116 ARGUMENT OF THE UNITED STATES. 



brought to recover damage for the loss of the fowl, but for the dis- 

 turbance. 



In the report of this same case in the 11th Modern, 75, Lord Chief 

 Justice Holt says: "Suppose the defendant had shot in his own ground; 

 if he had occasion to shoot it would be one thing, but to shoot on pur- 

 pose to damage the plaintiff is another thing and a wrong." It should 

 seem to be as if he fired for the purpose of disturbing the wild fowl in 

 his neighbor's decoy, that he might take the chance of benefiting him- 

 self by shooting them on the wing in consequence of such disturbance. 



[Aniory v. Flyn (10 John., 102).] 



In 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 plaintiff Mould first pay 25 cents 

 for liquor furnished to two men, who had caught the geese and pledged 

 them to the defendant for it. The geese were of the wild kind, but 

 were so tame as to eat out of the hand. They had strayed away twice 

 before, and did not return until 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 informed 

 that they belonged to the plaintiff. The jury found a verdict for the 

 defendant, on which the justice gave judgment. 



Per Curiam: The geese ought to have been considered as reclaimed 

 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 color for the inference that the geese had regained their 

 natural liberty as 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 pawn as this would lead to abuse and fraud. 



A person who takes up an estray can not levy a tax upon it but by 

 way of amends of indemnity. This is the doctrine of the common law, 

 (1 Eoll. Abr., 879, c 5; Noy's Eep., 144; Salk., 680), and the Koman 

 lawyers equally denied to the tinder of any lost property a reward for 

 finding it non probe petat aliguid, says the Digest (pig. 47, 2, 43, 9). 

 And, indeed, the civil law (ibid. s. 4) considered it as a theft to convert 

 to one's use, ammo lucrandi, property found, without endeavors 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 com- 

 mon 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. IS), 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, liuf, taking the civil law in the milder sense, it sufficiently 



