Finch v. Alston, 2 Stew. & P. 85: Whitaker v. Cawthorne, 3 Dev. 389; Reese v. Jared, 15 Ind. 142; Crum v. Hill, 40 Iowa, 506; Mills v. Redick, 1 Neb. 437; Emerson v. Western Union R. R. Co,, 75 Ill. 175; Carpentier v. Small, 35 Cal. 346; Ramsden v. Dyson, 12 Jur. (N. S.) 506; Jones v. Chappell, L. R. 20 Eq. 539; Linahan v. Barr, 41 Conn. 471; Bennet v.Clemence, 6 Allen, 10; Gibson v. Hutchins, 12 La. An. 545; also, Carson v. Clark and other cases infra. The secretary of a corporation bought books with his own money, in which he entered subscriptions to the stock, etc.-Held, that the property of the books was in the corporation: State, N. & N. Y. R. R. v. Goll, 3 Vr. 285. Two broken chains belonging, one to A and one to B, were carried by B, without A's consent, to a blacksmith, who made them into two chains, thereby adding two or three of A's links to B's chain.-Heid, that the title did not thereby vest in A. Pulcifer v. Page, 32 Me. 404.

Furs left in a debtor's hands after an insolvent assignment, and made up by him into hats, were held to have lost their identity, so that the title was vested in the debtor: Worth v. Northam, 4 Ired. 102; see Swift v. Barnum, 23 Conn. 528; Gregory v. Stryker, 2 Denio, 628; Dresser Manf. Co. v. Waterston, 3 Metc. Mass. 9; rails and posts put on lands, as a fence, by a trespasser, belong to the land-owner: Ricketts v. Dorrel, 55 Ind. 470; see Hines y. Ament and other cases infra; and a railroad track: Van Keuren v. Central R. R., 9 Vr. 165; Hunt v. Bay State Iron Co., 97 Muss. 279; Shoemaker v. Simpson, 16 Kan. 43, 3 Cent. L. J. 616, 693; see Miss. & Tenn. R. R. v. Devaney, 42 Miss. 5s5; Ewell on Fixt. 58, note.

As to vacant lands, the general rule is, that the purchaser takes all improvements, etc., previously put thereon by a trespasser; as trees felled and cut into cord-wood: Brock v. Smith, 14 Ark, 431; Turley v. Tucker, 6 Mo. 583, overruling James v. Snelson, 3 Mo. 893. Contra, Keeton v. Audsley, 19 Mo. 362; Carpenter v. Lewis, 6 Ala. 682; Pennybecker v. McDougall, 48 Cal. 160; see, also, Perkins v. Hackleman, 26 Miss. 41; Hungerford v. Redford, 29 Wis. 345; Dreyer v.Ming, 23 Mo. 434; Waterm. on Tresp. §819; Winter v. Shrewsbury, 2 Scam. 283; Altemose v. Hufsmith, 45 Pa. St. 121. So, where the injury was done between the time of purchase and the actual entering into possession: Blevins v. Cole, 1 Ala. 210; Gale v. Davis, 7 Mo. 544. The rule extends to crops planted on vacant lands by a trespasser: Boyer v. Williams, 5 Mo. 335; Floyd v. Ricks, 14 Ark. 286; Rasor v. Quails, 4 Blackf. 286; see Stockwell v. Phelps, 34 N. Y, 363; Reilly v. Ringland, 39 Iowa 106; Nudd v. Hobbs, 17 N. H. 524; or any improvements, such as fences, fruit trees, buildings, etc., made by a squatter: Carson v. Clark, 1 Scam. 115; Mitchell v. Billingsley, 17 Ala. 391; Hatfield v. Wallace, 7 Mo. 112; Campbell v. Com., 2 Rob. (Va.) 791; Cook v. Foster, 7 Ill. 652; Collins v, Bartlett, 44 Cal. 371; but shingles made thereon were held to belong to the maker: Reader v. Moody, 3 Jones (N. C.) 372; hay cut by one in adverse possession of public lands, cannot be replevied by a prior possessor: Page v. Fowler, 28 Cal. 605, 37 Cal. 100; see Johnson v. Barber, 5 Gilm. 425; Stockwell v. Phelps, 34 N. Y. 363; turpentine collected from trees by the lessee of a stranger in possession without title, was held not to belong to a subsequent purchaser from the State; Branch v. Morrison, 6 Jones (N. C.) 16; Branch v. Campbell, 7 Jones (N. C.) 378; see, also, Duncan v. Potts, 5 Stew. & Port. 82.

Stone tortiously taken from a quarry, dressed, and laid as a pavement, belongs to the owner of the lot: Jackson v. Walton, 28 Vt. 43; see Woodman v. Pease, 17 N. H. 282; materials removed from a house by a mortgagor, and sold and used by his purchaser in building a house on other lands, cannot be followed by the mortgagee: Peirce v. Goddard, 22 Pick. 559; Madigan

v. McCarthy, 108 Mass. 376; also, Beers v. St. John, 16 Conn. 322; Salter v. Sample, 71 Ill. 430; see, however Hamlin v. Parsons, 12 Minn. 108; Wilmarth v. Bancroft, 10 Allen, 348; Dawson v. Powell, 3 Bush, 663; Beard v. Duralde, 23 La. An. 284; Strickland v. Parker, 54 Me. 263; Buckout v. Swift, 27 Cal. 433. A pole was taken by a trespasser, and used by him in erecting scaffolding; it was retaken by the owner, and in consequence of its removal, the scaffolding was weakened, fell and injured the trespasser when he went thereon. Held, that the owner was not liable: Whitev. Twichell, 25 Vt. 620. Pine trees cut by a mortgagor become personalty by the severance, and the mortgagee has no claim to them after foreclosure and sale: Berthold v. Holman, 12 Minn. 335; King v. Bangs, 120 Mass. 514; Gooding v. Shea, 103 Mass. 360; Peterson v. Clark, 15 Johus. 205; but see Gore v. Jenness, 19 Me. 53; Whidden v. Seelye, 40 Me. 247; see, also, Kircher v. Schalk, 10 Vr. 335; Rich v. Baker, 3 Denio, 79; Crouch v. Smith, 1 Md. Ch. 401; Hutchins v. King, 1 Wall. 53; Hewes v. Bickford, 49 Me. 71; Laflin v. Griffith, 35 Barb. 58; Bruce's Case, 16 Nat. B'k Reg. 318; Langdon v. Paul, 22 Vt. 205; Lackas v. Bahl, 43 Wis. 53; Curry v. Schmidt, 54 Mo. 515; O'Dougherty v. Felt, 65 Barb. 220; Moers v. Wait, 3 Wend. 104; Thomas v. Crofut, 14 N. Y. 474; Richardson v. York, 14 Me. 216; Waterm. on Tresp. §§ 772, 777, 840; the husband of a cestui que trust of lands, entering and cutting trees, with the trustee's consent, acquires no interest therein which can be subjected to his debts: Baldwin v. Porter, 17 Conn. 473; see Porch v. Fries, 3 C. E. Gr. 204; Mitchell v. Stetson, 2 Cush. 435; Glidden v. Taylor, 16 Ohio St. 509; Dickinson v. Codwise. 1 Sandf. Ch. 214.

A recovery in ejectment does not entitle the party to reclaim several millions of bricks made by the former occupant from the clay of the lands, under a supposed title: Lampton v. Preston, 1 J. J. Marsh, 454; see Harris v. Newman, 5 How. (Miss.) 654; Anderson v. Hapler, 34 Ili. 436; Moseley v. Miller, 13 Bush, 408; O'Hagan v. Clinesmith, 24 Iowa, 249; Key v. Woolfolk, 6 Rob. (La.) 424; Miller v. Phillips, 31 Pa. St. 456; the same rule was applied to crops gathered before a hab. fac. poss. executed, or right of entry established: Brothers v. Hurdle, 10 Ired. 490; Thomas v. Moody, 11 Me. 139; Codrington v. Johnstone, 1 Beav. 520; see Hooser v. Hays, 10 B. Mor.. 72; Pennybecker v. McDougall, 46 Cal. 661; Doe v. Witherick, 3 Bing. 11; Hodgson v. Gascoigne, 5 B. & A. 88; Simpkins v. Rogers. 15 Ill. 397; Altes v. Hinckler, 36 Ill. 255: Nichols v. Dewey, 4 Allen, 386; and to timber cut on lands of one not in possession: McClain v. Todd, 5 J. J. Marsh. 335; Cochran v. Whitesides, 34 Mo. 417; King v. Baker, 25 Pa. St. 186; see Rogers v. Potter, 3 Vr. 78; Yahoola Co. v. Irby, 40 Ga. 479; Shields v. Henderson, 1 Litt. 239; Ivey v. McQueen, 17 Ala. 408. An innocent purchaser from trespassers who cut trees and made them into railroad ties, is liable for their value as trees only, and not for their value, increased three-fold by the trespassers, as ties: Lake Shore R. R. v. Hutchins, Sup. Ct. Ohio, Dec. 1877, 6 Cent. L. J. 436; but see Nesbit v. St. Paul Lumber Co., 21 Minn. 491. An innocent purchaser of a steam-engine hired and wrongfully annexed to the freehold by the bailee, may hold it against the owner: Fryatt v. Sullivan Co., 5 Hill, 116, 7 Hill, 529; Goddard v. Bolster, 6 Me. 427; Frankland v. Moulton, 5 Wis. 1; Woodruff Iron Works v. Adams, 37 Conn. 233; see Cope v. Romeyne, 4 McLean, 384.

II. An intentional, but not fraudulent, mixture, it seems, works no forfeiture.

Pratt v. Bryant, 20 Vt. 333; Ryder v. Hathaway, 21 Pick. 298; Att'y Gen. v. Fullerton, 2 Ves. & B. 263; Clark v. Griffith, 24 N. Y. 595; see, however, Brakeley v. Tuttle, 3 W. Va. 86; Redington v. Chase, 44 N. H. 36; Goddard v. Bolster, 6 Me. 427; Clark v. Miller, 4 Wend. 628; Colburn v. Simms, 2 Hare, 543, 554.

In The Distilled Spirits, 11 Wall. 356, the govern

ment, after forfeiture of certain spirits, ran them through leaches mingled with other spirits belonging to the same party. Held, that the identity of the liquor was not destroyed by the rectifying process, nor thereby forfeited by the government, and that each was entitled to his portion. In Gordon v. Jenney, 6 Mass. 465, after a deputy sheriff levied on certain goods in a store, another deputy levied on other similar goods, standing in front of the store, and carried them into the building where they were intermixed with the rest. Held, that the second deputy thereby lost his levy. Also, Sawyer v. Merrill, 6 Pick. 477; James v. Burnet, Spen. 635. Bank-bills, securities, etc., not capable of identification, are forfeited by confusion with similar chattels; Panton v. Panton, 15 Ves. 440; Taylor v. Plumer, 3 M. & S. 562; Drake v. Taylor, 6 Blatch. 14; Ward v. Eyre, 2 Bulst. 323; Fellows v. Mitchell, 1 P. Wms. 81, 83; Levy v. Cavanagh, 2 Bosw. 100. See Tower v. Appleton Bank, 3 Allen, 387; Skidmore v. Taylor, 29 Cal. 619; Coffin v. Anderson, 4 Blackf. 395; Moody v. Keener. 7 Port. Ala. 218; Pettit v. Boujon, 1 Mo. 64; Sager v. Blain, 44 N. Y. 445.

Bricks laid in a wall, under a contract which was afterwards forfeited, the contract relet and the same bricks removed and piled up to be again used, became realty by their first use, and are not subject to levy, as personalty, by the creditors of the first contractor: Moore v. Cunningham, 23 Ill. 328; Beard v. Duralde, 23 La. An. 284; Wadleigh v. Janvier, 41 N. H. 505. Where milk was contributed by several farmers and worked into cheese by a company which sold it, each farmer sharing the expense and profit proportionately, the cheese was held not to be subject to levy by the creditors of one of the farmers: Butterfield v. Lathrop, 71 Pa. St. 225.

In Wetherbee v. Green, 22 Mich. 311, G, a tenant in common, authorized his co-tenant S, by parol, to sell timber from the lands. S being indebted to C and B, conveyed to them by warranty-deed, the undivided half of the land, on a parol condition to reconvey on payment of their debts. S, after such conveyance, sold a quantity of the timber to the plaintiff, who cut the same into hoops. On replevin brought by G, C and B for the hoops,-Held, that the timber cut under a supposed proper authority being worth $25 and the hoops made therefrom worth $700, the title passed to the plaintiff. Also, Baker v. Wheeler, Lock, Rev. Cas. 470; Alfred v. Bradeen, 1 Nev. 228; Elwell v. Burnside, 44 Barb. 447; Brown v. Sax, 7 Cow. 95; Haskins v. Record, 32 Vt. 575; Harmon v. Gartman, Harp. 430.

In Gray v. Parker, 38 Mo. 160, certain trunks belonging to the plaintiff disappeared and were found, as claimed, among other trunks, at defendant's trunk store.-Held, that no tortious taking being proved, it was error to instruct the jury that if the defendant willfully took and carried away the trunks, and afterwards mixed them with his own so that it was impossible to identify them, then the plaintiff was entitled to recover any of defendant's goods to the amount taken, although such instruction would have been correct, if the defendant had been shown to be a willful trespasser.

In Alley v. Adams, 44 Ala. 609, after the execution of a chattel mortgage on a steam-engine, etc., the mortgagor attached several other machines thereto. Held, that since they were capable of identification and detachment, the mortgagee could not claim them: see Randolph v. Gwynne, 3 Hal. Ch. 88; Perry v. Pettingill, 33 N. H. 433; Fowler v. Hoffman, 31 Mich. 215; Jewett v. Patridge, 12 Me. 243; Robinson v. Holt, 39 N. H. 557; Cochran v. Flint, 57 N. H. 514; Dunning v. Stearas, 9 Barb. 630; Adams v. Wiles, 107 Mass. 123. Hamilton v. Rogers, 8 Md. 301.

In Stuart v. Phelps, 39 Iowa, 14, the holder of a chat

tel mortgage on a crop of growing corn, brought trover against the defendant for its conversion. The latter claimed by virtue of a judgment and execution against the mortgagor. Held, that the plaintiff was entitled to recover the value of the corn in the crib, in which it had been put by the defendant, after husking, and that if the defendant had confused it with his own corn in the crib, the duty of separating his own lay on him; also that the cost of husking and gathering could not be deducted. See, also, Benjamin v. Benjamin, 15 Conn. 347; Ellis v. Wire, 33 Ind. 127; Backenstoss v. Stahler, 33 Pa. St. 251; Johnston v. Tantlinger, 31 Iowa, 500; Cook v. Steel, 42 Tex. 57; Lewis v. Whittemore, 5 N. H. 364; Herman on Chat. Mort., § 45.

The rule is the same, if a purchaser from the mortgagor with notice confound his own goods with those covered by the mortgage. Fuller v. Paige, 26 Ill. 358; Preston v. Leighton, 6 Md. 88; Willard v. Rice, 11 Metc. (Mass.) 493; see Southworth v. Isham, 3 Sandf. 448.

If a mortgagee, in possession, mixes his own goods with those mortgaged, a failure to select his own, at the mortgagor's request, is evidence of a conversion. Simpson v. Carleton, 1 Allen, 109; see Armstrong v. McAlpin, 18 Ohio St. 184.

In Rider v. Hathaway, 21 Pick. 298, it was held that, if a plaintiff mingled wood cut from different lots, supposing it all to be his own, and afterwards the defendant, knowing that a part of it came from the plaintiff's land, took the whole, he would be held liable as a trespasser. In Panton v. Panton, 15 Ves. 440, a clerk remitted his own money, together with that of his employer, to a broker, to be invested in securities, which became so confused that the property could not be distinguished. Held, that he must lose the whole. See Wharton on Agency, §§ 243, 279; Hall v. Page, 4 Ga. 428; Wiley v. Rixy, 43 Ga. 438; Beach v. Forsyth, 14 Barb. 499; Lord Chedworth v. Edwards, 8 Ves. 46, 50; Griffith v. Bogardus, 14 Cal. 410; Goddard v. Bolster, 6 Me. 427. So, if, after such confusion, the money be stolen, the burden of proof is on the agent to prove that the part stolen was his principal's. Bartlett v. Hamilton, 46 Me. 435.

The rule is the same as to confusion by an administrator or trustee. Perry on Trusts, §§ 128, 447, 463, 837; Lake v. Park, 4 Harr, 108; Frey v. Demarest, 1 C. E. Gr. 236; Elmer v. Loper, 10 C. E. Gr., 475; Brackenridge v. Holland, 2 Blackf, 377; Ringgold v. Ringgold, 1 Hur. & Gill. 11; Crane v. De Camp, 7 C. E. Gr. 614; and as to creditors the cestui que trust thereafter stands the same as any other creditor. Nevins v. Disborough, 1 Gr. 343: Janeway's Case, 4 Nat. Bank. Reg. 100; Thompson's Appeal, 22 Pa. St. 16.

III. A confusion of goods by mistake creates no forfeiture.

In Weymouth v. C. & N. R. R. Co., 17 Wis. 556, wood was cut by the plaintiff and piled near the track of the defendants, for sale. By mistake, they took the wood away, and piled it, indiscriminately, with other wood of their own.-Held, that the proper measure of damages was its value at the time of the conversion, with such increase as it may have received from any cause independent of the defendant's acts. Also, Moody v. Whitney, 38 Me. 174; Forsyth v. Wells, 41 Pa. St. 291; Grant v. Smith, 26 Mich. 201; Farwell v. Price, 30 Mo. 587; but see Bennet v. Thompson, 13 Ired. 146; Smith v. Gouder, 22 Ga. 353; Benjamin v. Benjamin, 15 Conn. 347; Hill v. Canfield, 56 Pa. St. 454; Coxe v. England, 65 Pa. St. 212; Bailey v. Shaw, 24 N. H. 297; Hungerford v. Redford, 29 Wis. 345; Pearson v. Inlow, 20 Mo. 322.

In Winchester v. Craig, 33 Mich. 205, defendants, who by mistake trespassed and cut logs on lands of the plaintiff and transported them with their own to

market, were allowed the expense incurred by them in getting the logs from the land to the market. Also, Foote v. Merrill, 54 N. H. 490; Final v. Backus, 18 Mich. 218; see Chipman v. Hibbard, 6 Cal. 162; Whitbeck v. N. Y. Cent. R. R., 36 Barb. 644; Kier v. Peterson, 46 Pa. St. 357; Young v. Lloyd, 65 Pa. St. 197; Webster v. Moe, 35 Wis. 75; Isle Royal Mining Co. v. Hertin, Supt. Ct. Mich., Oct. 1877, 17 Alb. L. J. 114; Nesbet v. St. Paul Lumber Co., 21 Minn. 491. In Newson v. Anderson, 2 Ired. 42, A cut a tree on his own land, which accidentally fell on B's land.-Held, that A was liable therefor in trespass. See, also, Lambert v. Bessy, Ray. T. 421; Wilson v. Newbury, L. R. 7Q. B. 31; Scullin v. Dolan, 4 Daly 163; Wright v. Compton, 53 Ind. 337. In Leonard v. Belknap, 47 Vt. 602, ten turkeys belonging to the plaintiff wandered on defendant's land, and there mingled with and were shut up with his turkeys. In trover, after a demand: Held, that since plaintiff, as shown by the evidence, was entitled to ten of them, although he could not identify all of his own, that defendant's offer to allow him to take all that he could identify and any others that he might select up to a certain number-which, however, was less than ten-constituted a conversion.

In Smith v. Morrill, 56 Me. 566, the plaintiff trespassed on defendant's lands, cut their logs, put his own mark on them, and rafted them all together. The defendants, thereupon, with an intention of only reclaiming their own, actually took more. In trover, for the value of the excess,-Held, that they were not liable, as wrong-doers, until the plaintiff had pointed out his property and demanded it. Also, Bryant v. Ware, 30 Me. 295; Barron v. Cobleigh, 11 N. H. 559; May v. Bliss, 22 Vt. 477; Root v. Bonnema, 22 Wis. 539. In Parker v. Walrod, 13 Wend. 296, 16 Wend. 514, a plaintiff, while a wagon of the defendant was in his possession, attached his own whiffletrees, etc., thereto, and they were retaken by the defendant, without knowledge of the change.-Held, that trespass would not lie to recover the appendages. Query, whether there was any remedy. See Clark v. Wells, 45 Vt. 4.

In Hines v. Ament, 43 Mo. 298, a fence placed on another's lands, by reason of mistake of bounderies, was held not to lose its character as personalty. Also, Matson v. Calhoun, 44 Mo. 368; Whitfield v. Bodenhamer, Phillips (N. C.) 362; Stuyvesant v. Tompkins, 9 Johns. 61, 11 Johns. 569; Wentz v. Fincher, 12 Ired. 297; Doherty v. Thayer, 31 Cal. 140: Waterm. on Tresp. 715; Ogden v. Lucas, 48 Ill. 492; Robertson v. Phillips, 3 Iowa, 220; compare Burleson v. Teeple, 2 Greene (Ia.) 542; Pfeifer v. Grossman, 15 Ill. 53; Howard v. Black, 42 Vt. 258; Brown v. Bridges, 31 Iowa, 138; Gidden v. Bennett, 43 N. H. 306; State v. Graves, 74 N. C. 396; McLaughlin v. Johnson, 46 Ill. 163; Huntington v. Whaley, 29 Conn. 391; Millar v. Humphries, 2 A. K. Marsh. 446.

In Treat v. Barber, 7 Conn. 274, the plaintiff bad in her possession, in a trunk, certain articles of clothing, etc., of her own, which trunk also contained other similar articles claimed by her and also claimed as her father's. On the service of an attachment by his creditors, she refused to select from the trunk her own property, or to point out which belonged to her father. Held, that there was no confusion of goods, since no actual fraud was shown, that the placing of the goods in the same trunk might have been accidental, and that the defendants were liable in trespass.

IV. As to a fraudulent mixture, the intent is always a question for the jury.

Taylor v. Jones, 42 N. H. 25; Wood v. Hewett, 10 Jur. 390. See Watkins v. Gale, 13 Ill. 152.

In Wingate v. Smith, 20 Me. 287, mill logs were fraudulently taken by another, converted into boards and so intermixed with his own as not to be distinguished.

Held, that replevin would lie for the whole pile of the boards. In Ames v. Mississippi Boom Co., 8 Minn, 467, it was held that a plaintiff in replevin must identify logs claimed by him, notwithstanding the fact that defendant may have driven them with his own, so as to render them indistinguishable. Also, Wood v. Fales, 24 Pa. St. 246. In Loomis v. Green, 7 Greenl. 386, it was held that if one willfully turns his own logs adrift in a stream, and they, in floating down, become confounded with others, the burden of proof is on him to identify his own. See, also, Hesseltine v. Stockwell, 30 Me. 237. In Heard v. James, 49 Miss. 236, the defendants willfully cut trees on the plaintiff's lands, and converted them into staves. Held, in replevin, that they were not entitled to deduct the value of their labor from the value of the staves. See, also, Smith v. Gouder. 22 Ga. 353; Buckmaster v. Mower, 21 Vt. 204; Single v. Schneider, 30 Wis. 570; Herdic v. Young, 55 Pa. St. 176; Firmin v. Firmin, 9 Hun. 571; Nesbit v. St. Paul Lumber Co., 21 Minn. 491.

As to a fraudulent mixture of literary matter, see Mawman v. Tegg, 2 Russ. 385. 391; Lewis v. Fullarton, 2 Beav. 11; 2 Morgan's Law of Lit. 616.

In McDowell v. Rissell, 37 Pa. St. 164, a brother-inlaw of a judgment-debtor fraudulently mingled his own goods, old iron, scrap, etc., with that upon which creditors of the other owner were entitled to levy, and manufactured the whole, Held, that he must lose the whole. See Redington v.Chase, 44 N. H. 36. In Beach v. Schmultz, 20 Ill. 185, a cargo of different kinds of lumber was shipped to M.; there, without the knowledge of the plaintiff, a quantity of the same kind of lumber was put on board by G, and the whole reshipped to C. Held, that the creditors of G could not attach his interest in the cargo, because it could not be identified, and that G forfeited the quantity he had added. Also, Jenkins v. Steanka, 19 Wis. 139.

In Seavy v. Dearborn, 19 N. H. 351, a plaintiff was held to have lost all right to reclaim goods which he had willfully intermixed with those of a third person in a store. Also, Smith v. Welch, 10 Wis. 91; Willard v. Rice, 11 Metc. 493.

V. In the following cases the rule has been adopted that even where the confusion has been fraudulent, the goods, if still capable of identification or apportionment, may be reclaimed.

In Hesseltine v. Stockwell, 30 Me. 237, a trespasser cut the plaintiff's logs, marked them with his own mark, and drove them with his own logs. Held, that even if such acts were fraudulent, there could be no forfeiture, because the logs being of equal value, each owner was entitled to his proportion of the whole. Also, Stearns v. Raymond, 26 Wis. 74. In Goodenow v. Snyder, 3 Greene (Ia.) 599, the same rule was applied in case of a forcible taking of gold dust by the defendant, and mixing it with his own. In Schulenberg v. Harriman, 2 Dill. 398, 21 Wall. 44, logs were cut without license from lands belonging to the State of Minnesota, and intermingled with logs cut from other lands, so as not to be distinguishable. Held, under the Minnesota statute, that the State could replevy her proportion from the whole mass. In Stephenson v. Little, 10 Mich. 433, the court were divided as to this point. See, also, Ballou v. O'Brien, 20 Mich. 304. In Wood v. Fales, 24 Pa. St. 246, after the plaintiffs sent a large number of cloths to be printed, the sheriff seized all of the goods in the factory, and the plaintiffs then claimed two hundred and fifty-two pieces,and,not being able to identify their own, they claimed that number of similar goods. Held, that if the printers had actually confused them, the plaintiffs' claim must be allowed; aliter, if they had sold the goods, and had on hand similar goods which they intended to put in their place. In Wooley v. Campbell, 8 Vr. 163, a trespasser planted oysters in plaintiff's bed. Held, that he could not set

up that the oysters taken by the plaintiffs were not natural ones, or those planted by them. In Powers v. Kindt, 13 Kas. 74, cattle belonging to two owners trespassed on lands, and it was impossible to determine the exact damage done by the cattle of each owner. Held, that a verdict apportioning the damage according to the number of cattle belonging to each owner, was good. See Durham v. Goodwin, 54 Ill. 469.

An officer is not justified in levying on several articles where only some of them belong to the defendant, if those not belonging to him are capable of identification, as furniture in a house. Bond v. Ward, 7 Mass. 123; Smith v. Sanborn, 6 Gray, 124; Colwill v. Reeves 2 Camp. 575. But see Taylor v. Jones, 42 N. H. 25; Armstrong v. McAlpine, 18 Ohio St. 184; or, cattle, Holbrook v. Hyde, 1 Vt. 236: or, boots and shoes in boxes, marked: Tufts v. McClintock, 28 Me. 424; or, crockery standing on a shelf, Treat v. Barber, 7 Conn. 274; or, horses in separate stalls, Moore v. Bowman, 47 N. H. 494.

In Albee v. Webster, 16 N. H. 362, a sheriff finding goods of A., the execution debtor, mingled with those of B., called upon B. to separate his therefrom, and on refusal levied on the whole. Held, that he was not a trespasser. Also, Sawyer v. Merrill, 6 Pick. 477; Shumway v. Rutter, 8 Pick. 443; Weil v. Silverstone, 6 Bush, 698; Wellington v. Sedgwick, 12 Cal. 469; Smith v, Sanborn, 6 Gray, 134; Robinson v. Holt, 39 N. H. 557; Roth v. Wells, 41 Barb. 194, 29 N. Y. 471. But see Kingsbury v. Pond, 3 N. H. 511, where the confusion was without the fault of the plaintiff, and the sheriff was held liable as a trespasser; and also Wilson v. Lane, 33 N. H. 466; Treat v. Barber, 7 Conn. 274. JOHN H. STEWART.

COFER, J., delivered the opinion of the court: Felix Mercer died in May, 1876, domiciled in Marion county. He was never married, but was a father of four natural children, whom he recognized as his, three of whom, with their mother, resided with him on his farm near Lebanon. His eldest child, by another mother, was married in 1858, contrary to his wishes, and an estrangement existed between them for some years, but he had become reconciled to her long before his death. Claiming that he had left a holograph will, but being unable to produce it, his married daughter, Mrs. Mackin, and the mother of the three younger children, for herself and for them, presented to the county court a writing purporting to be the substance of the last will and testament of Mercer, and moved to have it probated. No evidence was offered, and the writing was rejected; and the propounders appealed to the circuit court, where the supposed will was established, and from that

judgment Mercer's heirs-at-law prosecute this appeal.

The evidence relied upon to establish the will is, in substance, as follows: That Mercer was warmly attached to his children, and unfriendly to many, if not all, of his collateral kindred; that he often declared that they should not have any part of his estate; that he intended it for his children; that he knew if he died without a will they would not get any part of it; that he was a man of more than ordinary mind, and was capable of writing a will; that before the three younger children were born he made a will, by which he made liberal provision for Mrs. Mackin, then a child; that after one ore more of the three younger children were born he said circumstances had changed, and he had made another will; that he said he did not intend to live a day without a will, that he always kept a will by him, that his children were provided for, and would be educated, whether he lived until it was done or not.

Some of these declarations were proved to have been repeated, and two witnesses, Mackin and the mother of the younger children, swore that he told them he had made a will, and had written it himself; and the latter swore that on the day of Mercer's death one of his nephews, an heir-at-law, was at his house, and in the room with him, where he kept his papers, and saw him at the desk where they were kept, and that he put something under his coat, and afterward, at the dinner table, she saw him acting as if concealing something under his coat. She also swore that one of Mercer's pocket-books was missing, but in that, as well as in other things, she was contradicted by evidence of inconsistent declarations out of court, as well as by the positive denial of the nephew, whom she implicated.

There was other evidence calculated in some degree to strengthen and confirm that we have stated, but as we do not find it necessary to pass upon any question of fact proper for the consideration of a jury, and what we have stated is sufficient to present the questions of law involved, we need not extend this opinion by any more detailed statement of the evidence.

The will, as probated, gives to Mrs. Mackin for her life the sum of $10,000, remainder to her children: to two of the three younger children a farm, and the other the residue of the estate, and provides that their mother shall have a right to live on the farm and occupy it as a home to raise and take care of the children.

The first question presented is, whether these two devisees were competent witnesses for the propounders?

The provisions of the Code relating to the competency of witnesses do not "affect the competency of attesting witnesses of instruments which are by law required to be attested." Sub-sec. 11, sec. 606, Bullitt's Code.

This being a holograph will, the law does not require it to be attested; but the supposed will not having been produced, it is agreed with great plausibility that these witnesses, proving as they do the declarations of the testator that he had

made a will-had written it himself-thereby dispensing with the formal attestations of witnesses on the will itself, stand, as respects their competency, in the attitude of attesting witnesses, and occupy the same position as if they had attested the execution of a will not written by the testator, by subscribing their names thereon as witnesses.

But if this were conceded, we think it would not affect our decision. Section 13, chap. 113, G. S., contains this language: "And if a will is attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved, such person shall be a competent witness; but such devise or bequest shall be void; except that if such witness would be entitled to any share of the estate of the testator in case the will were not established, so much of his share shall be saved to him as shall not exceed the value of what is so devised or bequeathed." Under this provision, even an heir-at-law is a competent witness to prove the execution of a will if it may not be otherwise proved. Whether any, and what, foundation ought ordinarily to be laid to show that the will cannot be otherwise proved, we need not decide, as we think the circumstances of this case are quite sufficient to show that no other evidence of the execution of the will was known to the propounders. Perhaps, under ordinary circumstances, the propounders ought to make and file an affidavit that the execution of the will cannot be otherwise proved unless that fact appears from the will itself.

Under the statute, supra, a devisee who is an attesting witness, and as such proves the execution of the will, thereby renders the devise to himself void; but if he be an heir-at-law, he will take his share as such, not to exceed the value of the devise to him. These devisees were therefore competent witnesses to prove the execution of the will.

But whether their testimony was competent is a wholly different question. They did not testify that Felix Mercer made a holograph will. They only testified that he said he had made such a will; and it was only by evidence given by these same witnesses of his oral declarations that the contents of the supposed will were ascertained.

The statute provides that no will shall be valid unless in writing, with the name of the testator subscribed thereto by himself, or by some other person in his presence, and by his direction; and, moreover, if not wholly written by the testator, the subscription shall be made, or the will acknowledged by him, in the presence of at least two credible witnesses, who shall subscribe the will with their names, in the presence of the tes tator.

The primary evidence of the existence of a last will, and of its contents, is the will itself, and the primary evidence that it is a holograph will is the testimony of persons acquainted with the handwriting of the testator, who, upon inspecting it, testify that he wrote it. Evidence of the declarations of the tesator that he had written a will and as to its contents, is, if competent, only secon

dary, and according to a well settled rule of the law of evidence, is not admissible until satisfactory evidence of the loss or destruction of the will be given. No such evidence was offered in this case. The devisees, who were sworn as witnesses, and one of whom resided in the house with the testator for years before and at the time of his death, did not, even on the witness stand, avow their ignorance of the whereabouts of the will or prove that it was lost.

Moreover, assuming that such a will had once existed, the law, from the fact that it could not be produced, if standing alone, presumes its revocation, unless its loss was accounted for, which was not even attempted, except by the statement of the witness that she saw a nephew of Mercer at the desk where he kept his papers, and that she saw the nephew concealing something under his coat, and her statement about a missing pocket-book, and the statement of another witness that, shortly before his death, Mercer had a pocket-book that seems not to have been seen among his effects after his death. Mercer was in the room when the witness says she saw the nephew hide something under his coat, and was in condition to have observed the taking of anything from the desk, went out with him to dinner immediately after; and there was a total absence of proof that the will was ever in that desk except the fact that papers were kept in it. Besides, the evidence showed that the nephew could not read, and he swore that he did not take anything from the desk.

But waiving this question, the evidence of the declarations of Mercer were inadmissible upon other and more substantial grounds.

He declared he had made a will-had written it himself. This could in no event be sufficient. In order that it might be a valid will he must not only have written it, but must have subscribed his name to it at its conclusion. Section 5, chapter 113, and section 26, chapter 21, General Statutes.

There is no evidence that he said he had subscribed it with his name, or that he knew such subscription was necessary to its validity. What he said was, therefore, but an expression of his opinion as to what was necessary to constitute a valid will, in which he may have been wholly mistaken. But had he declared that he wrote and signed it with his own hand, evidence of such declaration would not be sufficient to authorize the probating of the will.

Counsel for the appellee contend with much earnestness that evidence of these declarations is admissible against the heirs-at-law of Mercer, because of the privity between him and them.

If Mercer had declared that he had sold his land, or that he held it as tenant, or had but a life-estate in it, or that he owed a debt to A, his declarations would have been competent evidence, in a proper case, against his representatives.

But such declarations would not constitute the foundation of any right in the claimant. They would be evidence, and only evidence, of a right pre-existing, and wholly independent of the decla

rations.

They would be directly against his own inter