348 HARVARD LAW REVIEW, more to be regretted that the point was not discussed. On the one side it might be truly said that the rule regarding declarations of intention is an iron-bound product of centuries, and not to be extended in courts of law beyond the exact case of two persons or things each meeting the description equally well. See Thayer, Preliminary Treatise on Evidence, pp. 417-445. On the other side the cases appear to be substantially the same, for words are but emblems of meaning, and their meaning here as indicated by the testator himself apphes equally to the two persons. When the case is thus analyzed the distinction really seems " a distinc- tion without a difference." Accession of Property. — Where a substance is the product of the labor or property of two individuals, its ownership is a question to be determined by the rules of accession. Some courts have made the right of the injured party to claim the new article depend on the question whether the identity of his original materials can be made out by the senses. Such and other arbitrary distinctions based on mere physical reasons were wisely discarded by a more modern case. When the title to the new article is the point in issue, the first question must be, how much has each party contributed to make it what it is. If the converter by his labor has increased the value of the plaintiffs goods so greatly that it appears grossly unjust to deprive him of the new product, the for- mer owner is precluded from appropriating it. On such reasoning as this Judge Cooley in Wetherbee v. Green, 22 Mich. 311, decided that an in- crease in value of twenty-eight times was sufficient to vest title in the taker. Such a ruling naturally leaves to the discretion of future courts the ques- tion of the exact ratio at which the balance will turn and the labor of the converter will belong to the owner of the goods. The case of Eaton v. Langley, 47 S. W. Rep. 123 (Ark.) supports the principles of Wetherbee v. Green. The defendant by mistake cut down the plaintiff's standing timber, and worked it into cross-ties. A resulting increase in value of six times the court held not sufficient to vest the title to the new product in the defendant. There was no contention that bad faith entered into the transaction, and it was not necessary for the court to discuss the question- able doctrine of Silsbury v. McCcon, 3 Comst. 378, that a wilful converter can never avail himself of the doctrines of accession. If it is the object of the law to establish justice between the parties, why not hold them tenants-in-common in proportion to their respective contributions, instead of giving the whole mass to one or the other? The plaintiff, it may be argued, would then be fully compensated, without the defendant being unnecessarily punished. Such a result is recognized by the courts in the closely analogous subject of confusion of goods. The answer to this reasoning seems to be found in the distinction between accession and confusion. In the latter case the mass, being of the same nature as its original materials, is easily divisible. In the former the new product is rarely incapable of partition without its resulting destruction. In confusion the volume of the mixture being readily ascertainable by weight or measure, the rights of the parties are susceptible of easy adjust- ment, each taking the share of the whole which the law gives him. In accession, if both the converter and the injured party are to be given legal interests in new product, the principles of tenancy in common preclude the plaintiff from ever obtaining the chattel or any part of it. He is com-
