
    John A. Heard et. al. v. Jacob James.
    1. Replevin — Measure on Dama&es.- — In actions of replevin, damages are deter* mined upon the same principles, as in trespass. They may he punitive or remunerative simply,. according to the presence or absence of malice, or wantonness m the taking.
    2. Same — Same—When Property Taken has been Enhanced in Value by Labor. — , The rule for the measure of damages for the wrongful taking or detention of property is to he determined by the animus of the conversion. If the act was in good faith, upon some supposed right of claim, or error, the measure will be the value of the property at the time it was taken: hut if the taking or conversion be characterized by malice or oppression, damages may be punitive, and in an action for its recovery, no allowance will be made the defendant for any increased value, that may. be bestowed by skill andlabor on the property.
    3. Same — Rule in Trespass — Trover and Replevin_The same rule obtains in trespass, trover, or replevin; in the latter, plaintiff’s right to pursue, whonever property can be identified, is unaffected by any change made in the shape or form.
    Error to the circuit court of Hinds county. Hon. Georse F. Brown, Judge.
    This was an action of replevin brought by James agai nst plaintiffs in error, for the recovery of a large lot of staves, about four thousand in number, or the value of said staves.
    • After the levy of the writ, Heard & Harrell, gave a re-plevin bond, in the penalty of $500, double the value of the staves, as estimated in the retu/n of this sheriff, and the property was thereupon delivered to them1.
    The defendants,, to .the .declaration,, pleaded.the general issue.
    
      On the trial the following evidence in substance was introduced.
    - The plaintiff, James, owned a tract of land in Hinds county, adjoining the lands of a Mrs. Alice Herring. Heard & Harrell, by contract with Mrs. Herrins, had been for some time cutting timber on her land. Heard % Harrell went upon James’ land and cut down eighteen white oak trees; from these the staves levied upon were manufactured. Heard & Harrell hauled the staves, levied on and replevined, two thousand in number, to Byram station, on N. O. J. & G. N. K. B,., where they had them packed in cars, ready for shipment to New Orleans at the time they were seized. Plaintiff never gave any authority to Heard & Harrell, to cut timber on his land, and has never been paid for the timber so cut.
    ■ The number of staves levied on, was four car loads. Of this number Heard & Harrell carried off two car loads without giving any replevin bond for them, and replevied the other two car loads, amounting to two thousand staves, known and classed as “ hogshéad staves.” * * * * *
    New Orleans price currents were introduced, by consent, showing the market price for “extra hogshead” staves, in April and May, 1873, to have been from $15Q.QQ-lo $160.00 per thousand. A mercantile thousand of staves is really twelve hundred.
    
    It was stated by. plaintiff, in his testimony, that the timber was cut in the spring, sajinglast spring, without stating the year or month.
    The affidavit in replevin was made April 5, 1873, and the cause was tried in June, 1873.
    The two thousand staves replevied by Heard & Harrell alone were involved in the trial and proceedings. The return of the sheriff and the replevin bond were introduced by plaintiff. The defendant introduced no evidence.
    The following instructions, in substance, were granted for the plaintiff:
    If the jury believe, from the evidence, that defendants unlawfully detained the staves, as stated in the declaration, which staves were, at the time, the property of James, they should find for plaintiff.
    In assessing damages, the jury should find for the injury done James outside the value of the staves, and in addition, will find the value of the staves.
    The piairdaff excepted, to the action of the court in giving these instructions.
    The fbllo~wmg~instructions, asked by defendants, were refused, to which exception Was also taken at the time; •
    If the jury believe, from the evidence, that defendants, without authority, entered upon plaintifPs land, and cut down his trees, and made said trees into staves, and carried away the staves, and converted them to his own use, such acts constituted a trespass; for which, defendants would be liable in the statutory action of trespass, but on such state of facts, plaintiff cannot recover in this form of action.
    The jury found for the plaintiff, and assessed the value of the property at $250.0.0. Accordingly the court rendered a judgment for the specific two thousand staves, or in default, for the sum of $250.00.
    The defendants thereupon moved for a new trial on the following grounds :
    1. The court erred in granting instructions for plaintiff.
    2. In revising instructions for defendants.
    8. The jury found contrary to the law. "
    4. The jury found contrary to the evidence.
    5> The verdict is excessive.
    6. On affidavit of defendant, as to his accidental absence from court at the trial.
    The following affidavits were read in support of the motion i
    Affidavit of Heard — He states that he left the State of Louisiana, where he had been on important business, in ample time, as he supposed, to-reach Jackson for the trial; explains in dei ail the obstacles that delayed him on the route j states that he did not reach Jackson until a day or two after the trial of the case ; also states what facts he would testify to, on the issue in the case, viz.; That he was cutting timber on Mrs. Herrin’s land, by her permission, when plaintiff came to him and suggested that his hands had crossed the line, and were cutting on his land ; thereupon plaintiff and Heard agreed that the cutting should go on, and that afterwards the line should be run, and if any of plaintiff’s trees were cut, then Heard was to pay him for the trees actually cut, at the rate Heard was to pay other parties for similar trees.
    The affidavit is in all respects fall and explicit.
    
    Plaintiff introduced the following affidavits in rebuttal:
    Affidavit of Jacob James, plaintiff^Henied that he ever had any conversation or agreement of the kind with Heard, and re-asserts that the trees were cut without any authority or license whatever.
    Shall Yerger states that he saw Harrell in Jackson a few days after the trial, when he stated to affiant, that he was in Jackson on the day when the case was tried. '
    George Donnell stated that he saw Harrell in Jackson on the day when the case was tried.
    Chas. Clark stated that he saw John A. Heard in Raymond within three days preceding the lOth day of June.
    The court overruled the motion for a new trial, and thereupon the defendants obtained a writ of error.
    
      Johnston (É Johnston, for plaintiffs in error :
    The first question we desire to present to the court, is contained in the second instruction granted for the plaintiff.
    The action was replevin, and the defendants, Heard & Harrell, had given a property ci replevin bond in the case.
    The court instructed the jury, for plaintiff, that the measure of damages, vas the value of the staves levied on, and also, all injury done the defendant “ outside ’’ of the value of the staves.
    The jury found the value of the staves to be $250.00, estimating the price by the New Orleans quotations, $150.00 to $160.00 per thousand, counting according to the mercantile custom, twelve hundred staves to the -thousand, and gave the defendant no damages outside the value of the staves.
    We complain of this instruction, as not giving to the jury the true rule as to the measure of damages, and we insist that the true rule, was the value of the staves, less the labor and expense, of manufacturing.the timber into staves.
    In an ordinary action of trespass, not for the specific property but for damages, the measure of damages would be the value of the timber when it is first cut down and becomes a chattel. Bennett v. Thompson, 13 Ired., 146; Smith v. Gonder, 22 Ga., 353.
    In general, the proper rule is the value of the trees as they stood on the land before the trespass. Whitbeck v. N. Y. Central R. R. Co., 36 Barb., 644.
    ■ It is clear, therefore, that in actions which in form are for the recovery of damages viz.: Ordinary actions of trespass, the true rule is as announced by the authorities cited.
    It has been held in an action of trover for coal .dug out of a mine, that the measure of damages was the value of the coal before it was mined. Forsythe v. Wells, 41 Penn, 291.
    So also in trover for petroleum, the recovery is limited to its value when taken from the freehold, exclusive of the labor of obtaining it. ICerr v. Peterson, Penn. State R., p. 357.
    In trover for conversion of timber, the measure of damages is its value when first separated from the freehold. Moody v. Whitney, 38 Maine, p. 174. And it is further denlonstrated by the cases last cited, that this rule obtains in all cases where the recovery is for damages, and not a judgment for the specific property. It is admitted, that a wrong done cannot change the title, by changing the form of another man’s property; and that, in certain forms of action, the owner may follow and reclaim it.
    It remains, therefore, to inquire whether the measure of damages, as above stated by us, is changed by the form of action in the present case. We contend that it is not. And in this connection we call the attention of the court, to the fact, that the trespass was not an aggravated one; it was accompanied by no features of malice or wantonness. The defendants owned land adjoining plaintiff’s freehold, and had their hands cutting on their own land somewhere near the line; the hands, in cutting out a large quantity of white oak trees, crossed the line and felled and carried away eighteen white oak trees on plaintiff’s land. These trees were manufactured into two thousand staves. There was no claim for punitive damages, or special damage to the land but the only claim was for the value of the timber. And the question was, whether it was for the full value of the staves, or the value of the timber at the time it was severed from the freehold? We are thus precise in stating the facts upon which the question rests, because many of the authorities hold that special and direct damages beyond the value of the timber, may be awarded, and there are many cases where wantonness, malice, or greatly aggravated circumstances existed in which exemplary damages were awarded. We therefore state that in this case the only claim was for the actual damages, and the only controversy was as to the rule that should govern in ascertaining the actual damages. The principle, if an arbitrary rule may be so called, vhich fixes the measure of damages, is the kind of judgment which is rendered in the particular action. If it is a judgment, as in detinue, it would necessarily be for the specific property; if, however, the form of action gives a judgment for damages, or the action so changes during its progress as to result in a judgment for damages, then the measure of damages must be as first stated by us.
    This action, as it stood at the time of the judgment, was one which required an application of the rule as to damages insisted upon by us. The statute (Code 1871, chap. 16,) providing for the action of replevin, requires the property to be restored to the defendant upon his executing a bond. Sections 1531 and 1533 directs that when the property remains in the hands of the defendant, if the plaintiff recover, the judgment of the court shall be, that the defendant and his sureties restore the property to the plaintiff or pay him the value to be assessed by Ihejury. Where a defendant appears and gives bond, and the property is restored to him, by what rule is the jury to be governed in assessing the valv,e of the property ? In Herdie v. Young, 55 Pa., this precise question was presented in an action of replevin under a statute similar to ours. The court said that in an action of trespass, the value of the timber less the value of the labor bestowed upon it, or in other words, its value at the time it was severed, was undoubtedly the measure of damages.
    The same rule was held to apply in an action of replevin, where the defendant gave the property bond. “ This result,” say the court, “depends upon himself” (the defendant). If he gives the bond, and there is a verdict for damages, the effect is to transfer the title to the property to defendant. The damages of plaintiff are thus brought to its true standard.
    Such a standard “ is reasonable, and does justice to both parties.” Herdie v. Young, 56 Pa.
    Also in the case of Single v. Schneider, 24 Wis., p. 300, in replevin, where the defendant had retained the property and givdn bond, Herdie v. 'Young was cited with approval, and the same rule announced.
    The absurdity of a rule which would give a man, for eighteen trees, worth, probably, one dollar each, a judgment for damages, for the value of the trees manufactured into 'staves — estimated at $250.00 — -is sufficiently demonstrated by its statement.
    The attention [of the court is respectfully called to the two eases last citéd. They make an application of the ordinary rule to the action of replevin, where the defendant gives bond and retains the property, which is rational and logical; and there, authorities demonstrate that where the defendant gives bond> that the question becomes one of damages in money, and, in effect, the judgment is for damages merely, to be measured by the yalue of the property. Thus, upon analysis, showing that this latter is the identical question in trespass, and should be governed by the same rule. The jury were given an erroneous rule in this case on the question of damages, and this is sufficient for a reversal of the judgment.
    In conclusion, we submit that the court should have-granted a new trial on Heard’s affidavit. His evidence was material, and important, and it was no answer to produce James’ affidavit, in which he denies that he made the agreement stated by Heard. It was Heard’s right to have this teS' timony go to the jury. Vannerson v. Pendleton, 8 S. & M., 452. The counter affidavits do not negative the statement of Heard, that he was unable to reach J ackson in time for the trial.
    We respectfully submit that the judgment of the circuit court should be reversed.
    
      J. A. Brown, for defendant in error:
    Replevin may be brought by the owner of land, for staves made of trees severed from the freehold. Second Morris on Replevin, p. 95, and cases cited: 1 Blackstone’s, Commentaries, book 2, p. 405 marginal, 326 top; Chitty’s Edition, and authorities cited; ib., book 4, p. 233; Title Larceny 4, and authorities cited. Such is the rule, as held by the courts of last resort; in New York, Wheeler v. McFarland, 10 Wend., 322; in New Jersey, 4 2abr., 387 ; in Illinois, 16 Ills., 149; in Pennsylvania, Snyder v. Yaux, 2 Rawls Penn. R., 423-426 ; 5 P. F. Smith, 172 ; in England, Martin v. Porter, 5 Meeson & Welsby 351; and in Mississippi, Harris v. Newman, 5 Howard, 651.
    • In such a case, if the trees were severed and manufactured into staves, by willful trespassers, without the consent of the freeholder, the jury, Li assessing value, should assess the value of tV staves.; and not of the trees. 7 Cowan, 95; •5 Johnson, ; 6 io., 168; 10 ib, 287; 2 Rawl., 426. A trespasser c< a- j.: no right in property from the principle of accession. But the owner.may reclaim it, whateyex._alteration of form it may have undergone. 2 Kent’s Com., 362; 22 Pickering, 561; 31 Miss., 561-2-3. If one fraudulently intermix his property with mine, or add value to my property, by labor, it is incumbent on him to distinguish his own part, by proof at the trial, or I take the whole. Bacon’s Abridgement, Trespass E, 2. No man can foroe himself into the position of creditor to another, nor, by means of a trespass, acquire an offset against the consequence of his trespass. Greenleaf on Evidence, vol. 2, § 107; American Law Review, vol. 7, April, 1873, Recoupment; Barbour on-Set-off, ch. 2. A willful trespasser acquires no claim, lien or property in or upon another’s chattels by expending time, labor, and money on them, against the owner’s will. 7 Cushing, Mass., 435-439; 7 Howard, Miss., 421; 5 Meeson & Welsby, 351.
    An erroneous instruction is no ground for reversal, where the verdict is clearly right on the law, and facts. 44 Miss., 731; ib., 762; ib., 212; ib., 466. Nor will this court reverse the finding of the jury on questions of fact. The opinion of Judge Simrall, in N. O., J. & Gt. N. R. R. Co. v. Aaron Eield, is the last of a train of decisions on this point. The case appears to have been ably argued and well considered. He says: “ It has become the settled practice in this court, and, as it seems to us, accords with reason, and is needful to the practical administration of justice, not to disturb the verdict of the jury, if it can be supported by any fair view of the testimony, which they may have taken and had a right to take.”
   Simeall, J.,

delivered the opinion of the court:

It is not controverted that James, the plaintiff, was owner of the land, and of the trees, which were cut down by-the defendants or their servants, and by their order converted into staves. The severance' of the trees from the freehold, made them personalty; ana working them up into staves, did not prejudice the right of the^owner to pursue them into the new form. Harris v. Newman, 5 How. R. 658. He might waive trespass, and sue in “ trover,” for uH conversion, or he might bring replevin for the staves! Brown v. Sax, 7 Cowen, 95 ; 5 John, 348 ; Wingate v. Smith 20 Me. Rep., 287 ; Harris v. Newman, supra.

About two thousand staves were seized under the writ,, which were worj¡h, in New Orleans, about $300.00; the verdict was for $250.00. The only serious question is, as to the “rule ” of the measure of value. Shall that be determined by the worth of the trees, immediately after they were felled, or by the value of the staves? The principle is of general approval, that damages in the áction of replevin,] rest upon much the same grounds, as in trespass, in proper! cases they may not be confined to mere pecuniary remuuetv ation, but may be punitive, if the taking was tortious accompanied with malice, wantonness or oppression. Barrage v. Nelson, Opinion Book C. p., 374, and cases there cited.

The cases are not agreed when the value of the, thing has been enhanced,-by the labor and skill employed' to adapt the material to some more useful purpose, shall Be deducted and allowance only made for the thing in its original crude state. In this case, should the plaintiff be confined to the valué' of the trees, or may he recover for tue additional value imparted to them when worked, up into hogshead staves?’

The plaintiff has three remedies; /first, trespass; second, trover; and third, replevin. The two latter resting on the fact, that the trees by severance from the freehold, become personalty; and the defendant, by appropriating them, was guilty of a conversion. There is iao conflict in the authorities, that replevin will lie wherever the original material can be traced into the new form. It Uas been difficult to define satisfactorily, the rule to compute the value. The case of Brown v. Sax, 7 Con., 97, is like this: There the taking of the trees was tortious., the boards made out of them were the property of the owner -.h the trees, and by a conversion 'action being trover, the plaintiff, in the opinion of a Kjority of the court, was entitled to the value of the boards; Sutherland, J., dissenting from some of the views of ^the court, suggested some strong considerations, why in all circumstances the rule should not apply. In Martin v. Porter, 5 Mees. & Welb., 351 ; the action was trespass, for digging and taking away coals ; Park B. said “ The plaintiff must be paid their value when they were begun to be taken away, and that without being subject to the expense of getting them,' which was a wrongful act of the defendant. Ab^inger, 0- ¡ B., stated if the plaintiff had demanded the coals, no lien could i have been set up, in respect of the expense of getting them: [he cannot set up his own wrongs.” In Wild. v. Holt, 9 Mees. Welb., & 672; the action being trover, the question was, when the value of the coals was to be estimated, whether the expense of getting them, and the quarterage rent to the owner, should not be deducted; it was ruled in conformity to the former case, that such deduction should not be made. In Smith v. Gouder, 22 Ga. Rep., 354, on the authority of these English cases, it was held, that the cost of making the cross-ties and cutting the tops into wood, ought to be deducted. The\ action wastijespass.

It has been spuch canvassed in the courts, whether the form of the action, as trespass, trover, or replevin, should influence the amount of pecuniary recovery. In the two former, the recovery may be enhanced, above the harm done by the trespass, or the Value of the thing convex'ed according to the circumstances:., In replevin, whe?e the plaintiff gives bend for the property itself, or its value. If the defendant retains the property by giving a bond, the question is embarrassed by the form of the action. | The tendency of the modern cases is to hold, that; if by mistake, or without intentional wrong, trees'are cut and converted into some other forms more valuable, the juivy ought to deduct from the estimation, the value of the tiine, labor and skill bestowed, upon them by the defendant, .But on the other hand, if the defendant has been a wanton or willing trespasser, or if after bis mistake as to the ownership was discovered, hedoésnot act fairly with the^jlaintiff, then the jury may disregard a partial or full estimation of the enhanced value. Such was the principle deduced by Mr. Sedgwick from the decisions.^

“ If (says he) the property had been altered and increased^ in value, it would depend (as to amount of recovery) on the I character of the conversion; if that were willful, the value of/ the articles so increased would be the rule.” “ But if the act/ were bona^de, the rule would be to allow the defendant for I whatever value his labor, had actually .conferred upon the/ property.” Sedgwick on Measure of Damages, 578. Whilst; the authorities do not harmonize on the subject, we think this rule comports with reason and morality. The motive which prompted the act of the defendant, whether bona fide pi actuated by willfulness, and a disregard of the rights of others, should be considered by the jury.

The proof was, that the line between the lands of the plaintiff’s and the land of the adjacent proprietor, upon which the defendants had the right to make staves, was blazed; that defendants were notified that they were cutting upon the plaintiff’s land, they however cut down and used eighteen white oak trees to make the staves; that defendants never paid plaintiff for the timber or the staves, but hauled them to the depot at By ram, for shipment to New Orleans. We think it clear that in this case, the jury -\yould have“been justified, in assessing the value of the staves. The conduct of the defendantswa_s_willi'ul, utterly regardless — efojhe rights of the plaintiff.

The staves were of excellent quality, and worth from $150-to $160 for a commercial thousand, at New Orleans; the verdict was for $250. The jury did not over estimate the value.

The jury did not estimate the value by an erroneous standard. The verdict is right; it is therefore unnecessary to consider the instructions.  