SECTION VII. ACCESSION. INST. 2, 1 (25, 26, 33, 34). When any one has converted another person's property into a new form, the question is often asked, which of them is the owner thereof on natural principles; whether the man who made the thing, or rather he who was previously the owner of the substance: for example, when any one has made wine or oil or corn from the grapes or olives or ears of another, or made any vessel of another's gold or silver or copper, or compounded mead of another's wine or honey, or made a plaster or eye-salve of another's drugs, or a garment of another's wool, or a ship or chest or seat out of another's planks. And after many controversies between the Sabinians and Proculians, the middle view has been approved, held by those who think that if the new form can be reconverted into its materials, that man is to be regarded as owner who was originally owner of the materials; but that if it cannot be reconverted, the other who made it is to be regarded as owner: for example, a vessel made by casting can be reconverted into the rough mass of copper or silver or gold; but wine or oil or corn cannot be returned into grapes or olives or ears, neither can mead be resolved into wine and honey. But when a man has created a new form out of materials partly his own and partly another's, for instance, when he has compounded mead out of his own wine and another person's honey, or a plaster or eye-salve out of his own drugs and those of other people, or a garment out of wool partly his and partly another's, in such a case there is no doubt that the maker is the owner; since he has not only given his labour, but provided also a portion of the materials of the article. If, however, any one has interwoven with his own garment purple thread which belongs to another person, the purple thread, though the more valuable, accrues to the garment as an accessory; and the former owner of the purple thread has an action of theft and a condiction against the man who stole it, whether the latter or another person be the maker of the garment: for although things that have ceased to exist cannot be recovered by vindication, yet a condiction lies for them against thieves and certain other possessors. Writing too, even if of gold, is as much an accessory to the paper or parchment, as buildings or crops are an accessory to the soil: and therefore, if Titius have written on your paper a poem, a history, or an oration, you, and not Titius, are regarded as the owner of the substance. But if you claim from Titius your books or parchments, and do not offer to pay the expense of the writing, Titius can defend himself by plea of fraud, at any rate if he obtained possession of the paper or parchment in good faith. taken and malt made from it, the party cannot take it, because the grain cannot be known. And so it is with pennies or groats, and a piece made of them, it cannot be taken, because of the pennies one cannot be known from another. And so if one takes a piece, and strikes pennies from it at the mint, the party cannot take the pennies, because the pennies cannot be known one from another; and so in all like cases. And also in the case of the building of a house, now the timber is altered, for now it is freehold, and for this reason he cannot take it; but in every case where the chattels themselves can be known, there the party can take them, notwithstanding that some chattel is joined or mixed with them. As if one takes a piece of cloth and makes a coat for himself, the party can take it back well enough, because it is the same chattel and not at all altered; and so it is in the case put, if one cuts a tree and squares it, the party can take it well enough, because the tree can be known well enough notwithstanding. And so it is of iron, where a smith makes of it a bar, &c. And so it was held by all the court. Wherefore the plaintiff replied, for that matter appeared.. Identity ANONYMOUS. [Reported Moore 19, pl. 67.] In a writ of trespass, the defendant justifies by reason that one I. S. was seised of an acre of land and let it to him for a term of ten years, and afterwards one A. entered into the said land so leased and cut down certain trees there growing, and from them made timber, and afterwards carried it on to the land where the trespass is alleged, and after- ' wards gave the timber to the plaintiff, wherefore the defendant entered on the said land and retook his timber as well he might. And the writ was quare clausum fregit et mearemium cepit. Benlows. It seems to me that the plea is not good for two reasons: the one because when he took the trees and made timber of them, now he has lost the notice [le notice] of them, and so the property in them is altered. The other is because the defendant has confessed an entry which he cannot justify. And as to the first point, the judges think the plea good enough, for by the seizure of the trees the notice is not cut off, but the property yet remains. In all cases where a thing is taken tortiously and altered in form, if yet that which remains is the principal part of the substance, then is not the notice lost, as if a man takes my cloak and makes a doublet of it, yet I can retake it. So if a man takes from me a piece of cloth, and then he sews on to it a piece of gold, yet I can retake it. And if a man takes certain trees and afterwards he makes boards of them, yet the owner can retake them, quia major pars substantiæ remanet. But if the trees are fixed on the land, or if a house be made of the timber, it is otherwise. Quare. The house now is the principal substance. If any man have painted upon another's tablet, some think that the tablet is an accessory to the picture: whilst others hold that the picture, however valuable it may be, is an accessory to the tablet. But to us it seems better that the tablet should be an accessory to the picture; for it is absurd that a picture by Apelles or Parrhasius should go as an accessory to a paltry tablet. Hence, if the owner of the tablet be in possession of the picture, and the painter claim it from him, but refuse to pay the price of the tablet, he can be met by the plea of fraud. But if the painter be in possession, it follows that the owner of the tablet will be allowed an utilis actio against him: although in such case, unless he pay the expense of the painting, he can be met by the plea of fraud, at any rate if the painter took possession in good faith. For it is clear that if the painter or any one else stole the tablet, the owner thereof has an action of theft. ANONYMOUS. [Reported Year-Book, 5 Hen. VII. 15, pl. 6.] A WRIT of trespass was brought for the taking of so many slippers and shoes, and the defendant said that he was possessed of so many dickers of leather, and delivered them to one J. S., who gave them to the plaintiff; and afterwards the plaintiff made the slippers and shoes and boots, and the defendant came and took them as he well might. Judgment if the action lay. . . 1 1 [The plaintiff] moved the court that this plea, that the defendant could take them back, was not good; but by the making of shoes and boots, &c., the property was altered, because they were now of another nature. As if one takes barley or grain and makes malt of it, he from whom the grain was taken cannot take the malt, because the chattel is changed into another nature. And so it is if trees are taken, and out of them a house is made, he from whom the trees were taken cannot tear down the house and take them back, and so other chattels are joined together with it. For where a chattel is taken with force, and no other chattel is joined or mixed with it, and it is not altered into another nature, the party can take it. So if one takes a tree, and squares it with an axe, now the party can take it, because it is not altered into another nature, nor is any other chattel mixed with it or joined to it; but if a man takes silver, and then makes a piece of it, or takes a piece of silver and has it gilt with gold, in this case the party cannot take it; and so here the leather is mixed with thread, and therefore the party cannot take it; and so it seems that the plea is not good. And the court holds the contrary clearly. And as to the cases of grain 1 A part of the case relating to a point of pleading is omitted. laking shoes. Trespass ford Dift if Hild That That by an مد not be reconverted they belong to the one who changs found. عات Trespass Anony لد mous. 1060. A event onto 67. onto afls en into cut down trees & makes them int land", limber, which he carried & مند قسم مید away I ft. relook limber Held that oft had ti nelake boards is the police ( ide Was seised of an nere of am is not cut off, ertain trees there of that which remains is frimejor. for Benlows. It seems to the that the one because when he took the |