McQuade vs. The Chicago & Northwestern R. Co. of Jenkins, Winkler, Fish & Smith, and for the respondent on that of G. Stevens. TAYLOR, J. It has been held by this court that although the contributory negligence of the plaintiff is an affirmative defense to be made out by the defendant on the trial, such defense is admissible under a general denial, and that this is especially true when the complaint alleges that the injury happened to the plaintiff without any negligence or fault on his part. Jones v. S. & F. du L. R. Co. 42 Wis. 306, 310; Cunningham v. Lyness, 22 Wis. 245, 250; Potter v. C. & N. W. R. Co. 20 Wis. 533. Under these authorities, the answer, setting out affirmatively that the plaintiff's negligence was the cause of or contributed to his injury, was wholly unnec essary after pleading a general denial of all the facts stated in the complaint. If, therefore, the defendant insists upon keeping it on the record as a defense to the action, there would seem to be no reason why the ordinary rules regarding pleadings should not be applied to it by the court; and, under the decision made in Young v. Lynch, 66 Wis. 514, 519, it would seem the court might well direct that it should be made more definite and certain, unless the motion is met by proof that the defendant is unable to make it more definite and certain in the respect mentioned in the motion. But, whether the court was right or wrong in making the order, we are unable to see how the defendant is prejudiced by it. If he does not comply with the order it is stricken from the record, and the defendant has still all the rights upon the trial, under his general denial, that he would have with his special answer remaining on the record. The defendant not showing himself prejudiced in any way by the order appealed from, this court will not reverse the order. Brachman v. Kuehnmuench, 64 Wis. 249. Appeals from orders which do not prejudice the rights of the appellant are not to be encouraged. The order in this Arpin vs. Burch. case does not involve the merits of the action or any part thereof, nor does it come within any of the other provisions of the statute giving appeals from orders under sec. 3069, R. S. By the Court. The appeal is dismissed. ARPIN, Appellant, vs. BURCH, Respondent. March 24-April 12, 1887. (1) Logs and timber: Cutting by mistake: Confusion: Retaking by owner. (2) Conversion: Interest. (3) Limitation of actions: Laches. (4) Parties: Assignment of cause of action. 1. If, after discovering that by mistake he has cut logs upon the land of another, a party mingles such logs with his own and floats them down the river, the owner may retake his logs, or such a quantity out of the mass as will replace his loss, in whatever place or condition they may be at the time of such retaking; and where such owner has peaceably retaken his logs he is not liable to pay to the trespasser the difference between the value of the stumpage and the value of the logs at the time of such retaking. 2. Upon recovery by the plaintiff in an action for the conversion of chattels, interest on their value should be allowed from the time they were taken. 3. A delay for more than six years in bringing a suit for the conversion of logs does not operate as a bar if the defendant was in the meantime a nonresident of the state. 4. If one of the joint owners of chattels verbally tells the other owner that if he will bring an action for the conversion thereof he may have the benefit of it, that is a sufficient assignment of the cause of action to authorize the latter to sue alone. APPEALS from the Circuit Court for Juneau County. This action was commenced in 1882 to recover damages for the wrongful conversion in 1868 and 1869 of pine logs. Arpin vs. Burch. belonging to the plaintiff. The facts are stated in the opinion. For the plaintiff there was a brief by Cate, Jones & Sanborn, and oral argument by Mr. Jones. They contended, inter alia, that the defendant could not, by taking forcible possession of the logs innocently cut upon his land by the plaintiff, deprive the latter of the enhanced value created by his labor. The defendant was entitled only to the value of the stumpage. Single v. Schneider, 30 Wis. 570; Wetherbee v. Green, 22 Mich. 311. G. C. Prentiss and F. Winsor, for the defendant, argued, among other things, that in a tort action, if the plaintiff has been guilty of laches in the prosecution of his claim, interest should be withheld. Redfield v. Ystalyfera Iron Co. 110 U. S. 174; Bann v. Dalzell, 3 Carr. & P. 376; Newell v. Keith's Ex'rs, 11 Vt. 214; Adams Exp. Co. v. Milton, 11 Bush, 49. And where there is a bona fide dispute as to the right to recover, and also as to the amount recoverable, interest should be allowed only from the date of the verdict. Marsh v. Fraser, 37 Wis. 150; Shipman v. State, 44 id. 458. ORTON, J. In this case there are cross-appeals, both parties being dissatisfied with the judgment. The facts are substantially and briefly as follows: In 1868 the plaintiff had afloat in Yellow river a large number of pine logs, intended to be manufactured into lumber near the mouth of said river, and the defendant diverted a large portion of them into the boom belonging to the firm of which he was a member, near the town of Necedah, and converted the same to his own use or to the use of said firm; and it is alleged in the complaint, as another and separate cause of action against the defendant, that in 1869 the defendant obtained possession and converted in a similar way ninetynine other logs of the plaintiff. A part of the logs so di Arpin vs. Burch. verted and converted in 1868 was cut, by a mistake of lines and boundaries, by the plaintiff, upon the lands of the defendant or of his firm. No question is made in respect to the individual ownership or conversion of said logs by the defendant, Burch, or to his individual liability. It was a disputed question of fact as to the number of the logs so diverted in 1868 that were cut on the lands of the defendant, and as to the number which belonged to the plaintiff, and as to the whole number so diverted, upon which there was considerable conflict of evidence. On the question as to whether the defendant diverted any of the ninety-nine logs of the plaintiff in 1869 there was also a conflict of evidence. The referee who tried the case, and the circuit court in acting upon his report, agree that, of the logs so diverted in 1868, 81,250 feet were cut on the land of the defendant and belonged to him, and that the remainder so diverted in that year by the defendant, amounting to 52,539 feet, belonged to the plaintiff, and that the value of said logs at Necedah was $4.75 per thousand feet. Both parties are dissatisfied as to these respective amounts of the logs. We have carefully examined the evidence, and do not think that there is any clear preponderance of the evidence against these findings. It would be profitless to more specially notice the evidence, or to discuss its bearing and effect. The presumption of the correctness of these findings, from the fact that the referee is an able and a careful lawyer and heard the testimony, and that they were confirmed by so able a court, is in itself very strong. The referee found that the defendant so diverted and converted the said ninety-nine logs in 1869. This finding was reversed by the circuit court. We do not think that the evidence that the defendant took possession of said logs, or that they were not a part of the logs taken the year before, if he did take them, was so strong and conclusive as Arpin vs. Burch. to justify this court in reversing the ruling of the circuit court on these questions. It is impossible to reconcile the evidence as to these ninety-nine logs, and the plaintiff was bound to make a reasonably clear case as to them, and it is evident that he has not done so. The other questions raised in the case for the decision of this court are: I. On the part of the plaintiff as appellant, whether he should not have recovered, as part of his damages, the difference between $4.75 per thousand feet for the 81,250 feet of logs at Necedah, and $1.25 per thousand feet for the stumpage of the same when cut, and interest thereon, which values were so found, on the ground that they were so cut by mistake and such amount only is allowed the defendant by the statute, and that he obtained the value of the plaintiff's labor in the cutting, hauling, and driving of the same, which he was not entitled to have. There are two facts which seem to be very clear: (1) That this cutting on the defendant's land was done by mistake; and (2) that the defendant obtained peaceable possession of the logs. It may be properly said from the evidence, also, that the plaintiff knew, soon after the cutting was done, that he had trespassed on the defendant's land, and knew, or ought to have known, and had the best means of knowing, the logs that were so cut on the defendant's land. He should have at once tendered reparation for the same, instead of placing his mark upon the logs as his own, and mingling and confusing the same, beyond the possibility of identification and separation, with his own logs, in floating the whole mass together down the river. The defendant had the right to stop and take possession of them, or such an average number of them as would replace those he had lost. Jenkins v. Steanka, 19 Wis. 126; Mowry v. White, 21 Wis. 417; Root v. Bonnema, 22 Wis. 539; Stearns v. Raymond, 26 Wis. 74; Single v. Barnard, 29 Wis. 463; Willard v. Rice, 45 Am. |