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(Reported 6 Hill, 425; 4 Denio, 332 ; 3 Comst. 379.] TROVER for a quantity of whisky, tried at the Montgomery circuit in May, 1843, before Willard, C. Judge. The facts proved by the plaintiffs to establish their title to the whisky were as follows : On the 18th of February, 1842, the sheriff of Montgomery levied on five hundred bushels of grain by virtue of a fi. fa. against one Wood in favor of Eldert Tymason. The grain was in Wood's distillery at the time, having been purchased by him with a view of manufacturing it into whisky, and the sheriff did not remove it. Shortly after the levy, the plaintiffs, who it seems succeeded Wood in the possession of the distillery, converted the grain into whisky. When the sheriff went to the distillery for the purpose of selling, he was informed by Silsbury, one of the plaintiffs, that they had converted the grain into whisky, and were willing to pay for it; but no terms were then agreed upon. On the 10th of March, 1842, the plaintiff's gave their note to the sheriff for the grain, allowing him fifty cents per bushel ; and Tymason afterwards accepted the note as so much paid upon the fi. fa. The whisky in question was a part of that which the plaintiffs had manufactured from the grain levied on by the sheriff.

The defence was as follows: On the 25th of February, 1842, after the whisky in question had been manufactured by the plaintiffs, it was seized by one of the deputies of the sheriff of Montgomery, by virtue of a fi. fa. issued against Wood, in favor of the defendants. The deputy sold the whisky on the 23d of March following, and it was bid in by the defendants. It appeared that the sheriff was informed of the levy made under the defendants' fi. fa., before he settled with the plaintiffs for the grain.

The defendants moved for a nonsuit, insisting that the plaintiffs acquired no title to the whisky by their compromise with the sheriff. The circuit judge ordered a nonsuit, and the plaintiffs now moved for a new trial on a bill of exceptions.

S. Wilkeson, Jr., for the plaintiffs.
N. Hill, Jr., for the defendants.

By the Court, Nelson, Ch. J. Even conceding that the settlement with the sheriff for the taking and conversion of the grain was inoperative, (which I should not be willing to admit, if made in good faith,) still, a decisive answer to the defence is, that the identity of the grain was destroyed by the act of manufacturing it into whisky, and the property in the new article vested in the plaintiffs. The doctrine on this subject is stated by Blackstone as follows: “By the Roman law, if any given corporeal substance received afterwards an accession by

natural or by artificial means, as by the growth of vegetables, the
pregnancy of animals, the embroidering of cloth, or the conversion of
wood or metal into vessels and utensils, the original owner of the thing
was entitled by his right of possession to the property of it under such
its state of improvement. But if the thing itself, by such operation,
was changed into a different species, as by making wine, oil, or bread,
out of another's grapes, olives, or wheat, it belonged to the new opera-
tor; who was only to make a satisfaction to the former proprietor for
the materials which he had so converted. And these doctrines are
implicitly copied and adopted by our Bracton, and have since been
confirmed by many resolutions of the courts.” 2 Bl. Com. 404; and
see Bro. Ab. tit. Property, 23; Moore, 20; Poph. 38; Vin. Ab. tit.
Trespass, (H. a. 3,) pl. 8; Id. tit. Property (E.) pl. 5; Betts v. Lee,
5 Johns. Rep. 348; 2 Kent's Com. 364. The same doctrine was laid
down in Brown v. Sax, 7 Cowen, 95. The court there said :
rule, in case of a wrongful taking is, that the taker cannot, by any act
of his own, acquire title, unless he either destroy the identity of the
thing; as by changing money into a cup, or grain into malt; or annex-
ing it to and making it a part of some other thing, which is the princi-
pal; or changing its nature from personal to real property; as where
it is worked into a dwelling-house.”

In the present case, the nature and species of the commodity was entirely changed and its identity destroyed; as effectually, it seems to me, as by “ making wine, oil, or bread, out of another's grapes, olives, or wheat.” I think the circuit judge erred in nonsuiting the plaintiffs, and that they are entitled to a new trial.

Nero trial granted.

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On the second trial it was proved that one Hackney, a deputy of the sheriff of Montgomery county, on the 22d day of March, 1842, by virtue of a fi. fu. on a judgment in this court in favor of the defendants, against one Uriah Wood, sold the whiskey in question, being about twelve hundred gallons, and worth $277.68, he having previously levied upon it; and that upon the sale the defendants became the purchasers, and afterwards converted it to their own use. The whiskey was levied on and sold at the plaintiffs' distillery, and they forbade the sale. The plaintiffs having rested, the defendants offered to prove in their defence that the whiskey was manufactured from corn belonging to Wood, the defendant in the execution; that the plaintiffs had taken the corn and manufactured it into whiskey, without any authority from Wood; and that they knew at the time they took it that it belonged to him. The plaintiffs' counsel objected to this evidence, insisting that Wood's title to the corn was extinguished by the conversion of it into whiskey. The judge sustained the objection and rejected the evidence, and the defendants' counsel excepted. Verdict for the plaintiffs. A motion is now made for a new trial, on a bill of exceptions.

N. Hill, Jr., for the defendants.
D. Cady, for the plaintiffs.

BRONSON, C. J. It is undoubtedly a general rule in every civilized state, that a man can only lose his title to property by the operation of law, or his own voluntary act. But this, like most other general rules, has its exceptions. If one wrongfully take the chattel of another, and merely change its form and value by bestowing his labor and skill upon it, without destroying its identity, the property still remains in the original owner, and he may either retake it, or recover the value in its state of improvement. Thus, where leather is made into boots and shoes, cloth into a garment, trees into square timber, iron into bars, or timber into boards, shingles, or coal, the title remains in the owner of the original materials, and he may either retake the chattel in its improved state, or recover its enhanced value. But if the thing be changed into a different species, so that it cannot be reduced to its former rude materials, it then belongs to the new operator; and he is only to make satisfaction to the former owner for the materials converted. Examples of this kind are, where grapes are made into wine, olives into oil, wheat into bread, milk into cheese, grain into malt, or corn into whiskey. In such cases the property is changed, and the original proprietor only has an action to recover his damages. Thus far our lawyers have followed the rule of the civil law. It will be sufficient to refer to the report of this case when it was before us on a former occasion, and the learned note of the reporter for the authorities on this subject. Silsbury v. Mc Coon, 6 Hill, 425. We there held, that when corn is wrongfully taken and manufactured into whiskey, by which the nature and species of the commodity is entirely changed, and its identity destroyed, the property is also changed, and the new product belongs to the manufacturer. The case has come back again upon an offer to show that the corn was taken with the knowledge that it belonged to another; and we are referred to the further teaching of the civilians, who hold that where the property was taken by a wilful trespass, the title is not changed, however great may be the change which has been wrought in the original materials. But I do not find that this doctrine has ever been adopted into our law by any adjudication either here or in England. It was mentioned in Betts v. Lee, 5 John. 348, and again in Curtis v. Groat, 6 Id. 168; but although the judge who wrote the per curiam opinions in those cases evidently had a strong leaning to the doctrine of the civilians, the decisions turned upon other grounds. The changes had been from timber into shingles and coal : but the property had never been out of the possession of the original owner; and it was held in both cases that the identity of the original materials was sufficiently established. And where the change was from timber to coal, the only point necessarily decided was the one on which the case was put at the outset, that the matter in litigation was res adjudicata. The reasons for those judgments were, I presume, assigned by the learned commentator upon American law, who in his treatise still retained his former opinion. 2 Kent, 363. But Blackstone, 2 Com. 404, 405, lays down the rule,

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without any qualification, that when the thing is changed into a different species, as by making wine, oil, or bread out of another's grapes, olives, or wheat, it belongs to the new operator; who is only to make satisfaction to the former proprietor for the materials converted. The decisions on the general subject commenced as early as the Year-Book, 5 H. 7, fol. 15; and if the distinction of the civilians between a wilful and an innocent trespass had ever been adopted into our law, should be able to find the evidence of it in some reported adjudication. But none seems to have been known to Blackstone ; none is cited by Chancellor Kent in his Commentaries ; nor was any such decision produced by the counsel who argued this case.

The question is not, as it has been sometimes artfully put, whether the common law will allow the owner to be unjustly deprived of his property, or will give encouragement to a wilful trespasser. It will do neither. But in protecting the owner, and punishing the wrongdoer, our law gives such rules as are capable of practical application, and are best calculated to render exact justice to both parties. The proper inquiry is, in what manner and to what extent should the trespasser be punished, and what should be the kind and measure of redress to the injured party. A trespasser who takes iron ore and converts it into watch-springs, by which its value is increased a thousand fold, should not be hanged, nor should he lose the whole of the new product. Either punishment would be too great. Nor should the owner of the ore have the watch-springs; for it would be more than a just measure of redress. Our law has therefore wisely provided other remedies and punishments. The owner may retake his ore, either with or without process, so long as its identity reinains, and may also recover damages for the tortious taking. Or without repossessing himself of the property, he may have an action of trespass, in which the jury will not fail to give the proper damages. But the law will not allow the owner to wait until the ore has been converted into a different species of property, and then to seize the new product, either with or without process. Nor is the value of the new product the proper measure of damages, if he bring an action of trespass or trover.

Although there will not be many cases where the difference between the value of the rude material and the new product will be so striking as in the case which has been mentioned, yet in almost every instance where the chattel taken has been converted into a differ, ent species of property, the value of the new product will be more than the trespasser ought to pay, or the owner of the chattel ought to receive.

The common law not only has regard to the proper measure of redress and punishment, but its rules are such as can be successfully applied and administered. Before the thing has been transformed into a different species, its identity can be easily established; the owner can know what to retake, and his title can be proved in a court of justice. But after iron ore has been changed into watch-springs or nee

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dles, grapes into wine, or corn into whiskey, it is nearly or quite impossible to trace the connection between the new products and the original rude materials.

In conceding for all the purposes of this case that the owner may fol. low the property until it is changed into a different species, I must not be understood as expressing the opinion that such is the proper rule. As an original question, I think the owner should either reclaim the property before the new possessor has greatly increased its value, either by bestowing his labor and skill upon it, or by joining it to other materials of his own; or else that he should be restricted to a remedy by action for the damages which he has sustained. But the question may not be open to consideration upon principle; and for the present I only mean to say that we have followed the civil law far enough, without taking another step, and holding that in the case of a wilful trespass the owner can never lose his title to the property. And it comes to that; for if he may trace his title from corn to whiskey, he may follow it so long as matter endures.

BEARDSLEY, J., concurred.
JEWETT, J., dissented."

After judgment the defendants brought error to this Court [for the Correction of Errors], where the cause was first argued by Mr. Hill, for the plaintiffs in error, and Mr. Reynolds, for the defendants in error, in September, 1848. The judges being divided in opinion, a re-argument was ordered, which came on in January last.

N. Hil, Jr., for the plaintiffs in error.
M. T. Reynolds for the defendants in error.

RUGGLES, J. It is an elementary principle in the law of all civilized bireurimor] Korean Sor communities, that no man can be deprived of his property, except by

his own voluntary act, or by operation of law. The thief who steals a chattel, or the trespasser who takes it by force, acquires no title by such wrongful taking. The subsequent possession by the thief or the trespasser is a continuing trespass; and if during its continuance, the wrongdoer enhances the value of the chattel by labor and skill bestowed upon it, as by sawing logs into boards, splitting timber into rails, making leather into shoes, or iron into bars, or into a tool, the manufactured article still belongs to the owner of the original material, and he may retake it or recover its improved value in an action for damages.

And if the wrongdoer sell the chattel to an honest purchaser having no notice of the fraud by which it was acquired, the purchaser obtains no title from the trespasser, because the trespasser had none to give. The owner of the original material may still retake it in its improved state, or he may recover its improved value. The right to the improved value in damages is a consequence of the continued ownership. It would be absurd to say that the original owner may retake the thing by an action of replevin in its improved state, and yet that he may not, if

· This dissenting opinion is omitted.

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