nor his representatives nor his heirs can control the conduct of the latter, or take the funds from his custody. Although the bond is joint, yet in equity each is treated merely as surety for the other.52 If the devastavit was committed by one only, a declaration in an action on the bond should so allege, and should not allege a joint devastavit.53

In regard to the liability of executors for the acts of each other, there is a distinction between creditors and legatees. Creditors have claims upon the estate which the testator can not defeat or set aside, nor can he give any latitude of discretion whatever to his executors to their prejudice. The law lays down the rule in that respect, by which the executors are to govern themselves. But after his debts are paid out of his estate, the testator can dispose of the residue as he pleases, and prescribe the course that the executors shall pursue in the administration of it. In short his will, so far as it can be discovered, may be considered their guide and protection, and hence, as long as the executors manage the estate in accordance with the ideas and notions which the testator himself entertained, and do nothing but what there is reason to believe he would have approved had he been consulted, they are not responsible to legatees. But if there is no provision in the will to make the difference, there is no distinction between creditors and legatees. 55

When the administration is several, notice to one executor is not notice to the co-executor, so as to render the latter liable for misconduct. Notice of a specialty debt to one is not notice to the other, so as to affect him with a devastavit by subsequently paying a simple contract debt,56 If one takes an assignment of a legacy and then dies, his knowledge is not notice to the other so as to render a subsequent assignment of the same legacy to another who gives notice thereof to the surviving executor void.57 One executor is not personally liable for a misrepresentation made

52. Lenois v. Winn, 4 Dessau, 65; Kuox v. Picket, 4 Dessau, 92.

53. Cameron v. Justices, 1 Geo. 36.

54. Churchill v. Hobson, 1 P. Wms. 241; Brown's Appeal, 1 Dall. 311; Vernee's Estate, 6 Watts, 250; Westley v. Clark, 1 Eden, 357; s. c.. 1 P. Wms. 83, note; Doyle v. Blake, 2 Scho. & L. 229.

55. Johnson v. Johnson, 2 Hill Ch. 277.

56. Hawkins v. Day, Ambl. 162; s. C., 1 Dick. 157. 57. Tinson v. Ramsbottom, 2 Keen. 35.

By agreement between the assignee and the bankrupts, the question is submitted for the opinion of the court, as if on certificate of the register, whether or not the refusal of the assignee to allow them each his gold watch as exempt property, is proper under the circumstances set out in the agreement of facts. John Steele has been allowed, and claims no exemption except this watch, which is described as 66 a plain, old style single-case gold watch, which he has owned for twenty-five years or more, and which would scarcely sell for twentyfive dollars." R. L. Steele has been allowed household furniture worth not more than one hundred dollars. The kind and value of his watch is not stated.

The decisions on this subject are conflicting. I have examined a good many cases on the general subject, and find that the conflict grows out of the diverse views as to whether the particular articles claimed are necessaries or luxuries, useful or only ornamental. It is said in Montague v. Richardson, 24 Conn. 338, that each case must depend upon its own peculiar circunstances. I think this is a correct view, and that in some cases the assignee may and should allow a watch or other time-piece, and in others he should not. These parties were a firm of merchants, and their valuable assets had been surrendered to their creditors. They proposed to engage again in commercial pursuits. It was held in Harrison v. Mitchell, 13 La. Ann. 260, that a desk and iron safe were exempt as necessary implements, to carry on the business of a commercial man.

It would not be doing any great violence to the

meaning of the term "wearing apparel," as used in the bankrupt act, to include in it a gold watch of moderate value. The definition of the word "apparel,” as given by lexicographers, is not confined to clothing; the idea of ornamentation seems to be a rather prominent element in the word, and it is not improper to say that a man "wears a watch or 66 39 wears a cane. The exemption law of Arkansas says that " wearing apparel shall be exempt, except watches." Ark. Dig. 503, 504; James' Bankruptcy, 58; Avery & Hobbs' Bankr. 68. In Peverly v. Sayles, 10 N. H. 356, under a statute which exempted "wearing apparel necessary for immediate use," it was held that an overcoat and a suit of clothes "to go to meeting in " were included. In Ordway v. Wilbur, 16 Me. 263, cloth sent to a tailor to be made into clothes was in that form held to be exempt as 66 apparel."

In Bumpus v. Maynard, 38 Barb. 626, the debtor was in bed-his clothes were on a chair, and his watch on a table. The officer was sued for refusing to levy on them, and it was held that they were exempt as "wearing apparel," notwithstanding they were not on the person. There are some expressions in the case which indicate that possibly the court did not intend to include the watch as "wearing apparel," but it is probable they did. It was decided in Smith v. Rogers, 16 Ga. 479, that a watch was not wearing apparel. But in Mack v. Parks, 8 Gray, 517, it was held, in a case where an officer with an attachment asked the debtor to let him look at his watch, and being permitted tore it from his person by breaking the cord to which it was attached, that the watch was exempt from seizure at common law, because by that law wearing apparel on the person was exempt from levy or distraint. See Freeman on Ex., sec. 232.

We have no State statute in Tennessee, that I can find, exempting wearing apparel, and we depend on this common law principle for immunity in such cases. It is said in Richardson v. Duncan, 2 Heisk. 220, that our exemption laws are to be liberally construed, and this is the universal doctrine of modern times. In that case it was held that an "ass" is included in the statute which exempts "a horse, mule or yoke of oxen;" and in Webb v. Brandon, 4 Heisk. 285, an ox-wagon is included in the description-" one two-horse wagon."

But, whether a watch may be included in the statutory exemption of "wearing apparel" or not, it certainly may be allowed as "other necessaries" under certain circumstances.

The act (Rev. Stat. 5045) says: "There shall be excepted from the operation of the conveyance the necessary household and kitchen furniture, and such other articles and necessaries of the bankrupt as the assignee shall designate and set apart, having reference in the amount to the family, condition, and circumstances of the bankrupt, but altogether not to exceed in value, in any case, the sum of five hundred dollars." Under this clause the late Judge McDonald, of the District of Indiana, held in re Thiell, 4 Biss. 241, that a cheap watch might be included, but the same learned judge held in re Cobb, 1 N. B. R. 414, that mere articles of luxury and ornament, such as watches, pianos,

and the like, should not be allowed. In re Graham, 2 Biss. 449, Hopkins, J., refused to allow watches. Some other cases, cited in the district courts, where the identical question has been considered, have not been accessible for examination; but I presume, as in these cases, they all turn on the question whether or not the particular watch, under the circumstances, was an article of necessity only, or an article of luxurious ornament, in which too much money had been invested to allow it in justice to the creditors. It will be found in all the cases where the law does not exempt the article itself, when value is immaterial, that this question of the reasonable or unreasonable value of it controls the case. The question is to be determined not solely by an appraisement of the particular article, but also by the attendant circumstances, or, as this statute puts it, "having reference in the amount to the family, condition, and circumstances of the bankrupt." The assignee is to determine the question, not by mere arbitrary choice on his part, but by the exercise of a sound legal discretion, subject to the final decision of the court, in the exercise of its supervising power, Re Feely, 3 N. B. R. 66; re Thiell. 4 Biss. 241.

The phrase "other articles and necessaries" is a comprehensive but indefinite expression, aud I have been at pains to discover the principle that is to direct the assignee and the court in the exercise of the discretion. This act is framed like other exemption acts, and, doubtless, with full knowledge of the adjudications of the State courts under similar statutes. In Leavitt v. Metcalf, 2 Vt. 342, the statute exempted “such suitable apparel, bedding, etc., and articles of household furniture as may be necessary for upholding life." It was held that "one brass time-piece" was included, and the court say there were two former decisions exemping the "debtors' only time-pieces," but they are not cited. "It must be admitted," say the court, "that there is a great convenience in a family having some means of keeping time, even in health, but more especially in sickness. We do not pretend that a time-piece is absolutely necessary for subsistence, and also many other articles that have always been considered exempt under this statute. The word 'necessary,' or 'necessaries' has ever been considered, in legal language, to extend to things of convenience and comfort, and to things suitable to the situation of the person in society, and is not confined to things absolutely necessary for mere subsistence." An instructive case is that of Hitchcock v. Holmes, 43 Conn. 528, where it is said we may "pass beyond what is strictly indispensable, and include articles which, to the common understanding, suggest ideas of comfort and convenience. But having done this, the obligation is upon us to exclude all superfluities and articles of luxury and ornament." Certain expensive furniture, including a costly clock, were, therefore, excluded; but a dissenting judge thought the clock should have been allowed. A piano was thought to be a luxury, because "it is not an article of mere comfort, and does not minister to a want universally felt." Dunlap v. Edgerton, 30 Vt. 224. In Garrett v. Patchin, 29 Vt. 248, it was said the term neces

saries means that which is convenient or usefulwhich a man procures for his own personal use, unless extravagant. And see Montague v. Richardson, 24 Conn. 338, which cites McCullough v. Maryland, 4 Wheat. 316; Davlin v. Stone, 4 Cush. 359, which says "the articles may be of that plain and cheap character which, while not indispensable, are to be regarded amongst the necessaries of life, as contradistinguished from luxuries." See, also, Wilson v. Ellis, 1 Denio, 462, and re Thornton, 2 N. B. R. 189. Guided by these humane and liberal principles of construction, I should say that to a commercial man a plain, and not extravagantly costly watch, such as this bankrupt owns, is, in the quaint language of the Vermont statute, necessary for upholding life." The watch of John Steele should be allowed. As to the other I can not determine, its value not being stated. If the parties can not agree, they may have leave to make further application in the matter.

EFFECT OF CONFUSION OF PROPERTY.

JEWETT v. DRINGER.

Conrt of Errors and Appeals of New Jersey, November Term, 1878.

1. IF A PARTY HAVING CHARGE of the property of others, so confounds it with his own that the line of distinction can not be traced, all the inconvenience of the confusion is thrown upon the party who produced it, and it is for him to distinguish his own property or lose it.

2. A JUNK DEALER, BY FRAUDULENT COLLUSION with the employees of a railroad corporation, obtained large quantities of old iron, etc., at much less than the actual weight or value. On delivery it was thrown indiscriminately on other heaps of old iron, etc., belonging to him, so as to be indistinguishable. Held, that he must forfeit the whole mass to the company.

On appeal from a decree of the vice-chancellor, reported in Jewett v. Dringer, 2 Stew. 199.

Mr. R. Wayne Parker and Mr. Cortlandt Parker, for appellant; Mr. T. N. McCarter and Mr. S. Tuttle, for respondents.

DODD, J. delivered the opinion of the court.

Hugh J. Jewett, the complainant in this suit, was appointed, in May, 1875, receiver of the Erie Railway Company, and as such filed his bill of complaint, in April, 1876, as against the defendants, Sigmund Dringer and Henry Bowman. Dringer was a junk dealer in the city of Paterson, and began, in April, 1873, to buy, of the company, old iron or waste material, and continued so to do within a few days before the filling of the bill. The defendant, Bowman, was the company's purchasing agent, and had also the further duty of making sales of the waste materials, of which large quantities were constantly being accumulated at the company's shops in Jersey City, Susquehanna, Elmira, and elsewhere. The bill charged both defendants with fraud in these purchases of Dringer, alleging in particular one transaction in which seventeen hundred tons of old car wheels were obtained for

nineteen dollars per ton, instead of twenty-two dollars per ton and, further, alleging in general that large amounts of material had been delivered to Dringer fraudulently, by the connivance of Bowman, of which no account had been rendered to the company, and for which nothing had been paid. Discovery and account were prayed for from both defendants; also a writ of ne exeat against Bowman and an injunction against Dringer restraining him from disposing of such material. Both writs were issued on the filing of the bill and affidavits. The answer of Dringer was filed April 25th, 1876.

On the 4th of May, 1876, a petition was filed by the receiver, setting forth that discoveries of additional fraudulent transactions had been made since the filing of the bill, specifying the same, and praying that a receiver might be appointed to take possession of the material in Dringer's yards, and, on the 24th of the same month, E. N. Miller was appointed such receiver. Upon arguments afterwards had before the chancellor on the several answers of Bowman and Dringer, the writ of ne exeat was discharged, and the motion on behalf of Dringer to have the injunction and receivership set aside, was denied. Afterwards, and before the taking of the evidence, the bill of complaint was amended, and new answers were filed by the defendant.

The matters of fact asserted by the complainant, and to which the evidence was directed, are included in the general statement, that the defendant, Dringer, obtained from the employees of the company, under the pretense of purchases, large quantities of waste material far beyond the amounts actually purchased, and also that, under the pretence of purchasing one class of material, he possessed himself of another class, superior in quality and value to that accounted for, thus defrauding the company both in the weights and the character of the material obtained; and that Bowman, during the time he was purchasing agent, was the principal one of the company's employees responsible for the fraud.

The material in question consisted of old iron, brass, copper, lead, zinc and white metal. Of some of these there were several varieties, differing in solidity and value; such as car-wheels, axles, tires, grate-bars, castings, machinery, boiler-scrap, tanks, ash-pans, etc. A large part of what was obtained by Dringer was denominated wrot scrap, which is also classified under several heads in quality and value. The material said to have been fraudulently obtained by Dringer came almost entirely from the company's shops at Susquehanna, though material purchased by him was sent also from the shops at Jersey City, Elmira and Port Jervis. The goods were sent in the company's cars, loaded and weighed at the shops by the company's employees. The cars are open boxes of nearly uniform size. At Susquehanna the employee who marked in the yard the weight of the car before and after being loaded, took his memorandum thereof to the store-room and entered the weights in the blotter, from which another employee made up the shop-book. Bills of the same as vouchers were then made and sent to the purchaser or con

signee, stating each car by its number, the weight of its contents in pounds, the several kinds of material, the price of each, and the aggregate amount.

The defendant Bowman, during his agency, had no supervision of the weighing or loading, his duty being that of bargaining with the purchaser, and afterwards giving directions for delivery at the shops from which the goods were to be shipped.

From April, 1873, to April, 1876, Dringer, as appears from his books of account, purchased and received from the company material weighing in all 18.810,953 pounds, or about 8,400 gross tons of 2,240 pounds each. The complainant asserts that, besides this amount shown by the defendant's books of account, he received over four millions of pounds, or about two thousand tons, of which no account was rendered, and for which nothing was paid. Before the filing of the bill he had paid the company more than $150,000. His answer admits an existing indebtedness of $35,646.97. The complainant asserts the true balance to be three times the admitted one.

The testimony and exhibits on both sides produced before the vice-chancellor are unusually voluminous, covering in all nearly two thousand two hundred printed pages. Ninety-eight witnesses were examined for the complainant and eightythree witnesses for the defendants. The question of fact to be settled is the question of fraud.

While differing with the vice-chancellor as to the fullness and cogency of the proofs against Dringer, I agree with him in thinking that, as against the defendant Bowman, the allegations of the complainant inculpating him with his co-defendant, have not been maintained, and that, as to him, the bill should be dismissed. A sale to Dringer of 1,700 tons, the transaction specially set out and charged to be fraudulent in the original bill, is not proved to be so by the evidence, which, in its bearing upon him, does not call for review. Whatever criticisms it may suggest, it does not warrant the adjudication of intentional wrong.

As to Dringer, the case is one of fraudulent pro curing and intermixture of the company's goods with his own. The goods thus procured and intermingled were of different kinds and values, and cannot be so distinguished as to enable those of one owner to be separated from those of the other. The rule applicable to the case is well settled by authority and in accordance with natural justice.

In Lupton v. White, 15 Ves. 432, Lord Eldon states the old law to be, that if one man mixes his corn or flour with that of another, and they were of equal value, the latter must have the given quantity; but if articles of different value are mixed. producing a third value, the aggregate of both, and, through the fault of the person mixing them, the other party cannot tell what was the original value of his property, he must have the whole. The observations of Sir William Blackstone are cited in the note pointing out the distinction between the civil law and our own law upon this point; the civil law, though giving the

aggregate to the party who did not interfere in the mixture, allowed the other a satisfaction for his losses. "But our law," says Blackstone, "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 consent." In Hart v. Ten Eyck, 5 Johns. Ch. 108, it is ruled that, if a party having charge of the property of others so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produced it, and it is for him to distinguish his own property or lose it. If it be a case of damages, damages are given to the utmost value that the article will bear. The same doctrine is expressed and applied in Providence Rubber Co. v. Goodyear's Ex'r, 9 Wall. 988; The Idaho, 3 Otto 586; Wooley v. Campbell, S Vr. 169. In the last-cited case the language of Justice Depue is, that the doctrine that one mixing his goods with those of another, so that a separation is impossible, loses his property, is a doctrine that is adopted to prevent fraud. It is never resorted to except in favor of an innocent party as against a wrong-doer.

In the present case, it is claimed, and may prove to be true, that the whole indebtedness from Dringer to the company, including the $35,646.97 admitted to exist, is greater than the value of the goods in the receiver's possession. Whether this be so or not, the complainant is entitled to have the whole indebtedness ascertained as nearly as practicable, and a decree taken for the amount. For this purpose there should be a reference to a master. The receiver should be empowered to make sale of the goods and apply the proceeds to the debt admitted to be due, and the balance, if any, to the additional indebtedness that may, upon the accounting, be found to exist. The difficulties in the way of arriving at satisfactorily definite, or at any other than proximate and probable, results, as to the extent of the fraudulent weights, and still more as to the values of the materials fraudulently procured, are indeed great, and cannot, perhaps, be overcome; but they present no bar to the accounting and decree. "When," said Lord Brougham, in Docker v. Somes, 2 Myl. & K. 674, "did a court of justice, whether administered according to the rules of equity or law, ever listen to a wrong-doer's argument, to stay the arm of justice, grounded on the steps he himself had successfully taken to prevent his iniquity from being traced? Rather let me ask, when did any wrongdoer ever yet possess the hardihood to plead, in aid of his escape from justice, the extreme difficulties he had contrived to throw in the way of pursuit and detection, saying, you had better not make the attempt, for you will find I have made the search very troublesome? The answer is, the court will try.

In the light of the facts in this case, and of the legal and equitable principles expressed by the authorities cited, the injunction and receivership, directed by the chancellor in the early stages of this suit, are seen to have been the appropriate and efficient methods of relief. The consequences

to the defendant of the abrupt breaking up of his business and the taking possession of his goods by the court, destructive as they may have been of his seemingly great and rapid prosperity, are consequences of which he cannot be heard to complain. They were the legitimate end of his own dishonest practices, long-continued and systematic, by which the company and its receiver were defrauded of their property, their employees corrupted, involved in criminal guilt and made liable to criminal prosecution.

The decree below, dismissing the bill as to Dringer, should be reversed, with costs, and a decree made in accordance with the foregoing views.

DECREE UNANIMOUSLY REVERSED.

NOTE. To work a forfeiture of the whole mass, where one has confused his own goods with those of other persons, two things are requisite, (1.) that the confusion be made fraudulently, and (2.) that after such confusion the articles be incapable of identification or apportionment.

I. No forfeiture is caused by an involuntary mixture or accession.

If A turn his sheep among B's, A's creditors can not levy on B's part of the whole flock. Kingsbury v. Pond, 3 N. H. 513; see Wildey v. Cox. 25 Mich. 116. Nor, by cattle being confounded and driven away with others on the highway. Young v. Vaugh, 1 Houst. 331; Brooks v. Olmstead, 17 Pa. St. 24; Brownell v. Flagler, 5 Hill 282; Van Valkenburgh v. Thayer, 57 Barb. 196; Wellington v. Wentworth, 8 Metc. (Mass.) 548; Brown v. Boyce, 68 Ill. 294. Where cattle trespassing mingled with those of the plaintiff, and communicated to them a dangerous disease: Held, admissible as affecting the damages. Anderson v. Buckton, 1 Str. 192; Barnum v. Van Dusen. 16 Conn. 200; see Jeffrey v. Bigelow, 13 Wend. 518; Cook v. Waring, 2 H. & C. 332: Mullett v. Mason, L. R. 1 C. P. 559. Pelts piled by a debtor on those of another, will not render the latter's pelts liable to the former's creditors. Gillman v. Hill, 36 N. H. 311; or, pork and lard so commingled; Huff. v. Earl, 3 Ind. 306; see Buckley v. Gross, 3 B. & S. 566; or, grain, Starr v. Winegar, 3 Hun, 491; Low v. Martin, 18 Ill. 286; Nowlen v. Colt, 6 Hill, 461; Seymour v. Wyckoff, 10 N. Y. 213; Lewis v. Whittemore, 5 N. H. 366; Wilson v. Nason, 4 Bosw. 155; Samson v. Rose, 65 N. Y. 411; Kauffmann v. Schillinger, 58 Mo. 218; Rahilly v. Wilson, 3 Dill. 420; Sims v. Glazener, 14 Ala. 695; Inglebright v. Hammond, 19 Ohio, 337; Morgan v. Gregg, 46 Barb. 183; Pierce v. O'Keefe, 11 Wis. 180; Adams v. Meyers, 1 Saw. 306; 6 Am. Law Rev. 450; Thompson v. Conover, 1 Vr. 329; 3 Vr. 466; South Australian Ins. Co. v. Randall L. R. 3 C. P. 101; Johnston v. Brown, 37 Iowa, 200; or, oil in tanks: Wilkenson v. Stewart, 85 Pa. St. 255; or, hay; Stock v. Stock, Poph. 38; Robinson v. Holt, 39 N. H. 563; or, earth taken from the plaintiff's land: Riley v. Boston Water Power Co., 11 Cush. 11; see Mather v. Trinity Church, 3 Serg. & R. 509; Muzzey v. Davis, 51 Me, 361; Connecticut R. R. v. Holton, 32 Vt. 43; Northam v. Bowden, 11 Exch. 70; Higgon v. Mortimer, 6 Car. & P. 616; or, if the confusion be caused by the action of a freshet: Moore v. Erie Railway Co., 7 Lans. 42; Sheldon v. Sherman, 42 Barb. 368; 42 N. Y. 484; see Gentry v. Madden, 3 Ark. 127; Washburn v. Gilman, 64 Me. 163; Rogers v. Judel, 5 Vt. 223; Foster v. Juniata Bridge Co., 16 Pa. St. 393; or, by a tempest: Spence v. Union Ins. Co., L. R. 3 C. P. 427; see Barker v. Bates, 13 Pick. 255; Whitwell v. Wells, 24 Pick. 25; Proctor v. Adams, 113 Mass. 376;

Rogers v. Gilinger, 30 Pa. St. 185; Jones v. Moore, 4 Y. & C. 351, 356; but see, also, Buckout v. Swift, 27 Cal. 433; Waterman v. Dutton, 6 Wis. 265, 276; or, by the effect of a fire: Buckley v. Gross, 3 B. & S. 566; see Pope v. Garrard, 39 Ga. 471; Curry v. Schmidt, 54 Mo. 515; or, by any natural cause: State v. Burt, 64 N. C. 619; see Salisbury v. Herchenroder, 106 Mass. 458; Lehigh Bridge Co. v. Lehigh Coal Co., 4 Rawle, 9; Broom's Max. 171.

In Hill v. Robison, 3 Jones (N. C.) 501, ten sacks of salt were bought and paid for by B with the funds of A, and at the same time B bought and paid for five sacks with his own funds: all the sacks were delivered to him unmarked, and, without separating any of them, B delivered all of them to C, his creditor, with instructions to deliver ten of them to A. C. converted them all to his own use.-Held, that A could not maintain trover against C, because he could show title to no specific property. In D'Eyncourt v. Gregory, L. R., 3 Eq. 382, certain tapestries bought by a testator, but hung, after his death, by the tenant in tail, were held not to have become annexed to the reality, but to belong to the executor. In Sharp v. United States, 12 Ct. of Cl. 638, large quantities of cotton be longing to different owners, had been captured by the federal army; part of it was destroyed, part used, and all marks to identify the remainder lost.-Held, that each owner was entitled to his proportion of the remainder.

An owner of trees does not lose his property by a trespasser converting them into timber: Pierrepont v. Barnard, 5 Barb. 364; Final v. Backus, 18 Mich. 218; or, into rails and posts: Snyder v. Vaux, 2 Rawle 423; Millar v. Humphries, 2 A. K. Marsh. 446; or, into railroad ties: Smith v. Gouder, 22 Ga. 353; Lake Shore R. R. v. Hutchins, Sup. Ct. Ohio, Dec. 1877, 6 Cent. L. J. 436; or, into staves: Heard v. James, 49 Miss. 236; or, into fire-wood: Halleck v. Mixer, 16 Cal. 574; Moody v. Whitney, 34 Me. 563; Brewer v. Fleming, 51 Pa. St. 102; or into shingles, Bettts v. Lee, 5 Johns. 348; Chandler v. Edson, 9 Johns. 362; Rice v. Hollenbeck, 19 Barb. 664; see Rockwell v. Saunders, 19 Barb. 473; Bennett v. Thompson, 13 Ired. 146; or, into a flat-boat, Burris v. Johnson, 1 J. J. Marsh. 196; but see Potter v. Mardre, 74 N. C. 36; or, saw-logs into boards: Brown v. Sax, 7 Cow. 95; Baker v. Wheeler, 8 Wend. 505; Davis v. Easley, 13 Ill. 192; see Pierce v. Schenck, 3 Hill 28; Gregory v. Stryker, 2 Denio 628; or, a raft of logs into fire-wood: Eastman v. Harris, 4 La. An. 193; or, wood into coal: Riddle v. Driver, 12 Ala. 590; Curtis v. Groat, 6 Johns. 169; or, corn into whisky: Silsbury v. McCoon, 3 N. Y. 379, 4 Denio, 332; or, hides into leather: Hyde v. Cookson, 21 Barb. 592; see Salmon v. Horwitz, 2 Am. Law Reg. 640; or, hides deposited in vats: Bond v. Ward, 7 Mass. 123; see Brakely v. Tuttle, 3 W. Va. 86; or, leather converted into saddles: Dunn v. Oneal, 1 Sneed, 106. In this case, however, there was a bailment; see Arnot v. K. P. R. R., 19 Kan. 95. Oil taken from wells is not lost to the land owner by a trespasser merely carrying it away in his own barrels: Hail v. Reed, 15 B. Mon. 479.

A trespasser, by building a house on lands of another, loses the house: Ewell on Fixt. 57, et seq.: Waterm. on Tresp. § 681; also, Bonney v. Foss, 62 Me. 248; Mathes v. Dobschutz, 72 Ill. 438; Cannon v. Hare, 1 Tenn. Ch. 22; Poor v. Oakman, 104 Mass. 309; Beers v. St. John, 16 Conn. 322; Waterman v. Dutton, 6 Wis. 265; Rogers v. Woodbury, 15 Piek. 156; Holtzapple v. Phillebaum, 4 Wash. C. C. 356; see McKelway v. Armour, 2 Stock. 115; Wall v. Osborn, 12 Wend. 39; Leland v. Gassett, 17 Vt. 403; Taylor v. Townsend, 8 Mass. 411; Gray v. Oyler, 2 Bush 256; Smith v. Goodwin, 2 Me. 173; Fuller v. Tabor, 39 Me. 519; Russell v. Brown, 63 Me. 203; Humphries v. Newman, 51 Me. 40;