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corn belonged to appellee, and they were bailees merely. By the custom proved, they had the right, if they saw proper, to use the corn left in store as their own and ship it, and use the proceeds thereof as their own, expecting to settle with the parties who stored the corn at whatever the market price might be when settlement was demanded by the storer. By assuming to treat the corn as their own, they gave a construction to the transaction wholly inconsistent with the theory that the grain remained the property of appellee.

Although nothing was said in respect of selling the corn at the time it was put into the warehouse, no one can, we think, read the evidence and escape the conclusion that it was understood by both parties to be a sale of the corn by appellee to appellants, to be paid for at the market price, upon some day in the future when appellee should demand payment. One of appellants testifies (quoting from the abstract furnished by their counsel): “It was our custom to ship our corn indiscriminately, according to the market, if we deemed best. If they [customers) delivered corn there, they had a right to call for the money at any tiine within thirty days, without charge. It was the universal custom to sell to us. ... We took our chances on the rise and fall of the market.” The other says that appellee was not then satisfied with the price, but thought it would go higher, and wanted to wait until the middle of the month. He further says: “I understood that he had a right to take the price when it suited him. That was all that remained to be done. It was for him to set the price and take the money."

If, however, the corn was in fact stored by appellee with appellants, it is apparent that, acting under the custom proved, the legality of which need not here be discussed, appellants shipped out, as before said, at least a portion of the corn 80 stored. If appellee understood appellants' mode of business, and is chargeable with notice of the custom under which they claim to act, upon the appropriation of his corn by appellants as their own he had the right of election to treat it as a sale, and demand the money therefor of appellants. It is conceded that he could have done this any day before the fire and the destruction of the corn in the warehouse, but having failed to make his election, it is said the corn remained his, and he must bear the loss. In this we cannot concur. Acting under the custom, appellants might exercise the right to determine that they would appropriate the corn to their own use, holding themselves responsible to appellee for the market price upon the day when he demanded settlement. This the evidence shows they did. Appellee was not bound to receive corn in the ear, or other corn not of like quality and grade with that delivered, nor a less quantity than he delivered, and might treat the conversion of a part as an election on the part of appellants to take the whole, under the custom proved. • And if the custom was valid, and it cannot be questioned by appellants, they will be bound to settle with appellee for the corn stored at the price upon the day when settlement was demanded.

We are of opinion that the title to the corn delivered by appellee passed to appellants, and that they were liable to account to appellee therefor, and that recovery may be had as for goods sold and delivered: McDonald v. Brown, 16 Ill. 32; De Clerq v. Mungin, 46 Ill. 112.

The judgment of the appellate court is affirmed.

BAILMENT AND SALE, DISTINCTION BETWEEN: See note to Bretz v. Diehl, 2 Ain. St. Rep. 711-713; and Chickering v. Bastress, 130 Ill. 206; 17 Am. St. Rep. 309; Barnes v. McCrea, 75 Iowa, 267; 9 Am. St. Rep. 473; Woodward v. Semans, 125 Ind. 330; 21 Am. St. Rep. 225.

WAREHOUSEMEN, DUTIES AND LIABILITIES OF: See note to Schmidt v. Blood, 24 Am. Dec. 145-160. It is the duty of warehousemen not to deliver goods or grain deposited to any other person than the depositor, except on his order, or by his consent or authority: Velsian v. Lewis, 15 Or. 539; 3 Am. St. Rep. 184. The delivery of grain for storage in a warehouse is a bailment, and the title thereto remains in the depositor: Hall v. Pillsbury, 43 Minn. 33; 19 Am. St. Rep. 209; whether the grain has or has not been mingled with the wheat of other persons in a coinmon mass: McBee v. Cæsar, 15 Or. 62; and if the warehouseman, without authority from the depositors, sells from the common mass, reserving enough to return to each depositor his proper quantity of the same quality and grade, the depositors may claim the grain so substituted for theirs: O'Dell v. Leyda, 46 Obio St. 244.

SALE OF PART OF Mass, WHEN COMPLETE. - A sale of large and cum. brous merchandise, as of grain in bulk, may pass the title without actual separation of the quantity sold from the larger mass with which it is mixed, if the acts and declarations of the parties clearly evince an intent to make an immediate transfer of ownership: Kimberly v. Patchin, 19 N. Y. 330; 75 Am. Dec. 334. The general rule, however, is, that where the quantity is to be taken from a bulk, it must be set apart and delivered: Love v. State, 78 Ga. 66; 6 Am. St. Rep. 234.



STATE – LICENSE FEE. — A city ordinance requiring an agent for a wholesale book house situated in another state to take out a license and pay a license fee when soliciting book orders within the city is void, as an attempt to regulate commerce between the states. The fact that the sales made are at retail instead of wholesale, and that the ordinance makes no discrimination between those soliciting orders for houses within the state and those soliciting orders for houses in other states,


tiation of sales of goods which are in other states, for the purpose of introducing them into the state in which the negotiation is made, is in. terstate commerce, and cannot be interfered with or regulated by the state in which the negotiation is made. ACTION to recover a penalty for violating a city ordinance, Defendant, a resident of Illinois, was an agent for a wholesale book house of St. Louis, Missouri. While soliciting or ders in the city of Bloomington he was arrested and fined under an ordinance of that city for acting without a license. In soliciting such orders, he traveled from house to house, and after obtaining orders the books were to be shipped to him from St. Louis, to be delivered. The ordinance under which he was prosecuted provided, in effect, that no person should sell, nor attempt to sell, any goods, article, or thing by peddling, soliciting, hawking, etc., at any uninclosed stand or place of business within the city, without first obtaining a peddler's license therefor, and that every person soliciting, canvassing, or taking orders for books, etc., shall be deemed within the scope of this chapter, and be required to take out a peddler's license. The ordinance then provided for the infliction of a fine for the violation of any of its provisions, and the question submitted to the court was, whether or not the ordinance under the facts agreed upon is in violation of the constitution of the United States, and the federal statutes relating to interstate commerce. The court decided that it was, and rendered judgment against the city. From that judg. ment the city appealed.

Sain Welty, for the appellani.
J. E. Pollock and A. J. Barr, for the appellee.

SCHOLFIELD, J. We are unable to distinguish this case, in principle, from Robbins v. Shelby Taxing District, 120 U. d. 489. In that case Robbins was soliciting trade in Tennessee for a firm in Cincinnati, Ohio, and it was held that a law of Tennessee, requiring him to take out a license in order to transact his business, was in conflict with that clause of the constitution of the United States which gives to Congress the power to regulate commerce between the states, and therefore void. Substantially the same class of goods was there sought to be sold as is here sought to be sold; only there, it would seem, the attempt to sell was at wholesale, while here it is at retail. But that is not dwelt upon as a matter of any significance in the opinion in that case, and when it is reflected that it is the locality of the sales with reference to the locality of the ownership of the goods, and not the quantities of goods sold, or the number of persons to whom sold, that determines whether given sales are to be regarded as belonging to interstate commerce, it is impossible to see how it could be. It is manifest that in that case the court must have regarded the license fee as in the nature of a tax, as contradistinguished from a police regulation imposed for the protection of the public against the harmful tendency to the citizens of the district of the business itself, as the supreme court of Pennsylvania, in Commonwealth v. Gardner, 133 Pa. St. 284, hold that a license regulation in regard to hawkers and peddlers is. For where the business itself may be regulated or suppressed in a community because of its inherent harmful tendency to the citizens of such community, it may be regulated by a license, without regard to the locality of the property in which the business is conducted. But it is impossible to say that there may be injury or danger to the public welfare in permitting sales by retail, and yet not in permitting sales of the same thing in the same locality by wholesale, since, in the very nature of things, the difference is not in principle, but in the extent of its exercise only.

The fact that the ordinance makes no discrimination between those soliciting orders for houses in this state and those soliciting orders for houses in other states is of no moment. It was said in the Robbins case: “It is strongly urged, as if it were a material point in the case, that no discrimination is made between domestic and foreign drummers, – those of Tennessee and those of other states, - that all are taxed alike. But that does not meet the difficulty. Interstate commerce cannot be taxed at all, even though the same amount of tax should be laid on domestic commerce, or that which is car.

ried on solely within the state. This was decided in the case of the state freight tax: 15 Wall. 232. The negotiation of sales of goods which are in other states, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce."

The judgment is affirmed.

INTERSTATE COMMERCE, LICENSE TAXES WHEN VOID AS AN ATTEMPTED REGULATION OF. – The whole subject of interstate commerce is discussed in the extended note to People v. Wemple, 27 Am. St. Rep. 547–568. As to the power of states to exact licenses for the privilege of doing business within the state, see pp. 561-563 of that note.


(137 ILLINOIS, 553.) ATTORNEYS — DISBARMENT OF — CAUSE FOR. — When an attorney at law

procures a decree of divorce by introducing before the court testimony which he knows to be false and perjured, he is guilty of such unprofes.

sional conduct as justities his disbarment. ATTORNEYS - CAUSE FOR DISBARMENT. — When an attorney in an action

for divorce gives his client a paper purporting to be a certified copy of a decree of divorce, and thereby leads her to believe that she has been divorced by proceedings already had in court, and thereby also induces, enables, and assists her in procuring a marriage license and contracting marriage before obtaining a divorce, when he well knows, as a matter of fact, that no decree of divorce has yet been rendered or entered, or will be rendered or entered for some time thereafter, he is guilty of profes

sional misconduct justifying his disbarment. ATTORNEYS — DISBARMENT – CAUSE FOR. – When an attorney at law in an

action for divorce permits his client to swear falsely to the jurisdictional fact of her residence, knowing her evidence to be false, and not informing the court of its falsity, and then introduces other evidence depending for its materiality upon such false evidence, such conduct is

ground for his disbarment. ATTORNEYS — DUTIES AND OBLIGATIONS. – An attorney at law owes his

client the duty of fidelity, but he also owes the duty of good faith and honorable dealing to the courts before whom he practices his profession. He is an officer of the court, and his high vocation is to correctly inform the court upon the law and facts of the case, and to aid it in doing justice and arriving at correct conclusions. He violates his oath of office when he resorts to deception, or allows his client to do so. He is under no obligation to seek to obtain for those whom he represents that which is

forbidden by law. ATTORNEYS – Cause FOR DISBARMENT. - An attorney who suffers false and

perjured testimony to be preserted to the court, with the possible result of inducing the latter to take jurisdiction of a case in which there would otherwise be no power to act, and to grant a judgment or decree which

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