without any qualification, that when the thing is changed into a different species, as by making wine, oil, or bread out of another's grapes, olives, or wheat, it belongs to the new operator; who is only to make satisfaction to the former proprietor for the materials converted. The decisions on the general subject commenced as early as the Year-Book, 5 H. 7, fol. 15; and if the distinction of the civilians between a wilful and an innocent trespass had ever been adopted into our law, we should be able to find the evidence of it in some reported adjudication. But none seems to have been known to Blackstone; none is cited by Chancellor Kent in his Commentaries; nor was any such decision produced by the counsel who argued this case.

The question is not, as it has been sometimes artfully put, whether the common law will allow the owner to be unjustly deprived of his property, or will give encouragement to a wilful trespasser. It will do neither. But in protecting the owner, and punishing the wrongdoer, our law gives such rules as are capable of practical application, and are best calculated to render exact justice to both parties. The proper inquiry is, in what manner and to what extent should the trespasser be punished, and what should be the kind and measure of redress to the injured party. A trespasser who takes iron ore and converts it into watch-springs, by which its value is increased a thousand fold, should not be hanged, nor should he lose the whole of the new product. Either punishment would be too great. Nor should the owner of the ore have the watch-springs; for it would be more than a just measure of redress. Our law has therefore wisely provided other remedies and punishments. The owner may retake his ore, either with or without process, so long as its identity remains, and may also recover damages for the tortious taking. Or without repossessing himself of the property, he may have an action of trespass, in which the jury will not fail to give the proper damages. But the law will not allow the owner to wait until the ore has been converted into a different species of property, and then to seize the new product, either with or without process, Nor is the value of the new product the proper measure of damages, if he bring an action of trespass or trover.

Although there will not be many cases where the difference between the value of the rude material and the new product will be so striking as in the case which has been mentioned, yet in almost every instance where the chattel taken has been converted into a different species of property, the value of the new product will be more than the trespasser ought to pay, or the owner of the chattel ought to receive.

The common law not only has regard to the proper measure of redress and punishment, but its rules are such as can be successfully applied and administered. Before the thing has been transformed into a different species, its identity can be easily established; the owner can know what to retake, and his title can be proved in a court of justice. But after iron ore has been changed into watch-springs or nee

dles, grapes into wine, or corn into whiskey, it is nearly or quite impossible to trace the connection between the new products and the original rude materials.

In conceding for all the purposes of this case that the owner may follow the property until it is changed into a different species, I must not be understood as expressing the opinion that such is the proper rule. As an original question, I think the owner should either reclaim the property before the new possessor has greatly increased its value, either by bestowing his labor and skill upon it, or by joining it to other materials of his own; or else that he should be restricted to a remedy by action for the damages which he has sustained. But the question may not be open to consideration upon principle; and for the present I only mean to say that we have followed the civil law far enough, without taking another step, and holding that in the case of a wilful trespass the owner can never lose his title to the property. And it comes to that; for if he may trace his title from corn to whiskey, he may follow it so long as matter endures.

BEARDSLEY, J., concurred.

JEWETT, J., dissented.1

After judgment the defendants brought error to this Court [for the Correction of Errors], where the cause was first argued by Mr. Hill, for the plaintiffs in error, and Mr. Reynolds, for the defendants in error, in September, 1848. The judges being divided in opinion, a re-argument was ordered, which came on in January last.

N. Hill, Jr., for the plaintiffs in error.

M. T. Reynolds for the defendants in error.

RUGGLES, J. It is an elementary principle in the law of all civilized communities, that no man can be deprived of his property, except by his own voluntary act, or by operation of law. The thief who steals a chattel, or the trespasser who takes it by force, acquires no title by such wrongful taking. The subsequent possession by the thief or the trespasser is a continuing trespass; and if during its continuance, the wrongdoer enhances the value of the chattel by labor and skill bestowed upon it, as by sawing logs into boards, splitting timber into rails, making leather into shoes, or iron into bars, or into a tool, the manufactured article still belongs to the owner of the original material, and he may retake it or recover its improved value in an action for damages. And if the wrongdoer sell the chattel to an honest purchaser having no notice of the fraud by which it was acquired, the purchaser obtains no title from the trespasser, because the trespasser had none to give. The owner of the original material may still retake it in its improved state, or he may recover its improved value. The right to the improved value in damages is a consequence of the continued ownership. It would be absurd to say that the original owner may retake the thing by an action of replevin in its improved state, and yet that he may not, if

1 This dissenting opinion is omitted.

put to his action of trespass or trover, recover its improved value in damages. Thus far, it is conceded that the common law agrees with the civil.

They agree in another respect, to wit, that if the chattel wrongfully taken, afterwards come into the hands of an innocent holder who believing himself to be the owner, converts the chattel into a thing of different species so that its identity is destroyed, the original owner cannot reclaim it. Such a change is said to be wrought when wheat is made into bread, olives into oil, or grapes into wine. In a case of this kind the change in the species of the chattel is not an intentional wrong to the original owner. It is therefore regarded as a destruction or consumption of the original materials, and the true owner is not permitted to trace their identity into the manufactured article, for the purpose of appropriating to his own use the labor and skill of the innocent occupant who wrought the change; but he is put to his action for damages as for a thing consumed, and may recover its value as it was when the conversion or consumption took place.

There is great confusion in the books upon the question what constitutes change of identity. In one case, (5 Hen. 7, fol. 15,) it is said that the owner may reclaim the goods so long as they may be known, or in other words, ascertained by inspection. But this in many cases is by no means the best evidence of identity; and the examples put by way of illustration serve rather to disprove than to establish the rule. The court say that if grain be made into malt, it can not be reclaimed by the owner because it can not be known. But if cloth be made into a coat, a tree into squared timber, or iron into a tool, it may. Now as to the cases of the coat and the timber they may or may not be capable of identification by the senses merely; and the rule is entirely uncertain in its application; and as to the iron tool, it certainly can not be identified as made of the original material, without other evidence. This illustration, therefore, contradicts the rule. In another case, (Moore's Rep. 20,) trees were made into timber and it was adjudged that the owner of the trees might reclaim the timber, "because the greater part of the substance remained." But if this were the true criterion it would embrace the cases of wheat made into bread, milk into cheese, grain into malt, and others which are put in the books as examples of a change of identity. Other writers say that when the thing is so changed that it can not be reduced from its new form, to its former state, its identity is gone. But this would include many cases in which it has been said by the courts that the identity is not gone; as the case of leather made into a garment, logs into timber or boards, cloth into a coat, &c. There is therefore no definite settled rule on this question; and although the want of such a rule may create embarrassment in a case in which the owner seeks to reclaim his property from the hands of an honest possessor; it presents no difficulty where he seeks to obtain it from the wrongdoer; provided the common law agrees with the civil in the principle applicable to such a case.

2

3

The acknowledged principle of the civil law is that a wilful wrongdoer acquires no property in the goods of another, either by the wrongful taking or by any change wrought in them by his labor or skill, however great that change may be. The new product, in its improved state, belongs to the owner of the original materials, provided it be proved to have been made from them; the trespasser loses his labor, and that change which is regarded as a destruction of the goods, or an alteration of their identity in favor of an honest possessor, is not so regarded as between the original owner and a wilful violator of his right of property.

(Lib.

These principles are to be found in the digest of Justinian. 10, tit. 4, leg. 12, § 3.), “If any one shall make wine with my grapes, oil with my olives, or garments with my wool, knowing they are not his own, he shall be compelled by action to produce the said wine, oil or garments." So in Vinnius' Institutes, tit. 1, pl. 25. 66 He who knows the material is another's ought to be considered in the same light as if he had made the species in the name of the owner, to whom also he is to be understood to have given his labor." ▷

The same principle is stated by Puffendorf in his Law of Nature and of Nations, (b. 4, ch. 7, § 10) and in Wood's Institutes of the Civil Law, p. 92, which are cited at large in the opinion of Jewett J. delivered in this case in the Supreme Court. (4 Denio, 338,) and which it is unnecessary here to repeat. In Brown's Civil and Admiralty Law, p. 240, the writer states the civil law to be that the original owner of any thing improved by the act of another, retained his ownership in the thing so improved, unless it was changed into a different species; as if his grapes were made into wine, the wine belonged to the maker, who was only obliged to pay the owner for the value of his grapes. The species however must be incapable of being restored to its ancient. form; and the materials must have been taken in ignorance of their being the property of another.

But it was thought in the court below that this doctrine had never been adopted into the common law, either in England or here; and the distinction between a wilful and an involuntary wrongdoer hereinbefore mentioned, was rejected not only on that ground but also because the rule was supposed to be too harsh and rigorous against the wrongdoer.

It is true that no case has been found in the English books in which that distinction has been expressly recognized; but it is equally true that in no case until the present has it been repudiated or denied. The common law on this subject was evidently borrowed from the Roman at an early day; and at a period when the common law furnished no rule whatever in a case of this kind. Bracton, in his treatise compiled in the reign of Henry III., adopted a portion of Justinian's Institutes on this subject without noticing the distinction; and Blackstone, in his Commentaries, vol. 2, p. 404, in stating what the Roman law was, follows Bracton, but neither of these writers intimate that on the point in question there is any difference between the civil and the common law.

The authorities referred to by Blackstone in support of his text are three only. The first in Brooks' Abridgment, tit. Property 23, is the case from the Year Book, 5 H. 7, fol. 15, (translated in a note to 4 Denio, 335,) in which the owner of leather brought trespass for taking slippers and boots, and the defendant pleaded that he was the owner of the leather and bailed it to J. S. who gave it to the plaintiff, who manufactured it into slippers and boots, and the defendant took them as he lawfully might. The plea was held good and the title of the owner of the leather unchanged? The second reference is to a case in Sir Francis Moore's Reports, p. 20, in which the action was trespass for taking timber, and the defendant justified on the ground that A entered on his land and cut down trees and made timber thereof, and carried it to the place where the trespass was alledged to have been committed, and afterwards gave it to the plaintiff, and that the defendant therefore took the timber as he lawfully might. In these cases the chattels had passed from the hands of the original trespasser into the hands of a third person; in both it was held that the title of the original owner was unchanged, and that he had a right to the property in its improved state against the third person in possession. They are in conformity with the rule of the civil law; and certainly fail to prove any difference between the civil and the common law on the point in question. The third case cited is from Popham's Reports, p. 38, and was a case of confusion of goods. The plaintiff voluntarily mixed his own hay with the hay of the defendant, who carried the whole away, for which he was sued in trespass; and it was adjudged that the whole should go to the defendant; and Blackstone refers to this case in support of his text, that our law to guard against fraud gives the entire property, without any account to him whose original dominion is invaded and endeavored to be rendered uncertain without his own consent." The civil law in such a case would have required him who retained the whole of the mingled goods to account to the other for his share, (Just. Inst. lib. 2, tit. 1, § 28;) and the common law in this particular appears to be more rigorous than the civil and there is no good reason why it should be less so in a case like that now in hand, where the necessity of guarding against fraud is even greater than in the case of a mingling of goods, because the cases are likely to be of more frequent occurrence. Even this liability to account to him whose conduct is fraudulent, seems by the civil law to be limited to cases in which the goods are of such a nature that they may be divided into shares or portions, according to the original right of the parties; for by that law if A obtain by fraud the parchment of B, and write upon it a poem, or wrongfully take his tablet and paint thereon a picture, B is entitled to the written parchment and to the painted tablet, without accounting for the value of the writing or of the picture. (Just. Inst. lib. 2, tit. 1, §§ 23, 24.) Neither Bracton nor Blackstone have pointed out any difference except in the case of confusion of goods between the common law and the Roman, from which on this subject our law has mainly derived its principles.