confusion of good

from Bouvier's Law Dictionary, Revised 6th Ed (1856)
CONFUSION OF GOODS. This takes place where the goods of two or more persons 
become mixed together so that they cannot be separated. There is a 
difference between confusion and commixtion; in the former it is impossible, 
while in the latter it is possible, to make a separation. Bowy. Comm. 88. 
     2. When the confusion takes place by the mutual consent of the owners, 
they have an interest in the mixture in proportion to their respective 
shares. 2 Bl. Com. 405; 6 Hill, N. Y. Rep. 425. But if one willfully mixes 
his money, corn or hay, with that of another man, without his approbation 
or knowledge, the law, to guard against fraud, gives the entire property 
without any account, to him whose original dominion is invaded land 
endeavored to be rendered uncertain, without his consent. Ib.; and see 2 
Johns. Ch. It. 62 2 Kent's Comm. 297. 
     3. There may be a case neither of consent nor of willfulness, in the 
confusion of goods; as where a bailee by negligence or unskillfulness, or 
inadvertence, mixes up his own goods of the same sort with those bailed; and 
there may be a confusion arising from accident and unavoidable casualty. 
Now, in the latter case of accidental intermixture, the rule, following the 
civil law, which deemed the property to be held in common, might be adopted; 
and it would make no difference whether the mixture produced a thing of the 
same sort or not; as, if the wine of two persons were mixed by accident. See 
Dane's Abr. ch. 76, art. 5, Sec. 19. 
     4. But in cases of mixture by unskilfulness, negligence, or 
inadvertence, the true principle seems to be, that if a man having 
undertaken to keep the property of another distinct from, mixes it with his 
own, the whole must, both at law and in equity, be taken to be the property 
of the other, until the former puts the subject under such circumstances, 
that it may be distinguished as satisfactorily as it might have been before 
the unauthorized mixture on his part. 15 Ves. 432, 436, 439, 440; 2 John. 
Ch. R. 62; Story on Bailm. c. l, Sec. 40. And see 7 Mass. 11. 123; Dane's 
Abr. c. 76, art. 3, Sec. 15; Com. Dig. Pleader, 3 M 28; Bac. Ab. Trespass, E 
2; 2 Campb. 576; 2 Roll. 566, 1, 15 2 Bul. 323. 2 Cro. 366, 2 Roll. 393; 5 
East, 7; 21 Pick. R. 298. 
    

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