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JENKINS v. STEANKA.
SUPREME COURT OF WISCONSIN. 1865.

(Reported 19 Wis. 126.]
ERROR to the Circuit Court for Winnebago County.

The action below was by Jenkins and others against Steanka, to recover possession of certain lumber, or the value thereof (alleged to be $400), with damages for the detention. The plaintiff's obtained possession under the statute. Steanka was master of a sloop in which the lumber was found when seized by the sheriff; and claimed by his answer that the title to the lumber was in one Wright (for whom he was carrying the same on said sloop), subject to a lien for freight in favor of the owner of said sloop, and that said defendant, at the time of such seizure, was entitled to the possession as agent of said owner.

The jury found that defendant had the right of possession at the commencement of the action ; that Wright owned the lumber; and that the value was $360 ; and nominal damages. Judgment accordingly; and plaintiffs sued out their writ of error. Earl P. Finch, for plaintiffs in error.

H. B. Jackson, for defendant in error.

By the Court, DOWNER, J. This is an action to recover forty thousand feet of pine lumber, alleged in the complaint to be wrongfully detained by the defendant, and of the value of $400. The value is not denied by the answer. At the trial, the plaintiffs offered to prove the value less than $400 ; but the Circuit Court refused to permit the evidence to be given, holding that the pleadings fixed and were conclusive as to the amount of the value. In this the court below erred. In actions of trover, trespass or replevin, before the Code, it was not necessary for the defendant to deny the amount of the value or the allegation of damages, and in this respect the Code has not altered the practice. They must be proved even though the defendant puts in no answer. Conness v. Muin, 2 E. D. Smith, 314; McKenzie v. Farrell, 4 Bosworth, 202.

Questions were put to different witnesses by the plaintiffs during the progress of the trial, as to what the kind or quality of the lumber in dispute was. The court below refused to permit these questions to be answered. It seems to us the answers should have been received. They were competent as bearing on the question of the value of the lumber; also for another purpose. Testimony was given tending to prove that some part of the lumber in dispute was manufactured by one Wright, in his mill, at Fremont, out of logs belonging to the plaintiffs and cut on streams above Fremont, and that there was a great difference in the quality of lumber sawed out of logs cut at or near Fremont and that cut out of the plaintiffs' logs, the latter being much superior in quality to the former. The defendants' witnesses, or some of them, testified that this lumber was made out of logs cut at Fremont. After this testimony was in, the plaintiffs renewed their inquiry as to the quality of the lumber in dispute, and the court again ruled the evidence inadinissible. It seems to us that it was clearly admissible as tending to prove whether the lumber in dispute was manufactured out of the plaintiffs' or Wright's logs.

The Circuit Court also erred in instructing the jury that “if they found for the plaintiffs, they could only recover the amount of lumber which they have proved to have been wrongfully taken by Wright, although it may have been commingled with the lumber of Wright wrongfully.” The law, we think, is that if Wright wilfully or indiscriminately intermixed the lumber sawed from the logs of the plaintiff's with his own lumber, so that it could not be distinguished, and the lumber so mixed was of different qualities or value, then the plaintiffs would be entitled to hold the whole. Willard v. Rice, 11 Met. 493; 2 Kent's Com. (3d ed.), 364; Ryder v. Hathaway, 21 Pick. 298.

We do not deem it necessary to notice other rulings assigned for error of the court below excluding testimony, as the same questions may not arise upon a new trial.

Judgment of the court below reversed, and a new trial ordered.

MOORE v. BOWMAN.
SUPREME COURT OF New HAMPSHIRE. 1867.

[Reported 47 N. H. 494.) TRESPASS for taking the plaintiff's mare. Plea, the general issue, with a statement that the defendant, being a deputy of the sheriff, took the mare on writs against Azariah W. Moore as his property. On trial it appeared that the mare belonged to the plaintiff. There was no evidence that she was liable to be taken for the plaintiff's debt, or that he was in debt. It was proved that Azariah W. Moore was in embarrassed circumstances when the mare was attached, and had been for several years before. The attachment was made in the stable belonging to Knapp's hotel in Littleton, on the 8th of March, 1865.

On that day Azariah W. Moore bought two horses of Orrin Bronson, at Landaff, professing to act as agent for his mother, and led the horses to a point half or three quarters of a mile above Lisbon village, where he tied and left them by the side of the highway leading to Littleton. He then rode with another horse to Lisbon village, where he met his son, John A. Moore, and his brother, the plaintiff. The plaintiff and John A. Moore came that morning from Lyman, where the plaintiff resided, with the mare which was afterwards attached.

At Lisbon village it was arranged that the plaintiff and John A.

pulled there was put into the John A. Moc

Moore should go to Littleton with the plaintiff's horse and sleigh, and on their way take with them to Littleton the two horses bought of Bronson. The plaintiff and John A. Moore started from Lisbon village, took the two horses bought of Bronson, and led them behind the sleigh for about two and one half miles. They then took the plaintiff's mare out of his sleigh, and put in one of the Bronson horses, which was a large black mare, and after that led the other Bronson horse and the plaintiff's mare behind to Littleton. The plaintiff and John A. Moore testified that before the Bronson mare was put into the sleigh she was difficult to lead ; that she pulled the man who led her twice out of the sleigh, and got away from them more than once ; that this was the reason, and the only reason, why the shift of the horses was made.

The horses bought of Bronson were a large black mare and a small one. The plaintiff's mare was black ; but the evidence did not tend to show that, except in color, there was any close resemblance between her and either of the Bronson horses.

Azariah W. Moore started from Lisbon after his son and the plaintiff, passed them on the way to Littleton, and had the horse which he drove, and which was a bay mare, put in the stable at Knapp's hotel.

That day a telegraphic dispatch was sent from Lisbon to Littleton, which was communicated to the defendant, informing him that Azariah W. Moore was on his way to Littleton with two horses, and directing him to attach them as the property of Azariah W. Moore.

Soon after the horse which A. W. Moore drove to Littleton was put in the stable, the plaintiff and John A. Moore arrived there and directed Herod Stevens, the hostler, to put the three horses they came with into the stable and feed them. There was no evidence that they or either of them gave the hostler any directions as to the manner in which the horses should be placed in the stalls, and they and the hostler testified that no such directions were given. The hostler put the plaintiff's mare and the small mare bought of Bronson in adjoining stalls near the door, and the other large Bronson mare in another part of the stable, several stalls distant.

The defendant, who was the only witness for the defence, testified that, after receiving the instructions before mentioned, he went to the stable and asked Stevens, the hostler, which of the three horses that came with the plaintiff were led ; that the hostler told him the two that were in the stalls together near the door ; that he then attached those two horses and directed Stevens to keep them for him. This was contradicted by Stevens, who testified that Bowman came and asked him to show the horses that the Moores brought; that he showed him the horse that A. W. Moore came with, and then the other three, and told him they were the three the boy's came with ; that the defendant looked at the horses and then told him he had attached the two that stood together next the door, and told him to keep them for him; that nothing was said about the horses being led there.

The front part of the stable was divided from the back part by a par:

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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 bold 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.

JENKINS v. STEANKA.
SUPREME COURT OF Wisconsin. 1865.

(Reported 19 Wis. 126.]
Error to the Circuit Court for Winnebago County.

The action below was by Jenkins and others against Steanka, to recover possession of certain lumber, or the value thereof (alleged to be $400), with damages for the detention. The plaintiff's obtained possession under the statute. Steanka was master of a sloop in wbich the lumber was found when seized by the sheriff; and claimed by his answer that the title to the lumber was in one Wright (for whom he was carrying the same on said sloop), subject to a lien for freight in favor of the owner of said sloop, and that said defendant, at the time of such seizure, was entitled to the possession as agent of said owner.

The jury found that defendant had the right of possession at the commencement of the action ; that Wright owned the lumber; and that the value was $360; and nominal damages. Judgment accordingly ; and plaintiffs sued out their writ of error.

Earl P. Finch, for plaintiffs in error.
H. B. Jackson, for defendant in error.

By the Court, DOWNER, J. This is an action to recover forty thousand feet of pine lumber, alleged in the complaint to be wrongfully detained by the defendant, and of the value of $400. The value is not denied by the answer. At the trial, the plaintiffs offered to prove the value less than $400; but the Circuit Court refused to permit the evidence to be given, holding that the pleadings fixed and were conclusive as to the amount of the value. In this the court below erred. In actions of trover, trespass or replevin, before the Code, it was not necessary for the defendant to deny the amount of the value or the allegation of damages, and in this respect the Code has not altered the practice. They must be proved even though the defendant puts in no answer. Conness V. Main, 2 E. D. Smith, 314 ; McKenzie v. Farrell, 4 Bosworth, 202.

Questions were put to different witnesses by the plaintiffs during the progress of the trial, as to what the kind or quality of the lumber in dispute was. The court below refused to permit these questions to be answered. It seems to us the answers should have been received. They were competent as bearing on the question of the value of the lumber; also for another purpose. Testimony was given tending to prove that some part of the lumber in dispute was manufactured by one Wright, in his mill, at Fremont, out of logs belonging to the plaintiffs and cut on streams above Fremont, and that there was a great difference in the quality of lumber sawed out of logs cut at or near Fremont and that cut out of the plaintiffs' logs, the latter being much superior

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