Burr. 2214, where goods were sent to a dyer, and he undertook to hold them under the impression that he had a lien on them, it was held, in an action of trover against him, that the owner could recover only their value in a white stato. So in Dresser Manufacturing Co. v. Waterston, 3 Metc. 9, it appeared that the plaintiff had furnished certain cloth to a printing company to be printed, the title to remain in him. After printing the cloth the company consigned it to the defendants, who, supposing it to belong to them, made certain advances, and refused to deliver it to the plaintiff on demand. This was held a conversion, but bare compensation was made the rule of damages, and the plaintiff was permitted to recover only the value of the cloth before it was printed. Where wool and yarn were delivered by the plaintiff to one Oberhofer to be manufactured into cloth, the title to remain in the plaintiff, and Oberhofer, after partly manufacturing the cloth, became bankrupt, and the defendants, as his assignees, took possession and finished the cloth and sold it, notwithstanding a previous demand by the plaintiff, it was held, in trover against them, that the measure of damages was the avails of the cloth less the value of the materials furnished by the bankrupt and his assignees, and the expense of manufacture: Aborn v. Mason, 14 Blatchf. 405. Shipman, J., cited Baker v. Wheeler as holding the proper rule in cases of willful wrong, but said that it was not applicable to the facts before him, because there was an absence of wrongful intent, and also because the plaintiff did not ask it.

It will be noticed that in the four cases last referred to, Iyde v. Cookson, 21 Barb. 92; Green v. Farmer, 4 Burr. 2214; Dresser Manufacturing Co. v. Waterston, 3 Metc. 9; and Aborn v. Mason, 14 Blatch. 405, the labor and expense by which the enhanced value was given to the property was bestowed either wholly or partly under a positive contract with the owner. So far, at least, there can be no question as to the justice and propriety of a rule of damages which would allow a deduction for such labor and expense. The subsequent conversion certainly would not give the owner of the property a right to appropriate without compensation an enhancement of value which he had expressly authorized, and for which he had agreed to pay. In Swift v. Barnum, 23 Conn. 523, a case somewhat similar to these in this respect, it appeared that the plaintiff had delivered certain hat-bodies and fur to a manufacturer, to be made into hats. After they were nearly all finished the defendant, as sheriff, seized them on an attachment against the manufacturer. The plaintiff tendered to the defendant a certain sum for the labor, expenses, etc., of the manufacturer, and demanded the hats. The defendant accepted the money but refused to deliver the hats, and the plaintiff brought trover. The court decided that the proper measure of damages was not the full value of the hats, but the value of the hat-bodies and fur, together with the sum paid to the defendant, and interest. In this case also the enhanced value was bestowed under a contract with the plaintiff.

In Reid v. Fairbanks, 13 Com. B. (4J. Scott) 692, the action was trover for a ship, of which the defendants had got possession in an unfinished state through a transfer bona fide on their part, it seems, from the builders, and had finished it after being notified of the plaintiff's title, and the court held that the proper node of ascertaining the damages would be to consider what would have been the value of the vessel if completed according to the contract between the plaintiff and the builders, and to deduct what would necessarily have been laid out in completing her. Here, also, it will be perceived that for the expense and labor bestowed before the conversion the plaintiff had agreed to pay. As to that bestowed afterwards, there seems to have been also an arrangement between the parties that proper allowance should be made there. for, if the court should find the title to be in the plaintiff.

The case of Buckley v. Buckley, 12 Nev. 423, was replevin for a band of sheep and their increase. There was no evidence of improper motive or in. tentional wrong, and the court held that although as long as identification was possible the plaintiff was entitled to his property without making any compensation for its increase of value, through the care and labor of the defendant, yet if he sought compensation in money, a different rule would be adopted—a rule protecting the rights of both parties. It was accordingly determined that the measure of damages should be as follows: That the plaintiff should recover the value of the original flock and its increase, less the losses, with interest on such value, and that "from the balance of the value of the entire flock and the wool at the time of the trial, if in the possession of the appellant (defendant), and if not, the amount received therefor by him, or the amount he could have received, the appellant was entitled to deduct his proper legitimate expenses in the care and support of the sheep, their shearing, and the disposition of the wool," giving the residue to the respondent. In Lykens Valley Coal Co. v. Dock, 62 Pa. St. 232, it was decided also that where property was not taken wrongfully the defendant was entitled, in an action therefor, to a deduction from the damages for the value of his labor bestowed thereon.

INNOCENT PURCHASER.—In an article in 7 Central Law Journal, 442, there is an interesting discussion of the rule of damages which ought to be applied in trover, as against an innocent purchaser from the original taker. The writer seems to hold to the opinion that bare compensation for actual loss should be made the measure of indemnity to the owner in such cases, and that he should not be allowed to recover the value of the property as enhanced by the labor of the wrong-doer, or purchaser. Such was the rule adopted in Railway Company v. Hutchins, 32 Ohio St. 571; S. C., 32 Am. Rep. 629; 17 Am. Law Reg. 576. In that case the defendants innocently purchased cord-wood and railroad ties from thieves, who had manufactured the same out of timber cut from the plaintiff's land, and it was held that the plaintiff could not recover the value of the property as thus increased by the labor of the thieves, but only the value at the time of the taking, with interest. In Rockwell v. Saunders, 19 Barb. 473, the doctrine of the principal case is referred to with approval, but there is an intimation thrown out that a bona fide purchaser of logs tortiously taken, who should saw them into lumber, would be entitled to the lumber, and liable to the owner only for the value of the logs. In Silsbury v. McCoon, 3 N. Y. 379, the rule of damages as against such a purchaser seems, in the opinion of Ruggles, J., to turn upon the question us to whether or not the enhanced value is given by the labor of the wrong-doer or that of the purchaser; if the former, the measure is the enhanced value, but if the latter, it is otherwise. This would certainly seem to be the more reasonable rule. If the chattel in its improved state belongs to the owner, without any deduction or drawback, so long as it remains in the wrong-doer's hands, it is not easy to see how such owner's interest in it can be diminished by a sale of it to a bona fide purchaser. If he can recover the improved value the moment before the sale, why should he recover less the moment afterwards? The only theory upon which such a rule can be based is, that a thief or trespasser, who bestows labor upon the chattel which he has tortiously taken, acquires a property in it which he can sell to a bona fide purchaser, although he can not himself retain it against the true owner. Of course, where the bona fide purchaser has himself given the chattel an enhanced value before notice of the real owner's right, there can be no just or reasonable objection to a rule of damages which will allow him a deduction for the value of his labor, etc.

MALA FIDES RATHER THAN DEGREE OF CHANGE THE TEST. - The foregoing review of the cases shows that the rule of damages in trover, where there has been an enhancement of value through the defendant's labor and expenditure, depends rather upon the good or bad faith of the defendant than upon the degree of change wrought in the property, so long as there is not a complete destruction of the identity of such property. Where a willful trespasser mixes his labor with another's property he shall lose his labor and not the owner his property. And if the property can not be recovered in specie the measure of damages is the improved value; for certainly if the original proprietor owns the improved chattel absolutely and entirely, he is entitled to its full value against one who converts it to his own use. Mr. Mayne's theory, that the law gives the improved chattel to the original owner in such cases simply because it can not separate the property from the improvement, but where damages are given in lieu thereof, allows a deduction to the wrong-doer, because then it can make the separation, Mayne's Law of Damages, 208, seems to make the owner and the trespasser in somʊ sense tenants in common in the improved chattel, allowing the owner, however, the perpetual use of the property, without possibility of partition, so long as it remains in specie, but giving such owner only the value of his several interest where damages are awarded. If this theory were correct it would seem that if the owner should get possession of the improved chattel and sell it, the trespasser would, upon the same principle, be entitled to a proportion of the price equal to the value of his labor.

We are persuaded that the sounder and more consistent rule is that of the principal case, that the owner of property, "tortiously taken, is entitled to the enhanced value until it has been so changed as to alter the title." By such a rule the wrong-doer is justly punished by the loss of his labor. On the other hand, where one innocently or through mistake annexes his labor to another's property there is manifest equity in a measure of damages that gives to each his own, by allowing the owner to recover only according to the value of his property before the improvement. Mr. Justice Ruggles, in Silsbury v. McCoon, 3 N. Y. 379, a leading case on this subject, says: “It is an clementary principle in the law of all civilized 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 wrong-doer 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 wrong-doer 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 put to his action of trespass or trover, recover its improved value in damages. Thus far it is conceded that the common law agrees with the civil.

“They agree in another respect, to wit, that if the chattel, wrongfully taken, afterwards came into the hands of an innocent holder, who, believing

himself to be the owner, converts the chattel into a thing of different species, so that its identity is destroyed, the original owner can not reclaim it. Such a change is said to be wrought when wheat is made into bread, olives into oil, or grapes into wine. In a case of this kind the change in the species of the chattel is not an intentional wrong to the original owner. It is therefore regarded as a destruction or consumption of the original materials, and the true owner is not permitted to trace their identity into the manufactured article, for the purpose of appropriating to his own use the labor and skill of the innocent occupant, who wrought the change; but he is put to his action for damages, as for a thing consumed, and may recover its value as it was when the conversion or consumption took place."

The learned judge further proceeds to show that the rule of the civil law is, that a wrong-doer acquires no title to another's goods, however great the change wrought in them by his labor, so long as the identity of the materials can be traced by evidence, and after referring to Betts v. Lee, 5 Johns. 349 [4 Am. Dec. 368]; Curtis v. Groat, 6 Id. 169; 5 Am. Dec. 204; Snyder v. Vaux, 2 Rawle, 427 [21 Am. Dec. 466]; Ryder v. Hathaway, 21 Pick. 304, 305; Wingate v. Smith, 7 Shep. 287; Willard v. Rice, 11 Metc. 493; 2 Kent Com. 363, concludes that this is the rule in this country. In accordance with this doctrine he held that, where a willful wrong-doer converted another's corn into whisky, and the fact that the whisky was produced from that corn could be shown by evidence, the whisky belonged to the owner of the corn. Mr. Field regards this as a sound rule: Field's Law of Damages, secs. 818, 819. See also the note to Betts v. Lee, 4 Am. Dec. 369. In Gray v. Parker, 38 Mo. 160, 166, it was held, citing the principal case, that while a willful wrong-doer could not acquire title to another's property by accession, however great the change wrought in it, an involuntary wrong-doer might do so. So, in Babcock v. Gill, 10 Johns. 287, where salts had been converted into pearl-ashes, it was held, as against a mala fide purchaser, that the owner could recover the full value. In Stephenson v. Little, 10 Mich. 433, it was decided that a party fraudulently mixing his own saw-logs with those of another, so that they could not be identified, lost all his interest in them.

In Potter v. Madre, 74 N. C. 36, on the other hand, it was held that where the species of property was so far changed that it could not be reduced to its former crude materials, as where a tree was made into a canoe, its identity was gone and the owner could not recover it, but must bring trover for the conversion of the tree. In that case, however, the party seems to have acted under a belief of right. In Wetherbee v. Green, 22 Mich. 311; S. C., 7 Am. Rep. 653, an exceedingly instructive case, Mr. Justice Cooley, after an elaborate review of the cases, came to the conclusion that where a party, acting in good faith, took another's property and converted it into a different form, thus enhancing its value, the question as to whether the title was changed was to be determined rather by the degree of difference in value between the new article and the old, than by the difference in form; although he conceded that the rule was probably different with respect to a willful wrong-doer. In that case it appeared that the defendant's conduct was characterized by good faith, and that he had taken the plaintiff's timber, worth twenty-five dollars, and manufactured it into hoops, worth seven hundred dollars, and it was held that the title was changed so that the plaintiff could not maintain replevin, but was put to his action for damages for the conversion of the timber. In a subsequent case, Isle Royal Mining Co. v. Hertin, 37 Mich. 332; S. C., 26 Am. Rep. 520, where it appeared that one by mistake cut cord-wood on another's land, and hauled it to a landing where it was seized by the owner, it was decided by Judge Cooley, in an action brought

against the owner, that as there had been no substantial change of the prop

reclaim it, and was not An extract from Judge

erty or increase of value, the owner was entitled to liable for the value of the labor bestowed on it. Cooley's opinion in that case, stating the doctrine of the courts as to title by accession, is given in the note to Curtis v. Groat, 5 Am. Dec. 206. The cases

on this subject are reviewed in the note to Isle Royal Mining Co. v. Hertin, 26 Am. Rep. 525. As to the rule of damages in trover, in actions brought by the owner, it seems to be wholly immaterial in the light of the cases we have been considering whether the change in the property wrought by an involuntary wrong-doer is great or small. In either event he is entitled to a deduction for the value of his labor and expenditure in improving the chattel. The principle is, not that the owner shall pay for labor even innocently bestowed on his property without his consent, but that he shall not recover the value of such labor, but simply compensation for his actual loss. Where, however, the owner gets possession of the property in its improved state, and the action is brought against him, there seems to be no way of giving compensation for the labor bestowed without abolishing the distinction between contract and tort. This was the case presented in Isle Royal Mining Co. v. Hertin, supra. See the note to Woolley v. Carter, 11 Am. Dec. 526, as to the measure of damages in trover generally.

THE PRINCIPAL CASE IS CITED, as we have already seen, in many of the decisions referred to above. It is cited, also, in the following additional cases: In Derby v. Gallup, 5 Minn. 138; Van Rensselaer's Ex'r v. Jewett, 5 Denio, 144; and Dana v. Fiedler, 1 E. D. Smith, 487, as to the allowance of interest in trover; in Suydam v. Jenkins, 3 Sandf. 628, to the point that the rule of damages in trover is a question of law; in Bird v. Morrison, 12 Wis. 158, to the point that there is no partnership in realty; in Kimbro v. Bullitt, 22 How. U. S. 268, as to the nature of partnerships in the use of land; in Bradley v. Boynton, 22 Me. 291, and Aford v. Bradeen, 1 Nev. 230, that license to cut timber given by one co-tenant of land binds the other; in Halleck v. Mixer, 16 Col. 578, to the point that where one's property is converted he may sue for its value as on an implied contract of sale; and in Pratt v Potter, 27 Barb. 593, that an act lawful when it was done can not be made a trespass by relation.

HALLENBAKE v. FISH.

[8 WENDELL, 547.]

TO MAINTAIN TROVER AGAINST AN INN-KEEPER for goods intrusted to him by a guest, actual conversion must be shown.

DEMAND AND REFUSAL ARE NOT SUFFICIENT to prove such conversion where

the defendant has not, at the time, possession or control of the goods. LIABILITIES OF A COMMON CARRIER AND INN-KEEPER are very similar, both being liable for losses under similar circumstances.

ERROR from the common pleas to reverse a judgment of nonsuit entered against the plaintiff in error, as plaintiff, in an action of trover appealed to that court from a justice's court. The action was for a bridle and saddle intrusted by the plaintiff as a guest at the defendant's inn, to the defendant's servants,