to us that it is issued in contravention of the statute and cannot be sustained.

Under the rule contended for by the appellant we should have two distinct kinds of receipts, although of the same import upon their face; the one kind issued as evidence of title, and the other merely as a mode of effecting a lien. The allowance of two distinct kinds of receipts of the same import upon their face would have a tendency to introduce uncertainty and confusion, for which no advantage, so far as we can discover, would be a sufficient compensation. We should hesitate, therefore, about sanctioning the rule contended for even if the provisions of the statute were less explicit than they are. The appellant, however, cites and relies upon Cochran v. Rippey, 13 Bush, (Ky.) 495. In that case a warehouse receipt issued by a person upon his own property, and designed as security to the holder, was held valid. The appellant claims that the statute under which the decision was made is in its essential provisions similar to our own. But it appears to be contemplated by the fifth section of the statute that such receipts may be issued.

But it is claimed by appellant that even if the receipts held by it are invalid, it acquired a lien upon the grain paramount to any right or interest of the appellees. This claim is predicated upon the delivery of the grain made to the appellant after Graham absconded. The evidence shows that appellees purchased the grain described in their receipts of Graham, and allowed him to retain it without placing upon record any evidence of their purchase. The appellant therefore, claims that its lien is valid as against the appellees even though it were held to date merely from the time of delivery. We shall not consider all the questions discussed by counsel in this connection. No pledge was created by the delivery unless such was the understanding of the parties. Now it appears to us that such was not the understanding of either. The evidence shows conclusively that the appellant obtained possession under a claim of a subsisting lien and not by reason of a new agreement designed to give a lien. Graham says in his testimony, in speaking of the delivery of the grain to appellant-"I did not have any mind to give it to anybody particularly." This shows that there. was no understanding upon his part that a lien would be created by the delivery which would supersede the rights of all other receipt-holders. Nor do we see anything in what he said or did, or authorized his son to say or do, which could properly be construed as evincing such understanding. The reasonable inference is that he understood that all the holders of valid receipts would share in the grain according to their respective claims.

The understanding of the appellant is shown by what was done by its president at the time it took possession of the grain. The president testifies that he said to Graham's son who was in charge that he wished to get possession of the grain for the bank, and at the same time presented the receipts held by the bank, and possession was delivered to

him. The possession, then, was gained solely under an antecedent claim. The transfer thus made is not of itself evidence of a new and independent agreement, such as would be necessary to create a pledge, and we see nothing else that is.

The views which we have expressed thus far have had reference more especially to the plaintiffs' wheat receipt. The claims in respect to the oats are less complicated. No question is raised in respect to them not already disposed of.

Upon the receipts issued to Baker, an independent question is raised. It is claimed that Baker sold 10,000 bushels of his wheat through Graham, in Milwaukee. Baker, it appears, owned 11,200 bushels. A receipt for 5,000 bushels had been deposited by Baker in the appellant's bank as collateral security, and another receipt for the same amount had been deposited in another bank for the same purpose. A receipt for 1,200 was still retained by him. While the three receipts were so held, it appears that Baker directed Graham to make a sale of 10,000 bushels. Graham claims that in accordance with such directions he did make such sale in Milwaukee in August, 1875. But his testimony shows that what he calls a sale of 10,000 bushels of Baker's wheat was a mere contract to deliver that amount in September, and that he did not contemplate shipping from Baker's wheat unless, to use his own words, "wheat went against them." The evidence tends to show that no shipment was made from Baker's wheat in pursuance of any such contract, and that it was understood between Graham and Baker that none should be made, but that the contract was otherwise disposed of, and such, we think, was the fact.

The amount found due Sears & Sons as a basis of division of the common mass was 1,076 bushels. The appellant insists that there was not that amount due them, if anything.

The evidence shows that a part of the grain covered by the receipts held by Sears & Sons had been drawn out by them. In the decree in their favor some deduction was made on this account. The appellant insists that the deduction was not large enough. We have examined the evidence carefully upon this point, and are unable to determine with entire certainty what deduction should have been made. The receipts were evidence in their favor, and they were entitled to all that they were allowed unless there was affirmative evidence showing otherwise. In the obscurity of the evidence we are not disposed to disturb the decree upon this point.

The appellant objects to the amount allowed the receiver for services, and also to the amount allowed for other expenses, all of which were made a charge upon the fund in the receiver's hands. Of this the appellees, who are entitled to the principal part of the fund, do not complain. The appellant is interested only to the small extent to which it is allowed to share in the fund through one of the Baker receipts. In view of these facts, and the meagre condition of the

evidence upon this point, we do not think it would be proper for us to interfere.

We think that the judgment of the Circuit Court must be Affirmed. ROTHROCK, J., dissenting.1

IN trespass for carrying away certain loads of hay, the case happened to be this: The plaintiff pretending title to certain hay which the defendant had standing in certain land, to be more sure to have the action pass for him, took other hay of his own (to wit, the plain

1 "In the cases which we have now gone over the argument is very strong that there is a sale to the owners of the elevator, and it has already been fully stated. At the same time it cannot be denied that if the law is so, it will be followed by injustice and inconvenience. Undoubtedly those who deliver grain to an elevator think they have something more than the personal liability of the warehouseman, and regard him as their bailee in charge of their property. The holders of accepted orders look upon them as representing property in like manner. If the transaction is regarded as a sale, the safety of receipt-holders depends upon the warehouseman's solvency; if the doctrine which will be advocated here prevails, they run no risk unless he is both insolvent and dishonest. Of course, the opinion of merchants as to the nature of the transaction is not conclusive. As is observed by the Lord Justice James in a late case, there is no magic in the word "agency." It is often used in commercial matters, when the real relation is that of vendor and purchaser.' Ex parte White. In re Nevill, L. R. 6 Ch. 397, 399. But it is undoubtedly desirable to work out the expectations and intentions of the parties if the machinery of the law admits it. Suppose that warehousemen became insolvent, having always been careful to keep a quantity of grain in store corresponding to the amount for which they had receipts out, would not the holders of the receipts have a right to feel that they were unjustly treated, unless they were preferred to the general creditors in their claim upon that grain? Let us look at it a little more exactly.

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Suppose I deliver a copy of the General Statutes of Massachusetts, or other book easily purchasable in the market, to an agent to keep, telling him, however, that he may sell it at any time, provided that he will immediately appropriate another copy to me upon doing so, and give him like power of sale and substitution as to all succeeding copies. The title in the copy for the time being appropriated to me, to be vested in me. Is not that a perfectly possible transaction? The analogies of the 'law show that the title to a substituted volume would vest in me as soon as it was definitely appropriated to me. Aldridge v. Johnson, 7 El. & Bl. 885, 898, per Lord Campbell, C. J.; Langton v. Higgins, 4 H. & N. 402.

“Would it make any difference if the agent also had power to mix the volume with others belonging to third persons, from which it was not distinguishable, each owner being at liberty to call for one at any time? Would it make any difference that he was at liberty to add others of his own, if he was only at liberty to withdraw as many as he put in?". 6 Am. Law Rev. 464, 465.

tiff) and mixed it with the defendant's hay, after which the defendant took and carried away both the one and the other that was intermixed, upon which the action was brought, and by all the court clearly the defendant shall not be guilty for any part of the hay, for by the intermixture (which was his own act) the defendant shall not be prejudiced as the case is, in taking the hay. And now the plaintiff cannot say which part of the hay is his, because the one cannot be known from the other, and therefore the whole shall go to him who hath the property in it with which it is intermixed, as if a man take my garment and embroider it with silk, or gold, or the like, I may take back my garment, but if I take the silk from you, and with this, face or embroider my garment, you shall not take my garment for your silk which is in it, but are put to the action for taking of the silk from you.

So here, if the plaintiff had taken the defendant's hay and carried it to his house, or otherwise, and there intermixed it with the plaintiff's hay, there the defendant cannot take back his hay, but is put to his action against the plaintiff for taking his hay. The difference appeareth, and at the same day at Serjeants' Inn in Fleetstreet, the difference was agreed by Anderson, Periam, and other justices there, and this case was put by Anderson: If a goldsmith be melting of gold in a pot, and as he is melting it, I will cast gold of mine into the pot, which is melted together with the other gold, I have no remedy for my gold, but have lost it.

TRESPASS of assault and battery, et quòd cumulum pecuniæ, containing five marks, cepit, &c.

The case was, The plaintiff and defendant being at play, the plaintiff thrust his money into the defendant's heap and mixed it, and the defendant kept it all; whereupon (they striving for the money) plaintiff brought this action.

The whole court were of opinion, in regard the plaintiff's own money cannot be known, and this his intermeddling is his own act, and his own wrong, that by the law he shall lose all; for, if it were otherwise, a man might then be made to be a trespasser against his will, by the taking of his own goods; therefore, to avoid that inconvenience, the law will justify the defendant's detaining of all: and so it is of an heap of corn voluntarily intermingled with another man's. Whereupon the rule of the court was, quòd querens nihil capiat per billam.

RYDER v. HATHAWAY.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1838.

[Reported 21 Pick. 298.]

MORTON, J. delivered the opinion of the court.' This is trespass de bonis asportatis, in which the plaintiff claims to recover for twentythree cords of wood.

It appeared in evidence that the defendant took a certain quantity of wood, but he justified the taking, on the ground that the plaintiff had cut and carried the wood from his land, and so that the wood was his, and he had a lawful right to take it. The wood in controversy was cut by the plaintiff and removed by him to a landing-place by the shore of the swamp, the soil of which was owned by the defendant. From this place the defendant carried it away. If the wood was really cut upon the defendant's land, the cutting and removing it by a wrong-doer would not divest him of his property in the wood, and he might lawfully remove it from the place where the plaintiff had put it.

The principal question in the case relates to the title of the land on which the wood grew.

Upon a careful revision, we are well satisfied, that in reference to the title, the instructions were correct, and the finding of the jury warranted by the evidence.

But in the next branch of the case we have found much greater difficulties.

It appeared that a part of the wood taken by the defendant had been cut and carried to the landing-place by the plaintiff from land indisputably his own. For this part he contended that he had a right to recover, however the title to the other lot might be decided. In relation to this part of the case the jury were instructed, that if “a part of the plaintiff's own wood was so mixed with the defendant's wood in the same pile, either that the defendant did not know it or could not by any reasonable examination distinguish it, the taking of such part was not a trespass for which this action would lie." Now if, under any circumstances, the taking of wood thus mixed might be a trespass, this general instruction would need some qualification, and without it would be incorrect, and might mislead the jury. And although, in all other respects, the instructions are right, and this may need but a slight modification, yet even that, under our practice, must lead to a new trial.

Few subjects in the law are less familiar, or more obscure, than that which relates to the confusion of property. If different parcels of chattels, not capable of being identified, owned by different persons,

1 The opinion states the facts. That part of the opinion relating to the question of title is omitted.