the plaintiff's claim to the logs rests on the agreement of both defendants.

As to the conversion there can be no doubt; if the title be admitted in the plaintiff, and that the same logs were sawed by the defendants, that is a conversion.

Whether the evidence was sufficient to prove that Thompson was the servant of the defendants, was a question for the jury; but as there is a point in the case that the verdict is against the evidence, it is proper to say that there was enough to establish such relation. A. Eddy proves that Thompson was employed by the defendants in the year 1824; T. Eddy proves that Thompson got logs for defendants only one season, and that was in 1823, 1824, or 1825. The two witnesses prove the fact that Thompson brought the logs from Lake Champlain in 1824 for the defendants, and that they sawed them into boards and plank and sold them.

The only remaining inquiry is, whether the judge was correct in stating the rule of damages to the jury. The judge was right in saying that the rule of damages was a question of law; the jury are to ascertain the quantum of damages according to the rules of law. That the party whose property has been tortiously taken is entitled to the enhanced value until it has been so changed as to alter the title, is a doctrine as old as the year books. In this court it has been held that the owner of timber may reclaim it when made into shingles: 5 Johns. 348, 349; and the law in England is stated to go much further: that whatever alteration of form any property has undergone, the owner may seize it in its new shape, if he can prove the identity of the original materials: as leather made into shoes; cloth into a coat; trees squared into timber. In Curtis v. Groat, 7 Johns. 168, this principle was applied to wood converted into coal; the court say: "The defendant's timber, by being cut and converted into coal, had, indeed, lost its primitive form, but the identity of the original material was here ascertained or admitted." In Babcock v. Gill, 10 Johns. 237, it was applied to pearl ashes made out of black salts; and Brown v. Sax, 7 Cow. 95, was just like this case, except that there the logs were cut on the plaintiff's land. Here the title to the logs was in the plaintiff, though they were cut on the defendant's land.

Interest is properly given in trover, as well as the value of the property converted. Without recapitulating the evidence, it is enough to say that it justified the verdict.

New trial denied.

1. Curtis v. Groat, 6 Johns. 168; S. C., 5 Am. Dec. 204.

2. 10 Johns. 287.

MEASURE OF DAMAGES IN TROVER, WHERE VALUE ENHANCED BY WRONG. DOER.-The question presented in the foregoing decision as to the right of the plaintiff in trover, where the chattel converted has been increased in value by the labor or expense of the wrong-doer, to recover such increase as a part of his damages, is one which has occasioned much controversy and diversity of opinion. The increase of value in such cases is usually, though not always, associated with a change in the form of the article, as it was in Baker v. Wheeler. It is then doubly difficult to permit it to enter into the estimate of the damages, since to do so allows the plaintiff not only to reap the fruit of another's labor or expenditure, but also to recover the value of different prop erty from that which he in fact lost. The doctrine above laid down, that the plaintiff may recover the enhanced value in such cases, scems to be regarded by Mr. Mayne as strictly of American origin. He says: "A curious question has been raised in America as to the value at which an article is to be esti mated, which has been changed into some new form by its wrongful taker. In New York, it has been several times ruled that the whole value of the article in its new form may be recovered; as, for instance, where timber has been converted into boards, wood into coals, black salts into pearl ashes [referring to Betts v. Lee, 5 Johns. 348; S. C., 4 Am. Dec. 368; Curtis v. Groat, 6 Johns. 168; S. C., 5 Am. Dec. 204; Babcock v. Gill, 10 Johns. 287; Brown v. Sax, 7 Cow. 95]. The doctrine is made to rest on the authority of some old cases.” After stating the facts and the opinion of the court in the case in F. Moor, 19, pl. 67, showing that all that was maintained there was the right of the owner to retake timber made from his trees cut down by a trespasser, the learned author proceeds: "But it is apprehended that the case is not in point. The right of an owner to retake his own property, though altered in form and increased in value, when he can not separate what is his own from that which is added to it, rests upon necessity. It by no means follows that a jury, in giving damages, are bound to give the value of the altered chattel, instead of that of the original, when the one value could be severed from the other. The reason no longer exists. The doctrine of the Roman law, upon which ours is founded in this respect, goes no further. It states that in such a case, 'Si ea species ad priorem et rudem materiam reduci possit, eum videri dominum esse, qui materiæ dominus fuerit; si non possit reduci, eum potius intelligi dominum, qui fecerit:' 2 Inst. I., 25. But this merely decides who shall have the property, not what amount of damage shall be received for the alteration. It may be said that if the property of the improved article continues in the original owner, he must be paid for its detention on its full value. But I conceive that this by no means follows. Where a man mixes his own goods with those of another, so as to be undistinguishable, the property in the entire mass rests in the latter: Poph. 38; Ward v. Eyre, 2 Bulst. 323. But if the former were to carry away the entire mass as soon as he had mixed it, can it be said that the value of all could be recovered in trover? In short, may not the real principle be this, that the property in the improvement never does, in fact, vest in the original owner; but that as his property in the subject-matter continues, he has a right to have it back, either in value or in specie? In the latter case, the improvements must follow, because they can not be separated. In the former case they need not:" Mayne on the Law of Damages, 207; Wood's Mayne on Damages (1 Am. ed), 493. Mr. Wood, in his note to that part of Mr. Mayne's text above quoted, which gives the rule understood to be laid down in the New York cases referred to, says that, "while this doctrine has obtained in New York, it is not recognized elsewhere." As we shall presently see, however, the doctrine is by no means confined to New York; but it must be conceded that it has not met with universal favor even where it has been

sought to be applied, as in the principal case, to a willful taking or conversion of another's property.

GENERAL RULE IS VALUE AT TIME OF CONVERSION AND INTEREST.-Before proceeding to the discussion of those cases involving the plaintiff's right in this form of action, to recover damages proportionate to the value of his property as enhanced by the labor or expenditure of the tort-feasor, it should be borne in mind that the general rule in trover, except where it is modified by special circumstances, and in some states the invariable rule is, that the damages are to be measured by the value of the property at the time of conversion, with interest to the time of trial: Buford v. Fannen, 1 Am. Dec. 615; Hepburn v. Sewell, 9 Id. 512; McDowell v. Murdock, Id. 684; Sanders v. Vance, 18 Id. 167; Jefferson v. Hale, 31 Ark. 286; Vaughan v. Webster, 5 Harr. 256; Robinson v. Hartridge, 13 Fla. 501; Yater v. Mullen, 24 Ind. 277; Ellis v. Wire, 33 Id. 127; S. C., 5 Am. Rep. 189; Cutter v. Fanning, 2 Iowa, 580; Newcomb etc. Co. v. Baskett, 14 Bush, 658; S. C., 8 Rep. 238; Hayden v. Bartlett, 35 Me. 203; Stirling v. Garritee, 18 Md. 468; Pierce v. Benjamin, 14 Pick. 361; Beecher v. Denniston, 13 Gray, 354; Symes v. Oliver, 13 Mich. 9; Ripley v. Davis, 15 Id. 75; Greeley v. Stilson, 27 Id. 153; Allen v. Kinyon, 41 Id. 281; S. C., 1 N. W. Rep. 863; Carter v. Feland, 17 Mo. 383; Polk's Adm'r v. Allen, 19 Id. 467; Spencer v. Vance, 57 Id. 427; Charles v. St. Louis etc. R. R. Co., 58 Id. 458; Hovey v. Grant, 52 N. H. 569; Suydam v. Jenkins, 3 Sandf. 626; King v. Orser, 4 Duer, 431; Mechanics' etc. Bank v. Farmers' etc. Bank, 60 N. Y. 40; Prince v. Conner, 69 Id. 608; Wehle v. Haviland, Id. 448; Thayer v. Manley, 73 Id. 305; Dixon v. Caldwell, 15 Ohio St. 412; Thrall v. Lathrop, 30 Vt. 307; Ainsworth v. Bowen, 9 Wis. 348; Tenney v. State Bank, 20 Id. 153; Bonesteel v. Orvis, 22 Id. 522; Bigelow v. Doolittle, 36 Id. 115; Ingram v. Rankin, 47 Id. 406; S. C., 32 Am. Rep. 762; 2 N. W. Rep. 755; Dows v. National Exchange Bank, 91 U. S. (1 Otto) 618; Watson v. McLean, El., Bl. & El. 75; Reid v. Fairbanks, 13 Com. B. (4 J. Scott) 692; Mayne on Law of Damages, 203, et seq.; 2 Sedgwick on Meas. of Damages (7 ed.), 368, 391, 419. "It appears to me," says Mr. Sedgwick, "that on principle, unless the plaintiff has been deprived of some particular use of his property, of which the other party was apprised, and which he may be thus said to have directly prevented, the rights of the parties are fixed at the time of the illegal act, be it refusal to deliver or actual conversion, and that the damages should be estimated as at that time:" 2 Sedgwick on Meas. of Damages (7 ed.), 391.

This general rule, it will be perceived at a glance, is founded upon the principle that the plaintiff is to receive exact compensation for the injury which he has suffered. Obviously his loss at the time it happens is measured by the value, at that time, of the property lost. But in addition to this he is deprived also of the use of his property and of its money equivalent, from the time of the conversion until the trial. The worth of that use is, in legal contemplation, lawful interest upon the value of the article. Generally, therefore, the value of the property at the time of the conversion, with interest thereon, may be regarded as adequate compensation for the injury. This is a fundamental idea of the whole law of damages-compensation. There is a "growing inclination among all courts," says Leonard, J., in Waters v. Stevenson, 13 Nev. 157; S. C., 29 Am. Rep. 293, 6 Rep. 498, "where it can be done, to apply the only safe and just rule in actions for damages, whether ex contractu or ex delicto, and that is to give the injured party as near compensation as the imperfections of human tribunals will permit." To the same effect, on this point. is Baldwin v. Porter, 12 Conn. 473, 484. The fact that

compensation is the prime consideration in assessing the damages for such injuries is indicated by those cases in which the plaintiff, having merely a special or limited interest in the property, is permitted to recover only to the extent of that interest: Spoor v. Holland, ante, 37; Brink v. Freoff, 40 Mich. 610. So in other cases where the plaintiff's loss is less than the full value of the property; as where such property has been wrongfully sold on execution against a third person and the owner has bid it in at less than its value, thus losing merely the amount of his bid: Baldwin v. Porter, 12 Conn. 473. So where, after the conversion, the goods are attached for the real owner's debt and sold, and the proceeds applied thereto: Curtis v. Ward, 20 Id. 204. So in a case of an irregular sale by an officer where the diminution in price, produced by the irregularity, is the extent of the loss: Wright v. Spencer, 18 Am. Dec. 76. In all these cases the plaintiff's actual loss was held to be the measure of his damages. So if the actual loss to the plaintiff exceeds the market value of the article, such loss and not the value will control the amount of damages. Instances of this are those cases where the property taken is comparatively valueless to others, and yet has a special value for the plaintiff; as where the property consisted of plates for printing labels and advertisements, almost worthless to any one but the owner: Stickney v. Allen, 10 Gray, 352. In such cases the cost of replacing the lost article is a proper measure of its value: Id.; Starkey v. Kelly, 50 N. Y. 676. So where the property consisted of a model for an invention, which the plaintiff had been exhibiting at certain fairs, but which became worthless before the trial, owing to the discovery of a prior patent covering the same ground, the plaintiff having in the mean time procured the construction of another model at considerable expense, the sum so expended was adopted as the measure of damages: Scattergood v. Wood, 21 N. Y. Sup. Ct. (14 Hun), 269. The price at which the plaintiff has contracted to sell the property may be also the measure of his loss and of his consequent right to damages. Thus, in France v. Gaudet, L. R., 6 Q. B., 199, it appeared that the plaintiff bought certain champagne, lying at the defendant's wharf, at fourteen shillings per dozen, and resold it to a ship-captain, about to sail from England, at twenty-four shillings per dozen. The defendants, without knowledge of this sale, converted the wine to their own use, and no similar wine being procurable in the market the plaintiff was unable to fulfill his contract. The selling price was held the measure of the damages. These cases sufficiently illustrate the principle that compensation is the ruling object in the assessment of damages for a wrongful conversion of property. But it is not the only object. If it were, it might well be doubted, whether in any case the plaintiff could include in his recovery any enhancement of the value of the property by the labor or expenditure of the wrong-doer. If the courts would in no case give the plaintiff more than bare compensation for his loss, and if the market value of the property at the time of the conversion, with interest to the time of the trial, were adopted as the invariable measure of damages, exclud ing every increase of the value caused by the wrong-doer, the wrongful conversion of property, instead of being a tort, would be simply an expedi. tious and summary method of transferring one man's property to another, leaving it to a jury to fix the price. But besides mere indemnity or compensation to the injured party, in such cases, another thing is to be kept in view: The wrong-doer is not to be permitted to make any profit out of his tortious act: Suydam v. Jenkins, 3 Sandf. 614, per Duer, J. He is to take nothing by his wrong. Nay, more, if the wrong has been a willful one, on his part, the damages may be punitive, at least to the extent of depriving him of all compensation for money or labor expended in in

creasing the value of the property. This is a principle clearly deducible from the cases now to be considered.

ENHANCED VALUE RECOVERABLE IN CASES OF WILLFUL WRONG.-The doctrine laid down and applied in the principal case, that where one's property has been tortiously taken;" that is, where the taking has been an intentional, and not an inadvertent trespass, he is entitled to recover its enhanced value until it has been so changed as to alter the title, is certainly one which commends itself to favor. It provides ample protection for the owner of chattels, while it warns those who willfully interfere with the rights of such owners that they will do so at their peril, and that they will not be allowed to profit by their wrongful conduct, or even to receive compensation for actual labor and expense bestowed upon the property. The doctrine has

been applied as the rule of damages in a number of cases, particularly in New York. In Brown v. Sax, 7 Cow. 95, it was applied to a case where trees were tortiously taken and converted into boards. Sutherland, J., it is true, dissented, but he admitted that the rule would probably not be oppressive or unjust, where, as in that case, the original taking was willful and tortious. So in Rice v. Hollenbeck, 19 Barb. 664, where timber was wrongfully taken and made into shingles. So where at the time of the demand and refusal the goods were on board ship, and the defendants afterwards paid certain freight charges, etc., and landed the goods, thereby increasing their value, it was held that the plaintiff could recover the enhanced value without any deduction for the expenses paid by the defendants, although he would have been compelled to pay them before landing the goods if they had been surrendered on demand: Walther v. Wetmore, 1 E. D. Smith, 7. Where logs were intrusted to a miller to be sawed, and after they were partly sawed he converted the remaining logs and the boards to his own use, it was held that he was liable for the full value of the whole, without any deduction for the sawing already done: Pierce v. Schenck, 3 Hill, 28.

But the doctrine is not confined to the New York courts. In Riddle v. Driver, 12 Ala. 590, where wood was wrongfully taken and converted into coal, it was held that the owner could maintain trover for the coal. The court, however, gave no opinion as to whether the jury should deduct the value of the defendant's labor from the damages, that point not being raised. In Eastman v. Harris, 4 La. An. 193, a raft of logs belonging to the plaintiff having been accidentally stranded on the defendant's land, the latter cut them up into fire-wood, thus greatly enhancing the value of the property, and in trover for the conversion, it was held that as the defendant had notice of the plaintiff's title, and was guilty of bad faith in the transaction, he was liable for the enhanced value. He was allowed a deduction, however, for the cost of cutting up, because the plaintiff did not ask for more. The court said, citing Betts v. Lee, 5 Johns. 348 [4 Am. Dec. 368], and Baker v. Wheeler, that it was very questionable whether the defendant was entitled to any such deduction. The point was not decided, because it was unneces sary. Where certain logs were removed from the plaintiff's land, and manufactured into lumber at Saginaw, thus enhancing their value, it was held that although he might have treated the removal from his land as a conversion he was not compelled to do so, and might regard the manufacture into lumber as the conversion, and recover the enhanced value: Final v. Backus, 18 Mich. 218. The question as to whether the wrong was a willful one or not seems not to have been mooted in that case: Winchester v. Craig, 33 Id. 222, per Marston, J. Where logs were cut on the plaintiff's land, and the defendant removed them to his mill for his own advantage, thus increasing