delivered the opinion of the Court.
To maintain this action it is incumbent on the plaintiff to prove that he has either a general or special property in the logs mentioned in his declaration. It is admitted that he cut them on lands belonging to the trustees of Dartmouth college, under whom the defendant claims, and that in so doing he was a trespasser. They were then the property of that corporation, and no act of the plaintiff’s could divest the trustees of their property so long as it could be identified, wherever it might be found, or through whatever channel it might have passed. They asserted their claim to this property by prosecuting the plaintiff in the courts of New Hampshire for detaching it from the soil; and inasmuch as the officer, on the original writ in that suit, attached the logs as the property of Loomis, he contends that the trustees and the defendant claiming under them, are estopped to deny that the property was-in him. But we are not aware that the principles of estoppel have ever been, or can properly be applied to this extent; and it is not in accordance with the policy of the law that their application should be extended. There would seem to be no reason why the creditor should be es-topped, that would not operate with equal force against the officer making the attachment. They both may have been under a mistake. The property may have been removed by the trespasser, or so mixed with his own, as to render it difficult to distinguish the one from the other; and yet it would not be doubted but the original ojvner might claim his, whenever it could be designated with proper certainty. Any intermediate attachment of it, as the property of the trespasser, would be operative no farther than as an admission by the plaintiff founded upon erroneous information, and, of course, not binding. It has been repeatedly decided that an officer, who has attached personal property on an original writ, may defend successfully, in an action against him' for not taking the same property on execution, by showing that it was not the property of the judgment debtor. But even if the return of the officer, taken by itself, would amount to an estoppel, the plaintiff cannot avail himself of it here, inasmuch as the whole record of that case is introduced by him*391self; and although, as he contends, it may appear, by the return of the officer, that the logs were attached as Loomis’s property, yet by the judgment and other papers in the case, which will presently be adverted to, it clearly appears that they were not his. Under such circumstances how can there be an estoppel ? If, as the plaintiff contends, it could have been created by the return, it would be enlarged by the judgment.
We are of opinion that the instructions of the Judge in the court below, that the trustees were not estopped from denying that the logs were Loomis’s property, were correct.
The next exception is to the instruction, that the agreement and pleadings filed on the part of the trustees amounted merely to a nolle prosequi, as to the taking and carrying away the logs, and not to a retraxit.
Perhaps it is not very materia] to die decision of this cause whether it is a retraxit or nolle prosequi, although we are inclined to think it technically a retraxit. It related merely to the carrying away the pine trees mentioned in the declaration, and not to “ breaking and entering the close, or cutting down and prostrating them.” The carrying away complained of was between the 1st of January„ and 13th of March, 1830. A nonsuit is a mere neglect and default of the plaintiff to prosecute his suit, and he is not thereby barred from commencing a new action for the same cause. But a retraxit is an open and voluntary renunciation, by the plaintiff of his suit, in court, and by this he ever loses his action. If, as contended, by the plaintiff, it amounted to a retraxit, it was a renunciation of so much of his suit as related to carrying away the pine trnes previous to the 13th of March. But, unless by this the property was changed, it still continued in the trustees, and any further interference with it by Loomis would amount to a new trespass, upon which the retraxit would not operate. Did it so change the property ? As the proceedings then stood, the trustees, in their declaration, had charged Loomis with breaking and entering their close, cutting down and prostrating their trees, and carrying them away.
They had, through the intervention of the law, caused the logs cut from those trees to be taken from his possession and be placed *392where they could be reclaimed, and they afterwards released him from so much only of the trespass as consisted in carrying them away. The attachment appears to have been abandoned. It would be difficult to perceive how these proceedings could operate as a a change of property.
But it is contended by Loomis that the effect of the judgment was to transfer the property to him. A moment’s attention to the facts will settle that point. Loomis was charged with cutting “ five hundred pine timber trees, each of the value of two dollars, and all of the value of one thousand dollars.” By his agreement in the case, dated Sept. 15, 1830, he “admits that alihhe timber alleged to be cut, and the trespasses committed, are on the trustees’ land, and were cut and committed by himand the jury find him guilty in manner and form as the plaintiffs have declared, and assess damages at one dollar, and judgment was rendered for that sum only. From these facts a doubt cannot remain that the judgment was for a sum merely nominal; that the trustees, having regained the possession of their property, and Loomis having admitted their right to hold it, they abandoned so much of their suit as was for the recovery pf the value of the timber, and prosecuted it for the injury sustained by the entering and cutting only.
But the title to the timber is not altered by such a judgment. It is only where the damages recovered include the value of the article for the taking of which the action is brought, that the chattel is transferred by operation of law, and the property-therein vested in the trespasser. That not being the case here, the property in the timber was not transferred by the judgment, but remained in the trustees.
Under this view of the case, we think it immaterial whether the agreement and pleadings amounted to a retraxit, or a nolle prose-qui, as, in either case, the rights of the parties to this suit could not be affected by it.
The next instruction complained of relates to the burden of proof. From the exceptions it appears that the logs cut by Loomis on the college lands were marked by him with his private mark, and deposited in the Dead Diamond river, a tributary stream of the An-*393droscoggin ; and that he at the same time owned a small quantity of logs, which he acquired by purchase, on the Magalloway river, also a tributary stream entering into the Androscoggin, on which he also put the same mark ; and that both parcels wer,e floated down said last mentioned river for upwards of one hundred -miles by the current, without any particular superintendence. At the trial below, plaintiff contended that the burden of proof was on the defendant to show that the logs he took were not those purchased on the Magal-loway by the plaintiff, but that they were those cut on the college lands and floated down the Dead Diamond river. But the judge ruled otherwise, and, as we think, correctly. It is one of the most familiar principles of practice, in courts of common law, and which matured reason and obvious convenience dictate, that the burden of proof rests on him who supports the afSrmative; that he who takes the afSrmative of any proposition shall prove it; for the negative does not admit of the simple and direct proof of which the affirmative is capable. Surely, there is nothing in this case at all calculated to relieve the plaintiff from this obligation. On the contrary, as he had marked the logs cut on the college lands, which were the property of the trustees, with the same marks as those which he owned on the Magalloway, and turned the whole into the Andros-coggin, so that they might go down promiscuously, he had effected what the law terms a confusion of goods; and this having been done wilfully, and without the mutual consent of the owners of both parcels, it is for the party creating the confusion to distinguish his own property satisfactorily, or lose it.
Another objection to the ruling of the judge is that he excluded certain depositions exhibited by the plaintiff relating to his labor, expenses, and improvements on the college lands, where the trespass was committed'. As an offset to the trespass this was clearly inadmissible, and could not have been offered for such purpose. Neither do we perceive that the judge erred in excluding it, if offered to show an inducement operating upon the trustees to abandon the timber to the plaintiff. If there was actually a transfer, proof of that fact would be sufficient without proving the consideration, unless upon attempt to impeach it. If there was no actual transfer by the *394trustees, then does the judgment operate to change the property ? ■ If it did, parol proof was unnecessary; — if it did not, such proof could not make it effectual for that purpose.
Having thus considered all the questions raised by the exceptions, we cannot perceive any material error in the ruling or instructions of the judge at the trial, and consequently the exceptions must be overruled.