dissenting. — I concur in all the matters expressed in the opinion except as to the value of the sheep. These the majority of the court find to be of the value of two dollars a head for the old sheep, and one dollar and a quarter for the lambs. The court below found that the old sheep were worth three dollars, and the lambs two dollars, per head.
The evidence discloses, as found by the referee, that the defendant forcibly took possession of the band of sheep and lambs, and drove them to Tehama County, California; that he there continued to carry on the business of sheep-*40raising for two years with these sheep and lambs. And ■the referee thinks and finds that the defendant realized a profit of thirty per cent per annum upoh-them, and that afterwards he drove a portion or all of them to Montana and sold them for prices ranging from three dollars and fifty cents to two dollars and twenty cents per head.
-Ih thus driving this band of sheep and lambs without the jurisdiction, and converting them to his own use, the defendant stands in the attitude of a wrong-doer, and comes into court with no equities w’hic'h entitle him to special consideration. On the contrary, equity imposes upon him the imperative duty to give a true account of his unwarrantable stewardship, and confirm its transaction with accurate accounts and vouchers. This he has not done, and failing to furnish an account of profits and vouchers of sales, a court of equity will not screen his delinquency by indulging any favorable presumptions in his behalf.
By his wrongful act the plaintiff was deprived of all opportunity of supervision and control over the band of sheep, and the defendant became thereby his trustee, and bound to a strict liability to account for all profits ahd sales. What profits during this interim he realized, or sales he made, the price, and to whom sold, it is not possible for the plaintiff to know, nor has the defendant kept or furnished any account, or produced any vouchers of such transactions. These are all matters -wholly within the knowledge of the defendant; they are his acts or dealings with this property appropriated by him, and from which the law will not permit him to derive a benefit, to the injury or detriment of the plaintiff.
•It cannot -be disputed but what there is ample evidence in the record to support the finding -of the court as to the value of these sheep and lambs; but oven if the evidence was -evenly balanced, every consideration of equity and *41justice requires that the plaintiff should have the benefit of all presumptions and intendments as against this defendant. Nor is this all. His own testimony is to the effect that he mixed these sheep and lambs with other sheep of his own, and sold the band so mixed at three dollars and fifty cents, two dollars and seventy-five cents, and two dollars and twenty-five cents per head, — a majority of them at two dollars and fifty cents. Which of such sheep ho received three dollars and fifty cents or two dollars and twenty-five cents, whether his own or those he had converted, he has kept no account, nor knows, and the court is left to wade through a sea of doubt and perplexity which his misconduct has occasioned, and compelled to resort to less reliable sources of evidence to ascertain the truth.
On rehearing had in the above case the decree was changed and the opinion modified so as to allow the respondent three dollars per head for the old sheep and one dollar and fifty cents per head for the lambs, aggregating one half of $10,125. And also the court ascertained that the appellant should be allowed for one note due to him from Jones, and not considered in the first opinion, amounting, with interest, to §553.11, which, added to the §1,126, makes a total of §1,079.11 to be deducted from the half of §10,125, which leaves §3,383.39, the amount of the principal of the decree in favor of the respondent. The court allowed interest on this sum at eight per cent since June 17, 1881, which makes the total of the amount of the decree at the date thereof, to wit, April 11,18S9, computing §5,502.68. —Reporter.In such a case, it seems to me, in view of his testimony to cut down the finding of the court below to the extent done in the opinion, and below the legitimate inferences of his own evidence, is to invert the principles of equity, and give him the benefit of his own delinquency. The better principles would be, in view of his failure to keep accounts, to assume that he received the highest price for this band of sheep, or certainly, if a mean value is to be ascertained, that found by the court below furnishes a better and safer Standard, as it is supported by the weight of evidence, and, I think, more consistent with the principles of right and justice upon the facts of this case.