OF THE TITLE OF CHATTELS PERSONAL(i). 483 Title to things altered by a wrong-doer.-If a man takes away the chattel of another, either by design or accident, and alters it, or improves it, he has no right to detain it from the owner until his alterations and improvements have been paid for. If a man wrongfully takes away my carriage, and without any authority from me, sends it to a coachmaker to be repaired or painted, I am entitled to the possession of my carriage without paying for the repairs or painting "(). (i) As to title by bill of sale, see Addison on Contracts, 6th ed., p. 136, et seq.; Massey v. Sladen, L. R., 4 Exch. 13; Mercer v. Peterson, L. R., 3 Exch. 101. As to goods in the "apparent possession" of the assignor within the meaning of the Bills of Sale Act, 17 & 18 Vict. c. 36, s. 7, see Robinson v. Briggs, L. R., 6 Exch. 1, and post, p. 440. As to what is a bill of sale requiring registration or not, see Johnson v. Ossenton, 38 L. J., Exch. 76; Byerley v. Prevost, L. R., 6 C. P. 144. As to priority between two holders of bills of sale, see Ex parte Allen, L. R., 11 Eq. Ca. 209. As to title to ships, see Addison on Contracts, 6th ed., pp. 136-8, 254, 255; Johnson v. Royal Mail Steam Packet Co., L. R.. 3 C. P. 38. (j) Hiscox v. Greenwood, 4 Esp. 174. "It is an elementary 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 purchasser 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. But if the chattel wrongfully taken, afterwards come into the hands of an innocent holder, who beliving himself to be the owner, converts the chattel into a thing of different species, so that its identity is destroyed, the original owner cannot reclaim it. 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 he may recover its value as it was when the conversion or consumption took place." Ruggles, J., in Silsbury v. McCoon, 3 N. Y. 379. See, also, Wetherbee v. Green, 22 Mich. 311; Britts v. Lee, 5 Johns. 348; Curtis v. Groot, 6 Johns. 168; Chandler v. Edson, 9 Johns. 362; Hyde v. Cookson, 21 Barb. 104; Baker v Wheeler, 8 Wend. 508; Snyder v. Veaux, 2 Rawle, 427; Riddle v. Driver, 12 Ala. 590; Ryder v. Hathaway, 21 Pick. 305; Sedg, on Dam. 484. Where a wilful trespasser takes a quantity of corn from the owner and converts it into whiskey, the property is not changed, and the owner may recover the value of the whiskey in an action of trover. Id. The same rule has been applied where a wilful trespasser converted a tree into shingles. Betts v. Lee, 5 Johns. 319. Or into charcoal. Curtis v. Groat, & Johns. 169. Or into plank or boards. Brown v. Sax, 7 Cow. 95. Wingate v. Smith, 20 Me. 287. But where timber to the value of twenty-five dollars is sold by one having no title thereto, to Where the defendant and the plaintiff being at play, the plaintiff thrust his money into the defendant's heap, and so intermingled the coins that it became impossible to separate them, it was adjudged that the whole heap belonged to the defendant; and Coke, J.C., said, "The law is, that if J. T. have a heap of corn, and J. D. will intermingle hist corn with the corn of J. T., the latter shall have all the corn, because this was done by J. D. of his own wrong "(k). And this case was put y Anderson: "If a goldsmith be melting of gold in a pot, and as he smelting it I will cast gold of mine into the pot, which is melted altogether with the other gold, I have no remedy for my gold, but have lost it; and if a man take my garment and embroider it with silk or gold, or the like, I may take back my garment; but if I take the silk from you, and with this face or embroider my garment, you shall not take my garment for your silk which is in it, but are put to your action for taking of the silk from you"(). 484 Title to timber severed from the inheritance.-Whenever timber-trees are severed from the freehold, either by the act of God, as' by tempest, or by a trespasser and by wrong, the timber belongs to the person who has the first estate of inheritance, whether in fee or in tail; and he may bring an action for the conversion of it, or file a bill against the wrong-doer for an account. If, therefore, the tenant-for-life cut down timber, the timber belongs to the person entitled to the first estate of inheritance(m). But if the wrong-doer has himself the first estate of inheritance, the Court of Chancery will not allow him to take advantage of his own wrong, but will direct the value of the timber to be invested and accumulated for the benefit of the remaindermen who may afterwards become entitled to the property (n). 485 Title to chattels by finding.-The finder of a lost article is entitled to a purchaser having no knowledge of the defect of title, and who subsequently manufactures the same into hoops of the value of seven hundred dollars, the title to the timber is changed by the substatial change of identity, and the actual owner cannot maintain replevin for the hoops. Wetherbee . Green, 22 Mich. 311. (k) Warde v. Eyre, 2 Bulstr. 323. See Stephenson v. Little, 10 Mich. 433; Wetherbee v. Green, 22 Mich. 311; . Iart v. Ten Eyck, 2 Johns. Ch. 62; Gordon v. Jenney, 16 Mass. 465; Treat v. Barber, 7 Con.. 280; Barron v. Cobleigh, 11 N. H. 561; Robinson v. Holt, 39 N. H. 557; Roth v. Wells, 29 N. Y. 486; Beach v. Schmultz, 20 Ill. 185; Willard v. Rice, 11 Metc. 493; Jenkins v. Steanka, 19 Wis. 128; Hesseltine v. Stockwell, 30 Me. 237. If a person fraudulently or wrongfully take logs which are the property of another, and manufacture them into boards, and then so intermingle them with other boards of his own so that they cannot be distinguished, the owner of the logs may maintain replevin or trover for the whole pile of boards. Wingate v. Smith, 7 Shep. 287. See Root v. Bonnema, 22 Wis. 539. (1) Anon., Poph. 38. See Wetherbee v. Green, 22 Mich. 311. (m) Bewick v. Whitfield, 3 P. Wms. 268. Whitfield v. Bewit, 2 P. Wms. 241. (n) Powlett v. Duchess of Bolton, 3 Ves. 377. Tullit v. Tullit, Ambl. 370. Dare v. Hopkins, 2 Cox, 110. the possession of it as against all persons except the real owner, but he must be an "innocent finder," and must not have taken possession of the property feloniously or fraudulently, knowing, or having the means of knowing, the owner of it, and neglecting to deliver it up to him(0). Where a chimney-sweeper's boy found a jewel, and carried it to a goldsmith's shop to know what it was worth, and delivered it into the hands of the goldsmith's apprentice, who, under the pretence of weighing it, took out the stone, and offered the boy three-halfpence for it, which the boy refused, and insisted upon having the jewel back, whereupon the apprentice delivered him the socket without the stone, and an action was brought against the master for a conversion of the jewel, it was ruled "that the finder of a chattel, though he does not by such finding acquire an absolute property or ownership, yet he has such a property as will enable him to keep it against all but the rightful owner, and, consequently, may maintain an action for the conversion of it"(p). Where the plaintiff, on leaving the defendant's shop, picked up a small parcel which was lying on the shop-floor, and showed it to the shopman, and the parcel, on being opened, was found to contain banknotes, and the plaintiff requested the defendant to keep the notes, and deliver them to the owner, and the defendant advertised for the owner, and after the lapse of three years, no owner appearing to claim them, the plaintiff applied to the defendant for the notes, offering to pay the expenses of the advertisements, and to indemnify the defendant against any claim in respect of the notes, and the defendant refused to deliver them up, it was held that the plaintiff was entitled to recover them, or the value of them, and that the circumstance of the notes being found by the plaintiff inside the defendant's shop, in the defendant's own house, did not give the defendant any right to detain them as against the plaintiff, who found them there(g). 486 Title to wild birds and animals feræ natura-Right of the hunter to the game he kills. So long as animals feræ naturæ remain upon a man's land they belong to him, but the moment they leave his land his possessory property is gone; and this is so, even if they be hunted out of his land by a trespasser, and although they be killed by the trespasser on another man's land. The property in wild grouse is not absolute in any one. So long as the wild bird is upon a man's land he has a (0) Buckley v. Cross, 32 Law J., Q. B. 129. (p) Armory v. Delamirie, 1 Str. 505. Mathews v. Harsell, 1 E. D. Smith (N. Y.), 393. Clark v. Malory, 3 Harring. 68. McLaughlin v. Waite, 9 Cow. 670. (q) Bridges v. Hawkesworth, 21 Law J., Q. B. 75. possessory property in it, but as soon as it flies or goes off his land, his property is gone(r). If A starts a hare in the ground of B, and hunts it and kills it there, the property continues all the while in B; but if A starts a hare in the ground of B, and hunts it into the ground of C, and kills it there, the property has been held to be in A, the hunter, although he is liable to actions of trespass on the lands both of B and C(s). Where rabbits were snared and killed in Lord Exeter's land by poachers, and were sold by them to a dealer in game, it was held that the rabbits were the property of Lord Exeter, on whose land they were started and killed, and not the property of the dealer in game(t). And where rabbits are bred in a warren, the owner of the warren has a right of property in the rabbits so long as they remain on his land, but as soon as they leave his land his right of property in them is gone(u). Where the Bishop of London granted to the defendant a lease of land for a term of years, excepting the trees and the herons and shovellers making their nests in the trees, and the defendant, during the lease, took some of the herons, and the bishop brought an action of trespass against him, it was held that he was entitled to recover the value of the herons; for although they were fera naturæ, he had an interest in them by reason of the trees in which they built(x). 487 Title of the fisherman to the fish he harpoons or nets.-If a whale has been struck by a harpooner, the whale, so long as the harpoon remains in the fish, and the line continues attached to it, and also continues in the power or management of the striker, is a fast fish, though during that time it is struck by a harpooner of another ship; and if the whale afterwards breaks from the first harpoon, but continues fast (r) Rigg v. Lonsdale, 1 'H. & N. 923, affirming Lonsdale v. Rigg, 11 Exch. 654; 25 Law J., Exch. 81. Otherwise where the wild bird has been wholly or partially tamed. Amory v. Flyn, 10 Johns. 102. (8) Holt, C.J., Sutton v. Moody, 1 Ld. Raym. 250. Churchward v. Studdy, 14 East, 249. But in order to vest the title in the hunter the animal pursued must be actually in his control at the time of the taking. Butler v. Newkirk, 20 Johns. 75. The mere fact of pursuit with the probability of immediate capture, will not vest the title in the hunter as against a third party who kills and carries away the animal pursued. Pierson v. Post, 3 Caines, 175. A swarm of wild bees belongs to the person who first hives them; but if they fly from the hive of the owner to the lands of another, the former retains a qualified property in them so long as he can keep them in view, and possesses the power to pursue and identify them. Goff v. Kilto, 15 Wend. 550. Until bees have been hived and reclaimed they belong to the owner of the lands upon which they are found. Gillet v. Mason, 7 Johns. 16. Ferguson v. Miller, 1 Cow. 243. (t) Blades v. Higgs, 12 C. B., N. S. 501; 31 Law J., C. P. 151; 32 ib. 182; 34 ib. 286 (Dom. Proc.). (u) Bro. Abr. Property, pl. 4. Hadesden v. Gryssell, ante, p. 131. (z) Bishop of London's case, 14 Hen. 8, f. 1. See Commonwealth v. Chace, 9 Pick. 15 to the second, the second harpoon is called a friendly harpoon, and the fish is the property, of the first striker, and of him alone. But if the first harpoon or line breaks, or the line attached to the harpoon is not in the power of the striker, the fish is a loose fish, and wil! become the property of any other person who strikes and obtains it(y). But although the harpoon comes out of the fish, or is detached from the line, yet if the whale is so entangled in the rope as to give the first strikers the same power over it as if the harpoon was fixed, the fish will still continue a fast fish, and be the property of the first strikers(2); and if the fish is unlawfully liberated by the wrongful interference of a third party, who afterwards harpoons it and secures it, it will, nevertheless, be the property of the first strikers(a). But if the interference of such third party takes place before the fisherman has got the fish into his power, or under his dominion and control, there can be no right of property in or title to, the fish(b). Thus, where the plaintiff, whilst fishing for pilchards, had nearly encompassed a vast quantity of fish with a net, and would have captured the whole of them but for the interference of the defendant, who came with boats and sailors, and drove the fish into his own nets and captured them, it was held that the plaintiff could set up no title to the fish, as he never had them under his dominion and control, but ought to have sued the defendant for interfering with his nets, and unjustifiably preventing the plaintiff from exercising his occupation and calling of a fisherman, and catching the fish(c). 488 Title to chattels by gift.-If a verbal gift has been made of a piece of plate, or other valuable chattel, to a person to whom it has been delivered to be kept, the verbal gift, unaccompanied by any transfer of possession, cannot, it has been held, transfer any property in the chattel to the donee. There must be either an actual manual delivery, if the chattel is capable of manual occupation and delivery, or a constructive delivery, if the article is bulky and incapable of manual transfer(cc); or there must be a deed of gift under seal, in order to (y) Littledale v. Scaith, 1 Taunt. 243, note (a). Aberdeen Arctic Co. v. Sutter, 6 Law T. R., N. S. 229; 10 W. R. 516, H. L. (z) Hogarth v. Jackson, M. & M. 58. (a) Skinner v. Chapman, M. & M. 59, n. (b) Erle, J., Stevens v. Jeacocke, 11 Q. B. 741. (c) Young v. Hichens, 6 Q. B. 606. (cc) Carleton v. Lovejoy, 54 Me. 445. Texas, 355. Casswell v. Ware, 30 Ga. Appeal, 2 Grant's cases (Penn.), 157. Abbott, 32 Miss. 343. Ives v. Owens, 28 Ala. 641. Noble v. Smith, 2 Johns. 52. Cook v. Husted, 12 Johns. 188. Huntington v. Gilmore, 14 Barb. 243. See the Sea Fisheries Act, 1868, 31 & 32 Vict. c. 45. Arden, 10 Johns. 293. Mechling's Wheatley v. Grangiac v. Hunter v. Hunter, 19 Barb. 631. Woodruff v. Cook, 25 Barb. 505. |