
    Luther Wilson, Plaintiff and Appellant, v. Henry Nason, Defendant and Respondent.
    1. H. M. was engaged in buying and selling wheat on his own account at Oswego, and also in receiving wheat and shipping it for other parties. In the summer and fall of 1851, the plaintiff bought and sent to him several thousand bushels of wheat which the plaintiff had as a commission merchant purchased for him, and the plaintiff also sent him a large quantity to be forwarded for himself. In October, 1851, the plaintiff being the owner of about 6,000 bushels, shipped it on Lake Ontario, by lake boats, consigned to M. T. & Go., Troy, New York, care of H. M. at Oswego, and so expressed in the bill of lading; the wheat to be forwarded by the latter by canal boats to Troy. H. M., at Oswego, received the wheat and forwarded all but about 730 bushels which he deposited in a bin to await a suitable opportunity for forwarding. He also deposited other wheat of the same description and quality, belonging to other parties, in the same bin. H. M. thereafter forwarded to New York, out of the said bin, the full quantity of wheat belonging to other parties, and finding a residue of about 722 bushels remaining in the bin, and believing at the time that it belonged to himself¡ he shipped that residue in bulk, and mixed with 984 bushels belonging to such other parties, to the defendant, a commission merchant, in New York, and drew bills of exchange on the defendant in the same manner as he had from time to time previously sent other wheat owned by himself. The defendant, acting in good faith and believing it to be the property of H. M., "received the wheat, accepted and paid the bills so drawn, and sold the wheat. On an examination of the account of wheat received by H. M. from the plaintiff, it was discovered that H. M. had not forwarded to M. T. & Go. so much as he had received by 730 bushels, and he thereupon gave to the plaintiff an order on the defendant for the proceeds of the 722 bushels. The plaintiff demanded from the defendant the 722 bushels, and also demanded the proceeds thereof, and the defendant refused to deliver the wheat or pay over the proceeds, claiming a right to retain such proceeds in reimbursement of Ms advances to H. M. Held, that the plaintiff was entitled to recover from the defendant the value of the wheat; that H. M. could give to the defendant no title; that the plaintiff having conferred upon H. M. no. authority to sell the wheat, his mere possession was no protection to the defendant; that inasmuch as the documentary evidence of title (to wit, the bill of lading,) which the plaintiff intrusted to H. M. showed on its face that the latter was not the owner, the statute relating to sales by factors furnished no protection to the defendant.
    2. Held, also, that the fact that H. M. had previously mixed the plaintiff’s wheat with the wheat of other parties placed in the same bin did not so destroy its identity that after the quantity owned by others had been removed, the plaintiff might not claim the residue and pursue it as his own.
    S. A sale of the owner’s wheat by one who has the possession thereof for the mere purpose of shipping it to the owner’s consignee is void as against the owner and passes no title, although the vendor sells it innocently, believing it to be his own and the purchaser receives it in good faith in the like belief and pays value therefor. A commission merchant receiving and making advances on the wheat stands in no better position.
    4. Where one who has possession of the owner’s wheat mixes it with other wheat of the same description and quality, (whether his own or belonging to third persons,) without the consent of the owner,- the latter does not lose the title to his wheat; he may call for a division, or when the other parties have received from the mass their -several quantities he may claim and recover the residue as Ms separate' parcel. Identification of the very grains of wheat is not necessary.
    (Before Bosworth, Ch. J., Hoffman and Moncrief, J. J.)
    Heard, January 12th;
    decided, February 12th, 1859.
    This case was heard at the General Term after a judgment-dismissing the complaint, and giving costs to the defendant, was ordered at the trial, the Court directing that the case be heard on the exceptions at a General Term of the Court, with a stay of proceedings to enforce such judgment, until the General Term * had passed upon the same.
    . The action was tried before Mr. Justide Pierrepont and a jury, on the 12th of October, 1858. No exception was taken on the part of the plaintiff to any ruling during the progress of the trial. When both parties had closed, a motion to dismiss the complaint was made, on the ground that upon the evidence the plaintiff was not entitled to recover; but the defendant was entitled, as matter of law, to judgment, (there being no question of fact in dispute.) The complaint was thereupon dismissed, and the plaintiff duly excepted to the decision.
    
      The action was to recover the value of 740 bushels of wheat. It was alleged that the defendant, sometime in October or November, 1851, became possessed of the same at the city of New York; that in January, 1852, the plaintiff demanded of the defendant to return said wheat, or that he pay him the value thereof, which the defendant refused to do. The defendant denied that he ever obtained possession of any wheat belonging to the plaintiff; and denied that the plaintiff ever demanded of him such wheat as is mentioned in the complaint.
    The plaintiff, in 1851, was a merchant and miller in Niagara county. He bought grain on his own account, and also on commission, and forwarded it in his own vessels to consignees at the east. He had dealings with one Mathews, a buyer, seller and shipper of produce, at Oswego. From September, 1850, on to the fall of 1851, the plaintiff, as a commission merchant and agent for Mathews, bought wheat to the extent of $40,000 or $50,000, and shipped it in his (plaintiff’s) own vessels, to Mathews, who paid his commissions. These transactions were for account of Mathews.-
    The plaintiff, in August, September, and October, 1851, shipped 12,395 bushels of wheat belonging to himself, to Moore, Tibbets & Co., Troy, via Oswego, in five separate shipments; and in the bills of lading on board the lake boats on which it was transported to Oswego, the shipment purported to be by the plaintiff, to Moore, Tibbets & Co., at Troy, and the ■ bills were underwritten to the “care of H. Mathews, Oswego,” and the bills were forwarded by the plaintiff to Mathews.
    As to these five shipments, Mathews acted as receiving and shipping agent for the plaintiff to tranship the wheat from lake boats to canal boats. His duty was to ship the wheat to Moore, Tibbets & Co. It was a part of his business to receive wheat and pay the lake freights, and forward the same to its destination, and he did so receive and forward large quantities, and for doing so he charged the owners half a cent per bushel.
    Mathews was a large buyer of wheat, both of plaintiff and others. He was not a warehouseman or carrier. He had no warehouse, but hired a bin in a warehouse owned by another man, in which he deposited, indiscriminately, Genesee and Niagara wheat belonging to himself, and also parts of shipments received by him from the plaintiff and three other parties, viz., Wright & Outwater, Doyle & Emerson, and Helson Cornell, for transhipment, while it awaited a suitable opportunity for forwarding the same.
    During October, 1851, Mathews had received wheat from the plaintiff and the other parties above named, and also for himself; part he transhipped immediately, part he mixed in the bin, and from the bin made shipments to suit his convenience for each of the parties, and for himself. He finally cleared out the bin about the 22d and 23d of October, by shipments to L. Bulkley & Co., of Hew York, on account of Cornell; to Jones, Himrod & Titus, of Hew York, on account of Doyle & Emerson; to the same, on account of Wright & Outwater; and to defendant, on his own (Mathews’) account. The quantity belonging to Wright & Out-;water was 984 bushels; this he shipped to Jones, Himrod & Titus, of Hew York, by the boat “Honest Farmer,” and sent to them the bill of lading. There then remained in the bin 722 bushels, and this he put on board the same boat in bulk, mixed with the 984 bushels, consigned it to the defendant and sent him the bill of lading, believing at the time that the 722 bushels belonged to himself, while in truth he had received, of the wheat of the plaintiff which it was his duty to forward, about 730 more bushels than he had forwarded for him to Moore, Tibbets & Co., and these 730 bushels he had placed in the bin. But through oversight, not discovering that any of the plaintiff’s wheat had not been forwarded, he supposed it to belong to himself, and he shipped it to the defendant for sale on commission, as had been his habit for several years. His transactions with the defendant of this nature, between April and Hovember, 1851, were $43,813. The defendant was in the habit of making advances on Mathews’ shipments on receipt of the bills of lading; sometimes Mathews would draw against particular shipments, sometimes generally. After this shipment he drew four drafts on the defendant, amounting to $5,060, all of which were accepted by the defendant, and paid before the latter had any notice of the plaintiff’s claims. These drafts were made on general account.
    These drafts were accepted and paid on the faith and on account of the bill of lading for the 722 bushels, as well as other shipments to the defendant.
    
      Notice was given by the defendant to Mathews, that the wheat was sold and the proceeds passed to his credit.
    This shipment was taken into account by the defendant in accepting Mathews’ drafts, and in ascertaining the state of Mathews’ account, and it appeared that upon giving credit to Mathews for the proceeds of that shipment, and charging the drafts paid, the defendant did not owe him anything.
    The defendant had no notice, at any time during the transaction, that Mathews was not the actual owner of the wheat. The plaintiff subsequently called on Mathews, and on examination it was discovered that about 730 bushels of the plaintiff’s wheat, (which had been placed in the bin,) had not been forwarded to Moore, Tibbets & Co., and that this deficiency in the plaintiff’s wheat, therefore, constituted the residue which was in the bin after the requisite quantity had been removed belonging to others, and which Mathews, under the mistaken belief that it was his own, had shipped to the defendant.
    Mathews, therefore, gave the plaintiff an order on the defendant for the proceeds of the 722 bushels, and accompanied it with a note explaining the circumstances. The plaintiff presented the order and demanded the proceeds, but the defendant refused to pay them. The plaintiff also demanded the 722 bushels of wheat, but the defendant refused to recognize the plaintiff as having any interest therein. The defendant having in good faith accepted and paid on the faith of the consignment by Mathews to himself; believing that the wheat belonged to Mathews, retained and claimed to hold the proceeds of the 722 bushels in reimbursement of his advances.
    It further appeared on the trial that on the arrival of the boat “Honest Farmer” in New York, the whole of the wheat, (i. e., the 984 bushels consigned to Jones, Himrod & Titus, for account of Wright & Cutwater; and the 722 consigned to the defendant) was sold in bulk by Jones, Himrod & Titus, they acting in behalf of the defendant in respect to the 722 bushels, and paying over to the defendant the proceeds thereof.
    [Upon a former trial of the action before a referee, he ordered judgment for the plaintiff; but on appeal to the General Term the judgment was reversed and a new trial ordered, as stated in the opinion of the Court.]
    
      
      Homer H. Stuart, for the plaintiff,
    insisted that the plaintiff owned the 722 bushels of wheat in controversy, so long as it remained in the possession of Mathews; and that the defendant did not acquire the title as against the plaintiff.
    That the mixing of the plaintiff’s wheat by Mathews, for a temporary purpose, with other wheat of,a like description and quality did not affect the plaintiff’s title.
    That the plaintiff was still entitled to his specific quantity from the bin.
    That the subsequent withdrawal from the bin of the quantity due to others was an actual separation, and the residue belonged to the plaintiff.
    On the day of sending this wheat, Mathews had in his possession, as warehouseman, forwarder or bailee, 984 bushels belonging to Wright, and 722 belonging to plaintiff. He had no authority from either to intermix or do any act, except to forward. He could not transfer title in either parcel 'from one owner to the other, or to himself, or to a stranger. If, from carelessness in the management of his business, he coul<J not readily ascertain who owned the 722 bushels, and assumed that he owned it himself, because it remained in his possession after each of his bailors had, as he supposed, received all the wheat belonging to him, this mistake could not divest the owner of his title, and transfer it to Mathews. While the'wheát remained in Mathews’ hands, no act of Mathews, not authorized by the plaintiff, could transfer the plaintiff’s title. The 722 bushels were part of the 12,395. Mathews could not sell part to defendant, unless he could sell the whole.
    But the law is well settled, that mixing wheat of the same kind, belonging to different owners, does not affect their individual rights.
    Story on Bailments, section 40, states the law thus:
    “It the goods are of the same nature and value, and although not capable of an actual separation by identifying each particle,' yet if a division can be made of equal value, (as in the case of a mixture of corn, or coffee, or tea, or wine of the same kind and quality,) then each may claim his aliquot part.”
    The cases embrace nearly every variety of transactions. The mixing was made with consent and .without consent of owners; was done for the purpose of storage, of carriage, and of manufacture. The common question in all the cases, was, whether the transaction amounted to a change of title, or was a simple bailment, and the inquiry related entirely to the agreement of the parties on the subject, irrespective of the fact whether the wheat was mixed with other wheat. The Courts have uniformly held that each owner’s wheat remains the identical thing deposited by him, notwithstanding its mixture. That the doctrine governing cases of confusion of goods, does not apply. (Nowlen v. Colt, 6 Hill R., 461; Goodyear v. Ogden, 4 id., 104; Dawson v. Kittle, id., 107; Mallory v. Willis, 4 Comst., 76.)
    Whether a particular transaction amounts to a confusion of goods, and involves the consequences resulting from such cause, depends entirely upon the fact that a separation is impossible. Mixing the wine of A. with the vinegar or salt of B., undoubtedly makes a case of confusion of goods, and the wrongdoer, if he was the owner of one of the things thus mixed, loses his title.
    If Mathews wrongfully mixed plaintiff’s wheat with Mathews’ wheat, and it paused a confusion of goods, the loss falls on Mathews. H the separate parcels could not be taken from the mass, then the whole would belong to plaintiff.
    The remaining question is, did the defendant obtain a title to this wheat as against the plaintiff ?
    If it be conceded that Mathews was not the owner of the wheat, then he could not give title by a sale, unless he had authority express or implied, from the owner.
    The defense interposed under the factor act cannot be sustained. The 6th section of the factor act especially excepts such a case as this from the statute, viz.:
    “ Nothing contained in this act shall authorize a common carrier, warehouseman, or other person to whom merchandise or other property may be committed for transportation or storage only, to sell or hypothecate the same.”'
    Mathews was such person, and acted as such, not only for plaintiff, but various other parties whom he names.
    It is not necessary that the sole or even the greater part of a person’s occupation should be that of such designated kind to bring him within the scope of that section. It is not alone a common carrier or warehouseman, but any person who has possession of property for transportation or storage.
    
      The only ground on which defendant could claim that this statute applied, must be that plaintiff gave Mathews some bill of lading or other indicia of title, which on its face imported ownership in Mathews.
    In the bill of lading which plaintiff sent to Mathews, plaintiff appeared to be the owner, and Moore, Tibbetts & Co., the consignees.
    Mathews appeared, as he was in fact, a mere intermediary to effect the passage of the property from the consignor to the consignees.
    Besides, the bills of lading which plaintiff gave Mathews were not shown to defendant, and he could not have acted “ on the faith thereof."
    The bill of lading sent by Mathews to the defendant, did not bring the case within the statute.
    The statute never intended to authorize a mere possessor of personal property, not intrusted with it by the owner for the purpose of sale, to give a better title than he had, by making his transfer in the form of a bill of lading instead of a bill of sale. A thief who consigns stolen property, by giving a'bill of lading of it to his consignees, does not change the owner’s title. (Stevens v. Wilson, 3 Denio, 472; see same case in 6 Hill R., 512; Covell v. Hill, 2 Seld. R., 374; see reasoning of Judge Bbonson on the 1st section of factor act, in Covill v. Hill, 4 Denio, 329— foot of that page.)
    The factor act excludes this case, and it must stand on the old common law ground. (Saltus v. Everett, 20 Wend. R., 267, 279.)
    “ The doctrine that possession is the evidence of property, so as to protect a person acquiring the property in the usual course of trade, is limited" to cash, bank bills, and bills payable to bearer.” (Id., 279; Covill v. Hill, 4 Denio R., 323.)
    
      Wm. Allen Butler, for the defendant.
    I. There was no evidence in the case to sustain the allegation of the complaint that defendant obtained possession of wheat which belonged to the plaintiff.
    
    1. There was no attempt to identify the 722 bushels claimed, as wheat originally shipped by plaintiff.
    
      2. The evidence showed that portions of all the wheat received by Mathews, as owner or agent, were intermixed in one bin, and that out of this bin he made shipments to suit his convenience. There was thus a total confusion of the property of different owners, and it is impossible to say what became of the 730 bushels, which, on the final settlement between Mathews and plaintiff, was found to be deficient.
    3. On this state of facts, supposing that Mathews was liable to the plaintiff for the unauthorized mixture to the extent of the value of the deficiency, there could be no liability on the part of the defendant in this action of trover. By the mixture, as proved, the means of identification were destroyed, and plaintiff’s wheat could not be distinguished. (See Goodyear v. Ogden, 4 Hill, 104.)
    He has failed to show any title in the wheat. (Jackson v. Hale, 14 How. S. C. R., 515; Cobb v. Dows, 9 Barb., 230; see pp. 242, 244.)
    There was no conversion by defendant any more than by any other recipient (except Moore, Tibbets & Go.) of wheat taken from that bin. .
    Conceding the rule to be that in some cases of unauthorized confusion of property the party injured by the intermixture may pursue the whole mass, if not broken, (see Nowlen v. Colt, 6 Hill, 461,) it does not follow that he could pursue separate poi-tions of it, unless identified as his. own. The reason of the rule excludes any such conclusion; for it proceeds upon the assumption that- the whole must include the part to which the original owner was entitled, but this cannot be predicated of any separate portion.
    There was no more reason for selecting the last shipment than the first; nor any more reason for his selecting the 722 bushels claimed of Nason, than a like quantity out of the 984 bushels shipped by the same boat to Jones, Himrod & Titus; or a like quantity out of previous shipments to other parties.
    The evidence shows that there never was, in fact, any delivery of 722 bushels to defendant. And the action must fail for want of proof that he became possessed of the property. The mere receipt by him of .the proceeds of 722 bushels put of the 1,706 shipped by the “ Honest Farmer,” does not establish any liability on his part.
    
      II. The plaintiff", by the course of his dealings with Mathews, conferred upon him the apparent right of disposal of all wheat shipped to him by plaintiff. ’ Out of shipments made by plaintiff to amount of 50,000 or 60,000 bushels ($40,000 to $50,000 in value) only 12,000 or 13,000 bushels (about $9,000 in value) were shipped by plaintiff as owner. Mathews, not being known to plaintiff or defendant, or to the world, as a common carrier or warehouseman, the defendant should be protected, in the absence of any fraud or unfair dealing, or of any notice to defendant that this wheat was excepted from the ordinary course of dealing between plaintiff and Mathews.
    1st. A Iona fide purchaser, in the usual course of trade, is entitled to retain the goods, even as against the original owner, where such owner, by his own act, confers upon the intermediate vendor the possession with an apparent power of. disposition. (Saltus v. Everett, Opinion of Verplanck, Senator, 20 Wend., 279, 281.)
    2d. Even when the intermediate party is a wrongdoer, the loss is made to fall upon the original owner who enabled him to do the wrong rather than on the innocent purchaser, in cases where the vendee was misled by appearances created by the owner. (Haggerty v. Palmer, 6 John. Ch., 437; Root v. French, 13 Wend., 570; Covill v. Hill, Opinion of Bronson, 4 Denio, 328.)
    3d. In this case Mathews supposed the wheat to belong to himself, and there was no fraudulent intent in the shipment by him to defendant. The plaintiff knew that Mathews was a buyer and seller of grain, and that he was not known as carrier or warehouseman. He assumed the risk consequent on not transmitting his grain through a known carrier or warehouseman, but sending it, for convenience, to a person who was known to be a buyer on his own account. The defendant only knew Mathews as a buyer and seller, and had so known him for a long time. Erom the nature of his business he had a right to imply ■that Mathews owned the wheat. His advances were made in good faith without the slightest suspicion of' the plaintiff’s interest. The principle stated above should therefore be applied to this case. (Pickering v. Busk, 15 East., 44.)
    TTT- The defendant is protected under the statute relating to principals and factors. (Laws of 1830, ch. 179; 2 R. S., 4th ed., 184.)
    
      1. The wheat was shipped by Mathews to defendant in his own name, and he is to be deemed the true owner thereof, so far as to entitle defendant to a lien for his advances, the same having been made in good faith and without notice by the bill of lading, or otherwise, that any person had or claimed any interest therein. (Id., §§ 1 and 2.)
    2. The exceptions contained in section 6 do not apply.
    (1.) Mathews was not a common.carrier, warehouseman or forwarder, within the true meaning and construction of the 6th section.
    (2.) There is no evidence that the 722 bushels of wheat in question were committed to him for transportation or storage.
    (3.) Even if Mathews had no authority to do more than consign the 12,c>95 bushels received by him from plaintiff to Moore, Tibbets & Co., at Troy, yet, as between plaintiff and defendant, Mathews is to be deemed the owner, he having authority by the terms of the bill of lading and by the course of his business with plaintiff, to make new shipments in his own name.
    (4.) The case of Covill v. Hill, (4 Denio, 323; S. C., 2 Seld., 374,) is not in point. In that case, (a.) There was no bill of lading, (b.) The defendants had full notice of the ownership of the property: (c.) There was no evidence of any advances made by the purchaser.
   By the Court—Hoffman, J.

This cause was .heretofore before the General Term of the Court, in July, 1854, upon a report of a referee. Mr. Justice Campbell, who delivered the opinion of the Court, and the late Chief Justice Duer, concurred in holding that the defendants were protected under the provisions of the statute of 1830, relating to factors. Justice Duer expressed no other opinion.

Mr. Justice Bosworth, who also heard the case, stated, on the argument of this appeal, that he dissented from that conclusion, although he did not write a dissenting opinion, and that Mr. Justice Duer concluded not to report the case.

The ease, as affected by the factor’s act, appears to be this: The owner of wheat, living in Niagara county, New York, ships it to a house in Troy, by a bill of lading providing for a delivery to that house. But the transportation is to be effected, partly in lake vessels to Oswego, and from thence by canal boats to Troy. A transhipment at Oswego was therefore necessary, and Mathews was employed as the agent for a commission, to superintend and effect this. The course of business required that in some instances the wheat should be deposited at Oswego, until canal boats were ready to carry it forward. The bill of lading was therefore álso indorsed, “ care H. Mathews, Oswego.” In the present case, he did get possession of the wheat, so as to deposit it in his own bin, in common with his own, or the wheat of others. He was merely a shipping and receiving agent, his duty being to pay lake freights, &c., and forward the property.

Since this case was before the General Term, the factor’s act has received an elaborate consideration and analysis by the late Chief Justice Dues, and we apprehend that the principles he then declared, and which the Court sustained, would lead him to a different conclusion from the one he assented to in the present instance. (Bonito v. Mosquera, 2 Bosw., 401; see, also, Cook v. Adams, 1 Bosw., 497.)

Mathews was not a factor or agent entrusted with the possession of either one of the documents enumerated in the act “relative to principals, and factors or agents.” (1 R. S., 774.)

On the document he possessed, it would appear that he was not the owner; the document was not delivered to the defendant, nor exhibited to him. hi or was the possession given to Mathews for the' purpose of sale, or as security for advances to be made on the property. Besides, the 6th section appears to admit of a construction decisive against this position.

We do not think that if the plaintiff was the true owner of the wheat in question, the defendant can be protected by virtue of this statute. It becomes necessary, therefore, to consider the other grounds on which Mr. Justice Campbell rested the decision, and the other points relied upon by the plaintiff.

And in the first place, we think that the identity of the wheat which belonged to the plaintiff with that which came to the control, and its proceeds to the hands of the defendant, is sufficiently established. Wetrace3,200bushelsofwheatintothebin and there remaining on the 14th of October. On the 23d, all that remained was shipped; 984 bushels definitely belonging to Wright & Outwater, and 722 belonging to the plaintiff; so belonging because Mathews did not own them, and not a shadow of title appears in any one else.

Mathews was clearly responsible in an action of replevin for this wheat. So were Jones, Himrod & Titus, who sold it, in trover. If the wheat of two persons is mixed together, with their knowledge and consent, and either carries away and disposes of the whole, an action of trover may be maintained against him. (Nowlen v. Colt, 6 Hill, 461.)

The case of Mallory v. Willis, (4 Comst., 76,) shows, that where the arrangement between the parties amounts to a bailment of wheat, the plaintiff can sustain replevin for a portion of the wheat manufactured into flour.

And in Silsbury v. McCoon, (3 Comst., 379,) the law on the subject is fully examined. Corn was taken from the owner by a willful trespasser, and converted into whiskey. It was held, that the property was not changed, and the whiskey belonged to the owner of the corn, and trover was supported.

Through all the niceties of distinction which we find among the civilians, upon the subject of accession or commixion, we trace the principle almost invariably respected, that if the article retains substantially its original form and nature, the privilege of reclaiming it exists. Si mulatio perimit priorem speciem, et parit novara, is the inquiry. (Leges apud Troplong Droit Civile, tome 1, n., 111.)

M. Touillier, in treating of the “ mixture or confusion of things belonging to several owners,” states that if they can be separated, he who was ignorant of the mixture may demand a division, or he may demand the price. If they cannot be separated without inconvenience,, the ownership is in common, in the proportion of the quantity, quality and valué belonging to each. Wherever the right of reclaiming property exists, the owner may demand restitution of the article, in the same nature, weight, measure and goodness; or may have its value, at his election. (Le Droit Civile FrangaisB, tome 3, p. 64.)

Such is the law, as stated by Justice Story (on Bailments, § 40); and by Blackstone. (2 Com., note, 404, 405.) See, also, Ryder v. Hathaway, (21 Pick., 298;) and Pratt v. Bryant. (20 Vt. R., 333.)

It is therefore, I apprehend, sufficiently clear that the mixture of the wheat of the plaintiff with that of other parties in the bin of Mathews, in. no way affected the property of the plaintiff in 722 bushels of wheat, and that there is no difficulty in saying that the 722 bushels consigned to the defendant included the wheat of the plaintiff; that the identity is sufficiently traced and marked.

In this view, the property of the plaintiff, without his consent, contrary to the destination he had given it, without authority given by him to any one to alter that destination, came into the hands of the defendant. It came there through an act of an agent without power in this particular, and which act, in sending this wheat to Hew York, was in legal acceptation, tortious. The defendant is also to be considered as having accepted and paid drafts on the credit of this wheat, in common with other shipments.

I apprehend, however, that the law is settled in favor of the original owner, thus wrongfully deprived of his property, even against an innocent purchaser. (Silsbury v. McCoon, 3 Comst., 379; Saltus v. Everett, 20 Wend., 267; Covell v. Hill, 4 Denio, 323, and 2 Seld., 374; Cobb v. Dows, 9 Barb., 230; and Cook v. Adams, supra.)

These authorities, with those late cases relating to bills of .lading and certificates of stock, not only declare and renew the doctrine of the common law, that the title of an owner shall not be divested without his act or consent, but narrow and restrict those exceptions which the exigencies of a mercantile community have required, or its peculiar views have suggested.

The case seems merely this. The owner of goods has employed an intermediate agent only to forward them to their destination. Hecessity or convenience places the property temporarily in that agent’s possession; he has no authority to sell or pledge; he is not entrusted with any of the documents of apparent ownership. He wrongfully appropriates the goods, and an honest purchaser obtains them from him. The original property and right of the owner are not divested. His power to reclaim the goods or their avails is not lost.

I think there was error in dismissing the complaint, and that there must be a new trial, with costs to abide the event. .

Ordered accordingly.  