the spring of 1846, ran to market all the residue of said lumber, excepting that in controversy, which consisted of about 100,000 feet that had remained behind, and in November, 1846, was seized by the plaintiff.

Soon afterwards the defendant took this lumber out of the plaintiff's possession, for which taking this action is brought.

There was evidence introduced by the defendant that Preble had cut on the plaintiff's land only about 7,000 feet, for which he had given his note. And there was much evidence from both parties as to the cutting.

The Court instructed the jury that the plaintiff must prove that the logs for which he claimed damages in this action, had been cut on his land, and had been taken by the defendant; and that the plaintiff was entitled to recover for any logs cut by said Preble on the plaintiff's land, and which were taken by the defendant, unless said Preble had paid the plaintiff therefor; and that it did not appear that any question of confusion of property arose in the action.

A verdict was returned for the defendant.

Kent & Cutting, for plaintiff.

A. W. Paine, for defendant.

SHEPLEY, C. J. This was an action of trover brought to recover the value of certain pine logs.

The logs appear to have composed a part of a larger lot estimated to contain more than 600,000 feet, which were cut and hauled by Leander Preble. The case states that there was testimony tending to prove that Preble cut on his own land about 600,000 feet of pine lumber, and also cut on the land of the plaintiff about 100,000 feet of pine lumber of a similar quality, all of which logs were marked with the same mark and hauled and landed on the same landing place.

With other instructions the jury were instructed, "that it did not appear that any question of confusion of property arose in the action." What will constitute a confusion of goods has been the subject of much discussion, and it has become a question of much interest to the owners of lands upon which there are timber trees, as well as to those persons interested in the lumbering business, whether the doctrine can be applicable to the intermixture of logs.

When there has been such an intermixture of goods owned by different persons, that the property of each can no longer be distinguished, what is denominated a confusion of goods has taken place. And this may take place with respect to mill logs and other lumber. But it can do so only upon proof that the property of each can no longer be distinguished. That the doctrine might be applicable to mill logs is admitted in the case of Loomis v. Green, 7 Greenl. 393. The case of Wingate v. Smith, 20 Maine, 287, has been alluded to as exhibiting a different doctrine; but the case does not authorize such a conclusion. The instructions were, that merely taking the mill logs and fraudulently mixing them with the defendant's logs would not constitute confusion of goods." These instructions were, and clearly must have been

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approved; for an additional element was required that the mixture should have been of such a character that the property of each could Rno longer be distinguished. The opinion merely refers with approbation to the case of Ryder v. Hathaway, 21 Pick. 298, and says, "the principles there stated would authorize the instructions which were given on that point in this case."

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The common law in opposition to the civil law assigns the whole property without liability to account for any part of it to the innocent party when there has been a confusion of goods, except in certain cases or conditions of property. Chancellor Kent correctly observes that the rule is carried no further than necessity requires. 2 Kent's Com. 365.

There is therefore no forfeiture of the goods of one who voluntarily and without fraud makes such an admixture. As when, for example, he supposes all the goods to be his own, or when he does it by mistake.

And there is no forfeiture in case of a fraudulent intermixture when notent R the goods intermixed are of equal value. This has not been sufficiently noticed, and yet it is a just rule and is fully sustained by authority. Lord Eldon, in the case of Lupton v. White, 15 Ves. 442, states the law of the old decided cases to be, "if one man mixes his corn or flour with that of another and they were of equal value, the latter must have the given quantity; but if articles of a different value are mixed, producing a third value, the aggregate of the whole, and through the fault of the person mixing them, the other party cannot tell what was the original value of his property, he must have the whole." This doctrine is stated with approbation by Kent. 2 Kent's Com. 365. It is again stated in the case of Ryder v. Hathaway. The opinion says, "if Sur-6 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."

In the case of Willard v. Rice, 11 Met. 493, the question, whether palm-leaf hats, which were intermixed, were of equal value, does not appear to have been, although it would seem that it might have been, made. The case is not therefore opposed to the doctrine here stated. The doctrine is noticed in the cases of Hart v. Ten Eyck, 2 Johns. Ch. 62; Ringgold v. Ringgold, 1 Har. & Gill, 11; Brackenridge v. Holland, 2 Blackf. 377.

If no logs were cut upon land owned by the plaintiff, no question could have arisen of confusion of goods. The jury were required by the instructions to find only, that none of those taken by the defendant were cut on the plaintiff's land. They were not required to find that no logs, composing the whole lot of six or seven hundred thousand feet, were cut on the plaintiff's land.

If Preble wrongfully cut any logs on land owned by the plaintiff, and mixed them with logs cut on his own land, so that they could not be distinguished, a question respecting confusion of goods might properly

have arisen. The admixture might have been of such a character that the whole lot of logs, including those in the possession of the defendant, might have become the property of the plaintiff. Or it might have been of such a character, the logs being of equal value, that the plaintiff would have been entitled to recover from any one in possession of those logs or of a part of them, such proportion of them as the logs cut upon his land bore to the whole number.

While the facts reported might not necessarily prove a confusion of goods, if part of the whole lot of logs were cut upon land owned by the plaintiff, they might have been sufficient to raise that question, and to present it for the consideration of the jury.

The instructions therefore, when considered together, requiring the plaintiff to satisfy the jury that some of that particular portion of the whole lot of logs, which the defendant had in his possession, were cut upon land owned by the plaintiff, and that no question of confusion of property appeared to arise, were too restrictive. They may have deprived the plaintiff of the right to recover upon proof that some of the logs composing the whole lot had been cut upon his land and so mixed with logs cut on land owned by Preble that they could not be distinguished.

Exceptions sustained, verdict set aside, and new trial granted.

FULLER v. PAIGE.

SUPREME COURT OF ILLINOIS. 1861.

[Reported 26 Ill. 358.]

THIS was an action of trespass commenced by Fuller against Paige in Aurora Common Pleas Court, and taken, by change of venue, to the Kane Circuit Court.

The declaration was in trespass in the usual form, for taking and carrying away goods and chattels of the plaintiff, consisting of a lot of drugs and medicines. There was a trial by jury, and a verdict for the defendant.

One Myers mortgaged the goods in controversy to Paige, Myers attending the store as a clerk. Myers sold the goods to Fuller, who was fully informed of the mortgage from Myers to Paige. Fuller stated that he knew of the existence of the mortgage at the time of the purchase, but that it was good for nothing, inasmuch as it had not been recorded. The consideration from Fuller to Myers was a pre-emption claim in Kansas, and a bond for a tract of land in Michigan. Myers stated that the sale to Fuller was to get property with which to pay his debts. The goods when mortgaged to Paige were appraised at $1,000. Fuller, after his purchase from Myers, added a small stock to the drugs, and carried on business. When requested by Paige to select the goods

so added by him to the stock derived from Myers, he refused to do so, and Paige took the entire stock as mortgaged, together with such as Fuller had added to it. The mortgage described the goods secured by it.

Glover, Cook & Campbell, for plaintiff in error.

Hoyne, Miller & Lewis, for defendant in error.

BREESE, J. In this case the court below instructed the jury, in substance, that if the appellant, then plaintiff, purchased the goods described in the declaration, with a full knowledge of the mortgage to the defendant, and with the intent to cheat and defraud him of his lien, the sale was void as to the mortgagee.

This we hold to be the law. The mortgage was good as against Myers the mortgagor, without being recorded. If then the appellant purchased the goods of Myers with the knowledge of the mortgage, and for the purpose and with the intent to enable Myers to put the money in his own pocket and cheat the mortgagee, that was such a fraud in fact as to avoid the sale to appellant. It cannot be tolerated that a party thus acting should be permitted to enjoy the fruits of such conduct.

We do not say that the mere knowledge of the existence of a mortgage unrecorded would make the purchase from the mortgagor a fraud in law, where there is no intent manifested by such purchaser to commit a fraud in fact by enabling the mortgagor to pocket the avails, and so cheat the mortgagee.

When a purchase from a mortgagor is bona fide and without any intent to cheat, the case might be different. Here the facts show a contrivance and a design by the appellant knowing of the existence of the mortgage in collusion with the mortgagor to cheat the mortgagee. The parties cannot receive our aid in furtherance of such intention, nor do we think the law requires it. Good faith and absence of fraudulent intent must characterize all contracts.

Upon the other point the appellant had mixed up his own goods with the goods mortgaged, and he was notified to select his and take them away, which he refused to do. The appellee had a right to take his own goods, and if he took some, not his property, they being so confounded with his own that he could not distinguish them, it would be fraud to charge him in trespass however he might be liable in trover. On the whole case we think justice is with the appellee, and we accordingly affirm the judgment. Judgment affirmed.

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