Pappineau, 2 Str. 686; Bliss v. Hall, 4 Bing. N. C. 183; Francis v. Schoellkopf, 53 N. Y. 152. On the principles involved, the court, by Cassoday, J., observed: "Of course the law is not so rigid as to make every business which imparts any degree of impurity to the atmosphere a nuisance. This law is practical as well as just. The maintenance of life and business, especially in crowded cities, necessitates the imparting of a certain degree of impurity to the atmosphere. The law gives protection only against substantial injury. To be of legal cognizance, the injury must be tangible, or the discomfort perceptible to the senses of ordinary people. Undoubtedly a party has the unlimited and unqualified right to use his property as he pleases, provided he does not so use it as to become a nuisance to others. Such rights, duties, and obligations between the respective owners of adjacent lands are necessarily reciprocal. Persons owning lands and operating a tannery thereon in some unfrequented place, so remote from other dwellings and property, and places where people are accustomed to pass or be, as not to annoy or discomfort any one else, nor impair the use of other property, would not be liable for maintaining a nuisance, however unclean and filthy their tannery might become, and however unreasonably and improperly it might be operated. It is because a person maintains something that annoys or incommodes another or his business-something noxious or offensive to another-that such right of action is given. The question of nuisance therefore depends not only upon the character of the business maintained, but its proximity to the dwellings, business, property, or occupancy of others.

"The ownership of land carries with it the rightful use of the atmosphere while passing over it. Title to land gives to the owner the right to impregnate the air upon and over the same with such smoke, (vapor, and smells as he desires, provided he does not contaminate the atmosphere to such an extent as to substantially interfere with the comfort or enjoyment of others, or injure the use of their property. But air is movable, and constantly flowing from the premises of one to those of another, and hence when it becomes thickly impregnated with putrid substances, it necessarily flows on to the adjacent premises in one direction or another. This being so, it follows that any business which necessarily and constantly impregnates large volumes of the atmosphere with disagreeable, unwholesome, or offensive matter, may become a nuisance to those occupying adjacent property, in case it is so near, and the atmosphere is contaminated to such an extent, as to substantially impair the comfort or enjoyment of such ajdacent occupants. When such comfort and enjoyment are so impaired, and compensation is demanded, it is no defense to show that such business was conducted in a reasonable and proper manner, and with more than ordinary cleanliness, and that the odors so sent over and upon such adjacent premises were only such as were incident to the business when properly conducted. It is the interruption of such enjoyment and the destruction

of such comfort that furnishes the ground of action, and it is no satisfaction to the injured party to be informed that it might have been done with more aggravation. The business is lawful; but such interruption and destruction is an invasion of private rights, and to that extent unlawful. It is not so much the manner of doing as the proximity of such a business to the adjacent occupant which causes the annoyance. A business necessarily con| taminating the atmosphere to the extent indicated should be located where it will not necessarily deprive others of the enjoyment of their property, or lessen their comfort while enjoying the same.”

In Appeal of the Pennsylvania Lead Company, 96 Penn. St. 116, it was held that the operation of leadsmelting works may be preliminarily restrained when it emits offensive, poisonous and noxious fumes and vapors, producing injury to health and injury to property. The court cited Dennis v. Eckhardt, 3 Grant; Campbell v. Seaman, 63 N. Y. 568; S. C., 20 Am. Rep. 567; St. Helen's Smelting Co., 11 H. L. Cas. 652. After dwelling on the cumulative nature of the injury to the plaintiff's land owing to the constant accumulation of the lead deposits, the court say: "Thus it is that we find in this case every element necessary to call forth the exercise of equity powers. The business complained of is a dangerous nuisance; the injury continuous and cumulative; and the mischief irreparable. * * *The rule sic utere tuo, ut alienum non lædas, is a most valuable one, and must be maintained if our civilization is to be cherished and preserved, and it is not at all to the purpose to answer the charge of a violation of this rule that the defendant's works have been erected at a great outlay of capital; that they are important to the public at large, and give employment to many Where justice is properly administered rights are never measured by their mere money value, neither are wrongs tolerated because it may be to the advantage of the powerful to impose on the weak. Whether it be the great corporation with its lead works, or the mechanic with his tinshop, the rule is the same, 'so use your own as not to injure another.' Moreover there is after all one underlying principle which influence both, and that is private gain. Lead works and tin-shops alike may result incidentally in the public good, but this is only an incident, for the primary object which induces the exercise of either trade is personal good; therefore to neither party is the general community under any special obligation, and as a consequence there is no good reason why the rules of law should be relaxed in the one case rather than the other."

men.

* * *

These cases seem opposed to Huckenstine's Appeal, 70 Penn. St. 102; S. C., 10 Am. Rep. 669, where it was held that brick-burning being a useful and necessary employment, will not be restrained by injunction, although carried on in the outskirts of a city, because it occasions some discomfort or some injury to those residing in the vicinity; and that upon an application to restrain the exercise of a lawful business, the court will look at the customs of the people, the characteristics of their business, the

See notes, 10 Am. Rep. 674; 20 id. 580. The following are some other recent important adjudications in point: Prumer v. Pendleton, 75 Va. 516; S. C., 40 Am. Rep. 738 (slaughter-house); Dorsey v. Allen, 85 N. C. 358; S. C., 39 Am. Rep. 704, and note, 707 (plaining-mill and cotton-gin); Dittman v. Rapp, 50 Md. 516; S. C., 33 Am. Rep. 325; McKeon v. See, 51 N. Y. 300; S. C., 10 Am. Rep. 659; Goodall v. Crofton, 33 Ohio St. 271; S. C., 31 Am. Rep. 535 (jarring machinery); Shiras v. Olinger, 50 Iowa, 571; S. C., 32 Am. Rep. 138, and note, 141 (livery-stable); Green v. Lake, 54 Miss. 540; S. C., 28 Am. Rep. 378; Minke v. Hofeman, 87 Ill. 450; S. C., 29 Am. Rep. 63; Adams v. Michael, 38 Md. 123; S. C., 17 Am. Rep. 516 (felt-roofing factory).

LIABILITY OF MAGISTRATE FOR EXTRAJURISDICTIONAL ACT.

NEW JERSEY COURT OF ERRORS, DECEMBER, 1882.

GROVE V. VAN DUYN.

A magistrate is not liable to an action in consequence of a decision made by him in a matter which was colorably, though rot really, within his jurisdiction. Neither in such case is the person, who made the complaint which led to such decision, liable in an action of trespass.

ACTION for false imprisonment. Stout, one of the defendants in error, was a justice of the peace of the county of Middlesex, and the other defendant, Van Duyn, filed with him the following affidavit:

"State of New Jersey, Middlesex county, ss.- - Cornelius Van Duyn, administrator of Samuel Van Tilburgh, deceased, of the township of Franklin, county of Somerset, upon his oath complains, that on the first day of December, A. D. one thousand eight hundred and seventy-nine, at the township of South Brunswick, in the County of Middlesex, Simeon P. Grove, William H. Grove, Jr., and Jediah Higgins, with force and arms, did enter upon the lands of Samuel Van Tilburgh, deceased, and with force and arms did unlawfully carry away about four hundred bundles of cornstalks, to the value of eight dollars, and were engaged in carrying other cornstalks from said lands of said Van Tilburgh, deceased; and therefore he prays that the said Simeon P. Grove, William H. Grove, Jr., and Jediah Higgins may be apprehended and held to answer said complaint, and dealt with as law and justice may require.

C. VAN DUYN, Administrator. Sworn and subscribed to, before me, this 1st day of December, A. D. 1879.

CHAS. L. STOUT, Justice of the Peace." Stout, as such justice, thereupon issued his warrant in the ordinary form, directing the said two Groves and the said Higgins to be brought before him to answer the said complaint; and such three persons having been arrested by a constable on such warrant, and being brought before said justice, and having waived an examination, were by him committed to the jail of the county, for the cause mentioned in the complaint, to await the action of the next grand jury. Having given bail the next day, the persons so arrested were discharged, and thereupon one of them, William H. Grove, Jr., brought this suit in trespass for the above mentioned imprisonment. At the trial the

this writ of error was brought.

A. V. Schenck and E. T. Green, for plaintiff in error. John H. Stewart, for defendants.

BEASLEY, C. J. Most of the general principles of law pertaining to that branch of this controversy which relates to the alleged liability of the defendant completely settled as not to be open to discussion. in this suit, who was a justice of the peace, are so The doctrine that an action will not lie against a judge for a wrongful commitment, or for an erroneous judgment, or for any other act, made or done by him in his judicial capacity, is as thoroughly established as Such an exemption is absolutely essential to the very are any other of the primary maxims of the law. existence, in any valuable form, of the judicial office itself, for a judge could not be either respected or independent, if his motives for his official actions or his conclusions, no matter how erroneous, could he put in question at the instance of every malignant or disappointed suitor. Hence we find this judicial immunity has been conferred by the laws of every civilized people. That it exists in this State in its fullest extent has been repeatedly declared by our own courts. Such was pronounced by the Supreme Court to be the admitted principle in the cases of Little v. Moore, 1 South. 75; Taylor v. Doremus, 1 Harr. 476; Mangold v. Thorpe, 4 Vr. 137, and by this court in Loftus v. Fraz, 14 id. 667. To this extent there is no uncertainty or difficulty whatever in the subject.

But the embarrassment arises where an attempt is made to express, with perfect definiteness, where it is that acts done by a judge, and which purport to be judicial acts, are such, within the meaning of the rule to which reference has just been made. It is said everywhere in the text books and decisions that the officer, in order to entitle himself to claim the immunity that belongs to judicial conduct, must restrict his action within the bounds of his jurisdiction, and jurisdiction has been defined to be "the authority of the law to act officially in the particular matter in hand." Cooley on Torts, 417. But these maxims, although true in a general way, are not sufficiently broad to embrace the principle of immunity that appertains to a court or judge exercising a general authority. Their defect is that they leave out of the account all those cases in which the officer, in the discharge of his public duty, is bound to decide whether or not a particular case, under the circumstances as presented to him, is within his jurisdiction, and he falls into error in arriving at his conclusion. In such instances, the judge, in point of fact and law, has no jurisdiction according to the definition just given, over “the particular matter in hand," and yet in my opinion, plainly, he is not responsible for the results

that wait upon his mistake. And it is upon this precise point that we find confusion in the decisions.

There are certainly cases which hold that if a magistrate, in the regular discharge of his functions, causes an arrest to be made under his warrant on a complaint which does not contain the charge of a crime cognizable by him, he is answerable in an action for the injury that has ensued. But I think these cases are deflections from the correct rule, in that they make no allowance for matters of doubt and difficulty. If the facts presented for the decision of the justice are of uncertain signification with respect to their legal effect, and he decides one way, and exercises a cognizance over the case, if the superior court in which the question arises in a suit against the justice differs with him on this close legal question, is he open by reason of his error to an attack by action? If the officer's exemption from liability is to depend on the question whether he had jurisdiction over the

particular case, it is clear that such officer is often triable under such conditions, because the higher court, in deciding a doubtful point of law, may have declared that some element was wanting in the complaint which was essential to bring the case within the judicial competency of the magistrate.

But there are many decisions which, perhaps without defining any very clear rule on the subject, have maintained that the judicial officer was not liable under such conditions.

The very copious brief of the counsel of the defendants abounds in such illustrations. As an example we may refer to the old case of Gwynne v. Poole, 2 Lutw. 387, in which it was held that the justice was justified because he had reason to believe that he had jurisdiction, although there was an arrest in an action which arose out of the justice's jurisdiction. This case has been since approved in Kemp v. Neville, 10 C. B. (N. S.) 550. Here, if the test of official liability had been the mere fact of the right to take cognizance over the particular matter in hand, considered in the light of strict legal rules, this decision would have been the opposite of what it is. In the same way, the subject is elucidated in Brittain v. Kinnaird, 1 Brod. and B. 432, the facts being a conviction by a justice of a person of having gunpowder in a certain boat, a special act authorizing the detention of any suspected boat, and when the magistrate was sued in trespass for an illegal conviction, it was declared that the plaintiff, in order to show the defendant's want of cognizance over the proceedings leading to the conviction, could not give evidence that the craft in question was a vessel and not a boat, because the justice had judicially determined that point. And in this case likewise the test of jurisdiction in the magistrate in point of fact and of law was rejected; and inquiry into the authority by force of which the proceeding had been taken disallowed, for the reason that such question had been passed upon by the magistrate himself, the point being before him for adjudication. The same doctrine was promulged in explicit and forcible terms by Mr. Justice Field delivering the opinion of the Supreme Court of the United States, in the case of Bradley v. Fisher, 13 Wall. 335, this being his language: "If a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, no personal liability to civil action for such acts would attach to the judge, although these acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject matter is invoked."

These decisions, in my estimation, stand upon a proper footing, and many others of the same kind might be referred to, but such course is not called for, as it must be admitted that there is much contrariety of results in this field, and the references above given are amply sufficient as illustrations for my present purposes. The assertion, I think, may be safely made, that the great weight of judicial opinion is in opposition to the theory that if a judge, as a matter of law and fact, has not jurisdiction over the particular case, thereby, in all cases, he incurs a liability to be sued by any one injuriously affected by his assumption of cognizance over it. The doctrine that an officer, having general powers of adjudication, must at his peril pass upon the question, which is often one difficult of solution, whether the facts before him place the given case under his cognizance, is as unreasonable as it is impolitic. Such a regulation would be applicable alike to all courts and to all judicial officers

acting under a general authority, and it would thus involve in its liabilities all tribunals except those of last resort. It would also subject to suit persons participating in the execution of orders and judgments rendered in the absence of a real ground of jurisdiction. By force of such a rule, if the Supreme Court of this State, upon a writ being served in a certain manner, should declare that it acquired jurisdiction over the defendaut, and judgment should be entered by default against him, and if upon error brought this court should reverse such judgment on the ground that the service of the writ in question did not give the inferior court jurisdiction of the case, no reason can be assigned why the justices of the Supreme Court should not be liable to suit for any injurious consequences to the defendant proceeding from their judgment. As I have said, in my judgment the jurisdictional test as the measure of judicial responsibility must be rejected.

Nevertheless it must be conceded that it is also plain that in many cases a transgression of the boundaries of his jurisdiction by a judge will impose upon him a liability to an action in favor of the person who has been injured by such excess. If a magistrate should of his own motion without oath or complaint being made to him, on mere hearsay, issue a warrant and cause an arrest for an alleged larceny, it cannot be doubted that the person so illegally imprisoned could seek redress by a suit against such officer. It would be no legal answer for the magistrate to assert that he had a general cognizance over criminal offenses, for the conclusive reply would be that the particular case was not, by any form of proceeding, put under his authority.

From these legal conditions of the subject my inference is, that the true rule with respect to the actionable responsibility of a judicial officer, having the right to exercise general powers, is, that he is so responsible in any given case belonging to a class over which he has cognizance, unless such case is by complaint or other proceeding put at least colorably under his jurisdiction. Where the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer is not liable in a suit to the person affected by his decision, whether such decision be right or wrong. But when no facts are present, or only such facts as have neither legal value nor color of legal value in the affair, then in that event, for the magistrate to take jurisdiction is not in any manner the performance of a judicial act, but simply the commission of an official wrong. This criterion seems a reasonable one, it protects a judge against the consequences of every error of judgment, but it leaves him answerable for the commission of wrong that is practically willful. Such protection is necessary to the independence and usefulness of the judicial officer, and such responsibility is important to guard the citizen against official oppression.

66

The application of the above stated rule to this case must obviously result in a judgment affirming the decision of the Circuit judge. There was a complaint under oath before this justice presenting for his consideration a set of facts to which it became his duty to apply the law. The essential things thus stated were that the plaintiff, in combination with two other persons, with force and arms I entered upon certain lands, and "with force and arms did unlawfully carry away about four hundred bundles of corn stalks of the value, etc., and were engaged in carrying other corn stalks from said lands." By a statute of this State (Rev., p. 244, § 99) it is declared to be an indictable offense "if any person shall willfully, unlawfully and maliciously set fire to or burn, carry off or destroy any barrack, cock, crib, rick or stack of hay,

corn, wheat, rye, barley, oats or grain of any kind, or any trees, herbage, growing grass, hay or other vegetables," etc. Now, although the misconduct described in the complaint is not the misconduct described in this act, nevertheless the question of their identity was colorably before the magistrate, and it was his duty to decide it, and under the rule above formulated, he is not answerable to the person injured for his erroneous application of the law to the case that was before him.

As to the other defendant, all he did was to make his complaint on oath before the justice, setting forth the facts truly, and for such an act he could not be held liable for the judicial action which ensued, even if such action had been extrajudicial. But as the case was, as we have seen, brought within the jurisdiction of the judicial officer, neither this defendant nor any other person could be treated as a trespasser for his co-operation in procuring a decision and commitment which were valid in law until they had been set aside by a superior tribunal. Let the judgment be affirmed.

Judgment unanimously affirmed.

MEASURE OF DAMAGES FOR WRONGFUL CUTTING OF TIMBER.

SUPREME COURT OF THE UNITED STATES, DECEMBER 13, 1882.

BOLLES WOODEN WARE Co. v. UNITED STATES. In an action for timber cut and carried away from the land of plaintiff, the measure of damages is:

Where the defendant is a knowing and willful trespasser, the full value of the property at the time and place of demand, or of suit brought, with no deduction for labor and expense of the defendant.

Where the defendant is an unintentional or mistaken trespasser, or his innocent vendee, the value at the time of conversion, less what the labor and expense of defendant and his vendor have added to its value.

Where defendant is a purchaser without notice of wrong from a willful trespasser, the value at the time of such purchase.

error to the Circuit Court of the United States for

IN error to the District of Wisconsin. The opinion

states the facts.

MILLER, J. This is a writ of error to the Circuit Court for the Eastern District of Wisconsin, founded on a certificate of division of opinion between the judges holding that court.

The facts as certified, out of which this difference of opinion arose, appear in an action in the nature of trover, brought by the United States for the value of two hundred and forty-two cords of ash timber, or wood suitable for manufacturing purposes, cut and removed from that part of the public lands known as the reservation of the Oneida tribe of Indians, in the State of Wisconsin. This timber was knowingly and wrongfully taken from the land by Indians, and carried by them some distance to the town of Depere, and there sold to the defendant, which was not chargeable with any intentional wrong or misconduct or bad faith in the purchase.

The timber on the ground, after it was felled, was worth twenty-five cents per cord, or $60.71 for the whole, and at the town of Depere, where defendant bought and received it, three 'dollars and fifty cents per cord, or $850 for the whole quantity. The question on which the judges divided was whether the liability of the defendant should be measured by the first or the last of these valuations.

It was the opinion of the Circuit judge that the latter

was the proper rule of damages, and judgment was rendered against the defendant for that sum.

We cannot follow counsel for the plaintiff in error through the examination of all the cases, both in England and this country, which his commendable research has enabled him to place upon the brief. In the English courts the decisions have in the main grown out of coal taken from the mine, and in such cases the principle seems to be established in those courts, that when suit is brought for the value of the coal so taken, and it has been the result of an honest mistake as to the true ownership of the mine, and the taking was not a willful trespass, the rule of damages is the value of the coal as it was in the mine before it was disturbed, and not its value when dug out and delivered at the mouth of the mine. Martin v. Porter, 5 M. & W. 351; Morgan v. Powell, 3 Ad. & Ell., N. S. 278; Wood v. Morewood, id. 440; Hilton v. Woods, L. R., 4 Eq. 438; Jegon v. Vivian, L. R., 6 Ch. 760.

The doctrine of the English courts on this subject is probably as well stated by Lord Hatherly in the House of Lords, in the case of Livingston v. Rawyards Coal Co., L. R., 5 App. Cas. 33, as anywhere else. He said: "There is no doubt that if a man furtively and in bad faith robs his neighbor of his property, and because it is underground is probably for some little time not detected, the court of equity in this country will struggle, or I would rather say, will assert its authority to punish the fraud by fixing the person with the value of the whole property which he has so furtively taken, and making him no allowance in respect of what he has so done, as would have been justly made to him if the parties had been working by agreement." "But "when once we arrive at the fact that an inadvertence has been the cause of the misfortune, then the simple course is to make every just allowance for outlay on the part of the person who has so acquired the property, and to give back to the owner, so far as is possible under the circumstances of the case, the full value of that which cannot be restored to him in specie."

There seems to us to be no doubt that in the case of a willful trespass the rule as stated above is the law of damages both in England and in this country, though in some of the State courts the milder rule has been applied even to this class of cases. Such are some that are cited from Wisconsin. Single v. Schneider, 24 Wis. 299; Weymouth v. Railroad Co., 17 id. 550.

On the other hand, the weight of authority in this country as well as in England favors the doctrine that where the trespass is the result of inadvertence or mistake, and the wrong was not intentional, the value of the property when first taken must govern, or if the conversion sued for was after value had been added to it by the work of the defendant, he should be credited with this addition.

Winchester v. Craig, 33 Mich. 205, contains a full examination of the authorities on the point. Heard v. James, 49 Miss. 236; Baker v. Wheeler, 8 Wend. 505; Baldwin v. Porter, 12 Conn. 484.

While these principles are sufficient to enable us to fix a measure of damages in both classes of torts where the original trespasser is defendant, there remains a third class where a purchaser from him is sued, as in this case, for the conversion of the property to his own use. In such case, if the first taker of the property were guilty of no willful wrong, the rule can in no case be more stringent against the defendant who purchased of him than against his vendor.

But the case before us is one where, by reason of the willful wrong of the party who committed the trespass, he was liable, under the rule we have supposed to be established, for the value of the timber at Depere the moment before he sold it, aud the question to be decided is whether the defendant who purchased it then with no notice that the property belonged to the United

States, and with no intention to do wrong, must respond by the same rule of damages as his vendor should if he had been sued.

It seems to us that he must. The timber at all stages of the conversion was the property of plaintiff. Its purchase by defendant did not divest the title nor the right of possession. The recovery of any sum whatever is based upon that proposition. This right, at the moment preceding the purchase by defendant at Depere, was perfect, with no right in any one to set up a claim for work and labor bestowed on it by the wrongdoer. It is also plain that by purchase from the wrongdoer defendant did not acquire any better title to the property than his vendor had. It is not a case where an innocent purchaser can defend himself under that plea. If it were, he would be liable to no damages at all, and no recovery could be had. On the contrary, it is a case to which the doctrine of caveat emptor applies, and hence the right of recovery in plaintiff.

On what ground then can it be maintained that the right to recover against him should not be just what it was against his vendor the moment before he interfered and acquired possession? If the case were one which concerned additional value placed upon the property by the work or labor of the defendant after he had purchased, the same rule might be applied as in case of the inadvertent trespasser.

But here he has added nothing to its value. He acquired possession of property of the United States at Depere, which at that place and in its then condition, is worth $850, and he wants to satisfy the claim of the government by the payment of $60. He founds his right to do this,not on the ground that any thing he has added to the property has increased its value by the amount of the difference between these two sums, but on the proposition that in purchasing the property he purchased of the wrong-doer a right to deduct what the labor of the latter had added to its value.

If, as in the case of an unintentional trespasser, such right existed, of course defendant would have bought it and stood in his shoes; but as in the present case, of an intentional trespasser, who had no such right to sell, the defendant could purchase none.

Such is the distinction taken in the Roman law as stated in the Institutes of Justinian, Lib. 2, title 1, section 34.

After speaking of a painting by one man on the tablet of another, and holding it to be absurd that the work of an Apelles or Parrhasius should go without compensation to the owner of a worthless tablet, if the painter had possession fairly, he says, as translated by Dr. Cooper: "But if he, or any other, shall have taken away the tablet feloniously, it is evident the owner may prosecute by action of theft."

The case ot Nesbitt v. St. Paul Lumber Co., 21 Minn. 491, is directly in point here. The Supreme Court of Minnesota says: "The defendant claims that because they (the logs) were enhanced in value by the labor of the original wrong-doer in cutting them, and the expense of transporting them to Anoka, the plaintiff is not entitled to recover the enhanced value, that is, that he is not entitled to recover the full value at the time and place of conversion." That was a case, like this, where the defendant was the innocent purchaser of the logs from the willful wrong-doer, and where, as in this case, the transportation of them to a market was the largest item in their value at the time of conversion by defendant; but the court overruled the proposition and affirmed a judgment for the value at Anoka, the place of sale.

To establish any other principle in such a case as this would be very disastrous to the interest of the public in the immense forest lands of the government. It has long been a matter of complaint that the depredations upon these lands are rapidly destroying the finest for

ests in the world. Unlike the individual owner, who by fencing and vigilant attention, can protect his valuable trees, the government has no adequate defense against this great evil. Its liberality in allowing trees to be cut on its land for mining, agricultural and other specified uses, has been used to screen the lawless depredator who destroys and sells for profit.

To hold that when the government finds its own property in hands but one remove from these willful trespassers, and asserts its right to such property by the slow processes of the law, the holder can set up a claim for the value which has been added to the property by the guilty party in the act of cutting down the trees and removing the timber, is to give encouragement and reward to the wrong-doer, by providing a safe market for what he has stolen and compensation for the labor he has been compelled to do to make his theft effectual and profitable.

We concur with the Circuit judge in this case, and the judgment of the Circuit Court is affirmed.

WHEN WRONGFUL LEVY ON LANDS NOT ACTIONABLE.

MICHIGAN SUPREME COURT, OCTOBER 31, 1882.

WALKLEY V. BOSTWICK.

An action will not lie for the levy under execution against another upon lands belonging to plaintiff, where there was no malice and the officer did not go upon the lands, even though a negotiation for the sale of such lands was broken up to the injury of plaintiff by such levy.

ACTION on the case. The opinion states sufficient

facts. From a judgment for plaintiff defendants appealed.

Henry M. Duffield, for appellants.

Dickman & Walker, for respondent.

COOLEY, J. Action on the case against the sheriff of Genesee county and Byron Bostwick the plaintiff in an execution against one John Walkley, for wrongfully making levy of the execution on lands owned by the plaintiff, whereby a trade which she had negotiated was broken up to her loss. The plea was the general issue, and there was a trial the result of which appears before us in a printed record of 170 pages. The plaintiff does not aver that the levy on her property was malicious, or that it was made with any purpose to wrong her, but she relies for recovery upon the bare facts that the levy was made upon her lands, and that a purchaser to whom she had bargained it refused in consequence to complete the bargain. As the levy could create no lien on her land, or in any manner charge, endanger or affect her title, it may well be questioned whether the alleged damage is the natural and proximate result of the act complained of. At most the act of the defendants amounted to no more than a formal assertion that the ownership of plaintiff's land was in John Walkley, and that they proposed to maintain that assertion in legal proceedings. But this assertion would not have justified a purchaser in throwing up his bargain. If he had previously entered into a valid contract the levy could not have excused his failure to perform it, and if he had only agreed by parol to take the land, the breaking off of the negotiations for a reason that would not have excused the performance of a valid contract can only be attributed to excess of caution and certainly cannot be referred to an act which in law was wholly inadequate to have caused it. A purchaser who is not yet bound may make such an attack upon the title an excuse for breaking off negotiations, and so a master may make the slander of his servant an excuse for discharging