It is a well settled principle, that where one wrongfully takes another’s property, and by artificia means, changes it into a different species—as by making wine, oil, bread or whiskey, out of another’s grapes, olives, wheat or corn; it belongs to the new operator or manufacturer—who is only to make a satisfaction to the former owner for the materials which he had so converted. (Silsbury v. McCoon, 6 Hill, 425; Brown v. Sax, 7 Cowen, 95; Baker v. Wheeler, 8 Wend. 505.)
In this case, the defendants offered evidence to show that the taking of Wood’s corn by the plaintiffs, from which the whiskey was manufactured by them, was not only wrongful, but wilful. This evidence was rejected on the ground that the corn, having been converted into a new thing, whiskey, Wood’s title thereto became extinct. It is quite obvious, that unless the law in relation to a title acquired by accession, distinguishes between a wilful wrongdoer and an involuntary one, the evidence was properly rejected. According to the Roman law, where the party who made the accession, did so with knowledge that he was violating another’s rights, he acquired no title, however great the change wrought in the original materials or matter. (Dig. lib. 10, tit. 4, leg. 12, § 3.) In Puffendorf’s Law of Nature and of Nations, (book 4, ch. 7, § 10,) it is laid down that “ in all cases it is to:be inquired whether the person who bestows a shape on another’s matter, doth it with an honest, or with a dishonest, design. For he who acts thus out of a knavish principle, can by no means pretend that the thing belongs to him, rather than to the owner of the matter—though all the former reasons should concur—that is, though the figure should be the most valuable, though the matter should, as it were, be lost and swallowed up in the work, and though he should be in very great want of what he had *339thus compacted. For the greater, part of the two doth not draw to itself the less, barely by its own virtue, or on its own account; but there is required farther, some probable ground and plea in the owner of that part which exceeds, on which he may build his claim. Hence, if a man out of wilful and designed fraud, puts a new shape on my matter, that he may by this means rob me of it, he neither gains any right over the matter by this act, nor can demand of me a reward for his labor, any more than a thief, who digs through my walls, can claim to be paid for his great trouble in making a new door into my house ; or, than one that breaks an imposthume, otherwise incurable, with a blow that he designed for my death ; or than Autolycus could have asked a price for painting the horses which he first stole. And all this doth not proceed from any positive constitutions, but from the very dictate and appointment of natural reason, though nature doth not determine any particular penalty in the case. For to have exercised such a villany gratis, is not properly a punishment: and on the other hand, 'tis most just and reasonable, that I should not be obliged to pay a man wages for endeavoring to do me a mischief.” In Wood’s Institutes of the Civil Law, (p. 92,) the doctrine on this subject is stated thus: “He that made the new species shall be master of the whole, if it cannot be reduced to its first state and condition; as when one shall press wine from your grapes, or build a ship from your timber, you cannot claim the wine or the ship.” “But this determination only takes place in favor of the workman, where the work was designed for his own use, and where he erroneously and by mistake thought the matter was his own. For if it was intended for the rise of any other, it is his upon the same terms for whose xise it was making: and if it is known that the grapes and timber are another's, and yet thereof he proceeds to make his wine or ship, he shall lose his labor and workmanship: the whole shall accrue to the owner, and an action may be maintained against him."
Chancellor Kent says: “ The English law will not allow one man to gain title to the property of another upon the principle *340of accession, if he took the other’s property, wilfully as a trespasser." “ So, (he continues,) the civil law, in order to avoid giving encouragement to trespassers, would not allow a party to acquire a title by accession, founded on his own act, unless he had taken the materials in ignorance of the true owner, and the materials were incapable of being restored to their original form. (2 Kent's Com. 363.)
In Betts v. Lee, (5 John. Rep. 348,) the action was trespass in taking and carrying away a quantity of shingles and stuff for making shingles. It appeared in evidence that the timber of which the shingles were made was cut by Lee on land belonging to one Bowne, for the cutting of which Bowne had sued Lee, that the suit had been discontinued on Lee’s paying $30. Bowne then conveyed the land on which the timber was cut down, together with the shingles, to the plaintiffs, who converted them to their own use. Lee claimed the shingles upon the principle of accession. This court said that the civil law required the thing to be changed into a different species, and to be incapable of being restored to its ancient form, as grapes made into wine, before the original proprietor could lose his title; nor even then, did the other party acquire any title by the accession, unless the materials had been taken away, in ignorance of their being the property of another. In Curtis v. Groat, (6 John. Rep. 168,) the action was trover for 600 bushels of coals. The defendant pleaded that the coals were made on his land, out of his wood, and still remained there ; and this court said that the plaintiff had no right to the coals. The defendant’s timber, by being cut and converted into coals, had indeed, they said, lost its primitive form, but the identity of the original material was here ascertained and admitted. "This case, the court added, comes within the decision of Betts v. Lee; and the principle mentioned in that case, that a wilful trespasser cannot acquire a title to property merely by changing it from one species into another, applies to this case.”
From the best consideration that I have been able to bestow upon this question, I have been led to the conclusion that the common law, equally with the civil law, distinguishes between *341a wilful wrongdoer and an involuntary one, in relation to acquiring a title to property by accession—and that in the former case the wrongdoer cannot acquire title however great the change wrought in the original matter—but must lose his labor and workmanship. The whole, in its new form or shape, accrues to the owner of the original matter. If I am correct in this, it follows that the evidence offered was material and proper, and should have been received. The title of the property not being changed by the wilful acts of the plaintiffs, Wood had an election of remedies for his injury—either to take the whiskey, or bring an action of trover for the conversion of the corn or whiskey. In the latter case, the measure of damages would be the value of the whiskey. (Brown v. Sax, supra.) Although Wood had his election at the time the fi. fa. was delivered to the sheriff, yet a levy and sale of the whiskey on the fi. fa. determined his right to it.
Whether the fact that the whiskey had been so levied on and sold would or would not be received in evidence in mitigation of Wood’s damages, in an action of trover by him against the plaintiffs, is not a question in this case, and is not therefore discussed. I am therefore of opinion that a new trial should be ordered.
New trial denied.