In the two preceding notes, we have given the principal American cases which bear in fact, though not always in name, upon these questions. It will be seen, that it must be difficult to draw distinct and certain rules of law from this adjudication. It may be said, however, that neither the English nor the American law permits a man to claim, by accession, the property of another, if the claimant originally took the property wrongfully, and as a trespasser. (w) 1 But if one honestly receives goods under a contract and with a design to increase their value by his own labor; and after doing this, subjects himself to an action of trover for a wrongful conversion of them, it seems that he is to be allowed for that increase of value. (x) And if a right by accession takes place, when the materials of many persons are inseparably united together into one article, it seems that there is no better rule, than the somewhat loose one, that the ownership of the whole article rests with the party who was the owner of the principal part of the materials. (y) If there be a confusion of goods in of equal value makes the contract operate as a sale, - that such is the legal effect of the contract, and that upon the delivery of the property it vests in the bailee, or vendee. This decision is admitted to be in direct conflict with the case of Seymour v. Brown, 19 Johns. 44, - which last case is said to be overruled. Which of the two cases is the better law I do not deem it necessary to inquire, as I think the case at bar must be controlled by the decisions of our own court. It is analogous to the case of Smith v. Niles, and 1 think in principle cannot be distinguished from it. It may be asked, If the property at the time of the bailment does not pass, when does it vest in the bailee? We answer certainly not until the bailee performs his part of the contract, by returning other sheep of equal goodness. That sufficiently secures to the bailor a return of the property bailed, and affords to the bailee all that he could claim, upon the most liberal construction of the contract. This construction of the contract is most beneficial to the defendant, and carries into effect, we think, the obvious intention of the parties."

(w) This seems to have been a settled principle as long ago as the time of Henry VII. See Year Books, 5 H. 7, 15; and from that period it can be traced downwards. For recent American cases on this point, see Fryatt v. Sullivan Co. 6 Hill (N. Y.), 116; 8. c. 7 Hill (N. Y), 629. See also the case of Silsbury v. McCoon, 6 Hill (N. Y.), 425, 4 Denio, 832, 8 Comet 879.

(x) Hyde v. Cookson, 21 Barb. 92.

(y) Pulcifer v. Page, 82 Me. 404.

1 See Jewett v. Dringer, 8 Stewart, 291, and the reporter's elaborate note.

an article which exists by * combining them extricably, we think the common law asks whether either party wrongfully took the goods of the other and mixed them with his own; for, if so, he has lost his goods, and the whole article belongs to the party whose goods were thus wrongfully taken. (z) 1 But the party thus mingling his goods with those of another does not lose them, if he does this through negligence only, and without ill design. (a)

If the party claiming the benefit of the common-law principle as to confusion of goods, has fraudulently countenanced the act of the person by whom the intermixture was made, the object being to conceal the property of the latter from his creditor, the claim of the former will not be sustained against such creditor. (b)

There may be a confusion of goods made honestly, where the goods of a party are mingled with goods of another party, of the same kind, description, and value. As if A receives ten bushels of corn from B, and, with no wrongful purpose, mingles them with corn of his own, of the same kind. Here, there is a confusion of goods, which, in one sense, is perfect; for it would be impossible to identify a single grain as belonging to either party. But, for all practical purposes, the grain of one party may be as certainly and accurately separated from the grain of the other party, by measuring out ten bushels, as the horse of one might be separated from the horse of the other by leading him out of the stable. We do not know that the precise case has arisen; but we should hold the law to be founded upon the practical aspect of the case; and B would own his ten bushels of the mixture, to be discriminated simply by measuring out; there being, practically, no inextricable confusion of goods. (bb) 2

(z) See cases.

(a) Pratt v. Bryant, 20 Vt. 838.

(b) McDowell v. Rissell, 37 Peon. St. 164.

(bb) Russell v. Carrington, 42 N. Y.

118; Warren v. Milliken, 67 Me. 97, accord with these views. The business done through grain elevators is now very large, and is rapidly increasing; but the law on the subject is hardly yet deter1 Starr v. Winegar, 3 Hun, 491. If a party so confounds another's property in his charge with his own that it cannot be distinguished, all the inconvenience is thrown upon him, he must distinguish or lose it; and this holds equally good in matters of account. Diversey v. Johnson, 93 111. 547.

2 See vol. i. p. * 527, note 2. Sexton v. Graham, 53 la. 181, held, that when grain is by agreement mingled with other grain of a like grade in an elevator, the depositors become tenants in common of the entire mass; and the nature of the transaction is not altered by the fact that the warehouseman is himself a depositor, or that the identity of the entire mass has been changed by continued additions and subtractions, or that the grain is stored in separate bins.

It is not always easy to determine the rights and obligations of the parties when the workman does his work imperfectly, or in a manner different from that desired, or leaves it unfinished. The difficulty is in the application of the principles of law to the facts, rather than in ascertaining those principles. We think they may be stated thus.