Pacific Coast Law Journal. YOL. 1. MARCH 30, 1878. No. 5. Current Topics. IN Coburn vs. Ames the Supreme Court held that a District Court has power to appoint a Receiver in any action pending, and the appointment may be made ex parte, without notice; and that a receiver may be appointed after an appeal has been taken and perfected. The plaintiff cited ? 564, Code C. P.; Whitney vs. Buckman, 26 Cal., 449; Kerr on Rec'r. 137, Note 1.; C. C. P., 2566; Ireland vs. Nichols, 1 Sweeney, 208; S. C., 37 Howard, 222; C.C.P., 22 946 and 1049. The defendant says the District Court had no authority to appoint the Receiver after the appeal. Citing C. C. P. 946; Bryan vs. Berry, 8 Cal., 130; Thornten vs. Mahoney, 24 Cal., 569 ; 26 Cal., 139; 28 Cal., 91; 47 Cal., 72; 49 Cal., 336; 20 Howard, 263, etc. IN Monroe vs. McDonald the Supreme Court affirms the judgment of the Court below. The plaintiff in this action sued the defendant for $330 upon an undertaking given to release a certain attachment. The undertaking was in the required form. The value of the property released was fixed by the undertaking at $330. The defendant in his answer sets up as defense that the property was worth only $111; that a portion of the property was tendered the Sheriff, which he refused; that he tendered the Sheriff, in place of the identical property, other property of precisely the same kind, quality, and amount, to apply upon the execution which was issued, and it was refused; that before executing the undertaking it was agreed that the property might be replaced, and that he refused to sign the undertaking until such agreement was made. The Court below gave judgment for the plaintiff. In Pacific Transfer Company vs. State Board of Harbor Commissioners, the Supreme Court have just decided that no toll or wharfage can be collected from persons or companies engaged in the business of transporting travelers' baggage. The Transfer Company was engaged in transporting travelers' baggage to and from and across the wharf of the defendants, and they (the defendants) demanded toll or wharfage. The plaintiff claims that while it is engaged in the transportation of travelers' baggage it is exempt from wharf dues and brings suit to recover moneys paid under protest. An important decision as to the liability of railway companies for passenger's luggage was made in the English Court of Appeal in the recent case of Bergheim vs. The Great Eastern Railway Co. The plaintiff was traveling on the defendant's railway. He arrived at the station some time before the train was to start, and he directed one of the defendant's porters to place his traveling-bag in the carriage in which he intended to travel. The porter did so under the plaintiff's superintendence, and the plaintiff, after inquiring of the porter if the bag would be safe, and receiving a reply in the affirmative, went to another part of the station to get some refreshment. On his return to the carriage the bag was not to be found. To recover the value of the bag the plaintiff brought action. At the trial, the jury found that neither the plaintiff nor the defendant had been guilty of negligence, and on these findings the judge gave judgment for defendants which was affirmed on appeal. Supreme Court of California. JANUARY TERM, 1878. [No. 5410.] [Filed March 21, 1878.] DAVIS VS. RUSSELL. WAREHOUSE RECEIPTS-STAND ON SAME FOOTING AS BILLS OF LADING. -- The assignment of a warehouse receipt will transfer the title to the goods, and it must necessarily follow that the possession of the receipt indorsed in blank is presumptive evidence of the ownership of the goods by the holder of the receipt. SAME.-By Section 2,991, Civil Code, one who has allowed another to assume apparent ownership of property for the purpose of making any transfer of it, can not set up his own title to defeat a pledge of the property made by the other to a pledgee who received the property in good faith in the ordinary course of business and for value. SAME.-A pre-existing debt is a valuable consideration within the meaning of that Section. Appeal from Fifth District Court. Baldwin, Budd, Terry, McK. & Terry for Respondent. Davis being the owner of a lot of wheat deposited it in the warehouse of Russell; took a warehouse receipt for it in the usual form, and thereafter indorsed the same in blank and delivered it to Barney. Barney transferred the receipt to the Bank of Stockton, and the bank transferred it to a person not a party to the action, and the wheat was afterward delivered by Russell to the holder of the receipt. The bank was notified by Davis that he had not sold the wheat to Barney, but the witnesses do not agree whether it was before or after the bank transferred the receipt. Before the wheat was delivered to the holder of the warehouse receipt, Davis made. a demand upon Russell for a delivery of the wheat, but Russell refused so to do unless the receipt was returned to him. Davis claims that Barney was only his agent for the sale of the wheat, and that he (Barney) transferred the receipt to the bank as security for an antecedent debt due from him to the bank. The defendants claim that Barney purchased the wheat from Davis, that he transferred the receipt to the bank not only as security for an antecedent debt, but also, for further advances which were afterward made, and that the transfer by the bank was prior to the time when it was notified that Davis had not sold the wheat to Barney. The jury found for the plaintiff. The Court was requested by the defendants to give the following instruction: "The possession of the instrument in writing produced in evidence, dated August 18, 1875, and called a warehouse receipt, covering this wheat in controversy, together with the plaintiff's indorsement thereon, is of itself presumptive evidence of the ownership of the grain, by the person having such possession of such receipt so indorsed;" but the Court refused to give the instruction, and gave the following instructions at the plaintiff's request: "If the jury believe from the evidence that the plaintiff did not sell the wheat in controversy to Barney, but authorized him to sell the same at a fixed price for cash, to be paid on or before delivery, then the indorsement and delivery of the warehouse receipt did not vest Barney with the title of said property, or deprive plaintiff of his title and right to the possession of the wheat." Also, that "the instrument in writing, called a warehouse receipt, is not a contract for the payment of money or personal property, and cannot be transferred by indorsement, like a negotiable promissory note." Other instructions were given embodying the same legal proposition. There was evidence introduced by the defendants tending to show that Barney had purchased the wheat from the plaintiff, and that the warehouse receipt indorsed in blank by the plaintiff, had been transferred to the Bank of Stockton, and by the bank transferred to a person not a party to the action, before the bank was notified by the plaintiff that he had not sold the wheat to Barney; and the defendants were entitled to have instructions given to the jury, which would state the effect of such transfers of the warehouse receipt. The foregoing instruction, requested by the defendants, expresses very fairly the law in that regard. It was held in many cases in the English Courts that an assignment of such a receipt does not amount to a constructive delivery of the goods until the warehouseman is notified thereof, and agrees to hold the goods for the assignee, (Benjamin on Sales, 2815.) No substantial reason is offered for giving to the assignment of such an instrument an effect differing materially from that of an assignment of a bill of lading. In Horr vs. Baker, 8 Cal., 613, a warehouse receipt was regarded as standing on the same footing as a bill of lading; and it was held that a transfer of such receipt operated as a transfer of the title to the goods. The doctrine of that case has not been questioned, so far as we are aware, by the courts of this State. If an assignment of the receipt will transfer the title to the goods, it must necessarily follow that the possession of the receipt, indorsed in blank, is presumptive evidence of the ownership of the goods by the holder of the receipt. The defendants were entitled to an instruction which would give them the benefit of that presumptive evidence, although as between the plaintiff and Barney, and those claiming under Barney, with notice that he was only the agent of plaintiff (if such was the fact), the plaintiff remained the owner of the wheat. The Court also instructed the jury that "if you believe from all the evidence in this case that Davis did sell the wheat in question to Barney, your verdict will be for defendants. * * * If, however, you find that there was no sale of this wheat and that there was a demand and refusal of it by the party, then it is your duty to find a verdict for the plaintiff for a return of the wheat or its value." This instruction entirely ignores any rights which any of the defendants may have acquired in reliance upon the apparent ownership or authority of the holder of the warehouse receipt, and in that respect is erroneous. It is provided by the Civil Code, 2991, that "One who has allowed another to assume the apparent ownership of property, for the purpose of making any transfer of |