In Walcott v. Keith, 22 N. H. 211, it is said that to justify an attachment of the goods of another, on the ground of their being mixed with those of the debtor, defendant must show that they were intermixed in such manner that he could not, upon due inquiry, distinguish them from the others; and so is Wilson v. Lane, 33 N. H. 476, holding, per Bell, J., that it is the duty of the officer to make reasonable inquiry to ascertain what goods are liable to be attached; but that it was enough if he applied to plaintiff to point out his goods, and he refused to do it.

The case of Robinson v. Holt, 39 N. H: 557, goes upon the ground that the hay sued for was so intermixed with that of the debtor that it could not be distinguished, and that it was intermixed by the fault or negligence of the debtor, of such character that, as between the plaintiff and the officer, it all became the property of the debtor. If the facts are all reported, such a conclusion might be questionable, perhaps, but however this may be, the case differs widely from the one before us, because here the property was easily distinguished.

Taylor v. Jones, 42 N. H. 25, was trespass, and it was held that as the goods were mixed with those of the debtor, being marked as the debtor's without objection by the plaintiff, and in consequence of plaintiff's absence the goods could not be distinguished, the defendant was justified in taking the whole in the first instance, and trespass could not be maintained for the taking, unless by subsequent acts defendant became a trespasser ab initio.

In Shumway v. Rutter, 8 Pick. 443, which was trover for some furniture attached by the defendant as the property of J. S., it appeared that plaintiff's furniture was mixed with the debtor's, and in his possession, and so mixed that neither the plaintiff nor the debtor could distinguish it; that at the time of the attachment, J. S. told the officer it was all his, but soon after the plaintiff claimed a part of it, and defendant desired him to select what he claimed, but the plaintiff, although he produced the bill of sale of what he claimed, and showed it to the defendant, said he could not select the articles, neither could the debtor select them. The officer, therefore, retained and sold the whole.

The court decided that defendant was not a trespasser for taking the plaintiff's goods which he had allowed to be so intermixed, but that the sale of the whole was a conversion, upon the ground that he ought to have selected from the whole quantity enough to correspond with the bill of sale, and might, if he chose, retain the most valuable. The court also says that if the owner of a part can distinguish and point out what belongs to him, the officer would be a trespasser if he should take it.

In that case, the goods were so intermixed they could not be distinguished, and it is therefore clear that the officer would not be a trespasser for taking possession of the whole. In principle, the case is much like that of Lewis v. Whittemore, where plaintiff and the debtor were tenants in common of the whole mass.

The case of Ryder v. Hathaway, 21 Pick. 306, was trespass for wood, and the court held that if the plaintiff mixed wood from his own lot with wood from the defendant's lot adjoining, supposing it all to be his, and the defendant, knowing that part of it was the plaintiff's, took the whole, he would be a trespasser. This would certainly be so, if defendant knew what part belonged to plaintiff, and could distinguish it; otherwise, if so intermixed that it could not be separated, they would, in such case, be tenants in common.

Smith v. Sanborn, 6 Gray, 134, is a case where a debtor sold his stock of furniture to the plaintiff for $2,000, and the plaintiff took possession of the store and furniture, and commenced retailing it, making new purchases from time to time, to the amount of $200, which was added to the original stock. The defendant attached and sold the whole as the debtor's property. The court decided that the defendant had no right to attach the whole stock in plaintiff's possession, without first endeavoring, by the exercise of a proper degree of caution and diligence, to ascertain whether any, and if any, what part of it, was honestly owned by the plaintiff, and that it did not necessarily devolve upon the plaintiff, and without request, to give information about the state of the title; that it was no more than a reasonable precaution on the part of the officer to make some inquiry of the plaintiff in relation to the stock, before the service of the writ.

In Treat v. Barber, 7 Conn. 274, it was held that the confusion of goods is the mixture of substances that make one undistinguishable mass, such as liquids, corn, bay, &c., citing Wood's Just. 158, and 2 Bl. Com. 404. But that placing crockery, china, or other articles resembling each other on the same shelf, is not a confusion of them, within the meaning of the law.

The defendant introduced evidence tending to show that plaintiff had intermingled her goods with her father's goods, so that she alone could distinguish them, and that, wishing to attach the father's goods, he requested her to select such as belonged to her, but she refused to do it, claiming the whole as her own, part of them by bona fide purchase of her father. The court held that, as she claimed the whole, her refusal to select was no violation of her duty, and the defendant took them at his peril; and the court held that there was no error in refusing to instruct the jury that if she refused so to select, the defendants were not trespassers for taking the whole; but the court held that if the plaintiff had fraudulently intermingled the goods so as to be inseparable by the officer, to prevent an attachment of those that were her father's, the officer might justify taking the whole.

From this review of the cases, it is quite apparent that there is some confusion in the authorities upon the subject of confusion of goods; and so far as the rights of an officer about to make an attachment is concerned, it arises from not properly discriminating between those things which can, and those which cannot, be distinguished, when mingled together.

As to those which can be distinguished, the doctrine of confusion of goods does not apply, and although they may be wrongfully mingled by one owner, without the consent of the other, the title of neither is affected; and consequently the goods of one cannot be taken for the debts of the other. If, however, they are fraudulently intermingled to mislead and embarrass the officer, and prevent an attachment, he would be justified in taking and holding the whole for the purpose of selecting those of the debtor. As if in a case like that of Kingsbury v. Pond, 3 N. H. 513, the plaintiff had consented to the mixing of the debtor's sheep with his, so as to conceal them from the officer.

To justify the attachment of the goods of another where they are intermingled without any fraudulent design, and they are distinguishable, the officer must show that they were mixed in such manner that upon due inquiry he could not distinguish those of the debtor from the others. Walcott v. Keith, 22 N. H. 211; Wilson v. Lane, 33 N. H. 476; Smith v. Sanborn, 6 Gray, 134; Treat v. Barber, 7 Conn. 274; Kingsbury v. Pond, 3 N. H. 511.

The language of some of the cases would seem to imply that, if the goods were so intermingled that the officer could not select those of the debtor, he might, without notice to the other party, attach and hold the whole, until those of the other party were designated and claimed by him. Upon such views the officer might have taken all the horses in the stable when he found these, and held them until identified by their

owners.

Such a doctrine, we think, cannot be supported. It is not necessary to enable the sheriff properly to execute his precept. If, as in this case, he wishes to attach two out of many horses, in the same stable, he is bound to make reasonable efforts and inquiries, in order to ascertain what horses belong to the debtor. If the various owners and the debtor are at hand, he would ordinarily inquire of them, although to guard against interference he might, while making such inquiries, detain in the stable such horses as he had reason to suppose might prove to be those he sought. This power, we think, is all that is necessary, and is the view that best accords with the adjudged cases. Nor do we think that the rule is otherwise where the goods are carelessly or negligently intermingled, but without fraud.

In the case of goods that cannot be distinguished, the fault of one party who causes the intermixture may affect the rights of both; but in a case like this it could not relieve the officer from the duty of making reasonable inquiry to ascertain what goods belong to the person other than the debtor, for such fault does not affect the title; Bryant v. Weare, 30 Me. 299; Gilman v. Hill, 36 N. H. 323; 2 Kent's Com. 364; and unless it was intended to mislead the officer, in which case it would be a fraud, it cannot relieve him of the duty to make reasonable inquiries.

What would be reasonable inquiry, must depend upon the circumstances of the particular case, and cannot be fixed by any positive rule;

Wilson v. Lane, 33 N. H. 476; and it is urged by defendant that among the considerations that ought to bear on the question of reasonable inquiry would be the plaintiff's own negligence, and that there was error in not submitting that to the jury.

There is, however, no objection to the instructions as to reasonable inquiry by the defendant; but the question of negligence in the plaintiff, not submitted to the jury, and for which exception is taken, was, as we understand it, whether, by the plaintiff's fault in mixing the horses, the defendant was not authorized to attach the two he did take, as he would be, had there been fraud. Besides, from the case as reported, we are at a loss to perceive any evidence tending to prove negligence on the part of the plaintiff in allowing these horses to be placed in adjoining stalls.

As already suggested, we are of the opinion that if the defendant attached the plaintiff's horse with the purpose of holding him at all events, and not temporarily, to make inquiries, he is liable in trespass, and that the instructions on that point are correct.

Under the circumstances, it is clear that if there was no fraud in the plaintiff, the defendant had no right to attach the horse and hold him. for A. W. Moore's debt. At the most, he had only the right to detain him a reasonable time for inquiry, and if he took him for the other purpose he is a trespasser.

It is proper to say that we have been led into this extended examination of authorities by the able and searching arguments at the bar.

As to exemplary damages, the instructions were, that the jury might give such, if they found that the defendant rashly and heedlessly took the plaintiff's horse without taking due care to learn what the plaintiff's rights were.

Where the act complained of is malicious or wanton, or is characterized by gross negligence in the defendant, exemplary damages may be awarded, according to the decisions in this State; but we are not aware that they have gone so far as the rule in this case. In Whipple v. Walpole, 10 N. H. 130, the rule laid down was, that exemplary damages might be awarded where there was gross negligence; and the rule laid down by Mr. Sedgwick, in his valuable work on Damages, p. 39, is, that exemplary damages may be awarded whenever the elements of fraud, malice, gross negligence, and oppression mingle in the controversy. This rule, however, is questioned in 2 Greenl. Ev. sec. 253, and note, where the authorities are extensively reviewed.

Upon the whole, we are not disposed to extend the rule which allows exemplary damages to cases where the injurious acts are merely rash and heedless.

There must, therefore, be judgment on the verdict for $115, the exemplary damages being excluded, on the plaintiff's remitting the $25 for exemplary damages.

SMITH v. MORRILL.

SUPREME COURT OF MAINE. 1869.

[Reported 56 Me. 566.]

TROVER, for a quantity of logs alleged to have been converted by the defendants in 1860. The writ is dated November 6, 1863.

There was evidence tending to show that, in the winter of 1858–9, the plaintiff lumbered on his township, called Holeb, adjoining which was the township called Forsyth, owned by the defendants; that the line between the townships was well marked and known to the plaintiff and his servants; that, during the operation, the plaintiff's servants, having cut all his timber accessible without removal of camps, breaking new roads, &c., intentionally and, without the knowledge or consent of the defendants, went upon the township of Forsyth, finished their operation thereon, hauled the logs to the same landing, and marked them with the same mark; that subsequently, after the plaintiff had learned all the facts of the trespass, together with the quantity of logs cut on Forsyth, from the return of his scaler, he caused the whole quantity to be put into the river, driven to Gardiner, caught, boomed, and rafted for sale, thus intermingling the logs in such a manner as to render it impracticable to separate those cut on Forsyth from those cut on Holeb; that the defendants, having no means of determining the quantity of logs cut on their land, seized a quantity which they deemed sufficient to cover their loss; that the plaintiff never, until the time of trial, informed the defendants of the quantity cut on Forsyth, although he had the means of doing so as early as April, 1859; that the defendants requested such information of the plaintiff, but did not receive it.

The court were to render such judgment as the legal rights of the parties required, upon the legal evidence reported.

S. Heath, for the plaintiff.

A. Libbey, for the defendants.

APPLETON, C. J. The plaintiff and defendants were owners of adjacent townships. The plaintiff trespassed upon the defendant's land, cutting thereon a considerable quantity of logs which were marked similarly to those cut on his own land, and were run with them to Gardiner.

The defendants having ascertained that the plaintiff had trespassed upon their land, seized a portion of the logs thus commingled, as cut on their premises, and more, as the plaintiff alleges, than were so cut. This action is brought to recover such excess.

As the plaintiff was a trespasser, the defendants had a legal right