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603 WASHINGTON STREET, SAN FRANCISCO, March 30, 1878. A year ago, while traveling southwardly through the State, business observations and circumstances fully convinced us of the necessity felt by the legal profession at large for a good law periodical, on this Coast. We received many voluntary and earnest assurances that such a work would be most cordially received and liberally supported soon as known--and all this repeated in many widely separated localities.
We determined it should be tried, --but while making arrangements, learned for the first time that the San Francisco Law Journal had just entered the field. We joined its fortunes, ---a name, with some debt, and a few hopeful subscribers-established an office with the proper material and outfit, --and by close and persistent effort, aided in placing it on a better and more paying basis. The name was changed on March 1st, at the opening of its second volume and four more pages added, and we earnestly hoped for a wider and higher success.
But disagreements have arisen, and though we have most earnestly striven to keep the concern intact, it is now finally divided, ---our partner who has heretofore beld the editorial management has taken the name of the Journal and gone out, leaving the entire office on our hands, and some affairs to settle. And we now feel that though he has assumed, in this separation, to supply our subscribers with the Journal numbers due them, yet that we had assumed an imperative responsibility in aiding to induce those subscriptions that should be met-and further that the time has now come for us to undertake the publication of that model'legal journal that we had so long contemplated.
This endeavor is emphasized by the fact that one of the earliest subsrribers to the San Francisco Law Journal has just handed us a list of cases embracing len California Supreme Court decisions that have been omitted during the past six months from the San Francisco Law Journal, while claiming that it con. tained them ALL, ---to say nothing of the many serious errors thau have recently so abounded. We exclaim in the language of “Truthful James," "can these things be ?”—and declare most emphatically our endeavor that they shall be so no longer !
We present to the profession this the initial number of the CALIFORNIA LEGAL RECORD, with the assurance that it shall hereafter contain : Ist. All the current Decisions of the Supreme Court of California, soon as rendered, with full statement of facts and syllabus, also full notes of all Unwritten Opinions ; to commence with March 1st, so as to form a complete continuation from Vol. 1 of the S. F. Law Joarnal. 20. A Digest of the yet unpublished decisions of the Supreme Court rendered since the publication of Vol. 51 of California Reports-from January, 1877— as rapidly as they can be prepared-down to the commencement of Vol. 1 of the S. F. Law Journal, and including those omitted therefrom, and which will be of considerable value for reference, as we understand Vol. 52 will not issue for about a year yet to come. 3d. Current Land Decisions from the Department of the Interior, of special interest to this Coast. 4th. Legal notes, or current mention of interesting and valuable items, professional or otherwise. 5th. County briefs, or items of current professional interest from the county seats of the counties of the State. 6th. Im. portant decisions of the U. S. Circuit and District Courts of this State, and the U. 8. Supreme Court, and the Supreme Courts of Nevada, Oregon and Washington, and the Courts of last resort of other States.
We shall also maintain a “Lawyers' Directory” on the cover page of the RECORD for all those who desire to place their correct address in the hands of the legal fraternity:
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The digest of previous decisions will commence in our next number.
BOUND COPIES of Vol. 1 of the San Francisco Law Journal in law sheep can be obtained at the office of the LEGAL RECORD, 603 Washington street, at the subscription price, adding $1 for binding. These contain the full decisions of the Supreme Court of California, with a very few exceptions, from September 1, 1877, to February 23d, 1878—with complete index-from which last date the LEGAL RECORD will be a full and unbroken continuance ; and its digest of opinions added will cover the entire ground from January 1, 1877— the present terminus of the California Reports, Vol. 61.
Supreme Court of California.
[January Term, 1878.]
DAVIS vs. RUSSELL.
BY COURT BELOW. The possession of a warehouse receipt, even though indorsed in blank is pre.
sumptive evidence of ownership of property named therein ; hence it is negotiable and passes title by indorsement same as a Bill of Lading. But notice given by owner that the holder of receipt was only agent for
sale of the property would retain ownership. The facts appear in the opinion.
Terry, McKinne & Terry; Budd & Son, and F. T. Baldwin, attorneys for plaintiff and respondent
Byers & Elliott and Hewel & Turner, for defendant and appellant.
OPINION BY THE COURT. 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 afterwards 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 to do so 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 afterwards 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 endorsement 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 endorsement 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 endorsed 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, 8813.) 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, & Cal., 613, & 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, endorsed 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 the 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 the evidence in the case that Davis did sell the wheat in question to Barney, your verdict will be for the 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 verdiet 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, $2,992, that "One who has allowed another to assume the apparent ownership of property, for the purpose of making any transfer of it, cannot 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." The evidence seems to leave no room for doubt that the Bank of Stockton received the warehouse receipt from Barney in good faith, and in the ordinary course of businest; and upon the authority of Payne vs. Bensley, 8 Cal.,