If, on the other hand, such separation is not practicable, then the former proprietors of the things now connected will be joint owners of the whole, whenever the mixture has been made with the consent of both parties, or by accident." We need not discuss the distinction sometimes made between commixtio and confusio, apparently upon the ground that it is possible to separate the individual solid particles, but not the liquid; because, in cases like the present, it is impracticable, and for all business purposes therefore impossible, to distinguish the particles, in respect of ownership. The passages in Mr. Justice Story's work on Bailments, s. 40, and in the 9th volume of Pothier, "De La Confusion," as well as the French and various other codes, are to the same effect. We are thus, by authorities in our own law, by the reason of the thing, and by the concurrence of foreign writers, justified in adopting the conclusion that, by our own law, the property in the cotton of which the marks were obliterated did not cease to belong to the respective owners; and that, by the mixture of the bales, and their becoming undistinguishable by reason of the action of the sea, and without the fault of the respective owners, these parties became tenants in common of the cotton, in proportion to their respective interests. This result would follow only in those cases where, after the adoption of all reasonable means and exertions to identify or separate the goods, it was found impracticable to do so. We cannot assume that the whole of the plaintiffs' forty-one bales were amongst those that were destroyed, any more than we can assume that they all formed part of the 1645 which were brought home; and we see no means of determining the extent of the interest of the several owners, except by adopting a principle of proportion, and which would, we think, be equally applicable in determining the plaintiff's portion of the 231 bales that were totally lost as of the 1645 which arrived in this country, though without the marks. The principle of proportion is that which was applied by Lord Ellenborough, where one gross sum was paid to a broker in respect of two debts due to different principals without distinguishing how much was paid in respect of each. Flavenc v. Bennett, 11 East, at p. 41. It is also the principle adopted in cases of general average, and of jettison, where it is not known whose goods are sacrificed, as stated by Cassaregis and Emerigon in the passages that were quoted in the argument; and we think it is the proper principle to apply to this case. Upon the main question, therefore, that was argued before us, we think that there was not an actual total loss of the plaintiffs' forty-one bales of cotton. We think also there was not a constructive total loss of those bales. We adopt the principle upon which the defendants have paid money into court; and our decision upon this question is in their favor. It was attempted to show by calculations what was the probability of 1 1 the plaintiffs' bales being included or not in the quantity totally lost; but, in the absence of information as to the part of the vessel in which those bales were stowed, so as to show whether they were exposed, and to what extent, to the perils which caused the total loss of the bales that perished, it is obvious that such calculations can result only in dry formulæ of combinations, subject to be disturbed by the missing element of extent of exposure to danger, and that they furnish no practical assistance upon the one side or upon the other. It was upon a calculation of this description that Mr. Griffith Williams, on behalf of the plaintiffs, for the first time, at a very late stage of the argument, contended that, assuming the defendants' principle to be correct, yet that it had not been correctly applied. Mr. Williams has, however, failed to satisfy us that the calculation was incorrect. It seems to us that, so far as it is practicable, and without entering into every minute circumstance and probability connected with the state of the weather and of the vessel, the position of the different parts of the cargo, and the effects of the sea and weather upon the vessel and cargo, upon which there was no evidence, the amount paid into court, together with the other payments, is sufficient to cover the plaintiffs' claim, so far as it was proved, for an average loss. Upon the remaining question which was raised, as to whether, if there were a total loss, it was a loss proximately by the perils of the seas, it is not necessary to pronounce any opinion. Our judgment is in favor of the defendants; and the rule to enter the verdict for them, or a nonsuit, will therefore, at the election of the plaintiffs as to the alternative, be made absolute. Rule absolute accordingly. SMITH v. CLARK. SUPREME COURT OF NEW YORK. 1839. [Reported 21 Wend. 83.] THIS was an action of replevin tried at the Yates circuit in June, 1838, before the Hon. Daniel Moseley, one of the circuit judges. The plaintiffs declared for the taking and detaining of 75 barrels of wheat flour. The defendant pleaded non cepit and property in himself. On the trial the following facts appeared: Charles Hubbard owned a flouring and custom mill on the outlet of the Crooked Lake. In December, 1834, the plaintiff's made an agreement with him to deliver wheat at his mill, and he agreed that for every 4 bushels and 55 pounds of wheat which should be received, he would deliver the plaintiffs one barrel of superfine flour, warranted to bear inspection in Albany or New York. The plaintiffs purchased from farmers and others nearly 2,000 bushels of wheat, which was from time to time delivered at the mill, and put into a bin with other wheat which Hubbard purchased on his own account, and with the toll wheat taken by him from time to time. Hubbard delivered 230 barrels of flour to the plaintiffs, but that was not enough to satisfy his contract. On the 25th March, 1835, he sold 100 barrels of flour to the defendant, and in May following delivered him the 75 barrels of flour in question, in pursuance of the contract of sale. The plaintiffs brought this action and arrested the property on board a canal boat, in which the defendant had caused it to be shipped for market. Hubbard also sold between 30 and 50 barrels of flour at retail, and took 10 or 12 bushels of wheat for his own use. All the wheat manufactured and used by Hubbard was taken from the same bin. The plaintiffs attempted to prove that the 75 barrels of flour in question had been delivered to them by Hubbard. The defendant moved for a non-suit, which was refused, and raised other questions on the charge of the judge, which are noticed in the opinion of the court. The jury, under the charge of the judge, found a verdict for the plaintiffs, and the defendant now moved for a new trial. H. Welles and S. Stevens, for defendant. By the Court, BRONSON, J. The contract between the plaintiffs and Hubbard was, in effect, one of sale, not of bailment. The property in the wheat passed from the plaintiffs at the time it was delivered at the mill, and Hubbard became a debtor, and was bound to pay for the grain in flour, of the specified description and quantity. There was no agreement or understanding that the wheat delivered by the plaintiffs should be kept separate from other grain, or that this identical wheat should be returned in the form of flour. Hubbard was only to deliver flour of a particular quality, and it was wholly unimportant whether it was manufactured from this or other grain. Jones on Bail. 102, 64. A different doctrine was laid down in Seymour v. Brown, 19 Johns. R. 44; but the authority of that case has often been questioned. 2 Kent, 589; Story on Bail. 193–194, 285; Buffum v. Merry, 3 Mason, 478; and the decision was virtually overruled in Hurd v. West, 7 Cow. 752, and see p. 756, note. The case of Slaughter v. Green, 1 Rand. (Va.) R. 3, is much like Seymour v. Brown. They were both hard cases, and have made bad precedents. There was, I think, no evidence which would authorize the jury to find that the flour in question had been delivered by Hubbard to the plaintiffs. There certainly was no direct evidence of that fact, and Hubbard himself testified expressly that there had been no delivery. The proof given by the plaintiffs of what Hubbard had said to others about the flour in the mill was not necessarily inconsistent with his testimony. But if there had been a delivery, so that the property in the flour passed to the plaintiffs, they still labor under a difficulty in relation to the form of the remedy. Notwithstanding the transfer, the property was left in the possession and under the care of Hubbard. When warchioneman has the option it sin sale CHASE v. WASHBURN. SUPREME COURT OF OHIO. 1853. [Reported 1 Ohio St. 244.] ERROR to the Common Pleas, reserved in the District Court of Huron County for decision by the Supreme Court. The original action was assumpsit, in which the plaintiff, Washburn, sought to recover the value of a quantity of wheat, which had been delivered by him to the defendants, Chase & Co., as warehousemen, engaged in the produce business, at the village of Milan, in said county. It appears from the bill of exceptions taken in the case that on the trial of the cause in the Common Pleas, Washburn offered in evidence sundry warehouse receipts, given him by Chase & Co. for wheat delivered at various times, between the month of October, 1847, and the month of August, 1849, amounting in the aggregate to six hundred bushels and more. The receipts are similar in form and effect, and the first in date, which may be taken as a sample of the others, is as follows: : 66 MILAN, O., Nov. 5, 1847. It further appears that the agent of Washburn was introduced as a witness, who testified that he had been instructed by Washburn, the defendant in error, when he delivered the first load of the wheat, not to sell the wheat for less than one dollar per bushel, and if he could not get that, to leave it in store with Chase & Co., the plaintiffs in error, and that he told Chase that Washburn had five or six hundred bushels to draw, and that Chase at the time told the agent, when he left the first load, that they (Chase & Co.) would pay the highest price when Washburn should call for it. The wheat was accordingly from time to time delivered, and in May, 1850, a demand was made for either the wheat or the money, and both refused. W. had at various times deposited quantities له Little Calir warehouse and grain the bears loss? steld risk f loss by unavoidable accident attaches to the person who takes control or dominion ove the properly chase here Title passed if where is how to not exercises had a sufficienmou on han Nelson & Brown, Doly outstanding red however, · Doly & Co 115 witch aft So & by receipt to do be Plif had deposited a quan. If what fayor of the below & elements was it owner's risk. ifire Pay. Held that ift had only a bailment of wheat or deposit as long as they let it and hence not liable. But if ifts had sold wheat it would have been sale bet prif & dift also. other be we vises option is io i ale. عطف عليم sayo option.27d 274.1 all when |