CRAPSTER v. GRIFFITH.—2 BLAND. 3
for the delivery of certain negroes, may, by a new bill, recover their
increase and profits subsequent to the auditor's report, and not included
plainant, a receiver will be appointed. A receiver will not be appointed,
however, when the appointment will subject the co-tenant to inconvenience
and expense, without corresponding benefit to the complainant, and such co-
tenant will give the complainant security for the rents and profits. Low v.
Holmes, 17 N. J. Eq. (3 C. E. Green,) 148.
When a warehouseman receives grain to be stored for the owners, and
places it in a common bin with his own, or that received from other deposi-
tors, the weight of authority is that the contract is one of bailment and not of
sale, and all the parties are tenants in common. Rice v. Nixon, 97 Indiana, 97;
Sexton v. Graham, 53 Iowa, 181. Where a warehouseman, without a special
agreement but in pursuance of a custom, mixed the grain of several depositors
in a common mass, it was held, that they became tenants in common of the en-
tire amount of like quantity, and for the negligent destruction of the same could
each recover the value of his grain. Arthur v. R. R. 61 Iowa, 648. Where a
warehouseman having in store a quantity of wheat deposited by several
persons, for which under the statute he issues receipts to each depositor,
fraudulently disposes of part of the wheat, the receipt holders must share in
what remains according to the equitable interest of each to be ascertained by
an accounting. Dows v. Eckstrone, 3 Fed. Rep. 19. In an article on Grain
Elevators in 6 Am. Law Rev. 465, it is contended that the warehousemen
should be considered as bailees to keep, with power to change the bailor's
tenancy in severally into a tenancy in common of a proportionately larger
mass, and back again, and also with a continuous power of sale, substitu-
tion and re-sale. At any given moment, holders of receipts are tenants in
common of the amount in store in proportion of their receipts. If it is
wholly destroyed by accident, the warehouseman will not be liable further
on his receipts: if it is injured or a part destroyed, the loss should be borne
proportionately. See also Bank v. Meadowcroft, 4 Bradwell, 630; Bailey v.
Bensley, 87 111. 556. As to rights of the bailor against the assignor of the
warehouseman, see Schindler v. Westover, 99 Ind. 396. It is provided by
Rev. Code, Art. 65, sees 12, et seq. that elevator receipts, &c., shall imply
title to the grain in the hands of bona fide holders: shall be negotiable in-
struments and conclusive evidence of the receipt of the goods by the bailee.
And it is made a misdemeanor for a warehouseman to issue a receipt for
goods not actually received, or a second receipt till the first be cancelled,
or to deliver any part of the goods except upon presentation of the receipt
and cancellation, or endorsement thereon.
As to the ownership in common created by the mixture or confusion of
goods, see Jewett v. Dringer, 30 N. J. Eq. 291, Reporter's note; Pulcifer v.
Page, 54 Am. Dec. 590, note. If the mixture was by accident, or mistake,
or the wrongful act of a stranger, the parties become tenants in common.
2 Kent Com. 365, note 1. Where one party supplies lumber and the other
makes shingles out of it and is to receive a certain quantity of shingles in
payment of his labor, the parties are tenants in common. White v. Brooks,
43 N. H. 402. Where a vessel loaded with cotton was wrecked and some of
the cotton was saved, but the marks upon the bales obliterated, it was held
that all the shippers were tenants in common of the bales saved. Spence v.
Ins. Co. L. R. 3 C. P. 427. If a man wilfully and wrongfully mixes his own
goods with those of another owner, so as to render them undistinguishable,
he will not be entitled to his proportion, or any part, of the property. The
Idaho, 93 U. S. 585. And so if the wrong-doer confounds his own goods
with goods which he suspects may belong to another, and does this with in-