| N.Y. Sup. Ct. | Aug 15, 1810

Per Curiam..

The verdict of the jury Was founded upon law and evidence, and the judgment must be affirmed. It is sufficient in this case, that the demand for the coal had been once submitted to a jury, when the plaintiff was sued in a former action of trespass for cutting the timber, and that that jury passed upon this claim. But putting that former trial entirely out of question, the court are of opinion, that the plaintiff had no right to the coal. The defendant’s timber, by being cut and converted into coal, had indeed lost its primitive form, but the identity of the original material was here ascertained or admitted. The coal was still in possession of the defendant; and it was agreed, that they were made out of the defendant’s timber. This case then comes within the decision of Betts and Church v. Lee; (5 Johns. Rep. 348.) and the principle mentioned in that case, that a -wilful trespasser cannot acquire a title, to property, merely by chan*170gingit from one species into another, applies to this Oases _ rr it a trespasser takes a chattel into his own possession, and the .owner sues and recovers damages, for the specific , , . * chattel so taken and detained, the recovery and execution done thereon, will change the property, by operation of law, on the principle that solutio pretil emptionis loco habetur ; (Jenk. Cent. 56. 189. case 88.) and this seems to be the rule both in the French, and in the civil law, where the transfer by such means is considered as a complete and absolute change of title. (Pothier, Traité du Droit de Proprieté, no. 464. Digest, 6. 1. 35. & 63.) But the present case, as well as that of Betts and Church v. Lee, does not come within that rule. The trespass suit, •was for cutting the timber, and must have been ah action of trespass quare clausum, fregit. It was not a suit for taking, or converting, or detaining the charcoal, and the recovery ought to have been distinctly, for that specific chattel, before the rule could apply. The coal was here left with the defendant; and it forms a material ingredient in the case, that it never was out of his possession.

Judgment affirmed.