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to seize the logs cut on their land wherever they could find them. Their title thereto was as perfect as if cut by themselves.
It was the fault of the plaintiff that they were so mingled by him or his agents with his logs so that they could not be distinguished from them. The plaintiff must suffer from the consequences of this confusion.
By the common law, where an intermixture of goods is fraudulently made without the knowledge of the owner, and they cannot be separated and identified, the latter is entitled to the whole property without making satisfaction to the former for his loss. In Bryant v. Wure, 30 Maine, 295, where lumber was cut upon two tracts of adjoining owners by a trespasser, and the whole was so intermixed by him, or persons claiming under him, that the part belonging to each owner could not be distinguished, and the owner of one tract seized and took possession of the whole, - it was held, that one claiming under the wrongdoer could not maintain an action of trespass for such taking.
But the defendants seized only a portion of the logs cut by the plaintiff. Waiving, therefore, their right to all, if they had such right in the present case, the question arises whether they are liable as wrongdoers if they seize more logs than, as it is ultimately shown, were cut on their land.
It has been repeatedly held that an officer has a right to attach the goods of another, negligently or fraudulently intermixed with those of the debtor, and hold them until they were identified by the owner and re-delivery demanded ; that he could not be treated as a trespasser for doing what he had a right to do; and that, if after identification and demand for re-delivery he refused to give up the goods, he would be liable for their value in trover, but that trespass could not be maintained for the original taking. Bond v. Ward, 7 Mass. 127; Shumway v. Rutter, 8 Pick. 443 ; Willard v. Rice, 11 Met. 493 ; Lewis v. Whittemore, 5 N. H. 366; Taylor v. Jones, 42 N. H. 36. So here the defendants had a right to seize their own logs. It was by the wrongdoing of the plaintiff that they were cut, marked, and intermingled with his own. The plaintiff knew the number and kind of logs cut on the defendants' land. The defendants were ignorant of all this, and were never informed thereof by the plaintiff, as they testify, till the time of the trial. They seized what they regarded as the number of logs cut on their land. If they seized logs not so cut, the plaintiff should have notified them of such fact and pointed out the specific logs he claimed, if it was in his power so to do. If they took more than they had a right to take, he should have advised them of the exact amount of his own trespass. He cannot claim that they are wrongdoers when they rightfully seized their own logs, wrongfully commingled by him with those cut on his land. This they clearly had a right to do. Bryant v. Ware, 30 Maine, 295. The party wrongfully intermingling his goods with another's cannot reclaim them without first pointing them ont. Seavy v. Dearborn, 19 N. H. 351 ; Gilman v. Sanborn, 36 N. H. 311. So too if the defendants, acting in good faith, took more logs than the plaintiff had cut on their land, having a right to take all logs cut by trespassers, they would not be liable as wrongdoers until the plaintiff had pointed out the property belonging to him, and demanded it of them, which the defendants say was never done. It must be remembered that, if the plaintiff suffers, it is in consequence of his own wrongful acts. The defendants were acting for the protection of their acknowledged rights.
Judgment for defendants. KENT, WALTON, DANFORTH and TaPLEY, JJ., concurred.
NOTE. - The acquisition by a transferee of a chattel or obligation of a right greater than that of the transferrer is dealt with later in this course under the head of Priority, and also in a separate course on Bills and Notes.
course on of a
TRANSFER OF RIGHTS IN PERSONAL PROPERTY.
SATISFACTION OF JUDGMENT.
NOTE. - Other modes in which personal property is transferred without the consent of the person whose property is transferred are Forfeiture, Execution, Bankruptcy, and Marriage; as to the transfer of personal property on intestacy, see note to next section.
BRINSMEAD v. HARRISON.
COMMON PLEAS. 1871.
[Reported L. R. 6 C. P. 584, 587–590.) . JUNE 23. The judgment of the Court? (Willes and Montague Smith, JJ.) was delivered by
WILLES, J. We decided yesterday that, according to the law laid down by Lord Wensleydale in King v. Hoare, 13 M. & W. 494, a judgment in an action against one of two joint tort-feasors is a bar to an action against the other for the same cause. There remains, howerer, an entirely different question, which arises upon the new assignment, and which is, whether a judgment in trover, without satisfaction, changes the property in the goods so as to vest the property therein in the defendant from the time of the judgment, or of the conversion, or whether such recovery operates as a mere assessment of the value, on payment of which the property in the goods vests in the defendant. It is obvious that this is a different question from that which we have already disposed of; because, if the mere recovery vests the property in the defendant, the property is equally changed as to all strangers. It is a question which affects the transfer of property generally.
We are of opinion that no such change is produced by the mere recovery. The proceeding in such an action is not a proceeding in rem : it is, to recover prima facie the value of the goods. It may be that the goods have been returned, and the judgment given for nominal damages only. To say in such a case that the mere obtaining judgment vests the property in the defendant would be an absurdity. It is clear,
1 The question which it is here desired to present is sufficiently given in the opinion.
therefore, that the judgment has no specific effect upon the goods. The only way the judgment in trover can bave the effect of vesting the property in the defendant is, by treating the judgment as being (that which in truth it ordinarily is) an assessinent of the value of the goods, and treating the satisfaction of the damages as payment of the price as upon a sale of the goods, according to the maxim in Jenk. 4th Cent. Case 88. Any other construction would seem to be absurd.
This question whether the property is changed by the mere recovery in trover appears to have led to much difference of opinion. The authority mainly relied upon by Mr. Powell was the dictum of Jervis, C. J., in Buckland v. Johnson, 15 C. B. 145, 157 ; 23 L. J. (C. P.) 204, in which that very learned and accurate judge did lay it down, upon the authority of a case in Strange, Adams v. Broughton, 2 Str. 1078, that the property is changed by the mere recovery, without any satisfaction. I would observe, however, that the case, as reported in Strange, is far from satisfactory. It is also reported in Andrews, p. 18, where the case is thus stated : “ An action of trover was brought by the present plaintiff against one Mason, wherein he obtained judgment by default, and afterwards had final judgment; whereupon a writ of error was brought. And another action was now brought against Broughton by the same plaintiff, and for the same goods for which the first action was brought.” An'application appears to have been made to hold the defendant in the second action to special bail ; and there was sufficient reason why special bail should not be allowed, because the judgment against Mason had the effect of preventing a second action being maintained against Broughton. The loose expressions of the Court, – that “the property of the goods is entirely altered by the judgment obtained against Mason, and the damages recovered in the first action are the price thereof; so that he hath now the same property therein as the original plaintiff had ; and this against all the world,” — were quite unnecessary. The same may be said as to the dictum of Jervis, C. J., in Bucklund v. Johnson, 15 C. B. 145 ; 23 L. J.(C. P.) 204. That was an action against a person who jointly with his son had sold goods the proceeds of which the defendant had received. After the sale, the plaintiff (wlio claimed the goods), in ignorance that the father had received the money, brought an action against the son for money had and received and for damages for the conversion, and recovered a verdict for 1001. against him ; but, not succeeding in obtaining satisfaction, in consequence of the son's insolvency, he brought a second action against the father for the same causes. It is clear that the proceedings in the first action amounted to an election to treat the matter as a wrong, and precluded the plaintiff from bringing a fresh action for money had and received. It was equally clear that the judgment in the first action was a merger of the remedy against either the father or the son ; and, when the action was brought against the father, the answer was obvious. It was wholly unnecessary, therefore, to decide, as suggested by Jervis, C. J., that the recovery in the first action changed the property; and what was said was properly treated by the reporter as amounting only to a “ semble.”
On the other hand, there is a series of decisions showing that a mere recovery, without satisfaction, has not the effect of changing the property. In Jenkins, 4th Cent. Case 88, it is said: “A, in trespass
execution done thereon, the property of the horse is vested in B. Solutio pretii emptionis loco habetur.” That doctrine is acted upon in Cooper v. Shepherd, 3 C. B. 266; and, though the marginal note treats the recovery as changing the property, — a doctrine thrown out also in the note to Barnett v. Branduo, 6 M. & G. at p. 640, - the plea shows that the damages were satisfied; and the judgment of Tindal, C. J., shows that the property vests in the defendant only won payment of the damages.” To the same effect are the observations of Holroyd, J., in Morris v. Robinson, 3 B. & C. 196, at p. 206. “Where in trover,” he says, “ the full value of the article has been recovered, it has been held that the property is changed by judgment and satisfaction of the damages. Unless the full amount is recovered, it would not bar even other actions in trover.” To the same effect is the note in 2 Wms. Saund. 47 cc, n. (2). It may also be proper to refer to the note to the case of Holnies v. Wilson, 10 Ad. & E. at p. 511, in which the law is stated by the reporters probably at the suggestion of one of the judges. The good sense of the thing and abundant authority thus appearing, we feel bound to give judgment for the plaintiff upon the new assignment.
In order, however, to act upon our judgment of yesterday and to-day, it must be recollected that the present defendant will not be liable except in respect of a wrong other than that which was the subject of the action against the other wrong-doer.
Another point arises upon the new assignment. The plaintiff may have acquired the property in the goods after the recovery of the judgment in the former action. As, however, that point was not argued, we prefer resting our judgment upon the main point.
The judgment therefore will be for the defendant upon the sixth plea, and for the plaintiff upon the new assignment.
: Judgment accordingly. Powell, Q. C. (Joyce with him), for the defendant. Kelly, for the plaintiff.1
Cf. also Osterhout v. Roberts, 8 Cow. 43; Rogers v.
1 See s. c. L. R. 7 C. P. 547. Moore, Rice, 60, is contra.