SEVERANCE, TO ASCERTAIN A CHAT

TEL, NOT ABSOLUTE.

To effect a change of title to a chattel from a vendor to a purchaser, the chattel must be ascertained at the time of the sale of it. And it is a general rule of universal application, that the thing sold must be separated from a greater quantity of which it is a part, to enable the purchaser to identify it. A typical case upon this point is that of Scudder v. Wooster,1 where A sold B 250 barrels of pork, part of a larger quantity which was all of one quality and had the same marks upon the barrels. The whole lot was stored in A's cellar, with some barrels of pork of inferior quality, and no separation of the barrels of pork sold to B from the whole mass had been made. B afterwards sold and delivered 100 barrels to C, and the remaining 150 barrels to D, and gave him an order on A for that number, which A accepted; and he agreed to hold the pork on storage for D. Nothing was done to distinguish the barrels, and while the pork was so held, B became insolvent. It was held that no title to the pork had passed by the transaction, because there had been no separation of the thing sold from the larger quantity of which it was a part; and that an action of replevin could not be maintained by D against the assignees of B. But, "where the quantity and general mass from which it is to be taken are specified, the subject of the contract is thus ascertained, and it becomes a possible result for the title to pass, if the sale is complete in all its other circumstances. Actual delivery is not indispensable to pass title, if the thing to be delivered is ascertained."2

It is to be observed, however, that nearly all of the authorities upon this point are cases where the actions brought were not between vendor and purchaser. And in every instance there was either an agreement between the

1 11 Cush. 573; cf. Hurff v. Hires, 40 N. J .L. 581. Kimberly v. Patchin, 19 N. Y. 330; Cushing v. Breed, 14 Allen, 376; Hall v. Boston, etc. R. Co., 14 Allen, 439; Griffith v. Clark, 24 N. Y. 595; Jackson v. Anderson, 4 Taunt. 24; Russel v. Carrington, 42 N. Y. 118; Whitehouse v. Frost, 12 East, 614; Woodley v. Coventry, 2 H. & C. 164; Young v. Matthews, L. R. 2 C. P. Cas. 127; Hurff v. Hires, 40 N. J. L. 581; Gardner v. Dutch, 9 Mass. 427; Horr v. Barker, 8 Cal. 603; Horr v. Barker, 11 Cal. 393; Warren v. Milliken, 57 Me. 97; Keeler v. Goodwin, 111 Mass. 490; Waldron v. Chase, 37 Me. 414; cf., Sherrod v. Belcher, 11 Ired. 609.

purchaser and vendor to hold the goods on storage for the former, or a warehouse receipt had been given and accepted for the quantity of the goods solds and in the hands of a warehouseman, or a bill of sale had been given by the seller to the buyer. Cushing v. Breed, supra, was an action by the vendor against the purchaser for the price of goods sold and delivered. The plaintiffs sold to the defendants a certain number of bushels of oats, a part of a specified quantity then lying in an elevator for the storage of grain, and owned and managed by third persons. The proprietors of the elevator had accepted the order upon them in favor of the buyer, and had entered the same upon their books to the credit of the latter; and according to custom had deliv· ered a portion of the grain to the plaintiffs. But before delivery of the whole number of bushels bought, the elevator was consumed by fire. In delivering judgment of the court, Chapman, J., said: The rights of parties who adopt new methods introduced by the use of elevators for the storage of grain, are governed by principles of the common law. The proprietors of such elevators are agents for the parties for whom they act. And when a vendor gives an order on an agent for a quantity of grain stored by him (vendor), to be delivered to the vendee, and the agent accepts the order and agrees with the vendee to store the property for him, and gives him a receipt therefor, the delivery is thereby com. plete and the property belongs to the vendee. "The vendor has nothing more to do to complete the sale, nor has he any further dominion over the property." ual separation and taking away are not necessary to complete a sale." Kimberly v. Patchin was a case where trover was brought by the plaintiff against the defendant, both of whom claimed title from the same person, the defendant being in possession of the property and having the receipt of the original vendor, which was assigned to the defendant by his vendor, and which stated that the goods were held on storage, subject to the order of the latter. The plaintiff was a subsequent purchaser. It was held that the order passed title to the property to the defendant, that the property was sufficiently ascertained, and that the action could be sustained. As neither trover nor replevin can be sustained without showing some title, the giving of orders and

"Act

warehouse receipts in transactions like those which appear in the above authorities, is equivalent to a separation of the thing sold, from the whole mass or quantity, and the acceptance by and acting upon such orders by a warehouseman, is an appropriation of the thing sold to the use and credit of the holders of them. And the vendor is precluded from denying the title of the vendee.3 But an unpaid vendor is not estopped from setting up his lien, and withholding the delivery of the goods to a second purchaser, who holds the vendor's order for the particular goods. Nor is he prevented from countermanding such an order, unaccepted. But his permission to the second purchaser to remove the goods bought, and a partial delivery of them to the latter, was held sufficient to estop him from claiming title to them, in Chapman v. Shepard.

4

"The giving of a delivery order does not, without some positive act done under it, operate as a constructive delivery of the goods to which it relates, nor deprive the owner of the goods, who gave it, of his right of lien for their price, even as against the claims of a third person who has bona fide purchased them from the original vendee."6 Because, "until the delivery is actual and absolute, the seller may suspend it, and revoke authority of any intermediary to perfect it," says Wells, J., in the case of Keeler v. Goodwin. But this rule does not affect the question of title.

In cases where the controversy is between vendor and purchaser to determine the risk against loss by fire or otherwise, the question of separation again arises. It is a cardinal principle of law, that the terms of a contract shall be construed according to the intention of the parties to it, if possible. In Riddle v. Varnum, the court says: "When the property to be sold is in a state ready for delivery, and the payment of the money, or giving security therefor, is not a condition precedent to the transfer, it may well be the understanding of the parties, that the sale is perfected, and the

8 Woodley v. Coventry, supra; Albridge v. Johnson, 7 E. & B. 897; Young v. Matthews, supra; Warren v. Milliken, supra; Kingsford v. Merry, 1 H. & N. 503; Gillett v. Hill, 2 Cr. & M. 530; Chapman v. Shepard, 39 Conn. 413.

4 Farmeloe v. Bain, 1 C. P. Div. 445.

5 Keeler v. Goodwin, 111 Mass. 490.

6 M'Ewan v. Smith, 2 H. L. Cas. 809; Griffiths v. Perry, 1 E. & E. 680; Mohr v. Boston, etc. R. Co., 106 Mass. 492; Keeler v. Goodwin, 111 Mass. 490. 7 20 Pick. 280.

8

interest passes immediately to the vendee, although the weight or measure of the article sold remains yet to be ascertained. Such a case presents a question of intention of the parties to the contract." It was so held in the case of Phillips v. Ocmulgee Mills, where a number of pounds of cotton, a part of five or six hundred bales stored in a warehouse, was sold to be used in a factory near the warehouse. The buyer, after the sale to him, sold a portion of the cotton to his partner in the factory, and received his pay therefor in another quantity of cotton; but a portion of that first bought was consumed in the factory by the partnership. The cotton bought had not been weighed nor separated from the whole bulk, and a part of it was destroyed by fire while lying in the factory, which was also burned.

A slight circumstance is sufficient proof of an intention to pass title; as where a sale had been made of a number of bushels of grain and a part of it had been put into sacks (furnished by the buyer) by the vendor, and subsequently the sacks were emptied by him into the heap of grain from which they had been filled.9 Putting the grain into the sacks was an act on the part of the vendor appropriating so much of the amount purchased from him, to the use of the purchaser. But a bill of sale of a part of an ascertained quantity of oil of two qualities, the oil purchased to be held on storage for the buyer, was held not sufficient to transfer the title to the property. 10 This was an action between vendor and purchaser to recover damages for non-delivery of the oil. The case was distinguished from Kimbely v. Patchin on the ground that there was no receipt given to constitute the vendors as bailees and that there were two qualities of oil, of which the purchasers had a power of selection. The court says that the oil should be so clearly defined that the purchaser could take or maintain replevin for it. White v. Wilks 11 is a similar case. There the oil sold was in different cisterns, situated in various places, and the action was brought by the assignee in bankruptcy of the purchasers against the vendor. Mansfield, C. J., held

855 Ga. 633; Waldron v. Chase, supra.

9 Aldridge v. Johnson, supra.

10 Foot v. Marsh, 51 N. Y. 288; Hahns v. Frederick, 30 Mich. 223.

11 5 Taunt. 176; Woods v. McGee, 7 Ohio 467.

-separation necessary to a transfer of the property.

The test to be applied to cases to determine when separation is necessary to precede the change of title to a chattel from vendor to vendee is only that of identification. If the property, in cases like those cited, be of such a character and constituency that it can be clearly defined by its muniments, which are intended to operate as a transfer of it, the necessity of setting it apart is obviated by the mode of transfer. But while identity may be accomplished by description in the manner indicated, delivery cannot be effectuated to protect a purchaser against other persons who may be creditors or subsequent purchasers, unless there be a charge of the relation of vendor and vendee.

Separation and delivery are co-extensive. Unless clear identification has been made, delivery of an order for the thing sold, stating that it is held on storage, will not operate to transfer the title to the thing. But where goods at the time of the agreement to purchase them were unascertained, but were subsequently forwarded to the place agreed upon for delivery, and an order upon the carriers was given to the purchaser for the quantity sent, and he paid the price therefor, it was held that the title had vested in the purchaser, in an action by him against the carrier for misdelivery. 12 And in an action by a depositor of grain in the warehouse of the defendant, it was held that where the latter had disposed of all the grain from the mass stored in the warehouse, except a quantity not greater than that due the depositor, he could maintain replevin for it.13 The whole mass was of one quality and the plaintiff held a warehouse receipt of the defendant. And usage has made such documents, held by a depositor in a public warehouse, equivalent to the possession of the property therein. 14

In an action of assumpsit brought for the refusal of the defendants to accept and pay for a large quantity of wheat, it was held that an actual tender of the warehouse receipts by the plaintiffs to the purchaser, unless he should insist on seeing the grain, was a sufficient tender of it.15 "But a mere readiness

12 Claflin v. Boston & L. R. Co., 7 Allen 341.

13 Young v. Miles, 23 Wis. 643.

14 Broadhead v. Howard, 77 Ill. 805; Burton v. Curyea, 40 Ill. 320.

15 McPherson v. Gale, 40 Ill. 368.

to deliver warehouse receipts, and in the absence of the purchaser, and without proof he had control of the grain, would not be a tender." The declaration contained an averment of tender of the grain on a particular day.

,, 17

The identity of the property having been fixed, what is the relation of the owner of it to the person or persons, owning the remaining part of it? "The intentional and innocent intermixture of property of substantially the same quality and value does not change the ownership. And no one has a right to take the whole, but in so doing commits a trespass on the other." 16 And the circumstance which gives rise to the rule that an admixture produces a tenancy in common, is the loss of the identity of the property mixed, making it impossible for each owner to reclaim his separate property. But where the property, so mixed, is of the same kind and of equal value and the proportionate shares are known, the loss of identity does not prevent each owner from claiming his separate share, and each may take and sell or destroy his share without being liable to the owner of the other part.' Where two or more persons are owners of property of the same quality and value, which property is intermingled by their consent, or by usage, and with the intention of each owner to retake his share or otherwise dispose of it, there is not such an admixture as to prevent each from holding his title in severalty, instead of in common. 18 It is, however, expressed in Cushing v. Breed that such a holding is a tenancy in common. no reason is given for the position taken by the court upon that point. The quantity of oats sold were clearly stated, they were to be taken from an ascertained quantity of the same quality and value, and from a particular place of deposit. The property was thus clearly defined and the case decides that the title passed from the vendor to the purchaser. There seems to be nothing to defeat an action of trover against one for the conversion of the goods, after the transfer on the books of the

16 Ryder v. Hathaway, 21 Pick. 306. 17 Morgan v. Gregg, 46 Barb. 186.

But

18 Channon v. Lusk, 2 Lans. 211; Tripp v. Riley, 15 Barb. 335; Fobes v. Shattuck, 22 Barb. 568; Fiquet v. Allison, 12 Mich. 328; Busk v. Davis, 2 Maule & S. 397; Gardner v. Dutch, supra; Cushing v. Breed, supra; Spence v. Union Marine Ins. Co. L. R., 3 C. P. 427; Griffeth v. Clark, supra; Jackson v. Anderson, supra; Chapman v. Shepard, supra.

warehouse. In Channon v. Lusk, two persons were owners of a mass of wheat lying upon the premises belonging to one of them. The other having by agreement put it in a condition for measurement was about to measure it and take away his portion, when the former refused to let him do so. It was held that trover could be maintained by the latter against the former to recover the value of the wheat. There was no question of specification to be raised. The title had vested and measurement was to be done by the plaintiff.

The class of cases herein do not form any exception to the rule that there must he nothing left to be done by the vendor to complete the sale. They show such a mutation of possession in the thing sold as convenience requires, and that it is not necessary that the purchaser should receive and remove the property to place it in his power absolutely. If it be an isolated thing, specification may be only the result of pointing out the goods, or it may be complete by giving a written discription of any direction to them; 19 but if the thing be a part of an ascertained thing capable of severance, but not severed from the bulk, mere inspection of the whole can not be specification. But particularization can be had by a definite written description, and that is equivalent to severance.

Why then, as between vendor and vendee, - can not the latter maintain trover or replevin against the former for a refusal to deliver the goods, unless there is something to control the intention of the parties as manifested by their transaction? There is no satisfactory reason.

A purchaser from the vendee must take his right and title; and the same kind of action can be maintained by the purchaser for a wrongful possession of his goods.

An intention to change the possesion may be stronger where the property is in the hands of third persons. For, in such instances, custom, usage and necessity is an additional element to the transaction of the parties. But there should be some act which would operate as an estoppel against the vendor where equi

19 Nat. Bank Green Bay v. Dearborn, 115 Mass. 219; Perkins v. Dacon, 13 Mich. 81; Hollingsworth v. Napier, Caines' 186; Lansing v. Turner, 2 Johns. 13; Thompson v. Gould, 20 Pick. 134; Olyphant v. Baker, 5 Denio 379; Mitchell v. McLean, 7 Florida 329; Hatch v. Bailey, 12 Cush. 29; Hatch v. Lincoln, 12 Cush. 31; Gibson v. Stevens, 8 How. 165.

ties might arise.20 But if the goods sold are gone from his possession, the presumption of fraud is obviated. CHAS. A. BUCKNAM. Boston, Mass.

20 Kimberly v. Patchin and Kuler v. Goodwin, supra.

THE RIGHT TO THE CUSTODY OF CHILDREN.-I.

The barbarous doctrine of the ancient common law, by which mothers were deprived of any right to the custody of their minor children during their father's lifetime, while the father's right was deemed of a nature so absolute as to obliterate the slightest recognition that the children also had rights, has happily been ameliorated by the intervention of the Court of Chancery and by positive legislation. But, though modern decisions on the subject of the right to the custody of children do not outrage nature to the extent of taking an infant at the breast from its mother and giving it to the father,1 they are still sometimes of an extremely distressing character; and so lately as 1877, it was held in Scotland that a father had the paramount right to the custody of a child of only eight months old, that had been weaned.2 However, under another singular doctrine of the law, it was deemed that illegimate children have no parents and no relatives, and therefore could have no claim for maintenance on anybody, until the legislature threw the burden of their maintenance exclusively on the mother, with a power (not identical in England and Ireland) of enforcing a contribution against the putative father, whence it would seem to follow that the mother should have the right to the exclusive custody of such infants;3 nor can the father appoint a guardian for them.1 So in Scotland, though there the law holds. both the father and mother liable to aliment,5 the mother, and not the father, has the prima

facie title to their custody. And so in America, it is held that the mother has the right to the custody. In our own country and England the right to the custody of illegitimate infants has formed the subject of adjudication in two very recent cases-The Queen v. Nash, reported in the July number of the Law Journal, and In re Crowe, reported in our last issue-which we shall now proceed to examine.

In the former case it appeared that the mother of the child had been seduced when she was under fifteen years of age, and upon the birth of a child was turned out of doors

by her parents. She was, accordingly, of liged to place the child out to nurse with Mr. and Mrs. Nash, who were themselves in "very poor circumstances. She then got a situation as waitress, but after a time her strength failed, and she was obliged to give up her situation and go into an infirmary. On coming out, she was offered the protection of a gentleman, and was still living with him as a kept mistress. She applied for a writ of habeas corpus, requiring the Nashes to bring up the child (a girl aged seven), and give her over to the custody of Mr. and Mrs. Wright, a sister and brother-in-law of the child's mother, who were in a position and station superior to the Nashes, and were willing to bring her up along with their own child. The Nashes, relying on the immorality of the life. the mother was leading, opposed, and North, J., refused to issue the writ, on the ground that the mother was not a proper person to have charge of the child; but the Queen's Bench Division, on appeal, directed the writ to issue, and from that decision the Nashes appealed before Jessel, M. R., Lindley and Bowen, L.JJ. The appellants, pure strangers to the child, said the late Master of the Rolls, "set up the case that the child's natural mother is no relation to it, and has no more claim to its custody than any stranger. The absurdity of that contention can not be exaggerated by any words of mine. It is true that In re Lloyd, the late Mr. Justice Maule, a very eminent judge, is reported

6 Adair v. Corrie, 22 D. 897; Muir v. Milligan, 6 M. 1125; and see M'Intosh v. M'Callum, Journ. of Jur., August, 1882, p. 446.

7 Copeland v. State, 60 Ind. 394; Bustamento v. Analla, 1 New Mex. 255; Pratt v. Nitz, 48 Iowa, 83; Wright v. Wright, 2 Mass. 109.

83 M. & G. 547.

to have asked: 'How does the mother of an illegitimate child differ from a stranger?' I should have thought the answer to that would be, 'Because she is the mother.' That question, however, was asked, not in delivering judgment, but during the course of the argument, and, knowing as I do what that learned judge was, I rather think the observation must have been intended as a joke. But there are, according to my recollection, many cases in which the right of a mother to the custody of her illegitimate child has been recognized. In the case of Ex parte Knee,9 before Sir J. Mansfield, it was held that she had such a right, unless ground was shown for displacing it. And the Poor Law Acts now recognize the mother, and impose upon her the liability of maintenance." "There is no ground for taking away the child from the appellants," observed Lindley, L.J., "except the superior right of the mother. right of the mother. It is not suggested that they have been in any way unkind or neglectful; but they have no more right to the child than any other stranger. The question is, not whether the mother is the legal guardian of the child, but whether, as between her and strangers, the court ought not to have regard to the natural relationship of the mother." And Bowen, L.J., observed: "It is said that the mother has no legal right. But that is not the question. The question is, whether, in considering what is for the benefit of the child, the court will have regard to the natural relations. As a general rule, the mother is the proper person to have the custody of a child. In this case, when we consider what is for the benefit of the child, the scale is turned by the respectability of the persons with whom she is to be placed." So, too, thought Jessel, M. R., and Lindley, L. J., holding that, now that all the courts are courts of equity as well as of law, regard should be had, apart from mere legal rights, to what is for the benefit of the infant, and to the rights and wishes of its natural blood relations; and accordingly, the custody of the child was awarded to the more eligible persons nominated by the mother.

Here, it will be observed, no claim to the custody was advanced by the putative father. And in M'Intosh v. M'Callum, 10 the father

91 B. & P. N. R. 148. 10 Ubi supra.