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 plaintiff's renewed their inquiry as to the quality of the lumber in dispute, and the court again ruled the evidence inadmissible. 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 plaintiffs 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.]

Plea, the general issue,

TRESPASS for taking the plaintiff's mare. 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.

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 boys 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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tition, and the horses were put in the back part. The defendant testified that when he went to attach the horses, the plaintiff and John A. Moore were in the back part of the stable and had the large black Bronson mare out in the floor looking at her; that they put her back into the stall, and went out of the back part of the stable before he attached the horses; that as he was going out into the front part of the stable, he met A. W. Moore coming in, and gave him a summons, and pointed out to him the two horses which he had attached; that the plaintiff and John A. Moore were in the front part of the stable at that time, and near by when he spoke with A. W. Moore. A. W. Moore testified that the defendant did not point out the two horses he had attached, and that he supposed the two horses bought of Bronson were those attached; that neither the plaintiff nor John A. Moore were there when the summons was given him. The plaintiff, John A. Moore, and Stevens, the hostler, testified that neither the plaintiff nor John A. Moore were in the stable at all until about 6 o'clock, after the plaintiff called for his horse to go home.

The two horses were attached somewhere from three to four o'clock in the afternoon. The plaintiff testified that some time in the afternoon, he was told two of the horses were attached as his brother's, but that he supposed they were the Bronson horses, and had no information that his horse was attached till about six o'clock, when he directed the hostler to harness her. He and Stevens, the hostler, testified that, on being directed to harness his horse, the hostler told the plaintiff two of the horses were attached, and his horse might be one of them. That on going to the stable and seeing the horses attached, the plaintiff said one of them was his, and he must have her to go home to Lyman; that at the plaintiff's request the hostler went out and found the defendant, and told him Bernice R. Moore claimed one of the horses attached, and said he had owned it for two years, and wanted he should give it up; that the defendant told him to hold on to the horses he had put in his hands, and that he reported this to the plaintiff. The plaintiff testified that he then found his brother, Azariah W. Moore, and they went together to Mr. H. Bingham's office, and stated the case to him. The plaintiff, A. W. Moore, and Mr. Bingham, testified that by Mr. Bingham's advice, A. W. Moore went out to bring the defendant to the office; that A. W. Moore came to the office with the defendant; that Mr. Bingham, in the presence of A. W. Moore and the plaintiff, explained to the defendant the title of the plaintiff to the mare, and urged him to give up the plaintiff's mare and let him go home with her; that the defendant, in answer to this, said that he was ordered to make the attachment, was indemnified, and should not give up the horses he had attached, nor make any shift. There was evidence that after this, and towards nine o'clock in the evening, the plaintiff, by advice of Mr. Bingham, and with the consent of A. W. Moore, took the other Bronson horse and drove him home to Lyman. It appeared by evidence on the part of the plaintiff that both the Bronson horses remained in the

stable until one of them was taken by the plaintiff to go home with. There was no evidence except that above stated, to show that the defendant inquired to ascertain which two were the Bronson horses.

The defendant testified that he supposed he had attached the two Bronson horses; that he was not informed that the plaintiff made any claim to either of the horses attached, until, according to a previous arrangement made with Mr. Bingham, he went to acknowledge service of the writ in favor of A. W. Moore's mother, which he understood to have been made for his taking the two Bronson horses, when he was surprised to find there was another writ for the plaintiff; that he then understood for the first time that the plaintiff claimed to own one of the horses. The defendant's written acknowledgment of service was dated March 14, 1865, and Mr. Bingham testified that it was in fact made on that day.

The defendant rested his defence on two grounds:

1. That there was a fraudulent contrivance between the plaintiff and his brother, Azariah W. Moore, to induce the defendant to attach the plaintiff's mare instead of one of the Bronson horses; that the defendant, by what was done in pursuance of this fraudulent contrivance, was deceived into the belief that the plaintiff's mare was one of the Bronson horses, and that, relying on the false representation and fraudulent conduct of the plaintiff, he attached the plaintiff's mare, believing her to be one of the Bronson horses.

2. That the plaintiff's mare was so mingled with the Bronson horses that he could not, by due diligence, ascertain which was the plaintiff's mare, and was not liable for taking her till the plaintiff should point her out.

At the commencement of his argument, the counsel for defendant read the following passage from Taylor v. Jones, 42 N. H. 36, and meant to be understood as requesting the court to charge the jury in accordance therewith:

"In Lewis v. Whittemore, 5 N. H. 366, it was expressly held that an officer had a right to attach the goods of another, intermixed with those of the debtor, and hold them until they were identified by the owner, and a re-delivery demanded; that he could not be treated as a trespasser for doing what he had a right to do; that if, after identification and demand for re-delivery, he refused to give up the goods and proceeded to sell them, it would be a conversion for which trover would lie. but that trespass could not be maintained for the original taking."

The court instructed the jury, that, in order to make out the defence on the first ground, it must appear that the plaintiff, by his declarations, or his conduct, induced the defendant to believe that the mare was one of the Bronson horses; that this must have been done by the plaintiff with the design to deceive and defraud, or in such circumstances that he was bound to suppose that it probably might deceive and defraud the defendant, or others, who were interested in the title to the mare; that the defendant must have been in fact deceived and misled into the

belief that the mare was one of the Bronson horses; and that he must have used due diligence to ascertain the fact; that if there was a conspiracy between A. W. Moore and the plaintiff, what was done by A. W. Moore in pursuance of the conspiracy would bind the plaintiff as much as if it had been done by himself.

On the second point, the court instructed the jury that, in case the plaintiff ordered the hostler to put the three horses in the stable, without any direction as to the manner in which they should be placed there, and the hostler put them together in the stable accidentally, and as matter of convenience, if the defendant, meaning to attach two of the three horses as the property of A. W. Moore, and knowing that one of them did not belong to A. W. Moore, undertook to select two of them as the horses of A. W. Moore, intending to hold them at all events, and finally, and not temporarily till he might get further information, and when informed that one of the horses belonged to the plaintiff, still insisted on holding the two which he had attached, he would be liable to the plaintiff in this action, provided there was no fraudulent design on the part of the plaintiff to procure his horse to be attached as the horse of A. W. Moore; but the question as to the plaintiff's negligence on the foregoing statement of facts, the court did not leave to the jury; and at the request of the defendant, the court further instructed the jury that it was a question for them to decide, whether defendant, when he went into the barn and selected the two horses that he would attach, meant to hold them at all events, and finally, and not temporarily, till he might get further information.

The plaintiff claimed exemplary damages. The court instructed the jury that, ordinarily, in trespass against an officer for taking the plaintiff's property on process against another party, the plaintiff would not be entitled to exemplary damages, but that in this case, 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, they might, if, looking to all the circumstances, they thought proper, give the plaintiff exemplary damages.

The defendant requested the court to instruct the jury that, in order to find exemplary damages, they ought to find that the defendant acted in bad faith, and knew that the horse belonged to the plaintiff. The court declined so to instruct the jury, but repeated the former instructions on this point.

The jury returned a verdict for the plaintiff. They found exemplary damages, and by consent returned separately $115, for the value of the horse, and interest from the taking, and in addition $25, for exemplary damages.

The defendant moved to set aside the verdict for error in the foregoing instructions and refusal to instruct.

C. W. & E. Rand, for defendant.

Binghams, for the plaintiff.

BELLOWS, J. If there was a fraudulent contrivance between the