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December instead of November, as it should have been; nor because the writ of error was not returnable in accordance with the order allowing the same, nor according to the citation. The alleged defect did not appear to have injured the party complaining.





(33 L. T., N. S., 404.)

The plaintiff, being tenant in fee of certain copyhold land within a manor, by the custom whereof trees growing on the lands were the property of the tenant in fee, having let the land to a yearly tenant, sold by parol to the defendant twenty-two specific trees, then growing on the land, upon the terms that they were to be cut down by the defendant and "got away as soon as possible," and to be paid for at a certain future day. The defendant almost immediately entered upon the land and cut down six of the trees, and sold to a third person the tops and stumps of several of the trees. The plaintiff, then gave notice to the defendant that he forbade him to enter on the land, or to cut down or carry away any of the trees, and caused the gate of the field in which the trees were to be locked. The defendant disregarded this notice, cut down the remainder of the trees, and carried away the whole twenty-two of them, for this purpose breaking open the locked gate. The plaintiff brought trespass.

Held, by the court (Lord Coleridge, C. J., and Brett and Grove, JJ.), that such a contract was not "a contract for sale of lands, tenements, or hereditaments, or any interest in or concerning them" within the meaning of the 4th section of the statute of frauds; but that it fell within the 17th section of the statute of frauds, and that there was evidence of a sufficient acceptance and actual receipt to satisfy that section; and that (the court being at liberty to draw inferences of fact), consequently, the action was not maintainable.

Held, also, by the court, that the parol license to enter and take the trees, being coupled with a valid sale of the trees, was irrevocable.

HE facts are as appear in the head note.


Lord COLERIDGE, C. J. (after stating the facts). Upon these facts it is plain that if there was a contract in point of law the plaintiff is wrong, for the property in the trees felled would be in the defendant, and the defendant would be right in going to take them away. If there was no valid contract the defendant is wrong. The land was not in the possession of the plaintiff, but in that of his tenant. The question is, whether by reason of either the 4th or 17th sections of the statute of frauds a writing is requisite for such a contract as this. First, was it "a contract or sale of lands, or any interest in or concerning them?" Many discussions have taken place upon the exact meaning to be attached to the words of this section, and many decisions have been given, all of which it may not be possible to fully reconcile. If the matter were res integra, much might be said in favor of the view taken by Littledale, J., in Smith v. Surman, 9 B. & C. 561, 571, that they relate only to what may be termed conveyancing interests, that is, to contracts for the sale of the fee or of some less interest which would give the vendee a right to the use of the land for a specific period; but the matter is very far from being res integra, and contracts for certain natural products of the land have been held to fall within the 4th section, and it is now too late to dispute the correctness of such decisions. What, then, is the test? I myself despair of giving a true test or one that can be satisfactorily applied to every conceivable case. It is suggested that where you sell some thing which is to derive benefit from the land, you part with an "interest" within the 4th section. This is an intelligible

rule, but it is one that must vary according to times and seasons. I find in a book of great authority, which has received the sanction of that eminent lawyer, the late Mr. Justice Williams, in the notes to Duppa v. Mayo, Wms. Saunders, 1871 ed., p. 394, it is said "that the principle of the decisions appears to be that wherever at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold from further vegetation and from the nutriment afforded by the land, the contract is to be considered as for an interest in land; but where the process of vegetation is over, or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the contract is for goods;" and, further, "that it appears to be now settled that with respect to fructus industriales (i. e., corn and other growth of the earth which are produced, not spontaneously, but by labor and industry), a contract for the sale of them while growing, whether they are in a state of maturity or whether they have still to derive nutriment from the land, is not a contract for the sale of any interest in land, but merely for the sale of goods. Growing trees, though planted by the hand of man, do not fairly come under the designation of fructus industriales. I think we must look to the position of matters at the time of the contract, and I think that where at the time of the contract it is contemplated by the parties that the purchaser should derive benefit from the land, then there is a contract within the 4th section; but if the thing purchased is to be immediately withdrawn from the land, then, the parties having had no intention of dealing with any interest in or concerning land, the contract does not fall within that section. Applying this to the present case, the contract of the 27th February was for trees "to be got away as soon as possible.' Now a contract to sell trees to be cut down and carried away at once would seem, but for judicial decisions, nothing like a sale of an interest in land, and as it seems to me, there is no sufficient pressure of authority to prevent us from holding that, which but for those decisions would seem clear, namely, that the present is not a case falling within the 4th section; indeed, there is some direct authority to assist us in arriving at the conclusion which, in the absence of authority, would have seemed inevitable. The case of Smith v. Surman, 9 B. & C. 561, is a case only distinguishable from the present by the fact that the trees were to be cut by the vendor; and the dicta of Littledale, J., if well founded, as we think they are, which are to be found in the report of that case, are decisive of the present case, and confirmatory of our view of the law. The next question is whether, if this contract is within the 17th section, there has been a sufficient acceptance and actual receipt to satisfy the requirements of that section. This is a matter upon which there are an infinite number of reported decisions; the principle, however, which can from an early period be found in those decisions is, that there need not be an actual manual receipt by the buyer of the whole article; it is enough if there has been a constructive acceptance and receipt. Was there here enough? Six of the trees were cut down before the countermand, and portions of them sold to a third person, without, it would seem, the actual knowledge of the plaintiff, but, as it must be taken, with his consent. What more could a purchaser do? Trees are bulky articles which cannot be carried away

merely by the hand, and the purchaser cuts off their tops and stumps and sells them, thus showing by his conduct that he adhered to the contract. If any thing short of actual manual receipt would do, what was done here was enough. He is allowed to deal with the goods as his own, and deals with them as only an owner has a right to deal. The cases of Hodgson v. De Bret, 1 Campb. 233; Anderson v. Scott, id. 235, and the judgment of Lord Kenyon in Chaplin v. Rogers, 1 East, 191, appear directly in point. Lord Kenyon, in Chaplin v. Rogers, 1 East, 194, says: "Where goods are ponderous, and incapable of being handed over from one to another, there need not be an actual delivery." The defendant, therefore, had a perfect right to go upon the land and carry out his contract, by cutting down and carrying away, as he did, the whole of the trees he purchased. I do not rely upon the fact that the land was not then in the possession of the plaintiff, and therefore I express no opinion as to how far the fact that the plaintiff had no present interest in the land may strengthen the defendant's case.

BRETT, J. It is admitted, that if the trees were the property of the defendant by virtue of a valid contract, no action lies. Upon the facts, it appears that no contract in writing was signed by the plaintiff, and that the trees had not been taken away by the defendant before the plaintiff gave notice that he revoked the contract. It was said, first, that the contract was one within the 4th section of the Statute of Frauds, and, secondly, that, if not within the 4th section, but within the 17th, there was no sufficient acceptance and actual receipt. A contract may concern land in various ways. It may relate to something in the land, to something affixed to the land, or to something both in the land and affixed to it. Certain tests have been applied for the purpose of. determining whether or not a contract falls within the 4th section. Most of these tests are given in the notes to Duppa v. Mayo, W. Saund. (ed. 1871) 394, an edition which has the sanction of the authority of a learned, eminent and profound lawyer, and which has just been referred to by the lord chief justice. In this case, the subject-matter of the contract, timber trees, was to be taken away by the buyer immediately; applying, therefore, the tests given in the notes to Duppa v. Mayo, the contract regards only trees, and is within the 17th section and not within the 4th. There was no writing, therefore we must ascertain whether there was acceptance and actual receipt before the countermand. That there was acceptance was hardly questioned. Was there evidence of actual receipt? I say, was there evidence; because, though the question was tried by consent before the judge, it is left for this court to draw inferences from the facts. It appears that the vendor and owner of the trees was not in possession of the land, yet I think the case may be treated as though he were. Before the countermand, the defendant had a license to go on the land; he had a right to go there by reason of the parol contract; he went there and cut down six of the trees and lopped them. I do not rely upon the agreement to sell the stumps and tops, for I think the mere making of a subcontract would not be enough, but there was more than this. Where there has been no carrying away of

to be left to a jury, of actual receipt. In Hodgson v. Le Bret, 1 Campb. 233, the goods were marked by the purchaser with his name; that was the act of an owner. In Anderson v. Scott, 1 Campb. 235, the plaintiff's initials were marked upon the casks in his presence, although they were upon the seller's premises. The fact that the plaintiff allowed or procured this to be done in his presence was evidence to show that he intended to be the owner of the casks. Here, before there was any revocation of the verbal contract, what was done sufficiently satisfied the requirements of the statute as to actual receipt. The contract, therefore, was binding, and the defendant is entitled to succeed.

GROVE, J. I have little to add. One point, however, I wish to notice. In cases of this description, not only the subject-matter of the bargain is to be looked at, but also the intention of the parties as to the matter in respect of which they bargain. In Smith v. Surman, Sergeant Russell, in his argument, says: "A sale of crops or trees, or other matters existing in a growing state in the land, may or may not be an interest in land according to the nature of the agreement between the parties, and the rights which such an agreement may give." Littledale, J., in the same case (9 B. & C. 573), says: "The object of a party who sells timber is not to give the vendee any interest in his land, but to pass to him an interest in the trees, when they become goods and chattels." By considering what, in each case, was the object of the parties, many of the cases may, I think, be reconciled. Here the defendant merely intended to buy the trees; he had no intention of being interested in the land, he merely wanted timber and wished to have it severed from the land at once, he only bought so much wood. I am, perhaps, hardly satisfied that the circumstance that the plaintiff was not in possession of the land was immaterial; it may be that the plaintiff had no right in the land except the right to remove the trees, and this may be a matter which strengthens the case for the defendant. It is not, however, needful to discuss this question in the present case, as I agree that, independently of any considerations that may arise from the fact of the land being then the plaintiff's tenant's, the defendant is entitled to the verdict.



Dows ET AL., plaintiffs in error, v. NATIONAL EXCHANGE BANK OF MILWAUKEE.

McL. & Co. bought wheat on the order of S. & Co. and paid for it with their own money. They drew drafts against it and consigned it to the cashier of a bank at M., together with the bills of lading and the drafts. Invoices only were sent to S. & Co. The bank purchased the drafts, and sent them, with the bills of lading, to a bank at W. with directions to hold the wheat until the drafts were paid. The bank at W. ordered the wheat to be delivered at an elevator owned by S. & Co., but instructed them to hold the grain and deliver it only on payment of the drafts. S. & C. sold the wheat to defendants without paying the drafts. Held, that the title to the wheat was never in S. & Co., and that defendants were liable for a conversion to the bank at M.

trict of New York.

the thing sold, the question is, has the vendee been in ERROR to the Circuit Court for the Southern Disactual possession of the thing sold, and done something to the thing itself which could only legally be done by the owner. I incline to think that something done concerning the thing would not be sufficient evidence,

Mr. Justice STRONG delivered the opinion of the court.

The verdict of the jury having established that the

wheat came to the possession of the defendants below (now plaintiffs in error), and that there was a conversion, there was really no controversy respecting any other fact in this case than whether the ownership of the plaintiffs had been divested before the conversion. The evidence bearing upon the transmission of the title was contained mainly in written instruments, the legal effect of which was for the court, and, so far as there was evidence outside of these instruments, it was either uncontradicted, or it had no bearing upon the construction to be given to them. We have, therefore, only to inquire to whom the wheat belonged when it came to the hands of the defendants, and when they refused to surrender it at the demand of the plaintiffs.


It is not open to question that McLaren & Co., having purchased it at Milwaukee and paid for it with their own money, became its owners. Though they had received orders from A. F. Smith & Co. to buy wheat for them and to ship it, they had not been supplied with funds for the purpose, nor had they assumed to contract with those from whom they purchased on behalf of their correspondents. They were under no obligation to give up their title or the possession on any terms other than such as they might dictate. If, after their purchase, they had sold the wheat to any person living in Milwaukee or elsewhere, other than A. F. Smith & Co., no doubt their vendee would have succeeded to the ownership. Nothing in the agency for A. F. Smith & Co. would have prevented it. This we do not understand to be controverted. Having, then, acquired the absolute ownership, McLaren & Co. had the complete power of disposition, and there is no pretense that they directly transferred their ownership to A. F. Smith & Co. They doubtless expected that firm to become purchasers from them. bought from their vendors with that expectation. Accordingly they drew drafts for the price, but they never agreed to deliver the wheat to the drawees unless upon the condition that the drafts should be accepted and paid. They shipped it, but they did not consign it to Smith & Co., and they sent to that firm no bills of lading. On the contrary, they consigned the wheat to the cashier of the Milwaukee bank and handed over to that bank the bills of lading as a security for the drafts drawn against it-drafts which the bank purchased. It is true they sent invoices. That, however, is no significance by itself. The position taken on behalf of the defendants, that the transmission of the invoices passed the property in the wheat without the acceptance and payment of the drafts drawn against it, is utterly untenable. An invoice is not a bill of sale, nor is it evidence of a sale. It is a mere detailed statement of the nature, quantity, and cost or price of the things invoiced, and it is as appropriate to a bailment as it is to a sale. It does not of itself necessarily indicate to whom the things are sent, or even that they have been sent at all. Hence, standing alone, it is never regarded as evidence of title. It seems unnecessary to refer to authorities to sustain this position. Reference may, however, be made to Shepherd v. Harrison, Law Rep., 4 Ap. Cas. 116, and Newcomb v. The Boston and Lowell Railroad Company, 115 Mass. 230. In these and in many other cases it has been regarded as of no importance that an invoice was sent by the shipper to the drawee of the drafts drawn against the shipment, even when the goods were described as bought and shipped on account of and at the risk of the drawee.

It follows that McLaren & Co. remained the owners of the wheat, notwithstanding their transmission of the invoices to A. F. Smith & Co. As owners, then, they had a right to transfer it to the plaintiffs as a security for the acceptance and payment of their drafts drawn against it. This they did by taking bills of lading deliverable to the cashier of the plaintiffs and handing them over with the drafts when the latter were discounted. These bills of lading unexplained are almost conclusive proof of an intention to reserve to the shipper the "jus disponendi " and prevent the property in the wheat from passing to the drawees of the drafts. Such is the rule of interpretation as stated in Benjamin on Sales, page 306, and in support of it he cites numerous authorities, to only one of which we make special reference-Jenkyns v. Brown, 14 Q. B. 496. There it appeared that the plaintiff was a commission merchant, living in London, and employing Klingender & Co. as his agents at New Orleans. The agents purchased for the plaintiff a cargo of corn, paying for it with their own money. They then drew upon him at thirty days' sight, stating in the body of the drafts that they were to be placed to the account of the corn. These drafts they sold, handing over to the purchaser with them the bills of lading, which were made payable to the order of Klingender & Co., the agents, and they sent invoices and a letter of advice to the plaintiff, informing him that the cargo was bought and shipped on his account. On this state of facts the court ruled that the property did not pass to the plaintiff; that the taking of a bill of lading by Klingender & Co., deliverable to their own order, was "nearly conclusive evidence that they did not intend to pass the property in the corn, and that by indorsing the bills of lading to the buyer of the bills of exchange they had conveyed to him a special property in the cargo, so that the plaintiff's right to the corn could not arise until the bills of exchange were paid by him. And that such is the legal effect of a bill of lading taken deliverable to the shipper's own order; that it is inconsistent with an intention to pass the ownership of the cargo to the person on whose account it may have been purchased, even when the shipment has been made in the vessel of the drawee of the drafts against the cargo, has been repeatedly decided. Turner v. The Trustees of the Liverpool Docks, 6 Exch. 543; Schorman v. Railway Co., Law Reps., 2 Cha. Ap. 336; Ellerslaw v. Magniac, 6 Exch. 570. In the present case the wheat was not shipped on the vessels of A. F. Smith & Co., and the bills of lading stipulated for deliveries to the cashier of the Milwaukee bank. When, therefore, the drafts against the wheat were discounted by the bank, and the bills of lading were handed over with the drafts as security, the bank became the owner of the wheat and had a complete right to retain it until payment. The ownership of McLaren & Co. was transmitted to it, and it succeeded to their power of disposition. That the bank never consented to part with its ownership thus acquired, so long as the drafts it had discounted remained unpaid, is rendered certain by the uncontradicted written evidence. It sent the drafts, with the bills of lading attached, to the Merchants' Bank, Watertown, accompanied with the most positive instructions, by letter and by indorsement on the bills, to hold the wheat until the drafts were paid. And when, subsequently, the Merchants' Bank sent orders to the masters of the carrying vessels to deliver it to the "Corn Exchange Elevator, Oswego, N. Y.," they accompanied the orders with letters to A. F.

Smith & Co., the proprietors of the elevator, containing clear instructions to hold the grain and "deliver" it only on payment of the drafts. To these instructions Smith & Co. made no objection. Now, as it is certain that whether the property in the wheat passed to Smith & Co. or not depends upon the answer which must be given to the question whether it was intended by McLaren & Co., or by the Milwaukee bank, their successors in ownership, that it should pass before payment of the drafts, where can there be any room for doubt? What is there upon which to base an inference that it was intended A. F. Smith & Co. should become immediate owners of the wheat and be clothed with a right to dispose of it at once? Such an inference is forbidden, as we have already said, by the bills of lading made deliverable to W. G. Fitch, cashier of the Milwaukee bank, and it is inadmissible, in view of the express orders given by that bank to their special agents, the Merchants' Bank at Watertown, directing them to hold the wheat subject to the payment of the drafts drawn against it. No intent to vest immediate ownership in the drawees of the drafts can be implied in the face of these express arrangements and positive orders to the contrary. It is true that A. F. Smith & Co. were the proprietors of the Corn Exchange elevator, and that the wheat was handed over to the "custody of the elevator" at the direction of the Merchants' Bank, but it cannot be claimed that was a delivery to the drawees under and in pursuance of their contract to purchase. The Merchants' Bank, having been only special agents of the owners, had no power to make such a delivery as would divest the ownership of their principals. Stollenwerk et al. v. Thatcher, 115 Mass. 124. And they made no attempt to divest that ownership. They guardedly retained the "jus disponendi." Concurrently with their directions that the wheat should be delivered to the elevator, in the very orders for the delivery, they stated the cargoes were for the account of W. G. Fitch, cashier, and were to be held subject to their order. By accompanying letters to the proprietors of the elevator, they stated the cargoes were delivered to them "to be held subject to and delivered only on payment of the drafts drawn by McLaren & Co." All this contemplated a subsequent delivery, a delivery after the receipt of the grain in the elevator and when the drafts should be paid. It negatives directly the possibility that the delivery into the elevator was intended as a consummation of the purchase or as giving title to the purchasers. It was a clear case of bailment, utterly inconsistent with the idea of ownership in the bailees. A man cannot hold as bailee for himself. By the act of accepting goods in bailment he acknowledges a right or title in the bailor. When, therefore, as was said in the court below, "the proprietors of the Corn Exchange Elevator, or A. F. Smith & Co., received the wheat under the instructions of the Merchants' Bank, they received it with the knowledge that the delivery to them was not absolute; that it was not placed in their hands as owners, and that they were not thereby to acquire title." They were informed that there was no intention with the holders of the drafts and bills of lading to let go their ownership so long as the drafts remained unpaid. The possession they had, therefore, was not their possession. It belonged to their bailors, and they were mere warehousemen and not vendees.

We agree that where a bill of lading has been taken containing a stipulation that the goods shipped shall

be delivered to the order of the shipper or to some person designated by him other than the one on whose account they have been shipped, the inference that it was not intended the property in the goods should pass, except by subsequent order of the person holding the bill, may be rebutted, though it is held to be almost conclusive. And we agree, that where there are circumstances pointing both ways, some indicating an intent to pass the ownership immediately, notwithstanding the bill of lading, in other words, where there is any thing to rebut the effect of the bill, it becomes a question for the jury whether the property has passed. Such was the case of Ogg v. Shuter, 10 Law Reps., Com. Pleas, 159. There the ordinary effect of a bill of lading, deliverable to the shipper's order, was held to be rebutted by the court sitting with power to draw inferences of fact. The delivery to the carrier was "free on board," and the bill of lading was sent to the consignor's agent. The goods were also delivered into the purchaser's bags, and there was a part payment. But in this case there are no circumstances to rebut the intent to retain ownership exhibited in the bills of lading and confirmed throughout by the indorsements on the bills, and by the written instructions to hold the wheat till payment of the drafts. Nothing in the evidence received or offered tended to show any other intent. Hence, there was no necessity of submitting to the jury the question whether there was a change of ownership. That would have been an invitation to find a fact of which there was no evidence. The circumstances relied upon by the plaintiffs in error, as tending to show that the property vested in A. F. Smith & Co., cannot have the significance attributed to them.

It is certainly immaterial that the wheat was consigned to W. G. Fitch, cashier, care of the Merchants' Bank, Watertown, and that it was thus consigned at the request of A. F. Smith & Co., made to McLaren & Co. Had it been consigned directly to that bank, and had there been no reservation of the "jus disponendi" accompanying the consignment, the case might have been different. Then an intent to deliver to the purchasers might possibly have been presumed, but, as the case was, no room was left for such a presumption. The express direction to hold the wheat for the payment of the drafts, and to deliver it only on payment, removes the possibility of any presumed intent to deliver it while the drafts remained unpaid. A shipment on the purchaser's own vessel is ordinarily held to pass the property to the purchaser, but not so if the bill of lading exhibits a contrary intent; if thereby the shipper reserves to himself, or to his assigns, the dominion over the goods shipped. Turner v. The Trustees of the Liverpool Docks, cited supra. There are many such decisions. A strong case may be found in the Court of Queen's Bench, decided in 1840. It is Mitchell v. Ede, 11 Adol. & Ellis, N. S., 888. A Jamaica planter, being the owner of sugars, and indebted to the defendant residing in London, for more than their value, shipped them at Jamaica on the 4th of April, on a ship belonging to the defendant which was in the habit of carrying supplies to Jamaica to the owner of the sugars, and others, and taking back consignments from him and others. On the same day he took a bill of lading by which the goods were stipulated to be delivered to the defendant at London, he paying freight. Two days afterward (April 6), the shipper made an indorsement on the bill that the sugars were to be delivered to the defendant only on con

dition of his giving security for certain payments, but otherwise to the plaintiff's agent. He also drew drafts on the defendant. At the same time he indorsed the bill of lading and delivered it to the plaintiff, to whom he was indebted. The bill was never in the defendant's hands. The sugars arrived in London, and the defendant paid the drafts drawn by the shipper, but did not comply with the conditions of the indorsement of April 6. On this state of facts it was held by the court that the plaintiff was entitled to the sugar; that the shipper had not parted with the property by delivering it on board the defendant's ship, employed as it was, nor by accepting the bill of lading, as drawn on the 4th of April; and that he was entitled to change the destination of the sugars till he had delivered them, or the bill. In the case now in hand there never was an instant, after the purchase of the wheat by McLaren & Co., when there was not an express reservation of the right to withhold the delivery from A. F. Smith & Co., and also an avowed purpose to withhold it until the drafts should be paid. Consent to consign the wheat to W. G. Fitch, cashier, care of Merchants' Bank, amounts, therefore, to no evidence of consent that it should pass into the control and ownership of the purchasers.

It has been argued on behalf of the plaintiffs in error that the correspondence between A. F. Smith & Co. and McLaren & Co. shows that the wheat was wanted by the former to supply their immediate need, and that, therefore, it was a legitimate inference both parties to the correspondence intended an immediate delivery. If this were so, it was still in the power of the vendors to change the destination of the property until the delivery was actually, or at least symbolically, made. And that the intention, if any ever existed, was never carried out, the bills of lading prove. It may be that A. F. Smith & Co. expected to secure early possession of the wheat, by obtaining discounts from the Watertown bank, and then by taking up the drafts. If so, it would account for their request that the drafts and bills of lading might be sent through that bank, but that has no tendency to show an assent by either McLaren & Co. or the Milwaukee bank, to an unconditional delivery of the property before payment of the drafts.

Nor does the fact that any engagement to hold themselves responsible for the safe-keeping of the wheat for the plaintiffs, and subject to their orders until the drafts drawn against it should be paid, was exacted from the Watertown bank, have any tendency to prove such an assent. This was an additional protection to the continued ownership of the plaintiffs, and the words of the engagement plainly negative any consent to a divesture of that ownership.

Without reference, therefore, to the testimony of McLaren, which was in substance that before the shipments, Farwell, the agent of Smith & Co., was informed that while the shipping firm would agree to send their time drafts through any bank he might designate, and consign the property to any responsible bank Smith & Co. might designate, they would adhere to their positive business rule in such cases, and on no account consent that any property so shipped should pass out of the control of the banks in whose care it had been placed until all drafts made against it had been paid; without reference to this, we think it clear the ownership of the wheat, for the conversion of which the defendants were sued, never vested in Smith & Co., never passed out of the plaintiffs.

This is a conclusion necessarily drawn from the written and uncontradicted evidence, and there is nothing in any evidence received, or offered by the defendants and overruled by the court, which has any tendency to resist the conclusion. It is unnecessary, therefore, to examine in detail the numerous assigments of error in the admission and rejection of evidence. None of the rulings have injured the defendants.

If, then, the Exchange Bank of Milwaukee was the owner of the wheat when A. F. Smith & Co. undertook to ship it to the defendants, and when the defendants received it, and converted it to their use, the right of the bank to recover in this action is incontrovertible. Smith & Co. were incapable of divesting that ownership. The defendants could acquire no title, or even lien, from a tortious possessor. However innocent they may have been (and they were undoubtedly innocent of any attempt to do wrong), they could not obtain ownership of the wheat from any other than the owners. The owner of personal property cannot be divested of his ownership without his consent, except by process of law. It is not claimed, and it could not be, that the defendants were deceived or misled by any act of the plaintiffs. They are the victims of a gross fraud perpetrated by A. F. Smith & Co., and however unfortunate their case may be, they cannot be relieved by casting the loss upon the plaintiffs, who are at least equally innocent with themselves, and who have used the extremest precaution to protect their title.

It is sufficient to add that, in our opinion, there is no just reason for complaint against the instruction given by the circuit judge to the jury, and his rulings upon the subject of damages and interest. The judgment is affirmed.



1. In a motion to set aside a verdict for the misconduct of a juror in conversing with an outsider about the case while it was on trial, it is not necessary to set out the conversion. Tomlinson v. Town of Derby, 41 Conn. 268.

2. Where a juror has conversed with a person not of the panel, respecting the case on trial, it is sufficient cause for setting aside the verdict, unless it appears that the successful party in the suit has not been benefited or the defeated party injured by the fact of the conversation. Ib.

3. Where a juror allowed such a conversation, in which it was stated to him that if the plaintiff should recover $5,000 damages, he would have nothing left after paying his expenses, in which the juror expressed his concurrence, it was held, after a verdict for the plaintiff, that the effect of the conversation was presumably to increase the damages allowed, and that the verdict ought to be set aside. Ib.


1. Life insurance. - Mandamus will not lie to compel the admission of a claimant into an office that is already filled by a de facto officer, who is discharging the duties of the office. Duane v. McDonald, 41 Conn. 517.

2. The question of the right of the incumbent must first be tried upon an information in the nature of a quo warranto. lb.

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