delivered the opinion of the Court—Field, C. J. and Cope, J. concurring.
Action in the nature of replevin, to recover one thousand eight hundred dollars taken by defendant as Sheriff, under process, as the property of one McCormick. McCormick was a witness, and testified that this money was taken from a safe in his possession belonging to Wells, Fargo & Co. who had four hundred dollars in the safe, the balance being the money of plaintiff. McCormick was present at the levy by the officer, and was agent for Wells, Fargo & Co. and when the plaintiff made the claim for the money taken, interposed no objection. The ground taken by defend*413ant on appeal is, that there was no segregation of this money sued for from the mass in the safe, so as to enable the plaintiff to bring and maintain his suit. But we think the position, however plausible, is not sustained. As McCormick was the agent of Wells, Fargo & Co. to keep the money, he had authority to retain it in their safe, the proper place of its deposit, and when he recognized the claim of the plaintiff, before the one thousand eight hundred dollars was taken away, to the latter sum, it was as if he had elected for Wells, Fargo & Co. to hold the four hundred dollars as theirs. It was, in other words, as if a division and allotment had been made of the money in the safe, according to the respective rights of the owners.
At least, there was evidence enough to go to the jury as to this matter of severance, and the Court did not err in refusing a non-suit.
Judgment affirmed.
On rehearing the same judgment was rendered.