delivered the opinion of the court:
It is not controverted that James, the plaintiff, was owner of the land, and of the trees, which were cut down by-the defendants or their servants, and by their order converted into staves. The severance' of the trees from the freehold, made them personalty; ana working them up into staves, did not prejudice the right of the^owner to pursue *245them into the new form. Harris v. Newman, 5 How. R. 658. He might waive trespass, and sue in “ trover,” for uH conversion, or he might bring replevin for the staves! Brown v. Sax, 7 Cowen, 95 ; 5 John, 348 ; Wingate v. Smith 20 Me. Rep., 287 ; Harris v. Newman, supra.
■ About two thousand staves were seized under the writ,, which were worj¡h, in New Orleans, about $300.00; the verdict was for $250.00. The only serious question is, as to the “rule ” of the measure of value. Shall that be determined by the worth of the trees, immediately after they were felled, or by the value of the staves? The principle is of general approval, that damages in the áction of replevin,] rest upon much the same grounds, as in trespass, in proper! cases they may not be confined to mere pecuniary remuuetv ation, but may be punitive, if the taking was tortious accompanied with malice, wantonness or oppression. Barrage v. Nelson, Opinion Book C. p., 374, and cases there cited.
The cases are not agreed when the value of the, thing has been enhanced,-by the labor and skill employed' to adapt the material to some more useful purpose, shall Be deducted and allowance only made for the thing in its original crude state. In this case, should the plaintiff be confined to the valué' of the trees, or may he recover for tue additional value imparted to them when worked, up into hogshead staves?’
The plaintiff has three remedies; /first, trespass; second, trover; and third, replevin. The two latter resting on the fact, that the trees by severance from the freehold, become personalty; and the defendant, by appropriating them, was guilty of a conversion. There is iao conflict in the authorities, that replevin will lie wherever the original material can be traced into the new form. It Uas been difficult to define satisfactorily, the rule to compute the value. The case of Brown v. Sax, 7 Con., 97, is like this: There the taking of the trees was tortious., the boards made out of them were the property of the owner -.h the trees, and by a conversion *246'action being trover, the plaintiff, in the opinion of a Kjority of the court, was entitled to the value of the boards; Sutherland, J., dissenting from some of the views of ^the court, suggested some strong considerations, why in all circumstances the rule should not apply. In Martin v. Porter, 5 Mees. & Welb., 351 ; the action was trespass, for digging and taking away coals ; Park B. said “ The plaintiff must be paid their value when they were begun to be taken away, and that without being subject to the expense of getting them,' which was a wrongful act of the defendant. Ab^inger, 0- ¡ B., stated if the plaintiff had demanded the coals, no lien could i have been set up, in respect of the expense of getting them: [he cannot set up his own wrongs.” In Wild. v. Holt, 9 Mees. Welb., & 672; the action being trover, the question was, when the value of the coals was to be estimated, whether the expense of getting them, and the quarterage rent to the owner, should not be deducted; it was ruled in conformity to the former case, that such deduction should not be made. In Smith v. Gouder, 22 Ga. Rep., 354, on the authority of these English cases, it was held, that the cost of making the cross-ties and cutting the tops into wood, ought to be deducted. The\ action wastijespass.
It has been spuch canvassed in the courts, whether the form of the action, as trespass, trover, or replevin, should influence the amount of pecuniary recovery. In the two former, the recovery may be enhanced, above the harm done by the trespass, or the Value of the thing convex'ed according to the circumstances:., In replevin, whe?e the plaintiff gives bend for the property itself, or its value. If the defendant retains the property by giving a bond, the question is embarrassed by the form of the action. | The tendency of the modern cases is to hold, that; if by mistake, or without intentional wrong, trees'are cut and converted into some other forms more valuable, the juivy ought to deduct from the estimation, the value of the tiine, labor and skill bestowed, upon them by the defendant, .But on the other hand, if the *247defendant has been a wanton or willing trespasser, or if after bis mistake as to the ownership was discovered, hedoésnot act fairly with the^jlaintiff, then the jury may disregard a partial or full estimation of the enhanced value. Such was the principle deduced by Mr. Sedgwick from the decisions.^
“ If (says he) the property had been altered and increased^ in value, it would depend (as to amount of recovery) on the I character of the conversion; if that were willful, the value of/ the articles so increased would be the rule.” “ But if the act/ were bona^de, the rule would be to allow the defendant for I whatever value his labor, had actually .conferred upon the/ property.” Sedgwick on Measure of Damages, 578. Whilst; the authorities do not harmonize on the subject, we think this rule comports with reason and morality. The motive which prompted the act of the defendant, whether bona fide pi actuated by willfulness, and a disregard of the rights of others, should be considered by the jury.
The proof was, that the line between the lands of the plaintiff’s and the land of the adjacent proprietor, upon which the defendants had the right to make staves, was blazed; that defendants were notified that they were cutting upon the plaintiff’s land, they however cut down and used eighteen white oak trees to make the staves; that defendants never paid plaintiff for the timber or the staves, but hauled them to the depot at By ram, for shipment to New Orleans. We think it clear that in this case, the jury -\yould have“been justified, in assessing the value of the staves. The conduct of the defendantswa_s_willi'ul, utterly regardless — efojhe rights of the plaintiff.
The staves were of excellent quality, and worth from $150-to $160 for a commercial thousand, at New Orleans; the verdict was for $250. The jury did not over estimate the value.
The jury did not estimate the value by an erroneous standard. The verdict is right; it is therefore unnecessary to consider the instructions.