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taken and malt made from it, the party cannot take it, because the grain cannot be known. And so it is with pennies or groats, and a piece made of them, it cannot be taken, because of the pennies one cannot be known from another. And so if one takes a piece, and strikes pennies from it at the mint, the party cannot take the pennies, because the pennies cannot be known one from another; and so in all like cases. And also in the case of the building of a house, now the timber is altered, for now it is freehold, and for this reason he cannot take it ; R but in every case where the chattels themselves can be known, there the party can take them, notwithstanding that some chattel is joined or mixed with them. As if one takes a piece of cloth and makes a coat for himself, the party can take it back well enough, because it is the same chattel and not at all altered ; and so it is in the case put, if one cuts a tree and squares it, the party can take it well enough, because the tree can be known well enough notwithstanding. And so it is of iron, where a smith makes of it a bar, &c. And so it was held by all the court. Wherefore the plaintiff replied, for that matter appeared.



[Reported Moore 19, pl. 67.) In a writ of trespass, the defendant justifies by reason that one I. S. was seised of an acre of land and let it to him for a term of ten years, and afterwards one A. entered into the said land so leased and cut down certain trees there growing, and from them made timber, and afterwards carried it on to the land where the trespass is alleged, and afterwards gave the timber to the plaintiff, wherefore the defendant entered on the said land and retook his timber as well he might. And the writ was quare clausum fregit et mearemium cepit.

Benlors. It seems to me that the plea is not good for two reasons : the one because when he took the trees and made timber of them, now he has lost the notice [le notice] of them, and so the property in them is altered. The other is because the defendant has confessed an entry which he cannot justify.

And as to the first point, the judges think the plea good enough, for by the seizure of the trees the notice is not cut off, but the property yet remains. In all cases where a thing is taken tortiously and altered in form, if yet that which remains is the principal part of the substance, then is not the notice lost, as if a man takes my cloak and makes a doublet of it, yet I can retake it. So if a man takes from me a piece of cloth, and then he sews on to it a piece of gold, yet I can retake it. And if a man takes certain trees and afterwards he makes boards of them, yet the owner can retake them, quia major pars substantive remanet. But if the trees are fixed on the land, or if a house be made of the timber, it is otherwise. Quære. The house now is the principal substance.



(Reported 3 Q. B. 440, note. ) This was an action by the plaintiff for an injury to his reversion in certain closes by making holes and excavations and getting coals, with a count in trover for coals. There were pleas of leave and licence, and that the defendant was seised as of freehold in the mines of coal, on which issue was joined. The defendant claimed under Sir John Zouch, who was seised of the closes, with others, and the beds of coal under the same, temp. Eliz., and conveyed all the coals belonging to him to one under whom the defendant proved his title. The plaintiff claimed the closes in question by a prior conveyance of them, without the exception of coals, from Zouch. The defendant had won the coals under the closes, bona fide supposing that these were his own under bis title from Zouch. Whether they passed or not depended upon the question whether an ancient settlement by another Zouch, temp. Eliz., which existed at the time of the conveyance of the plaintiff's closes for value, was voluntary or not. There was also some evidence of licence as to part. The plaintiff claimed damages on the principle laid down in the case of Martin v. Porter, 5 M. & W. 351, which amounted to about £10,000, or £11,000.

Sir W. W. Follett, for the defendant.

PARKE, B., told the jury that, if they found for the plaintiff, they were to determine what damages should be given: that, if there was fraud or negligence on the part of the defendant, they might give, as damages under the count in trover, the value of the coals at the time they first became chattels, on the principle laid down in Martin v. Porter; but, if they thought that the defendant was not guilty of fraud or negligence, but acted fairly and honestly in the full belief that he had a right to do what he did, they might give the fair value of the coals as if the coal field had been purchased from the plaintiff.

The jury adopted the latter estimate, and found for the plaintiff, damages £210 per acre; £2310.

No motion for a new trial was made.

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[Reported 3 Q. B. 278.] TRESPASS for breaking and entering plaintiff's coal mine and strata, and digging and getting plaintiff's coal, to wit 20,000 tons, &c., out of the said mine and strata ; also for digging and making levels in certain strata, &c., of plaintiff, and carrying away and converting the materials, to wit 10,000 cart loads of coal; and for carrying coals with horses, trams, &c., through the said levels; and by the several means aforesaid damaging the strata, &c., and causing loss of plaintiff's coal, &c. Judgment by default.

An inquiry of damages was executed, before Coleridge, J., at the Monmouthshire Spring assizes, 1841 ; when it appeared that the plaintiff and defendant were proprietors of adjoining coal mines, the defendant holding two, and the plaintiff a third, partly situate between them. The defendant had, from one of his own mines, entered that of the plaintiff, and had there worked coal belonging to the plaintiff, carried it away, and brought it up to the mouth of his own pit, and bad also carried coal from one of his own mines (held under Lord Dynevor) through the workings so made in the plaintiff's mine. Compensation was claimed: 1. For the value of plaintiff's coal worked and taken away by defendant; 2. For the injury which plaintiff's unworked coal had sustained by the mode in which defendant had made the headings or workings; 3. In respect of the coal from Lord Dynevor's mine which defendant had conveyed through the workings of plaintiff's mine. the last two heads damages were asse

ssessed,' as to which no subsequent question arose. On the first, the plaintiff demanded compensation at the rate per ton which a purchaser would pay for the coal at the pit's mouth, and which was proved to be 58. 8d. For the defendant it was urged that he ought not to pay more than the value of the coal after deducting the expenses of cutting and bringing it to the pit's mouth, which were estimated at 38. 10d. per ton. Martin v. Porter, 5 M. & W. 351, was cited for the plaintiff; and the learned judge, considering himself bound by the decision as stated, though he expressed a doubt of its correctness,' advised the jury to give their verdict on the principle of the plaintiff's estimate, but reserved leave to move to reduce the damages by the difference between the values at the pit's mouth and in the ground. The jury found their verdict as directed; damages, on this head of claim, £1400.

1 1s. and 201.

2 By a short-hand writer's note, his Lordship appears to have said: “But for that case I should have thought that the ordinary principle would have prevailed, and that Sir Charles Morgan would be entitled to recover compensation only for the damage he has actually sustained, and that all he would have a right to ask at your hands would have been, to put him in the same position as he would have been if the coal had never been stirred."

Sir J. Campbell, Attorney-General, in Easter term, 1841, obtained a rule to shew cause why the verdict should not be reduced “ by the amount of the expense of getting the coals and bringing them to the pit's mouth.” Cause was shewn in Easter term, 1842."

Ludlow, Serjt., for the plaintiff.

Sir W. W. Follett, Solicitor-General, Talfourd, Serjt., and Keating, in support of the rule.

Ludlow, Serjt., and R. V. Richards were then called upon to shew cause.

LORD DENMAN, C. J., in this term (June 9th), delivered the judgment of the court.

This was an action for breaking a mine, digging coal, carrying it unlawfully along the plaintiff's adit, and taking and converting it to the defendant's use. Judgment was suffered by default, and a writ of inquiry executed before my brother Coleridge.

The question was, how the value of the coal taken was to be estimated; and the learned judge directed the jury to act on the rule laid down in Martin v. Porter, 5 M. & W. 351. The rule, however, was misstated at the trial; and the calculation has been accordingly taken without making certain allowances which that rule provides for. The direction of the learned judge in that case was, that the plaintiff was entitled to the value of the coal as a chattel, “ at the time when the defendant began to take it away,” that is (as there stated), as soon as it existed as a chattel; which value would be the sale price at the pit's mouth, after deducting the expense of carrying the coals from the place in the mine where they were got to the pit's mouth ; and this direction the Court of Exchequer has affirmed. In the present case the rule was taken to be absolute, and without the deduction.

We are of opinion that the rule in Martin v. Porter, 5 M. & W. 351, is correct, and properly applicable to the present case. The jury must give compensation for the pecuniary loss sustained by the plaintiff from the trespass committed in taking his coal, compensation having been separately given for all injury done to the soil by digging, and for the trespass committed in dragging the coal along the plaintiff's adit; and the estimate of that loss depends on the value of the coal when severed; that is, the price at which the plaintiff could have sold it. This plainly was the value of the coal itself at that moment. The defendant had no right to be reimbursed for his own unlawful act in procuring the coal ; nor can he, properly speaking, bring any charge against the plaintiff for labour expended upon it. But it could have no value as a saleable article without being taken from the pit; any one purchasing it there would, as of course, have deducted from the price the cost of bringing it to the pit's mouth. Instances may easily be sup

1 May 2d. Before Lord Denman, C. J., Patteson, Williams, and Coleridge, JJ.

posed where particular circumstances would vary this mode of calculating the damage; but none such appear here. We do not find that the cost incurred by the defendant in bringing the coal to the pit's mouth is greater by a single farthing than that which the plaintiff must have incurred for the same purpose.

The damages found by the verdict must therefore be reduced by the amount of this charge, which may be ascertained by reference to the judge's note; or there must be a new execution of the writ.

Rule absolute for reduction as above.

I “Now, my Lords, there was a technical rule in the English courts in these matters. When something that was part of the realty (we are talking of coal in this particular case) is severed from the realty and converted into a then instantly on its becoming a chattel, it becomes the property of the person who had been the owner of the fee in the land whilst it remained a portion of the land ; and then in estimating the damages against a person who had carried away that chattel, it was considered and decided that the owner of the fee was to be paid the value of the chattel at the time when it was converted, and it would in fact have been improper, as qualifying his own wrong, to allow the wrongdoer anything for that mischief which he had done, or for that expense which he had incurred in converting the piece of rock into a chattel, which he had no business to do.

“Such was the rule of the common law. Whether or not that was a judicious rule at any time I do not take upon myself to say; but a long while ago (and when I say a long while I mean twenty-five years ago) Mr. Baron Parke put this qualification on it, as far as I am aware for the first time. He said, If however the wrongdoer has taken it perfectly innocently and ignorantly, without any negligence and so forth, and if the jury, in estimating the damages, are convinced of that, then you should consider the mischief that has been really done to the plaintiff who lost it whilst it was part of the rock, and therefore you should not consider its value when it had been turned into a piece of coal after it had been severed from the rock, but you should treat it at what would have been a fair price if the wrongdoer had bought it whilst it was yet a portion of the land as you would buy a coal-field. Wood v. Morewood, 4 Q. B. n. 440. That was the rule to be applied where it was an innocent person that did the wrong ; that rule was followed in the case of Jegon v. Vivian, Law Rep. 6 Ch. 742, which has been so much mentioned ; it was followed in the Court of Chancery, and, so far as I know, it has never been questioned since, that where there is an innocent wrongdoing the point that is to be made out for the damages is, as was expressed in the minutes of the decree : * The defendants to be charged with the fair value of such coal and other minerals at the same rate as if the mines had been purchased by the defendants at the fair market value of the district ;' that I understand to mean as if the mines had been purchased while the minerals were yet part of the soil.” Per LORD BLACKBURN, in Livingstone v. Rawyard Coal Co., 5 App. Cas. 25, 39.

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