plied if the seller has no title: Barton v. Faherty, 3 G. Greene, 327; 54 Am. Dec. 503, and note 505. So the price paid for a stolen chattel may be recovered from the thief in assumpsit, although the thief has not been tried for the felony: Id. But absence of notice of conflicting claim, and of circumstances calculated to arouse suspicion, will not protect a bona fide purchaser for value when he buys of one having neither title nor authority to sell: Saltus v. Everett, 20 Wend. 267; 32 Am. Dec. 541.

OWNER'S REMEDIES.—Where chattels have been wrongfully sold to another, by a person having only the temporary or actual possession, but not the ownership, under any of the circumstances above enumerated, the owner may maintain replevin for the recovery of the specific goods, or if the property itself has passed beyond the owner's reach, he may have an action for the value of the goods against the person who has so purchased them: Sharp v. Parks, 48 Ill. 511; 95 Am. Dec. 565, and note 567; Wilson v. Crockett, 43 Mo. 216; 97 Am. Dec. 389, and note 392; Rogers v. Huie, 1 Cal. 429; 54 Am. Dec. 300, 302; Carmichael v. Buck, 10 Rich. 332; 70 Am. Dec. 226, and note 230.

SAME INSTANCES. Where one to whom property has been bailed for a specified time violates his trust, and transfers the property to another, the owner may maintain replevin or trover against the latter, although the term of the bailment has not expired, and even though he is a purchaser in good faith: Dunlap v. Gleason, 16 Mich. 158; 93 Am. Dec. 231, and note 233; Burton v. Curyea, 40 Ill. 320; 89 Am. Dec. 350, and note 361. So the vendor in conditional sale is entitled to recover in replevin or trover from any purchaser from his vendee the full value of the property if a return cannot be had, although a less sum was due from the vendee on his contract, for the absolute title is in the vendor: Dunbar v. Rawles, 28 Ind. 225; 92 Am. Dec. 311, and note 317; and such recovery may be had in case of a conditional sale, after notice by the original vendor to a second purchaser that he owns part of the goods, without more particularly designating the articles claimed by him: Burbank v. Crooker, 7 Gray, 158; 66 Am. Dec. 470. Nor is a previ ous demand necessary to maintain replevin against a purchaser from one without title who sells without authority: Trudo v. Anderson, 10 Mich. 357; 81 Am. Dec. 795; and no demand is necessary against an innocent purchaser of stolen goods after he has sold them to another person, for the reason that such sale is an actual conversion, and trover may be maintained in such case: Courtis v. Cane, 32 Vt. 232; 76 Am. Dec. 174. But the general owner cannot maintain replevin or trover against a bona fide purchaser from his bailee if he placed the property in the hands of the bailee for any other than a legitimate purpose, or if he is fairly chargeable with any negligence by means of which the bailee was enabled to impose upon the purchaser: Burton v. Curyea, 40 Ill. 320; 89 Am. Dec. 350, and note 361.

EVIDENCE -- BURDEN OF PROOF-PRESUMPTIONS. The burden of proof in an action on a bank bill shown to have been stolen is not on the plaintiff to show that he obtained it fairly, and under such circumstances as entitle him to maintain an action on it. The burden is on the defendant to show that the plaintiff did not so receive it: Wyer v. Dorchester etc. Bank, 11 Cush. 51; 59 Am. Dec. 137, and note 140; Worcester Bank v. Dorchester Bank, 10 Cush. 488; 57 Am. Dec. 120, and note 122. But it is otherwise as to a stolen note or bill of exchange: Worcester Bank v. Dorchester Bank, supra. Since, if negotiable paper has been lost or stolen, or obtained by duress, or put in circulation by fraud, upon proof of these circumstances, it is incumbent upon

the plaintiff to show that he purchased such paper bona fide and for a valuable consideration: Beltzhoover v. Blackstock, 3 Watts, 20; 27 Am. Dec. 330. Although the possession of chattels creates a presumption of ownership, yet the prima facie case may be rebutted by circumstances attending the possession, or by positive proof: Bergen v. Riggs, 34 Ill. 170; 85 Am. Dec. 304; and if another person desires to make out a title, he has the burden of proof to show how he came by it, and to explain why it is not in his own custody: Dick v. Cooper, 24 Pa. St. 217; 64 Am. Dec. 652. So, in order "to make either a sale or a pledge valid as against the real owner, where the sale or pledge is made by another person, it is incumbent upon the person claiming such sale or pledge to show that the party making it had authority from the owner": Levi v. Booth, 58 Md. 305; 42 Am. Rep. 332, 334; and acts of ownership of the possessor of a chattel inconsistent with another's ownership must be brought to the knowledge of the true owner to divest him of title: McMahon v. Sloan, 12 Pa. St. 229; 51 Am. Dec. 601.

SAME-ACTS AND DECLARATIONS. Acts and declarations of the possessor of personal property concerning the same are admissible in evidence to determine the nature of such possession, although not made in the presence of one claiming ownership in the property: Avery v. Clemons, 18 Conn. 306; 46 Am. Dec. 323, and note 325. So declarations of a party in possession of property, that he held in his own right, or under another, are admissible in evidence as part of the res gestæ, but his declarations beyond this are no part of the res gestæ, and cannot be received as such: Abney v. Kingsland, 10 Ala. 355; 44 Am. Dec. 491, and note 497; and a receipt by the bailee acknowledging ownership of the general owner in the property bailed is admissible as part of the res gestæ in an action of replevin brought by the latter for the property after the bailee has wrongfully transferred it to another: Burton v. Curyea, 40 Ill. 320; 89 Am. Dec. 350; though declarations made by the owner of a chattel inconsistent with his ownership will not divest him of title, unless acted upon by the purchaser: McMahon v. Sloan, 12 Pa. St. 229; 51 Am. Dec. 601.

ALLEN AND LEWIS v. AGEE AND Miller.

[15 OREGON, 551.]

DELIVERY SUFFICIENT TO COMPLETE SALE. Where agent of purchaser buys wheat stored in a warehouse, and orders it delivered on cars, and it is removed from the warehouse and put in the cars by rightful act duly authorized, after which the cars are side-tracked awaiting transportation, this is sufficient delivery to the purchaser to exempt the wheat from liability to seizure under a writ of replevin at the instance of a third party who claims title to it.

J. W. Hamilton and J. P. Watson, for the appellants.

W. R. Willis, for the respondents.

By Court, LORD, C. J. The plaintiffs are partners, doing business under the firm name of Allen and Lewis. The complaint alleges, in substance, that plaintiffs are the owners and entitled to the possession of 315 sacks of wheat, marked "No.

13," of the value of $408, and in possession of R. Koehler, receiver of the O. & C. R., a common carrier, delivered to him by plaintiffs to be carried from Dillard to Portland, Oregon; that on the twenty-fifth day of September, 1886, at Dillard, Douglas County, Oregon, defendants wrongfully took the same from the possession of said Koehler, and detained the same, to the plaintiffs' damage, etc. After denial, the defendants, for a separate answer, allege, in substance, that the firm of Bremner and Buxton were the owners of this wheat, and that on the twenty-fifth day of September, 1886, commenced an action to recover the same from W. F. Owens and J. M. Dillard, and by an indorsement on the affidavit filed therein, required the defendant B. C. Agee, sheriff, "to take said property in the complaint herein described into his possession"; that the wheat was in the possession of the defendant James Dillard as warehouseman; that said affidavit and indorsement therein, with an undertaking, was delivered to defendant Agee, and that defendant Miller was his deputy, and that the defendant Miller, on the date aforesaid, in accordance with said authority, took said property into his possession from the defendant James Dillard, etc.; and further, that the property taken was the property of said Bremner and Buxton, and that they were entitled to the possession.

The reply put in issue the material facts, and the trial resulted in a verdict and judgment for the defendants, from which comes this appeal. The evidence as disclosed by the bill of exceptions is to this effect: That one Merrill, at the times mentioned, was the agent of the plaintiffs in buying and shipping wheat; that the wheat in dispute had been stored in the warehouse of James Dillard, at Dillard Station, by Messrs. Bremner and Buxton; that Merrill purchased a lot of wheat subsequently of W. F. Owens, including the wheat in dispute, for which he (Owens) gave him an order on Dillard, in writing, who accepted the order in writing on the twentieth day of September, 1886; that Bremner and Buxton gave their written order to J. M. Dillard to ship their wheat subject to the order of W. F. Owens; that the railroad company had no regular agent at Dillard Station, but when notified that goods were to be transported, left cars on the side-track at the warehouse to receive them; that Merrill ordered the cars of the agent at Roseburg sent out to Dillard to receive the wheat, and had him make out shipping receipts for three car-loads; that the cars were sent there in accordance with his direc

tions, and loaded with wheat by Dillard out of his warehouse, including the wheat in dispute, who made out his memoranda, "locked the cars, and left them for the train, and had nothing more to do with the wheat or cars"; that subsequently, and on the twenty-fifth day of September, 1886, Messrs. Bremner and Buxton, as plaintiffs, commenced an action against Owens and Dillard, as defendants, to recover said wheat, and that the defendants in the present action, as such officers, as alleged on the order referred to, and on the day last aforesaid, took the wheat in controversy out of the cars in which it was loaded into their possession. From the pleadings and the evidence thus adduced, it will be seen that the trial was devoted mainly to determining who had possession of the wheat at the time the defendant officers took it from the cars in the action of Bremner and Buxton v. Owens and Dillard.

The error assigned in the instructions given by the court are all directed to this point, that the evidence showed a delivery to the railroad and a possession by them for the plaintiffs. This is the contention of counsel for the plaintiffs, and is the marrow of the case. The purchase and the authority to deliver the wheat is not disputed, only that any actual possession of the property had been taken by the railroad company. The evidence shows that the railroad company placed the cars on the side-track at the warehouse, at the instance of the agent of the plaintiffs, for the purpose of receiving, with other, the wheat in dispute for the plaintiffs, and that it was removed from the warehouse and put in the cars in pursuance of this purpose, and by rightful act duly authorized. But it is contended that this did not constitute a delivery of the wheat to the plaintiffs, because the company having no regular agent at that place, there was no acceptance, and consequently that the wheat still remained in the possession of Dillard at the time of the seizure by the defendant officers. The agent of the plaintiffs, or what is the same thing, the plaintiffs, were the contractors for the shipment of this wheat; their agent had not only selected the railroad company as its carrier, but by agreement the company had sent its cars at the place designated by him to receive the wheat for the plaintiffs, and when in pursuance of that agreement the wheat was delivered aboard of the cars, it must necessarily have been with their knowledge and consent.

In Illinois Central R. R. Co. v. Smyster, 38 Ill. 360, 87 Am. Dec. 301, the court say: "The side-track and the cars be

long to the company, and are under their exclusive control; and there is no question that the company placed this car at a point opposite the wharf-boat on which the cotton was stored, for the express purpose of having it transferred from the boat to the car, that they might transport it to the point desired by the shipper. The company had unquestionably the exclusive use and control of their road, side-tracks, and freight cars; no use could be made of them without the consent of the company. So long as a car remained on their road or side-track, it was under their control, and necessarily in their possession. They had the right to permit their cars to stand at the point at which this one was placed. The company at any moment, at least after the car was loaded, had the unquestioned right to remove it to any other part of their road, but the commission merchant had no such right, even if he had possessed the means. . . . . The wharf-boat, on the contrary, with its contents, was in the possession of the commission men, and the cotton so continued until it was placed in the car. It then passed into the possession of the company as effectually as if it had been delivered in their warehouse. They substituted their car for their warehouse, no doubt for the mutual convenience of all parties. And this, too, with the assent of the company, to promote their interest, in the prosecution of the business for which it was created. If this was a box-car, the company had the right as soon as the cotton was placed in it to have closed and locked it, or if an open car, they had an equal right to have secured the cotton, and any person interfering with it would have been a trespasser, and the company could have recovered damages for any injury thus perpetrated. No difference is perceived in receiving freight on the platform of their depot and into their cars at any place on their road or side-track; or whether it is placed there by their employees or by other persons, so it is done with the assent of the company."

The case in hand possesses all these features, strengthened by some other additional facts. Here the side-track and the cars belonged exclusively to and were under the control of the company. They placed their car on the side-track at the warehouse, by request and agreement, where the grain in dispute was stored, for the express purpose of having it transferred from the warehouse to the car, that they might transport it to the point desired by the shipper. Nor could any one use and control their road, side-track, and freight cars with

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