The general rule of damages for conversion, is the value of the article at the time of conversion, subject to some exceptions in favor of the rule that the highest value during the time of detention shall be taken to be such value.

Field on Damages, sec. 795 et seq., where the authorities are fully discussed. If the wrong-doer himself were not liable for more than the value at the time of conversion, an innocent purchaser from him would not be.

It was held in Lee v. Matthews, 10 Ala. 682, that an agent who purchased a slave in good faith, of one who had no title, was not liable for the value of her children born before demand by the true owner, and after delivery to his principal. In the case of Whitney v. Beckford, 105 Mass. 267, a factor had bought goods for his principal residing at W., and sent them by mistake to a third person residing at S., who received them in good faith and paid the freight. In estimating damages for the conversion of the goods, it was held that the defendant was entitled to a deduction of the amount of freight paid by him. This distinction between a voluntary and an unintentional wrong runs through all the authorities.

Where coal has been mined beneath another man's land under an honest mistake, the trespasser is only liable for the value of the coal before mining. Hilton v. Woods, L. R., 4 Eq. 440; Morgan v. Powell, 3 Ad. & E. (N. S.) 278; Wood v. Nurenrod,3 Ad. & E. (N.S. )441; Martin v. Porter, 5 Meeson & Welsby, 351; Forsyth v. Wells, 41 Pa. St. 291; where the cases are all reviewed, and the rule laid down that a wrong-doer, through mistake, is only liable for the original value of the property, and not its enhanced value. See, also, Herdic v. Young, 55 Pa. St. 176; Coleman's Appeal, 62 Pa. St. 252; Barton Coal Co. v. Cox, 39 Md. 1.

In the case of Goller v. Felt, 30 Cal. 482, it was held that the damages for removing the gold-bearing earth was the value of the earth and not the gold mined from such earth removed. The same was held of iron ore, in Stockbridge Iron Co. v. Cove Iron Co., 102 Mass. 80, and lead ore, in United States v. Magoon, 3 McLean, 171. In Heard v. James, 49 Miss. 236, it was held that as the property was wilfully taken, the owner could recover its the enhanced value, caused by making timber

into staves, but this is put expressly upon the ground of the animus of the party trespassing, and it was said that the owner took the enhanced value, "not because of any rights in him, but because the law gives this infliction as a terror to offenders. * Yet the punishment must be proportioned in some way to the circumstances of the case."

The Supreme Court of Wisconsin adopts the same rule. In the case of Single v. Schneider, 30 Wis. 570, where logs were wilfully cut from the premises of another, the court says it would be unnecessarily severe upon the defendants that they should lose the value of all their labor. See also 24 Wis. 290. Waymouth v. R. R., 17 Id. 550; Hungerford v. Redford, 29 Id. 345.

Judge Cooley discusses the point very fully in Weatherbee v. Green, 22 Mich. 311, and agrees with the rule that it is only a wilful trespasser that is liable for the enhanced value caused by his labor or expense. This rule, I think, can be regarded as settled, and as a wrong doer, through mistake, cannot be made liable, of course an innocent purchaser from him could not. And the only remaining question is whether this rule should apply to an innocent purchaser from a wilful wrong doer, and whether such purchaser is liable to the same extent as his vendor, or is to be regarded as a wrong-doer through mistake.

L.

As the damages for the enhanced value of chattels act as a punishment upon the wrongdoer, as decided in Heard v. James, 49 Miss. 236 and R. R. v. Hutchins, 17 Am. Reg. 578; I do not think it would be held that an innocent purchaser could be punished for the wrong of his vendor. If a man steals a horse he is liable for both the value of the horse and a punishment for the theft; but although an innocent purchaser would be liable for the horse, he would not be liable to the punishment. It cannot be said that if a person buys an article under the impression that he has a right to do so, he is liable as a wilful wrong-doer when, if he takes it without paying a consideration under the same impression he is only a wrong-doer through mistake.

The only case directly deciding this point is that of R. R. v. Hutchins supra, but the authorities all tend to support the doctrine there laid down, that an innocent purchaser

2. WAIVER. When such party participates in a subsequent trial, although it may have been granted erroneously, he thereby waives his right to complain of such error thereafter.

3. APPEAL-GENERAL TERM.-These principles apply as well to the rulings of an intermediate appellate court (e. g., the general term) erroneously granting a new trial, as to the rulings of the trial court proper.

James S. Garland, for respondent; Marshall & Barclay, for appellant.

LEWIS, P. J., delivered the opinion of the court: This suit was instituted in November, 1872, for an alleged unlawful conversion of personal property. Issues were made up upon petition, answer and reply, and the cause coming on for trial before a jury, the plaintiff, at the close of his testimony took a non-suit, with leave to move to set the same aside. The bill of exceptions states as follows: "The plaintiff, within three days after taking the non-suit aforesaid, filed a motion to set the same aside, and for a new trial, which motion the court thereafter overruled." The motion is not set out, nor does any other entry relating to it appear in the bill of exceptions. The plaintiff appealed to the general term, where the judgment of the special term was reversed. The defendant thereupon appealed to the Court of Appeals, whose action on the case is reported in 1 Mo. App. 520. This court, upon an examination of the statute authorizing appeals from reversals by the general term, found the appeal premature and sent the case back to the circuit court for further proceedings and final judgment.

The defendant having duly saved his exceptions to the action of the general term, refused further to appear in the circuit court. In May, 1877, an ex parte hearing was had in the special term, when plaintiff obtained a judgment, from which the defendant has appealed to this court.

That the action of the general term in reversing the judgment of the special term was erroneous, is not open to question. As an appellate tribunal, it had no authority to review the ruling of the court below, upon a motion which did not appear in the

bill of exceptions, and to which ruling no exception had been saved by the party appealing. This erroneous reversal was in effect the granting of a new trial.

The question now to be determined is, whether the improper granting of a new trial can be assigned for error, on appeal or writ of orror.

In Helm v. Bassett, 9 Mo. 52, SCOTT, J., said: "There is an obvious destinction between granting a new trial and the refusal of one. By granting a new trial the cause is kept open, another opportunity is afforded for an investigation of its merits, and the injury, if any, is that merely of delay; whereas, on the other hand, the refusal of a new trial precludes a party from all redress in the future, and the injury committed is irreparable. The injury resulting from the granting a new trial is like that caused by allowing the continuance of a cause. The law has that degree of confidence in its own administration, that it contemplates that he who is entitled to a verdict in a cause at one time, will obtain it at another; and the contrary idea goes upon the supposition that a trial by jury is a game of chance, and he who is once successful has no assurance that at the next throw of the dice, he may not prove altogether a loser. * * * If a new trial is granted in a cause, and there is a second verdict, and the appellate court is entirely satisfied with it, although it may be of the opinion that the inferior court improperly exercised its discretion in granting a second trial; yet as that act has been the means of doing complete justice between the parties on the merits, why should it be objected to for error? * There is no error complained of in the proceedings of the last trial, but the record of it is only used as a means of correcting an alleged error committed on another occasion, which does not at all affect its justice or its merits, &c." We have copied thus at length, because the language is not merely authoritative, but seems an admirable summary of all that can be said against the admissibility of appellate review of an order granting a new trial. It must be observed, however, that, in that case, the plaintiff, who objected to the new trial, had gone into the second trial as fully as into the first. The parties had again met on an equal footing and again contested all the matters in issue. It is by no means clear that the able reasoning of Judge SCOTT would have been applied, even by himself, to a case like the one before us.

*

In Johnson v. Strader, 3 Mo. 355, and in Wilkins v. Hill, 4 Mo. 86, it was held that the improper granting of a new trial was assignable for error. In Davis v. Davis, 8 Mo. 56, it was declared that if a party wished to avail himself of error committed in granting a new trial, "he should not have made defence in the new trial before the circuit court, but he should, after taking his exceptions, have abandoned the case at that point:" said the court, further; "By going on to a second trial, in the circuit court, he has the choice of two verdicts, if he get a verdict in that court. He may avail himself of the construction given by himself, and also of that given by his adversaries, to choose the more profitable of the two; a species of gamb

* * *

ling not allowed in a court of justice." Here was a foreshadowing of the doctrine afterwards declared by Judge Scott in Helm v. Bassett, while the distinction was clearly drawn between the case of a party who abandons the litigation when a new trial is improperly allowed, and that of him who accepts the issue newly tendered, and takes all the chances in its result. In this case, Judge Napton declined giving any opinion as to the proper course to be pursued by a party under the circumstances stated. Judge Scott, however, appears to have concurred in the opinion, as delivered. Five years after the decision of Helm v. Bassett, in Martin v. Henley, 13 Mo. 312, the plaintiff had acted upon the suggestion of the supreme court in Davis v. Davis, abandoning his case after saving his exceptions to the granting of a new trial. Judge Napton delivered the opinion, reversing the judgment, upon the special ground that the losing party had acted upon the suggestion above mentioned. So far, there is no distinct repudiation of the suggestion in Davis v. Davis. The most that can be said is, that there may possibly have been a lingering doubt of its propriety, but such a doubt was never clearly avowed. Yet more recently, in Gilstrap v. Felts, 50 Mo. 428, the plaintiff having obtained judgment, a motion in arrest was sustained and a new trial granted; and in the second trial the defendant recovered judgment, both parties having appeared and contended, as before. The supreme court held that the arrest of judgment and the granting of a new trial were improper, and done upon no sufficient grounds. Said Bliss, J., delivering the opinion, "But this action of the court, although erroneous, cannot now be taken advantage of. When the judgment was arrested and new trial ordered, the plaintiff should have refused to proceed further, and should have demanded final judgment against him to enable him to bring up the case. He will not be permitted to seek a new judgment, and, if dissatisfied with it, fall back upon the old." Here is a revival of the suggestion in Davis v. Davis, coupled with the doctrine of Helm v. Bassett, as applied to the case of a party who appears and contends at the second trial.

Upon the whole, it would appear that the leaning, if any, of our supreme court is in favor of the rule that, where a new trial is improperly ordered, the party objecting may save his exception and stand upon his rights by refusing further to proceed in the trial court. Having done this, his objections against the order will be heard on appeal or writ of error.

The rule thus stated appears, in our view, to be conformable with justice, and with the spirit of our system of jurisprudence. When, after a just and fair observance of all legal forms and requirements, and a proper administration of the law by court and jury, a party has obtained a judgment, it is his right to enjoy its fruits. If the trial court, by any erroneous action, deprive him of this right, it is the especial business of the appellate court to restore to him what he has lost. Otherwise, there

will be an injury without redress. It will not do to say that mandamus may afford a remedy. For,

upon the theory that he who is entitled to a verdict at one time will obtain it at another, it could not be proper to interfere by mandamus in derogation of the law's confidence in its own admin is tration. Delay in administering justice is an evil to be always avoided. Continuance must be tolerated, not because there is no hardship on the party desiring an immediate trial, but because of the possibility of a greater hardship on the opposite side. Every delay involves a risk of the loss of important testimony by the death of witnesses, or otherwise. There would seem to be a clear distinction between imposing such a risk on one whose rights are yet to be ascertained, and compelling one to take it anew, after he has fairly established his claim to a recovery. The party who excepts to the granting of a new trial, and then abandons his case, stakes all his chances upon the erroneousness of that ruling. If he is in the right, the appellate court should sustain him, both for present justice, and for a precedent against future tampering with verdiets fairly obtained.

The judgment of the circuit court will be reversed, and, as the only means of restoring the parties to the position they occupied before the erroneous ruling of the General Term, judgracnt will be here entered in favor of the defendant, as in case of a non-suit.

All the judges concur.

EFFECT OF REVOCATION OF WILL UPON DEVISE.

COULSON v. HOLMES.

United States Circuit Court. District of Oregon.
Before Hon. W. P. DEADY, District Judge.

1. REVOCATION OF WILL.-A conveyance of property previously devised works a revocation of such devise; and this, where the conveyance is to the devisee accompanied by a trust in favor of the devisor. 2. ALTERATION OF ESTATE.--A will does not take effect upon an after acquired estate, and any altera tion of the estate of the testator in the premises after the devise works a revocation of the will.

3. JUDGMENT OF PROBATE OF WILL.-A court may determine that certain premises are not within the operation of a certain will without questioning the val idity of such will or the legality of the judgment admitting it to probate.

John H. Reed and Sidney Dell, for the complainant; Eugene A. Cronin and John Waldo, for the defendant.

DEADY, J.:

This suit is brought to establish an alleged trust in certain real property situate in Portland, in favor of the complainant, Teresa E. Coulson, nee Holmes, and her two sisters, the defendants, Alice J. Strowbridge and Mary A. Hueston, who, having refused to join in the suit as complainants, are therefore made parties defendant; and for an ac

count of the rents and profits as against the defendant, Byron Z. Holmes; and also to procure an equal partition of the premises between the plaintiff and said defendants, by a sale thereof and a division of the proceeds.

The bill alleges that at and long before March 29, 1870, Thomas J. Holmes, the brother of the plaintiff and the defendants, was the owner of an undivided half of the premises in question, and the defendant, Byron Z., the owner of the other such half; that at the date aforesaid said Thomas J. executed a conveyance of his interest in the property to the plaintiff for the expressed consideration of one dollar, but in fact without any consideration and in trust for himself; that at and before the date of such conveyance the said Thomas J. was threatened with an action for seduction, and being of weak mind and greatly under the influence of the plaintiff, he was induced by the latter to make the same, so as to prevent his property from being taken to satisfy any judgment for damages which might be obtained against him in such action; that the plaintiff accepted said conveyance with a full knowledge and understanding of the purpose with which it was made, but afterwards, and upon various pretences, deferred the reconveyance of said property in pursuance of said trust, with the hope of defrauding the lawful heirs of said Thomas J. of their just rights in the premises the said plaintiff being well aware that said Thomas J. was not likely to live long; that said Thomas J. died on December 27, 1875, leaving as his only heirs at law the plaintiff and defendants; that since the date of said death there has been received and appropriated by the plaintiff, from the rents and profits of said premises, the sum of $600 per month; that said premises are of the value of $30,000, and consist of lot 2 in block 38, and the southwest quarter of block 16, together with a strip 80 feet long by 5 1-2 feet wide off the west end of lots 3 and 4 of said block, upon which there are valuable buildings; that an equal partition of the same among the parties aforesaid can not be made in kind without irreparable injury thereto; and that, since the death of the said Thomas J., the complainant has frequently demanded from the defendant, Byron Z., a conveyance of her interest in the premises, and an account of the rents and profits thereof, but he has always refused, and claims to own the same absolutely.

The defendants, Strowbridge and Hueston, do not answer. The answer of the defendant, Byron Z., admits the making of the conveyance as alleged, but denies that it was made in trust, and denies all the allegations of the bill as to the causes which induced the execution of the same. Admits that since the death of Thomas J. he has received from the property, as rents and profits, about $12,000, and that the rents now amount to the sum of $550 per month.

By way of "a further and separate answer," the defendant also alleges that Thomas J., on February 27, 1868, duly made and published his last will and testament, whereby he bequeathed and devised to said defendant all his real and personal property, of whatever nature and kind; that said

Thomas J. died as aforesaid, leaving said will unrevoked; that the conveyance aforesaid was afterwards made by said Thomas J. to prevent the possibility of his intentions, as expressed in said will, from being defeated by the loss or destruction of the same, or any improvident disposition which he might otherwise make of his property prior to his death, and not with any intention to revoke said will; and that the same was duly proven in the proper court about April 16, 1877.

The complainant excepts to so much of the answer as sets up the making and proof of the alleged will for impertinence, upon the ground that the subsequent conveyance of the same premises operated so far as a revocation of the will.

The law of Oregon (sec. 790 Civil Code) following the statute of frauds of Charles II, sec. 6, ch. 3, provides that "a written will can not be revoked or altered otherwise," than by another writing executed by the testator in the same manner, or else by burning, tearing, cancelling, obliterating or destroying the will, with the intent and purpose of revoking the same, by the testator, or in his presence and by his direction.

But notwithstanding this statute, it has always been held that a will may be revoked by implication or inference of law. 4 Kent, 521. Among these implied revocations is any act of the testator which alters the estate or interest held by him in the lands devised at the date of the will; as, for instance, a conveyance of the same or a valid contract to do so. The will takes effect only at the death of the testator. Real property acquired after making the will goes to the heir. If, therefore, the testator is not seized at the time of his death of the same estate or interest in the premises that he was at the time of making the will, the same does not pass by the devise, but goes to the heir. Ballard v. Carter, 5 Pick. 144; Jettie v. Pickard, 4 Or. 298. This is held either upon the ground that the alteration of the estate is evidence of a change of purpose on the part of the testator, or more properly, that it works a revocation of the will by depriving the testator of the estate devised, and thus leaves nothing for the will to operate upon at his death. Walton v. Walton, 7 John. ch. 268; Minuse v. Cox, 5 Id. 450; Herrington v. Budd, 5 Denio, 322; Bosley v. Bosley, 14 How, 395; Ballard v. Carter, 5 Pick. 116; Kean's will, 9 Dana, 25; 4 Kent, 528; 2 Am. L. Cas. 668; 2 Green. Ev. § 686; 8 Bac. Ab. 500.

**

*

*

to

The statute of this state upon the subject of wills (sec. 9) has changed this rule so far as to provide a bond, covenant or agreement that " convey any property devised or bequeathed in any Jast will previously made, shall not be deemed a revocation of such previous devise or bequest," but that the same shall pass to the devisee, subject to said bond, covenant or agreement. A mere agreement, therefore, to convey, no longer works a revocation of a previous devise of the same property, but a conveyance or other act which passes the title, and produces an alteration in the estate of the evisor, is left by the statute to have the same effect upon a prior devise as before its passage. The answer of the defendant, Byron Z., admits