Will trespass lie? If There is some conflict get mixed, how are they to be severed? What are the relative rights of the different owners? Take, for example, grain or liquor. Can each one of the former owners take from the common mass his proportion, or do they become tenants in common of the whole? If one takes the whole, what shall be the remedy? they become tenants in common, clearly not. on this subject between the common law and the civil law. If the intermixture takes place by accident, or without the fault of the parties, it would be very unreasonable to deprive either party of his property, or materially to affect his right to it. And yet oftentimes there must be great suffering, as by the confusion of property of different kinds and qualities, as of different kinds of grain or liquors, the intermixture of which would greatly impair, if not entirely destroy, the value of the whole. But it will not be useful further to consider the intermixture of property by accident, as it will not have much application to the case under consideration. The cases of intentional intermixture present questions of greater perplexity. If the owners of goods incapable of being identified consent to intermix them, their consent makes them tenants in common. But if the property be wilfully and unlawfully intermingled, it clearly cannot constitute a tenancy in common, because a person cannot be made a tenant in common or copartner without his consent. The act of God or of the law may create such a confusion of the property of different owners, as necessarily to constitute a community of property between them. But no one person by his own act can compel another to become his cotenant. By the rules of the civil law, if the intermixture was made wilfully and not by mutual consent, he who made it acquired the whole, and the only remedy for the other party was a satisfaction in damages for the property lost. Vinn. ad Inst. lib. 2, tit. 1, § 28. This rule seems to be very imperfect, as it would enable one person to acquire the property of another against his will, merely rendering himself liable to pay the value of it. But it undoubtedly went upon the ground, that the intermixture was a conversion, and, in this respect, is analogous to many cases of trover and trespass. But our law adopts an entirely opposite rule. That very learned commentator, Chancellor Kent, in 2 Kent's Comm. 297, says "the common law, with more policy and justice, to guard against fraud, gave the entire property, without any account, to him whose property was originally invaded and its distinct character destroyed. If A will wilfully intermix his corn or hay with that of B, so that it becomes impossible to distinguish what belonged to A from what belonged to B, the whole belongs to B." Hart v. Ten Eyck, 2 Johns. Ch. R. 62. But this rule only applies to wrongful or fraudulent intermixtures. There may be an intentional intermingling, and yet no wrong intended; as where a man mixes two parcels together, supposing both to be his own, or that he was about to mingle his with his neighbor's, by agree ment, and mistakes the parcel. In such cases, which may be deemed accidental intermixtures, it would be unreasonable and unjust that he should lose his own, or be obliged to take his neighbor's. If they were of equal value, as corn, or wood, of the same kind, the rule of justice would be obvious. Let each one take his own given quantity. But if they were of unequal value the rule would be more difficult. And if the intermixture was such as to destroy the property, the whole loss should fall on him whose carelessness or folly or misfortune caused the destruction of the whole. This doctrine is recognized and discussed by Lord Eldon, in Lupton v. White, 15 Ves. 432. See also Panton v. Panton, cited in 15 Vesey, 442; Story on Bailments, § 40; Ayliffe's Pand. lib. 3, tit. 3, p. 291; Ersk. Inst. bk. 2, tit. 1, § 17; 2 Dane's Abr. 119. The intentional and innocent intermixture of property of substantially the same quality and value, does not change the ownership. And no one has a right to take the whole, but in so doing commits a trespass on the other owner. He should notify him to make a division, or take his own proportion at his peril, taking care to leave to the other owner as much as belonged to him. It must already have been perceived that these principles are not perfectly consistent with the unqualified rule laid down for the government of the jury. According to the above doctrine, if the plaintiff actually supposed that the land from which the wood was taken was his own, and that all the wood was his, then the mingling it together should not divest him. of that which honestly belonged to him. But if he knew that the land was not his, or if he doubted whether it was his or not, and mixed the wood with an intent to mislead or deceive the defendant, and to prevent him from taking his own without danger of taking the plaintiff's, then he has by his own fraudulent act lost his property and can have no remedy. But if, as above stated, the plaintiff mingled the wood from the different lots supposing all of it to be his own, and if the defendant, knowing that some part of the wood came from the plaintiff's land, took the whole, he was a trespasser and is responsible in this action for the value of the plaintiff's wood thus taken by him. But if the defendant took the wood without any knowledge that any of it belonged to the plaintiff, then he is not liable in an action of trespass, though he may be in assumpsit if he has sold the wood, or if not, in trover, after a demand and refusal. Bond v. Ward, 7 Mass. R. 127. The verdict must therefore be set aside and a new trial granted. But as the question of title has been fully and fairly tried and settled, there can be no reason for retrying that, and the new trial must be confined entirely to the question of damages. Coffin and Ezra Bassett, for the plaintiff. WILLARD v. RICE. SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1846. TROVER for 527 dozen of palm leaf hats. At the trial before Hub bard, J., it appeared that B. G. Sampson, on the 22d of March, 1842, mortgaged to the plaintiff a quantity of hats in New York, and the goods in a store in Keene (New Hampshire), among which were 450 dozen finished and 300 dozen unfinished palm leaf hats, and 7000 palm leaves. There was evidence tending to prove that the plaintiff, immediately after the mortgage was made, took possession of the mortgaged property and sent Sampson to New York to sell the hats there, and with the proceeds purchase goods in the plaintiff's name; that Sampson did so, and sent the goods which he so purchased to the store in Keene; that the plaintiff carried on business in said store so far as to sell the goods mortgaged, and those so received from New York, and received pay, to a considerable extent, in palm leaf hats; that Sampson continued in said store, and received large quantities of unfinished palm leaf hats in payment of debts due to him on his store books; and that said hats so received were by him mixed indiscriminately with the mortgaged hats and the hats received by the plaintiff in pay for goods sold by him as aforesaid, so that they could not be distinguished. It appeared that within a month after the mortgage was given, over 600 dozen of unfinished hats were received into the store from the sales of goods and from the aforesaid debts, and that hats were continually taken from the store and finished; but it did not appear on whose account this was done. It was in evidence that about the 1st of May, 1842, Sampson took, for the plaintiff, 400 or 500 dozen hats which had been finished, after the mortgage was made, from those that were in the store when the mortgage was made, and from those that were received into the store afterwards, and sent them to New York where they were sold by him; that at the time when said hats were so sent to New York, or immediately after, the hats in question in this action were taken from the store and sent by Sampson to the defendants for sale. The question in the case was whether any of the hats so sent to the defendants by Sampson were included in the mortgage. The judge instructed the jury that "if Sampson had mixed the hats which he received after the plaintiff had taken possession indiscriminately with those mortgaged by him and with those received on account of the plaintiff from the sales of the mortgaged goods and of the goods brought from New York, so that the same could not be distinguished, then the plaintiff would be entitled to hold the same on account of the debts due to him from Sampson, as well as the other hats; and that the defendants, if they afterwards received the hats in question from the mixed lot and sold them by Sampson's order, would be liable in this action to the plaintiff for their value." A verdict was found for the plaintiff, subject to the opinion of the whole court as to the instructions given to the jury. Hartshorn, for the defendants. F. H. Dewey, for the plaintiff. SHAW, C. J. The defendants, holding the goods as the consignees of Sampson, can only stand on his title, and make the same defence, after conversion proved, as he could make. That defence is, that part only of the identical hats which came to the hands of the defendants were included in the plaintiff's mortgage, and that the residue were Sampson's own goods. This leads to the only question of law that is raised by the report, viz., whether the rule of law prescribed by the judge in his instructions to the jury was correct. The jury were instructed that if Sampson intermixed the hats received from other sources, and which were his own, with those mortgaged, so that they could not be distinguished, the mortgagee had a right to hold the whole. This instruction, taken in connection with the subject matter, and the facts in proof, we think was right. Sampson was the mortgagor, but being intrusted with the possession of the goods it was his duty to keep them separately and preserve the mortgagee's property. His intermixing them purposely, or through want of proper care, was a violation of his duty, and unlawful. As his own could not be distinguished, he could take none of the mixed parcel without taking the plaintiff's, which he had no right to do; and as against him and his consignees, the plaintiff must hold the whole. Hathaway v. Ryder, 21 Pick. 298; Colwill v. Reeves, 2 Camp. 576; 2 Kent Com. (3d ed.) 364. Judgment on the verdict. HESSELTINE v. STOCKWELL. SUPREME COURT OF MAINE. 1849. [Reported 30 Me. 237.] TROVER, for a quantity of pine mill logs. At the trial before Wells, J., the plaintiff introduced testimony tending to prove, that in the winter of 1844-5, one Leander Preble, cut on his own land about 600,000 feet of pine lumber, and also cut on the land of the plaintiff, wrongfully and wilfully, about 100,000 feet of lumber of a similar quality, all of which lumber was marked with the same mark, and indiscriminately hauled and landed on the same landing place. That in the spring of 1845, said lumber was run down the stream and came into the possession of Franklin Adams & Co., and a part of it was taken to market, and the other part remained in the stream, and was subsequently sold by them to the defendant, who in 7138 Nesseltine ✓ Stackwell a man named Preble out 600,000 ft Flumber or land and roryfull, trilfully 100,000 ft on Ple land. Logo vere mixed indiscriminately, came into possession of J. Adams to which sold pest 5 ales. who sold all except woord seized by Pl. if recovered logs & the brings action trover by Soon afterwards the defendunt too this inebet out of |