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SILSBURY v. McCOON.

SUPREME COURT OF NEW YORK.

1844, 1847. COURT FOR THE COR

RECTION OF ERRORS. 1850.

[Reported 6 Hill, 425; 4 Denio, 332; 3 Comst. 379.]

TROVER for a quantity of whisky, tried at the Montgomery circuit in May, 1843, before Willard, C. Judge. The facts proved by the plaintiffs to establish their title to the whisky were as follows: On the 18th of February, 1842, the sheriff of Montgomery levied on five hundred bushels of grain by virtue of a fi. fa. against one Wood in favor of Eldert Tymason. The grain was in Wood's distillery at the time, having been purchased by him with a view of manufacturing it into whisky, and the sheriff did not remove it. Shortly after the levy, the plaintiffs, who it seems succeeded Wood in the possession of the distillery, converted the grain into whisky. When the sheriff went to the distillery for the purpose of selling, he was informed by Silsbury, one of the plaintiffs, that they had converted the grain into whisky, and were willing to pay for it; but no terms were then agreed upon. On the 10th of March, 1842, the plaintiffs gave their note to the sheriff for the grain, allowing him fifty cents per bushel; and Tymason afterwards accepted the note as so much paid upon the fi fa. The whisky in question was a part of that which the plaintiffs had manufactured from the grain levied on by the sheriff.

The defence was as follows: On the 25th of February, 1842, after the whisky in question had been manufactured by the plaintiffs, it was seized by one of the deputies of the sheriff of Montgomery, by virtue of a fi. fa. issued against Wood, in favor of the defendants. The deputy sold the whisky on the 23d of March following, and it was bid in by the defendants. It appeared that the sheriff was informed of the levy made under the defendants' fi. fa., before he settled with the plaintiffs for the grain.

The defendants moved for a nonsuit, insisting that the plaintiffs acquired no title to the whisky by their compromise with the sheriff. The circuit judge ordered a nonsuit, and the plaintiffs now moved for a new trial on a bill of exceptions.

S. Wilkeson, Jr., for the plaintiffs.

N. Hill, Jr., for the defendants.

By the Court, NELSON, Ch. J. Even conceding that the settlement with the sheriff for the taking and conversion of the grain was inoperative, (which I should not be willing to admit, if made in good faith,) still, a decisive answer to the defence is, that the identity of the grain was destroyed by the act of manufacturing it into whisky, and the property in the new article vested in the plaintiffs. The doctrine on this subject is stated by Blackstone as follows: "By the Roman law, if any given corporeal substance received afterwards an accession by

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natural or by artificial means, as by the growth of vegetables, the pregnancy of animals, the embroidering of cloth, or the conversion of wood or metal into vessels and utensils, the original owner of the thing was entitled by his right of possession to the property of it under such its state of improvement. But if the thing itself, by such operation, was changed into a different species, as by making wine, oil, or bread, out of another's grapes, olives, or wheat, it belonged to the new operator; who was only to make a satisfaction to the former proprietor for the materials which he had so converted. And these doctrines are implicitly copied and adopted by our Bracton, and have since been confirmed by many resolutions of the courts." * 2 Bl. Com. 404; and see Bro. Ab. tit. Property, 23; Moore, 20; Poph. 38; Vin. Ab. tit. Trespass, (H. a. 3,) pl. 8; Id. tit. Property (E.) pl. 5; Betts v. Lee, 5 Johns. Rep. 348; 2 Kent's Com. 364. The same doctrine was laid down in Brown v. Sax, 7 Cowen, 95. The court there said: "The rule, in case of a wrongful taking is, that the taker cannot, by any act of his own, acquire title, unless he either destroy the identity of the thing; as by changing money into a cup, or grain into malt; or annexing it to and making it a part of some other thing, which is the principal; or changing its nature from personal to real property; as where it is worked into a dwelling-house.'

In the present case, the nature and species of the commodity was entirely changed and its identity destroyed; as effectually, it seems to me, as by “making wine, oil, or bread, out of another's grapes, olives, or wheat." I think the circuit judge erred in nonsuiting the plaintiffs, and that they are entitled to a new trial. New trial granted.

On the second trial it was proved that one Hackney, a deputy of the sheriff of Montgomery county, on the 22d day of March, 1842, by virtue of a fi. fa. on a judgment in this court in favor of the defendants, against one Uriah Wood, sold the whiskey in question, being about twelve hundred gallons, and worth $277.68, he having previously levied upon it; and that upon the sale the defendants became the purchasers, and afterwards converted it to their own use. The whiskey was levied on and sold at the plaintiffs' distillery, and they forbade the sale. The plaintiffs having rested, the defendants offered to prove in their defence that the whiskey was manufactured from corn belonging to Wood, the defendant in the execution; that the plaintiffs had taken the corn and manufactured it into whiskey, without any authority from Wood; and that they knew at the time they took it that it belonged to him. The plaintiffs' counsel objected to this evidence, insisting that Wood's title to the corn was extinguished by the conversion of it into whiskey. The judge sustained the objection and rejected the evidence, and the defendants' counsel excepted. Verdict for the plaintiffs. A motion is now made for a new trial, on a bill of exceptions.

N. Hill, Jr., for the defendants.

D. Cady, for the plaintiffs.

BRONSON, C. J. It is undoubtedly a general rule in every civilized state, that a man can only lose his title to property by the operation of law, or his own voluntary act. But this, like most other general rules, has its exceptions. If one wrongfully take the chattel of another, and merely change its form and value by bestowing his labor and skill upon it, without destroying its identity, the property still remains in the original owner, and he may either retake it, or recover the value in its state of improvement. Thus, where leather is made into boots and shoes, cloth into a garment, trees into square timber, iron into bars, or timber into boards, shingles, or coal, the title remains in the owner of the original materials, and he may either retake the chattel in its improved state, or recover its enhanced value. But if the thing be changed into a different species, so that it cannot be reduced to its former rude materials, it then belongs to the new operator; and he is only to make satisfaction to the former owner for the materials converted. Examples of this kind are, where grapes are made into wine, olives into oil, wheat into bread, milk into cheese, grain into malt, or corn into whiskey. In such cases the property is changed, and the original proprietor only has an action to recover his damages. Thus far our lawyers have followed the rule of the civil law. It will be sufficient to refer to the report of this case when it was before us on a former occasion, and the learned note of the reporter for the authorities on this subject. Silsbury v. Mc Coon, 6 Hill, 425. We there held, that when corn is wrongfully taken and manufactured into whiskey, by which the nature and species of the commodity is entirely changed, and its identity destroyed, the property is also changed, and the new product belongs to the manufacturer. The case has come back again upon an offer to show that the corn was taken with the knowledge that it belonged to another; and we are referred to the further teaching of the civilians, who hold that where the property was taken by a wilful trespass, the title is not changed, however great may be the change which has been wrought in the original materials. But I do not find that this doctrine has ever been adopted into our law by any adjudication either here or in England. It was mentioned in Betts v. Lee, 5 John. 348, and again in Curtis v. Groat, 6 Id. 168; but although the judge who wrote the per curiam opinions in those cases evidently had a strong leaning to the doctrine of the civilians, the decisions turned upon other grounds. The changes had been from timber into shingles and coal: but the property had never been out of the possession of the original owner; and it was held in both cases that the identity of the original materials was sufficiently established. And where the change was from timber to coal, the only point necessarily decided was the one on which the case was put at the outset, that the matter in litigation was res adjudicata. The reasons for those judgments were, I presume, assigned by the learned commentator upon American law, who in his treatise still retained his former opinion. 2 Kent, 363. But Blackstone, 2 Com. 404, 405, lays down the rule,