I am happily relieved from entering into any lengthy discussion of the principal question presented by this case, which is, whether replevin can be maintained for the wheat, or rather the quantity of wheat, specified in the receipt, after its intermixture with the wheat of Eobinson in the warehouse. The authorities are in clear and palpable conflict. According to some, it can; according to others, it cannot. I need refer only to Kimberly vs. Patchin, 19 N. Y., 330, and Shudder vs. Worster, 11 Cush., 573, which are the two leading American cases. The opinions in both are elaborate and well considered, the previous decisions reviewed, and all the law and the doctrine for and against ably stated and discussed. They are in fact the only cases necessary to be consulted to obtain a proper understanding of the question and of the decisions of the courts. The former is a decision in the affirmative ; the latter in the negative. I assent most fully to the views expressed in the former, and think that the action can be maintained. The doctrine of the Court of Appeals, sustained as it is by many adjudications, seems to me the more rational and sound. It is, in substance, as to articles of this nature, wheat and the cereal grains and the flour manufactured from them, wine, oil and the fruits of the earth, which are sold, not by a description which refers to and distinguishes the particular thing, but in quantities which are ascertained by weight, measure or count, and which are undistinguishable from each other by any physical difference in size, shape, texture or quality, that there may be different owners of a common mass, *623each baying a separate property in bis share, and each entitled to sever it from the share or shares of the others, and, if necessary for the preservation of his rights, to maintain replevin for the same, subject to deductions for any loss or waste properly falling to his share while the property remained in the mass. In support of this doctrine I can add nothing to the reasoning of Judge Comstock, which is so convincing to my mind. Were I to say anything,it would be but repetition, and that is tiresome and unnecessary. I am content to refer to his opinion, and to one authority not cited by him, but which is found in Scudder vs. Worster. In Gardner vs. Dutch, 9 Mass., 407, replevin was maintained for 76 bags of coffee, part of 396 bags of the same Mnd, the fesidue of which belonged to other persons, and from which the 76 bags were not distinguished by marks, nor had they ever in any manner been separated.
In my judgment, therefore, there is no difficulty in the way of the plaintiff’s maintaining his action in this form. Having deposited so many bushels of wheat in the warehouse, to be mixed with other wheat of like quality, he continued to be the owner of the same number of bushels, to be taken from the mass after the mixture. He was entitled to a delivery of it at any time upon complying with the conditions of the receipt He might have separated it himself, or Robinson might have done so; or if Robinson had refused to separate and deliver it, or to allow him to separate it, he might have replevied it out of the warehouse. The plaintiff being the owner of so many bushels of the wheat, a proper construction of the receipt required Robinson to keep that number of bushels always on hand to answer the receipt; and if at any time he sold or took from the common quantity, so as to leave only enough or less than enough of the same quality of wheat in the warehouse to satisfy the receipt, it follows that, as between him and the plaintiff, the wheat so remaining became the absolute and exclusive property of the plaintiff. This would have been what may be termed an act of separation by Robinson; that is, *624tbe exercise by bim of Ms right to take the portion of the mass which belonged to him ; but in doing so he was bound to respect the rights of the plaintiffs, and accountable if he invaded them. And if he did partially invade them in the first instance, that gave him no authority to go further and remove or dispose of the residue. So far as he invaded the quantity of wheat belonging to the plaintiff, first or last, it was a wrong and a conversion, and the plaintiff might follow his wheat wherever the same could be identified.
Mr. Justice Cole concurs in these views, which seem to meet and sufficiently obviate the exceptions taken to the charge, and to show that there was no error in giving or refusing instructions.
Mr Justice DoWNER, although he agrees with us that this action can be maintained for the wheat which remained in the warehouse, the same being less than the quantity to which the plaintiff was entitled under the receipt, and that there was no error in giving and refusing the instructions, nevertheless thinks we are not called upon to go so far as to say that the plaintiff might have maintained replevin before there was an actual separation. He holds that the action may be maintained upon the doctrine of segregation, as laid down in Horr vs. Barker, 6 Cal., 489. He is perhaps strictly correct in saying that we are not required to hold that the action could have been maintained before the separation. But I am unable to discover any difference between the doctrine of segregation and the right of separation as laid down by Judge Comstock ; and if there is none, then I can see no impropriety in proceeding at once to the examination of the principles which lie at the foundation of both, and which involve the rights and liabilities of the parties as they existed before the separation was made.
But though we are of opinion that the action can be maintained, and that there was no error in the instructions, still the judgment must be reversed for the improper admission of testimony. The testimony of the witness Higby, introduced for *625the purpose of showing that the wheat in the cars was the same which was shipped from the warehouse of Robinson at Waubashaw, was hearsay, and nothing but hearsay. As such, it should have been excluded upon the motion of the defendants.
Note. — The plaintiff moved for a rehearing on the grounds, 1. That Mr. Higby’s testimony, so far as objected to, was not in fact submitted to the jury. 2. That if it was, the error was unimportant, there being, aside from that, ample proof of the identity of the wheat delivered to defendant. 3. That the bill of exceptions did not profess to give all the evidence, notwithstanding a statement to that effect in the printed case. The motion was denied. Rep.By the Court. — Judgment reversed, and a new trial awarded.