambridge, was made to B. Bereford, Knt. In 



* Tear Book, 2 Richd. III., p. 15. t Ibid, Strange r. Charlton. 



X Woolrych's Game Laws. § Chitty's Game Laws. 



II Bracton, lib. ii., cap. i., fol. 9. IF 4 Co. Inst., p. 280. 



