tain amount; and that amount is made no greater nor less by the fact that the act was done without any malicious intent. The right of the plaintiff's to recover damages, or the amount of the damages to which they may be entitled, is not affected by the fact that the trespass was not wilful in its character. The ruling of the Court upon this question was therefore erroneous. . . 2. The Court also gave the following instruction, which the appellants assign as error: "If the jury believe, from the testimony, that defendants entered upon plaintiffs' ground in good faith, believing it to be their own ground, and were misled into so doing by the acts or declarations of plaintiffs, then if the plaintiffs recover at all, they can only recover the net sums taken from plaintiffs' ground, over and above the expense of extracting it." The plaintiffs claim that the rule of damages in such cases is the value of the property after it is separated from the freehold and becomes a chattel, or the value of the gold after it is extracted from the earth. . . . In Wood v. Morewood (cited in 3 Queen's Bench, 440) it was held by PARKE, Baron, at Nisi Prius, that if there was fraud or negligence on the part of the defendant, they might give as damages, under the count in trover, the value of the coals at the time they first became chattels, on the principle laid down in Martin v. Porter (8 M. & W. 352); but if they thought that the defendant was not guilty of fraud or negligence, but acted fairly and honestly, in the full belief that he had a right to do what he did, they might give the fair value of the coal as if the coal field had been purchased from the plaintiff; and the jury adopted the latter estimate. . . . It will be noticed that the rule of damages in such cases depends, to some extent, upon the form of the action; whether the action is for an injury to the land itself, or for the conversion of a chattel which has been severed from the land. The complaint in this case alleges that the defendants, at divers times, wrongfully entered upon a portion of plaintiff's mining claim, and extracted the gold and gold-bearing earth from a portion thereof, which gold and gold-bearing earth they wrongfully carried away and converted to their own use; and the value of the gold thus carried away is alleged to have been two thousand dollars. No demand of the possession of the gold after it was separated from the earth appears to have been made upon the defendants, and the gravamen of the action appears to be the injury done to the land itself by the acts of the defendants. The proper rule for damages, in a case like the present, is the value of the gold-bearing earth at the time it was separated from the surrounding soil and became a chattel. This seems to be a just and proper rule, and one established by the decisions upon this question. In estimating these damages, the expense of extracting the gold and separating it from the earth, after it is first moved from its original location, is to be deducted from the value of the gold taken out of the mining ground of the plaintiffs. The instruction of the Court upon this point is very nearly correct, but it is proper that the rule should be accurately stated to the jury. The difference in the amount of damages may or may not be great, but we have no means of determining whether it is large or small. The judgment is reversed and the cause remanded. 486. HOBART v. HAGGET SUPREME JUDICIAL COURT OF MAINE. 1835 12 Me. 67 TRESPASS for the alleged taking and converting to his own use by the defendant, of an ox, the property of the plaintiff. The general issue was pleaded and joined. The defendant proved that he met the plaintiff in the street, and paid him $25.50 for an ox, which the plaintiff directed him to go and take. That he went and took an ox out of the plaintiff's inclosure, supposing it to be the one he had so purchased; and produced much other evidence, tending to show that the ox taken was the one he had bargained for. The plaintiff introduced evidence to show that there had been a mistake and misunderstanding between himself and the defendant; and that the ox, which he supposed he had sold, was another ox of much less value; and that he never supposed that the defendant considered himself as having purchased the ox which he had taken, until he, the plaintiff, returned home and found the ox in question had been taken instead of the other. WHITMAN, C. J., who tried the cause in the Common Pleas, instructed the jury that, if they were satisfied there had been an innocent mistake between the parties, and that the defendant had supposed he had purchased the ox in question, when in fact the plaintiff supposed he was not selling that ox, but another, they would find for the plaintiff. The jury, thereupon, returned their verdict in the following form, viz.: "The jury find that the defendant did commit the trespass alleged against him." . . . To this ruling and direction of the Court, the defendant took exceptions, and thereupon brought the case up to this Court. Daveis, for the defendant, contended that trespass would not lie upon these facts. This remedy implies a degree of wrong. And if the maxim "damnum absque injuria" will apply anywhere, it is in such a case as this. . . . Where the act complained of is involuntary and without fault, trespass will not lie. . . . Fessenden & Deblois were of counsel for the plaintiffs. . . PARRIS, J. . . . The jury having found for the plaintiff have virtually found that he did not sell the ox in controversy, and the question is raised whether the defendant is liable in trespass for having taken it by mistake. It is contended that where the act complained of is involuntary and without fault, trespass will not lie, and sundry authorities have been referred to in support of that position. But the act complained of in this act was not involuntary. The taking the plaintiff's ox was the deliberate and voluntary act of the defendant. He might not have intended to commit a trespass in so doing. Neither does the officer, when on a precept against A., he takes by mistake the property of B., intend to commit a trespass; nor does he intend to become a trespasser, who, believing that he is cutting timber on his own land, by mistaking the line of division cuts on his neighbor's land; and yet, in both cases, the law holds them as trespassers. The case of Higginson v. York, 5 Mass. 341, was still stronger than either of those above supposed. In that case one Kenniston hired the defendant to take a cargo of wood from Burntcoat Island to Boston. Kenniston went with the defendant to the island, where the latter took the wood on board the vessel and transported it to Boston, and accounted for it to Kenniston. It turned out on trial, that Phinney had cut this wood on the plaintiff's land without right or authority, and sold it to Kenniston. York, the defendant, was held liable to the plaintiff for the value of the wood in an action of trespass, although it was argued that he was ignorant of the original trespass committed by Phinney. A mistake will not ex cuse a trespass. Though the injury has proceeded from mistake, the action lies, for there is some fault from the neglect and want of proper care, and it must have been done voluntarily. Basely v. Clarkson, 3 Lev. 37 [ante, No. 483]. Nor is the intent or design of the wrongdoer the criterion as to the form of remedy, for there are many cases in the books where the injury being direct and immediate, trespass has beer holden to lie though the injury were not intentional, as in Guille v. Swan, 19 Johns. 381 [ante, No. 453]. . . . The exceptions are overruled and there must be Judgment on the verdict. 487. HAMILTON v. HUNT SUPREME COURT OF ILLINOIS. 1853 14 Ill. 472 [Printed ante, as No. 396.] 488. MONK v. GRAHAM COMMON PLEAS. 1721 8 Mod. 9 Ar Nisi Prius in the Common Pleas. The case was thus: one Hackett bought stock to the value of £750, in the third subscription of the South-Sea company, and received £50 per annum for it, and after wards sold it, which by several mesne conveyances came to the now plaintiff, Mrs. Monk, who purchased it for £1000; and she, living in the country, entrusted one Rosse (who was an officer of the Exchequer) with the minutes [of the corporate books], and an order to receive this £50 per annum for her use, the said Rosse being then a man of credit, and discounting for at least £30,000 per annum of the revenue. Afterwards, Rosse pretending he had a power to sell the said stock, made an agreement in writing with the defendant Graham to sell it to him for £994, and told him that the plaintiff would sign the transfer. But he got another woman to personate the plaintiff, and to sign the transfer; and at the next opening of the books of the company he got the same transferred to the defendant, and made affidavit of the sale, and got it entered in the said books, this being required by Act of Parliament to every transfer, and then he withdrew himself out of the kingdom, so that he could not be found. The plaintiff, hearing that Rosse was withdrawn, came to London, and demanded the stock of the defendant, who told her that he had bought it of Rosse, and had got the minutes, the transfer, and the affidavit, which were all the conveyance the law could give, and believed that if she had any title, she had nothing to shew to make it appear; and therefore she came too late to make any demand on him. Afterwards the defendant (though forbid by the plaintiff) sold this stock for £1090 to T. S., who sold it again to R. W. for £1109, and then the plaintiff brought an action of trover against the defendant. And, notwithstanding her folly in trusting Rosse with the minutes (which the counsel for the defendant did much rely on), the Chief Justice, Sir Peter KING, directed the jury to find for the plaintiff, which they did, and gave her no more than £750 damages. 489. SWIM v. WILSON SUPREME COURT OF CALIFORNIA. 1891 90 Cal. 126, 27 Pac. 33 APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial. The facts are stated in the opinion of the Court. Wilson & Wilson, for appellant. A commission stock-broker who, in the regular course of his business, and in good faith, receives and sells stolen stock, and pays over the proceeds of the sale to the felon, without notice that the stock was stolen, is not liable to the true owner as for a conversion. (Rogers v. Huie, 2 Cal. 571; 56 Am. Dec. 363. See Greenway v. Fisher, 1 Car. & P. 190.) Both the plaintiff and the defendant were innocent parties, but if one of them must suffer, then he who puts it in the power of the wrongdoer to do the wrong must be that sufferer. (Civ. Code, § 3543.) . . . Tilden & Tilden, for respondent. A stock-broker who sells and transfers stolen stock cannot escape liability by paying the proceeds of such sale to the thief. . . . DEHAVEN, J. The plaintiff was the owner of one hundred shares of a mining corporation, issued to one H. B. Parsons, trustee, and properly indorsed by him. This stock was stolen from plaintiff by an employee in his office, and delivered for sale to the defendant, who was engaged in the business of buying and selling stocks on commission. At the time of placing the stock in defendant's possession, the thief represented himself as its owner, and the defendant, relying upon this representation, in good faith, and without any notice that the stock was stolen, sold the same in the usual course of business, and subsequently, still without any notice that the person for whom he had acted in making the sale was not the true owner, paid over to him the net proceeds of the sale. Thereafter the plaintiff brought this action to recover the value of said stock, alleging that the defendant had converted the same to his own use, and the facts as above stated appearing, the court in which the action was tried gave judgment against defendant for such value, and from this judgment, and an order refusing him a new trial, the defendant appeals. It is clear that the defendant's principal did not, by stealing plaintiff's property, acquire any legal right to sell it, and it is equally clear that the defendant, acting for him, and as his agent, did not have any greater right, and his act was therefore wholly unauthorized, and in law was a conversion of plaintiff's property. "It is no defence to an action of trover that the defendant acted as the agent of another. If the principal is a wrongdoer, the agent is a wrongdoer also. A person is guilty of a conversion who sells the property of another without authority from the owner, notwithstanding he acts under the authority of one claiming to be the owner, and is ignorant of such person's want of title." (Kimball v. Billings, 55 Me. 147; 92 Am. Dec. 581; Coles v. Clark, 3 Cush. 399; Koch v. Branch, 44 Mo. 542; 100 Am. Dec. 324.) In Stephens v. Elwell, 4 Maule & S. 259, this principle was applied where an innocent clerk received goods from an agent of his employer, and forwarded them to such employer abroad, and in rendering his decision on the case presented, Lord ELLENBOROUGH uses this language: "The only question is, whether this is a conversion in the clerk, which undoubtedly was so in the master. The clerk acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master; but, nevertheless, his acts may amount to a conversion; for a person is guilty of conversion who intermeddles with my property, and disposes of it, and it is no answer that he acted under the authority of another who had himself no authority to dispose of it." To hold the defendant liable, under the circumstances disclosed here, may seem upon first impression to be a hardship upon him. But it is a matter of every-day experience that one cannot always be perfectly |