(k) Dunlop p. Higgins, 1 H. L. Cas. 861, 402, per CoUenham, Ld. Ch. 8ee supra, note (f).

(l) Dennis p. Barber, 6 & & R. 420;

Hargar p. M'Mains, 4 Watts, 418. But see supra, note (t)

(m) Says Blackstone: "The doctrine of property arising from accession is grounded on the right of occupancy. By the Roman law, if any given corporeal substance received afterwards an accession by natural or 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 operator, 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. It hath even been held, if one takes away and clothes another's wife or son, and afterwards they return home, the garments shall cease to be his property who provided them, being annexed to the person of the child or woman. But in the case of confusion of goods, where those of two persons are so intermixed that the several portions can be no longer distinguished, the English law partly agrees with, and partly differs from, the civil. If the intermixture be by consent, I apprehend that, in both laws, the proprietors have an interest in common, in * force at this day, and in this country, so far as it relates to the title to property, which is all that he is speaking of. He uses the word "wilfully," in speaking of confusion. But it may be doubted, even on the authority of the civil law, to which Blackstone refers, whether, in a case of fraudulent confusion, the party in fault does not lose his goods; and, on the other hand, it may be doubted whether, if the confusion be voluntary, but perfectly honest, the other party takes the whole property, without any allowance for the value added to his own. We cannot but think that the intent of the parties, and the moral character of the transaction, would enter into the law of the case, (o)1 So, * also, in a case of accession, to take the very instances given by Blackstone, if one innocently took a piece of cloth, or an ingot of gold, believing it to be his own, and quadrupled the value of the article by his skill and labor expended upon it, and refused to deliver it to the true owner, in the honest belief of his title, and without moral fault, - if the owner succeeded, in trover, in proving the property to in proportion to their respective shares. But if one wilfully intermixes his money, corn, or hay, with that of another man, without his approbation or knowledge, or casts gold in like manner into another's melting-pot or crucible, the civil law, though it gives the sole property of the whole to him who has not interfered in the mixture, yet allows a satisfaction to the other for what he has so improvi-deutly lost. But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavored to be rendered uncertain, without his own consent/' 2 Black. Com. 404, 405.

(o) Willard v. Rice, 11 Met. 493: Pratt v. Bryaut, 20 Vt. 333; Wingate v. Smith, 20 Me. 287. In Rvder v. Hathawav, 21 Pick. 298, trespass was brought for carrying away and converting twenty-three cords of wood. The defendant Justified, on the ground that the plaintiff had so mixed his own wood with the defendant's, that it was impossible to distinguish them. Morton, J., after citing from 2 Kent's Com. 297, "If A wilfully intermix his corn or hay with that of B, so that it becomes impossible to distinguish what belonged to A from what belonged to B, the whole belongs to B," said: " But this rale only applies to wrongful or fraudulent intermixtures. There may be an intentional intermingling, and yet no wrong intended: as where a man mixes two parcels together, supposing both to be his own, or that he was about to mingle his with his neighbor's, by agreement, and mistakes the parcel. In such cases, which may be deemed accidental mixtures, it would be unreasonable and unjust that he should lose his own, or be obliged to take his neighbor's. If they were of equal value, as corn, or wood, of the same kind, the rule of justice would be obvious. Let each one take his own given quantity. But if they were of unequal value, the rule would be more difficult. And if the intermixture were such as to destroy the property, the whole loss should fall on him whose care-lensness, or folly, or misfortune caused the destruction of the whole." See Colwill v. Reeves, 2 Camp. 575. In Stephenson v. Little, 10 Mich. 433, it was held, that a party guilty of a fraudulent admixture of saw logs owned by himself, with those owned by another, so that it is impossible any longer to identify his own, loses all interest in them, and is remediless, if such other person appropriate the whole mass to his own use.

1 Starr v. Winegar, 3 Hun, 491, decided that In case of confusion of goods by defendant's act, damages are to be given to the utmost value the article will bear. See also Jewett v. Drnger, 3 Stewart, 291. - K.

be his, we are of opinion that the defendant would be allowed something by way of mitigation of damages, of recoupment, or in some other way, so that while the plaintiff was fully compensated, he should not be permitted to gain greatly, and the defendant made to suffer greatly, by his mere mistake. Indeed, the rule, as given in Blackstone, and sustained to some extent by the authorities in the Year-Books, would lead to this strange conclusion: that if one takes another's property, and expends upon it ten times its value in his labor, but without going so far as to change it into a different species, he loses all his labor, and the original owner gains it But if he goes so much further as to make this change, then he saves all the value of his labor, and the original owner can recover only the primitive value of the property taken, (p) 1