to seize the logs cut on their land wherever they could find them. Their title thereto was as perfect as if cut by themselves. It was the fault of the plaintiff that they were so mingled by him or his agents with his logs so that they could not be distinguished from them. The plaintiff must suffer from the consequences of this confusion. By the common law, where an intermixture of goods is fraudulently made without the knowledge of the owner, and they cannot be separated and identified, the latter is entitled to the whole property without making satisfaction to the former for his loss. In Bryant v. Ware, 30 Maine, 295, where lumber was cut upon two tracts of adjoining owners by a trespasser, and the whole was so intermixed by him, or persons claiming under him, that the part belonging to each owner could not be distinguished, and the owner of one tract seized and took possession of the whole, it was held, that one claiming under the wrongdoer could not maintain an action of trespass for such taking. But the defendants seized only a portion of the logs cut by the plaintiff. Waiving, therefore, their right to all, if they had such right in the present case, the question arises whether they are liable as wrongdoers if they seize more logs than, as it is ultimately shown, were cut on their land. It has been repeatedly held that an officer has a right to attach the goods of another, negligently or fraudulently intermixed with those of the debtor, and hold them until they were identified by the owner and re-delivery demanded; that he could not be treated as a trespasser for doing what he had a right to do; and that, if after identification and demand for re-delivery he refused to give up the goods, he would be liable for their value in trover, but that trespass could not be maintained for the original taking. Bond v. Ward, 7 Mass. 127; Shumway v. Rutter, 8 Pick. 443; Willard v. Rice, 11 Met. 493; Lewis v. Whittemore, 5 N. H. 366; Taylor v. Jones, 42 N. H. 36. So here the defendants had a right to seize their own logs. It was by the wrongdoing of the plaintiff that they were cut, marked, and intermingled with his own. The plaintiff knew the number and kind of logs cut on the defendants' land. The defendants were ignorant of all this, and were never informed thereof by the plaintiff, as they testify, till the time of the trial. They seized what they regarded as the number of logs cut on their land. If they seized logs not so cut, the plaintiff should have notified them of such fact and pointed out the specific logs he claimed, if it was in his power so to do. If they took more than they had a right to take, he should have advised them of the exact amount of his own trespass. He cannot claim that they are wrongdoers when they rightfully seized their own logs, wrongfully commingled by him with those cut on his land. This they clearly had a right to do. Bryant v. Ware, 30 Maine, 295. The party wrongfully intermingling his goods with another's cannot reclaim them without first pointing them out. Seavy v. Dearborn, 19 N. H. 351; Gilman v. Sanborn, 36 N. H. 311. to seize the logs cut on their land wherever they could find them. Their title thereto was as perfect as if cut by themselves. It was the fault of the plaintiff that they were so mingled by him or his agents with his logs so that they could not be distinguished from them. The plaintiff must suffer from the consequences of this confusion. By the common law, where an intermixture of goods is fraudulently made without the knowledge of the owner, and they cannot be separated and identified, the latter is entitled to the whole property without making satisfaction to the former for his loss. In Bryant v. Ware, 30 Maine, 295, where lumber was cut upon two tracts of adjoining owners by a trespasser, and the whole was so intermixed by him, or persons claiming under him, that the part belonging to each owner could not be distinguished, and the owner of one tract seized and took possession of the whole, it was held, that one claiming under the wrongdoer could not maintain an action of trespass for such taking. But the defendants seized only a portion of the logs cut by the plaintiff. Waiving, therefore, their right to all, if they had such right in Lines the present case, the question arises whether they are liable as wrongdoers if they seize more logs than, as it is ultimately shown, were cut on their land. It has been repeatedly held that an officer has a right to attach the goods of another, negligently or fraudulently intermixed with those of the debtor, and hold them until they were identified by the owner and re-delivery demanded; that he could not be treated as a trespasser for doing what he had a right to do; and that, if after identification and demand for re-delivery he refused to give up the goods, he would be liable for their value in trover, but that trespass could not be maintained for the original taking. Bond v. Ward, 7 Mass. 127; Shumway v. Rutter, 8 Pick. 443; Willard v. Rice, 11 Met. 493; Lewis v. Whittemore, 5 N. H. 366; Taylor v. Jones, 42 N. H. 36. So here the defendants had a right to seize their own logs. It was by the wrongdoing of the plaintiff that they were cut, marked, and intermingled with his own. The plaintiff knew the number and kind of logs cut on the defendants' land. The defendants were ignorant of all this, and were never informed thereof by the plaintiff, as they testify, till the time of the trial. They seized what they regarded as the number of logs cut on their land. If they seized logs not so cut, the plaintiff should have notified them of such fact and pointed out the specific logs he claimed, if it was in his power so to do. If they took more than they had a right to take, he should have advised them of the exact amount of his own trespass. He cannot claim that they are wrongdoers when they rightfully seized their own logs, wrongfully commingled by him with those cut on his land. This they clearly had a right to do. Bryant v. Ware, 30 Maine, 295. The party wrongfully intermingling his goods with another's cannot reclaim them without first pointing them out. Seavy v. Dearborn, 19 N. H. 351; Gilman v. Sanborn, 36 N. H. 311. So too if the defendants, acting in good faith, took more logs than the plaintiff had cut on their land, having a right to take all logs cut by trespassers, they would not be liable as wrongdoers until the plaintiff had pointed out the property belonging to him, and demanded it of them, which the defendants say was never done. It must be remembered that, if the plaintiff suffers, it is in consequence of his own wrongful acts. The defendants were acting for the protection of their acknowledged rights. Judgment for defendants. KENT, WALTON, DANFORTH and TAPLEY, JJ., concurred. NOTE. The acquisition by a transferee of a chattel or obligation of a right greater than that of the transferrer is dealt with later in this course under the head of Priority, and also in a separate course on Bills and Notes. ment of 24 same 162 Mass Jasses Wile. CHAPTER III. TRANSFER OF RIGHTS IN PERSONAL PROPERTY. NOTE. -- SECTION I. SATISFACTION OF JUDGMENT. Other modes in which personal property is transferred without the consent of the person whose property is transferred are Forfeiture, Execution, Bankruptcy, and Marriage; as to the transfer of personal property on intestacy, see note to next section. judgment vun satisfied. JUNE 23. The judgment of the Court 1 (Willes and Montague Smith, JJ.) was delivered by WILLES, J. We decided yesterday that, according to the law laid down by Lord Wensleydale in King v. Hoare, 13 M. & W. 494, a judgment in an action against one of two joint tort-feasors is a bar to an action against the other for the same cause. There remains, however, an entirely different question, which arises upon the new assignment, and which is, whether a judgment in trover, without satisfaction, changes the property in the goods so as to vest the property therein in the defendant from the time of the judgment, or of the conversion, or whether such recovery operates as a mere assessment of the value, on payment of which the property in the goods vests in the defendant. It is obvious that this is a different question from that which we have already disposed of; because, if the mere recovery vests the property in the defendant, the property is equally changed as to all strangers. It is a question which affects the transfer of property generally. This case folds what and satisfaction as soon held pli cirle passes before. ies 2 Harvard Rw32b. as flis elec ག་ Proz. Abbolt étinks til tilles does not fass till election of be his actions. ilis. trover before 423 cale R. We are of opinion that no such change is produced by the mere recovery. The proceeding in such an action is not a proceeding in rem : it is, to recover prima facie the value of the goods. It may be that the goods have been returned, and the judgment given for nominal damages only. To say in such a case that the mere obtaining judgment vests the property in the defendant would be an absurdity. It is clear, 1 The question which it is here desired to present is sufficiently given in the opinion. 11 |