Majority
p. 102Amory against Flyn. ALBANY, Jan. 1813.
Headnote
ibywiidgeese’, which ^have and have ’ but ^6without iheir" natural liberty; and the person finding the right to^awn sist^upon0 ‘'a reward from The finder is rtd rahííhurscdthenecessary expense he has potato hf11 property tlic^ ERROR, on certiorari, from a justice’s court. Amory brought an action of trover against Flyn, before the justice, for two geese. There was a trial by jury. The plaintiff proved a demand of the geese, and a refusal by the defendant, unless the would first pay 25 cents, for liquor furnished to two men who had caught the geese, and pledged them to the defendant for . , it. 1 he geese were ot the wild kind, but were so tame as to eat ou* °f hand. They had strayed away twice before, and did n0^ re^urn un^ brought back. The plaintiff proved property in them; and that after the geese had left his premises, the son of the defendant was seen pursuing them with dogs, and was inform-e<^ they belonged to the plaintiff. The jury found a verdict for the defendant, on which the justice gave judgment, ° ° ° °
The geese ought to have been considered as recEimed, so as to be the subject of property. Their identity was ascertained; they were tame and gentle, and had lost the power, or disposition, to fly away. They had been frightened and chased by the defendant’s son, with the knowledge that they belonged to the plaintiff, and the case affords no colour for the inference that the geese had regained theiv natural liberty as
p. 103
wild fowl, and that the property in them had ceased. The defendant did not consider them in that light, for he held them in consequence of the lien which he supposed he had acquired by the pledge. This claim was not well founded, for he showed no right in the persons who pawned them for the liquor so to pawn them, and he took them at his peril. Here was clearly an invasion of private right. If the person who took the geese, or who had kept them, had been put to necessary expense, in securing them, such expense ought to have been refunded; but no such expense was shown, or pretended, and to sanction such a a pawn as this would lead io abuse and fraud. A person who takes up an estray, cannot levy a tax upon it, but by way of amends, or indemnity. This is the doctrine of the common law: (1 Roll Abr. 879. c. 5. Noy’s Rep. 144. Salk. 686.) and the Roman lawyers equally denied to the finder of any lost property a reward for finding it; non probe peiat aliquid, says the Digest. (Dig. 47. 2.43. 9.) And, indeed, the civil law (ibid. s. 4.) considered it as theft to convert to one’s use, animo lucrandi,- property found, without endeavours to find the owners, or without intention to restore it. But theft was not always considered, in that law, in the very odious sense of our common law; for as to the class of thefts, denominated thefts not manifest, and of which this was one, that law provided only a civil remedy of double damages. A. Gellius, (Noct. Alt. lib. 11. c. 18.) who cites the very passage, in the civil law which declares such conduct theft, gives that appellation to many acts which our law does, and ought to regard as trespasses merely; such, for instance, as ouster of possession of land. But talcing the civil law in the milder sense, it sufficiently shows what was considered, in the wisdom of the ancients, as right and duty, in this case. The practice of mankind is apt io be too lax on this subject; and when occasion offers, courts ought to lay down and enforce the just and benevolent lesson of morality anti law.
The verdict, in this case, being against law and evidence, cannot be supported.
Judgment, reversed.