(v) This subject has been very much discussed within the last few years, especially in the courts of New York. The earliest case that we have seen is that of Seymour v. Brown, 19 Johns. 44. There the plaintiff sent to the defendant, a miller, a quantity of wheat, to be exchanged for flour at the rate of a barrel of flour for every five bushels of wheat. The defendant mixed the plaintiff's wheat with the mass of wheat of the same quality belonging to himself and others; but, before the flour was delivered to the plaintiff, the mill of the defendant, with all its contents, wheat and flour, was entirely destroyed by fire from some unknown cause, and without any fault or negligence on the part of the defendant

It was held, that the defendant was not responsible for the loss of the plaintiff's wheat, there being no contract of sale by which the property was transferred to the defendant This case was decided in the year 1821. A few months afterwards a case was decided the same way by the Court of Appeals of Virginia, on a somewhat similar state of facts. Slaughter v. Green, 1 Rand. (Va.) 8. In 1826, the question came up in Indiana in the case of Ewing v. French, 1 Blackf. 868. The facts of the case were almost identical with those in Seymour v. Brown, and the court held, that the plaintiff was entitled to recover. Seymour v. Brown having been cited, Blackford, J., said: " That decision, it is admitted, cannot be reconciled with ours; but as an independent tribunal, we must, after consulting the authorities within our reach, determine for ourselves as to what the law is, however unpleasant it may be to differ from a court so eminently distinguished as that of New York." In 1827 came the case of Hurd v. West, 7 Cowen, 762. In that case the defendant had let a number of sheep to one Dayton, and Dayton, while the sheep were in his possession, had sold them to the plaintiff. And the question was, whether the property in the sheep was in Dayton, so that he could transfer them to the plaintiff. Wood* Closely connected with these questions, and indeed sometimes identical with them, are those which arise worth, J., in remarking upon the evidence, which was somewhat uncertain, said: "It seems to me the first question was, whether the identical sheep, if they survived, were to be returned, or the same number of sheep, and of as good quality. In the first case, the title would still have continued in the defendant below, with the right to assert it when the period of letting expired. If the terms of the letting were as in the second case, or in the alternative, the right of the defendant below rested in contract; for he was not authorised to claim the identical sheep." Seymour p. Brown was not cited or alluded to, either by the counsel or the court, in Hard v. West; but the reporter, in a learned note, in which he discusses the question, considers the former as substantially overruled by the latter, and such would seem to be the case from the language which we have quoted. Afterwards, in 1839, the precise question passed upon in Seymour v. Brown came up again in the same court, in Smith v. Clark, 21 Wend. 83, in which the former case was considered by the court, and overruled. Since that time the courts of New York have uniformly held the law as we have stated in the text. See Pierce v. Schenck, 3 Hill (N. Y.), 28; Baker v. Woodruff, 2 Barb. 620; s. c. nom. Norton v. Woodruff, 2 Comst 163; Mallory v. Willis, 4 Comet. 76. In this last case, the rule as now held was very clearly stated by Bronson, C. J. "The distinction," says he,"which will be found to run through all the authorities on this subject, with the exception of two cases which have been overruled, is this: when the identical thing delivered, though in an altered form, is to be restored, the contract is one of bailment, and the title to the property is not changed. But when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed; it is a sale." The same doctrine is held in the cases of Wadsworth v. Allcott, 2 Seld. 64; Foster v. Pettibone, 8 Seld. 433; Chase v. Washburn, 1 Ohio St. 244; Hyde v. Cookson, 21 Barb. 96; Johnston v. Browne, 87 la. 200. A similar rule was laid down in Buffam v. Merry, 3 Mason, 478. In that case A delivered yarn to B, on a contract that the same should be manufactured into plaids. B was to find the filling, and was to weave so many yards of the plaids at 15 cents per yard, as were equal to the value of the yarn at 65 cents per pound. It was held, that, by the delivery of the yarn to B, the property thereof vested in him. On the other hand, in King v. Humphreys, 10 Penn. St. 217, where rags were delivered by the plaintiff to the defendant at a certain price, under a special contract, to be made into paper, which was to be returned at a certain price, - the difference to be paid by a note; and paper was manufactured out of the identical rags; it was held, that the property in the rags and paper continued in the plaintiff. But it appeared that this was the usual mode in which the trade made contracts for working rags into paper; and the court seemed to put their decision upon the ground that the plaintiff was entitled to receive the paper made of the identical rags delivered. If this was the ground of the decision, the case does not conflict with what we have stated to be the established rule; the question in the case was one of construction, and it resembled in this respect the case of Mallory v. Willis, already cited. In that case the plaintiff agreed to deliver good merchantable wheat at a flouring mill carried on by the defendant, "to be manufactured into flour." The defendant agreed to deliver 196 pounds of superfine flour, packed in barrels to be furnished by the plaintiff, for every four bushels and fifteen pounds of wheat. He was to be paid sixteen cents per barrel, and two cents extra, in case the plaintiff made one shilling net profit on each barrel of flour. The defendant was to guarantee the inspection. The plaintiff was to have the "offals or feed," which the defendant was to store until sold. It was held, that the contract imported a bailment of the wheat, and not a sale, and therefore that the plaintiff might maintain replevin for a portion of the flour manufactured from the wheat delivered under the contract. But Branson, C. J., and Harris, J., dissented from the judgment of the court, and delivered able opinions. There was no difference of opinion, however, among the members of the court, as to the general rule; the only question between them was one of construction. - A question somewhat similar to the one that we have been considering, arises where materials are delivered to be worked up at the shares, as it is termed. But in that case it is held, that the contract is one of bailment, and not of sale. The question arose in when property is * claimed by accession, or by the right which the owner of property has to whatever other propPierce v. Schenck, 3 Hill (N. Y.), 28. Logs were delivered by the plaintiff at the defendant's saw-mill under a contract with the defendant that he should saw them into boards within a specified time, and that each party should have one half of the boards. It was held, that the transaction inured as a bailment merely, and that the bailor retained his general property in the logs till all were manufactured pursuant to the contract. And Cowen, J., said: "The plaintiff delivered his logs to the defendant, who was a miller, to be manufactured into boards, - a specific purpose from which he had no right to depart. On completing the manufacture, he was to return the specific boards, deducting one-half as a compensation for his labor. It is like the case of sending grain to a mill for the purpose of being ground, allowing the miller to take such a share of it for toll This is not a contract of sale, but of bailment, - locatio operis faciendi. The bailor retains his general property in the whole till the manufacture is completed; and in the whole afterwards, minus the toll. The share to be allowed is but a compensation for the labor of the manufacturer, whether it be one-tenth or one-half. Thus, in Collins v. Forbes, 3 T. R. 316, it appeared that Forbes furnished certain timber to one Kent, which the latter was to work up into a stage for the commissioners of the victualling office, he to receive one-fourth of the clear profit and a guinea per week, on the work being done. This was held to be a bailment by Forbes. So in Barker v. Roberta, 8 Greenl. 101, A agreed to take B's logs, saw them into boards, and return them to B, who was to sell them and allow to A all they brought beyond so much. This was held to be a bailment, and not a sale, though it was expressly agreed that the logs should remain all the while at A's risk. A having sold the logs instead of sawing them, B was allowed to recover their value against A's vendee. What difference is there in principle between an agreement by the owner to pay a share of the avails in money, and in part of the specific thing? Either is but a compensation for his labor. . . . I have been unable to see any difference in the nature of the contract, whether there be an obligation to restore the whole, or only a part of the specific thing. The owner of the goods may reserve the general ownership in the whole or in any part, as he pleases; and he can with no more propriety be said, pro tanto, at least, to have parted with it in the latter case than in the former."- We have already had occasion to refer to Hurd v. West, 7 Cowen, 752. Perhaps that case deserves some further notice. It was ruled in that case, as we have seen, that where one lets chattels for hire, with an agreement on the part of the bailee, in the alternative, either to return the specific chattels, or others of a similar quality; that such a transaction amounts, not to a bailment, but to a sale. The Supreme Court of Vermont have, however, in a series of cases, and after much consideration, decided the same point the other way. The question arose for the first time, we believe, in the latter State, in the case of Grant v. King, 14 Vt. 367. There the owner of cattle leased them, with a farm, for four years, under an agreement that, at the expiration of the four years, the lessee might either return the cattle or pay a stipulated price for them. The lessee sold the cattle before the four years had expired. And it was held, that the lessor might maintain trover for them against both seller and purchaser. The same question arose again in Smith v. Niles, 20 Vt. 315, and in Downer v. Rowell, 22 Vt. 347, and was decided the same way. In the latter case, the plaintiff delivered to the defendant certain sheep, and the defendant executed a receipt therefor, in which he agreed to keep the sheep, or cause them to be kept, "the full term of three years, and return the same, or others in their place, as good as they are." Held, that this was not a sale of sheep to the defendant, nor a bailment with power to sell, but that it was a bailment of the property for a certain period, with a stipulation for its return at the expiration of the bailment; and that the property in the sheep would not vest in the bailee, until he had performed his part of the agreement, by returning to the plaintiff other sheep of equal quality; and that, for a conversion of the sheep, the plaintiff could sustain an action of trover. And Kellogg, J., having cited and commented upon Grant v. King and Smith v. Niles, said: "We are aware that the case of Hurd v. West, 7 Cowen, 752, cited at the argument, is opposed to the view which we take of the case before us. There the court seem to consider that the alternative words in the contract determine its character, - that the right of the party to return other sheep erty becomes inextricably added * to, or combined with it; either naturally, as by vegetable or animal growth or increase; or artificially, as where a person makes a new article by adding to his own materials those of another; or by adding to the materials of another, his own labor. And again, similar to these questions are those which arise from the confusion of goods, when the property of two or more persons is inseparably and undistinguishably mingled.