and $3.60 costs of suit; that afterwards, on the 5th day of September, 1874, upon another like garnishee proceeding upon said judgment in favor of Neiderfeldt, there was another judgment rendered against Himrod and Ellithorpe, as garnishees of Thomas Baugh, for the sum of $86.90 and $3.60 costs, whereby the said Himrod and Ellithorpe became bound to pay the amount of the said two garnishee judgments to the said Neiderfeldt instead of to the said Thomas Baugh; that, further, at the April term, 1874, of the Circuit Court of St. Clair County, the said Himrod and Ellithorpe recovered a judgment against the said Thomas Baugh for the sum of $52 and costs, which is still unpaid and unsatisfied, all of which occurred before the said Himrod and Ellithorpe had any notice of the pretended assignment to Levi Baugh of the judgment named in the appeal bond; that Himrod and Ellithorpe had paid the garnishee judgments, and they were willing that the said several judgments should be applied in the satisfaction of the judgment of Thomas Baugh against them; that the said Lovingston and Millard were mere sureties for Himrod and Ellithorpe in the appeal bond.

Although, according to the averment of the declaration, the judgment of Thomas Baugh against Himrod and Ellithorpe was assigned to Levi Baugh on the 2d day of June, 1874, and the garnishee judgments against Himrod and Ellithorpe, as garnishees of Thomas Baugh, were not obtained until after that time, as stated in the plea, viz., on the 11th of June and the 5th of September thereafter, yet the plea avers a want of any notice of the assignment when the garnishee judgments were rendered.

After notice of the assignment of the judgment to Levi Baugh, Himrod and Ellithorpe would have been bound to pay the same to him, and if they had notice of the assignment at the time, they might have made answer of such facts in the garnishee proceedings and have protected themselves from a judgment against them as garnishees of Thomas Baugh, as owing the judgment to him. But, until notice of the assignment, they were justified in dealing, with respect to the judgment, as belonging to Thomas Baugh, who recovered it, and having no such notice they could but make answer as garnishees of their indebtedness to Thomas Baugh upon the judgment. The garnishee judgments were properly rendered against the garnishees without fault on their part, and having been paid should be held to operate as an extinguishment or satisfaction pro tanto of Thomas Baugh against them. Minard v. Lawler, 26 Ill. 301; Drake on Attachment, § 710. It does not appear that Himrod and Ellithorpe were indebted to Thomas Baugh otherwise than upon the judgment named in the appeal bond.

The judgment for $52 and costs, recovered by Himrod and Ellithorpe against Thomas Baugh, stands upon a somewhat different footing. This recovery was previous to the assignment of the judgment in suit; the assignee took the assignment, of course, subject to all defenses existing at the time against the assignor. This judgment

however, is but strictly matter of set-off, and it is in favor of Himrod and Ellithorpe, and not in favor of Himrod, Lovingston and Millard, these defendants, and it is the general rule that demands to be set off must be mutual, as respects the parties, due from the plaintiff to the defendants; that joint and separate debts can not be set off against each other. But Himrod and Ellithorpe are here the principal debtors, and Lovingston and Millard only their sureties, and such a circumstance has been admitted by some courts of respectable authority as creating an exception to the general rule, they holding that a claim of the principal debtor against the plaintiff may be set off in an action against the principal and his sureties. Mahurin v. Pearson, 8 N. H. 539; Concord v. Pillsbury, 33 id. 310; Brundridge v. Whitcomb, 1 Chipman, 180.

We are inclined to accept the rule of these authorities. It seems to be in consonance with the equitable principles which so largely govern the relation of principal and surety, and we are struck with the fitness of allowing whatever, not merely personal, would be matter of defense for the principal debtor, were he sued alone, to be admitted as a defense in favor of the principal and surety when they are sued together. The principal debtor is the real debtor, and the surety but security for the payment of the principal's separate debt; and off-setting a demand in favor of the principal debtor alone, when sued with his surety, is setting off against each other what may be regarded as essentially mutual debts. See, too, Waterman on Set-off, § 237; Bourne v. Benett et al., 4 Bing. 423. In Ex parte Hanson, 18 Vesey, 232, it was observed by Lord Eldon, in reference to the indebtedness of principal and surety on a joint bond, that the joint debt was nothing more than a security for a separate debt.

We are of opinion that the court below erred in sustaining the demurrer to the plea, and the judgment is reversed and the cause remanded.

JUDGMENT REVERSED. SCHOLFIELD, C. J., and WALKER, J.: We are unable to concur in the decision in this case. The rule of set-off adopted by this opinion is opposed to the current of authority, if not the former decisions of this court.

and transferable by indorsement in blank, or by special indorsement, the indorsers being liable as are indorsers of bills of exchange.

3. THE WAREHOUSEMAN

MUST BE IN POSSESSION OF THE GOODS at the time he executes a receipt or voucher-the goods must be stored in the warehouse kept by him and under his care and control. A warehouseman's receipts for goods not in his warehouse at the time of the execution and delivery of the receipts, although he was the owner, can not pass any right or title to the holder of such receipts so as to affect innocent third parties. But after removing the goods to his warehouse the warehouseman might, by a subsequent stipulation or ratification of his original contract, before the right of others intervened, again pledge the property to secure the liability, for the security of which the original receipts were given.

4. THE VALIDITY OF THE RECEIPTS WAS NOT AFFECTED in the hands of a bona-fide holder by the fact that in giving the original receipts for goods not then in his warehouse and under his control the warehouseman violated and incurred the penalties prescribed by the statute.

James Speed and Geo. Weissenger, for appellants; W. O. & J. L. Dodd, for appellees.

PRYOR, J., delivered the opinion of the court: The appellants, Cochran & Fulton, merchants of the city of Louisville, advanced to one Wm. H. Shipman, of Lawrenceburg, Ky., seven thousand five hundred dollars in their two acceptances, payable in four months from the 16th of May, 1874. For the purpose of securing the appellants, Shipman gave them a warehouse receipt for ninetyfive barrels of whisky, reading as follows:

"Received, May 16th, 1874, of Cochran & Fulton, on storage in my warehouse, situated in Lawrenceburg, Ky., ninety-five barrels of T. B. Rippy whisky, made in the month of April, 1873, marked with the serial numbers 570 to 574, and 635 to 724, inclusive, containing 3,859.65 gallons; which whisky is covered by insurance, and is held for said Cochran & Fulton in storage, and is deliverable only on the surrender of this certificate.

[Signed] W. H. SHIPMAN." On the 10th of June, 1874, they made another advance of about $5,000, which was secured by the execution and delivery of a receipt for 100 barrels of whisky, of the make of 1873. This receipt was of the same character as the one already recited This money was raised on Shipman's note, indorsed by the appellants. The two acceptances dated on the 16th of May, 1874 having matured were renewed by the three notes of Cochran & Fulton to Shipman, at four months, the notes dated the 11th, 16th and 19th of September, 1874. When this renewal took place, the two receipts given by Shipman for the 95 and the 100 barrels of whisky were surrendered to him by the appellants, and new receipts executed and delivered, covering the same whisky. These last receipts are made to bear the same date as the original receipts, and are similar to those surrendered, with these words added: "Which is executed under, and in conformity with the warehouse laws of the state, aud subject to its terms and penalties." Why these last receipts were antedated does not appear, but that they were in fact executed and delivered on the 17th of September, 1874, clearly appears.

After the maturity of these last notes they were again renewed, the appellants still holding the receipts to indemnify them against loss. When the original receipts were executed and delivered, the whisky they purported to represent, although owned by Shipman, was not in fact in his warehouse, but in a bonded warehouse in the same county known as the Rippy warehouse.

On the 17th of June, 1874, the whisky was removed from Rippy's warehouse by Shipman to his own warehouse in Lawrenceburg—the house in which he 'professed to have it stored at the time he gave to appellants the first receipt. So the whisky was in fact in Shipman's warehouse in September, 1874, when the original receipts were surrendered, and another receipt substituted, conforming, as the parties supposed, to the warehouse laws of the state.

Shipman was a warehouseman, engaged in making and selling whisky in the county of Anderson, and the appellants were merchants in the city of Louisville, making purchases and sales of whisky on commission, and were ignorant of the fact that the whisky was not in Shipman's warehouse when the original receipts were delivered, but relied entirely on the statements of Shipman in that regard.

On the 27th of October, 1874, Shipman shipped 45 barrels of this whisky to E. H. Taylor, a dealer in the city of Frankfort, and on the 22d of January, 1875, Taylor, by Shipman's order, forwarded thirty barrels of this whisky to the appellees, Rippy, Hardie & Co., at Louisville. Shipman failed, and the appellants, ascertaining that Rippy, Hardie & Co. had thirty barrels of this whisky in their possession, instituted the present action against them for its recovery, obtained an order for its delivery, and the sheriff, finding nineteen barrels of the whisky with the appellees,took possession of it and delivered it to appellants.

The appellants maintain that they are entitled to recover by virtue of the warehouse receipts held by them; and the appellees, by their assignee (they having gone into bankruptcy), deny the right of recovery, and say they were vested with the title by reason of their purchase in January, 1875. The case comes to this court without instructions, the law and facts having been submitted to the court, and a judgment rendered for the defendant.

The issue made involves the construction of the act entitled "An act in relation to warehousemen and warehouse receipts," approved March 6th, 1869. The first section of that act makes "all persons, firms, corporations, companies, etc., who shall receive cotton, tobacco, pork, corn, whisky, etc., or any kind of merchandise, etc., or any description of personal property whatever in store, or undertaking to receive or take care of the same, with or without compensation, warehousemen." By section two, every warehouseman receiving anything enumerated in section one, on demand of the owner, or the person from whom he received the same, shall give a receipt therefor, setting forth the quality, quantity, kind and description thereof, and which shall be designated by some mark, and which receipt shall be evidence in any action

against the warehouseman. All receipts so issued, by the third section of the act, are made negotiable and transferable by indorsement in blank or by special indorsement, and with like liability as bills of exchange now are, and with like remedy thereon. Section 4 provides that no warehouseman shall issue any receipt or voucher for any goods, wares, etc., to any person or persons, corporations or companies, etc., unless the goods, wares, etc., shall have been bona fide received into possession and store by such warehouseman or other person, and shall be in store, under his or their control, care and keeping at the time of issuing such receipts. By the 5th section, no warehouseman or other person shall issue any receipt for any goods, wares, etc., to any person, corporations, companies, etc., as security for any money loaned, or other indebtedness, unless such goods, wares, merchandise, produce, etc., or other thing receipted for, shall be, at the time of issuing such receipt or voucher, the property, without encumbrance, of said warehousemen, and if encumbered by prior lien, then the character and extent of the lien shall be fully set forth and explained in the receipt, and shall be, actually and in fact, in store and under the control of said warehousemen at the time of giving the receipt or voucher. Section 6 prohibits the warehouseman from executing any receipt for goods, etc., while any former receipt for the goods, or any part thereof, shall be outstanding and uncanceled. Section 7 prohibits the warehouseman from selling, encumbering, transferring or removing, beyond his immediate control, any goods, produce, etc., for which a receipt or voucher has been given, without the written consent of the person or persons holding the receipt, and the production of the receipt. Section 8 provides that any warehouseman or other person, who shall, wilfully and knowingly violate any one, or any part of the provisions of the foregoing act, shall be deemed a cheat and a swindler, and subject to indictment, and, upon conviction, shall be fined not exceeding five thousand dollars, and imprisoned in the penitentiary of this state not exceeding five years. The act also provides that the party injured by the violation of the act may have an action against the wrong-doer for all the damages he may have sustained, etc.

Preliminary to the consideration of the principal questions made in the case, it is proper to notice the suggestions of counsel that the act of March 6th, 1869, was repealed by the adoption of the General Statutes. By the second section of the act adopting the General Statutes, all statutes of a general nature in force when the General Statutes took effect, and which were repugnant thereto, were repealed. In the case of Broaddus' devisees v. Broaddus' heirs, 10 Bush, 299, it is said: "This court can not, therefore, look to the Revised Statutes to supply any defect that may appear in the general law embodied in the General Statutes, except such laws as are expressly left unrepealed by subsections 1, 2, etc., of the act adopting the General Statutes."

There is nothing in the act of 1869 repugnant to any general law found in the General Statutes.

The pledge or transfer of warehouse receipts is not embraced by that section of the General Statutes in reference to deeds of trust and mortgages. Deeds of trust and mortgages are not valid against purchasers for value without notice, or against creditors until they are acknowledged or proven according to law, and lodged for record. The right to pledge or pawn goods as a security for the payment of a debt existed independently of the statute, and was made to rest upon the doctrine of the common law. It is a bailment of personal property only, and the right in the bailee or pledgee is never consummated until the latter has possession of the property. This subject is not treated of, by or under any law found in the General Statutes, nor is the manner of creating such a pledge, or the right of parties under it, defined or recognized by any of its provisions; nor is the act in the sense and meaning of the repealing clause of the General Statutes repugnant to any provision of the statute against fraudulent conveyances and devises.

The legislature of the state, following the Broaddus case by an act approved March 17, 1876, construed the repealing clause of the General Statutes by providing, viz.: "That no statute of a general nature enacted since the adoption of the Revised Statutes, on the subject-matter of which the General Statutes makes no provision, shall be deemed to be repealed by the act, entitled 'An act to adopt the General Statutes,"" approved April 22, 1873. The act of March 6, 1869, is therefore in force.

The right of the appellant to recover the whisky in controversy is resisted on several grounds: 1st. That a warehouseman can not give a receipt or voucher on his own goods.

2d. That if such right exists, the property must be in his own warehouse at the time the receipt is executed and delivered.

3d. That as the warehouseman (Shipman) violated the provisions of the fifth section of the act by executing a receipt for the whisky when not at the time stored in his warehouse and under his control, he subjected himself to the penalty imposed by the eighth section, and, therefore, the entire transaction was void, and passed no right or title to the appellants.

As to the first proposition made by counsel, it is sufficient to say that this court, in the case of Greenbaum & Brothers v. Megibben, reported 10 Bush, 419, determined this question, and we see no reason for declining to adhere to the law as settled in that case. The fifth section of the act was intended to apply to property owned by warehousemen, and expressly provides that the merchandise, produce, etc., shall be, at the time of issuing the receipt or voucher, the property, without encumbrance, of said warehouseman. The object of the act was to enable warehousemen to issue receipts or vouchers for all property stored in their warehouses, whether owned by themselves or others. The warehouseman is required, on demand, by the owner of the goods or produce stored, or the person from whom he received it, to execute a receipt therefor in the manner pre

scribed by the second section; and by the fifth section may issue a receipt or voucher in his own name upon his own property. These receipts or vouchers have some of the characteristics of commercial paper-no one can obtain the property but the holder of the receipt, unless he produces the written consent of the holder as well as the receipt itself. They are negotiable and transferable by blank indorsement, the indorser being liable as indorsers of bills of exchange; and as to the property owned by the warehouseman, and for which he gives his receipt, he can assert no claim or setoff as against the holder, unless the receipt, on its face, shows such right to exist. The act was designed to advance the commercial interests of the state in affording facilities for making sales of personal property in warehouses without an actual delivery, and to enable owners, by the transfer of warehouse receipts, to pledge the property for the advance of money or the payment of debts; and the fact that the warehouseman might deceive those with whom he trades, is no answer to the express language of the statute. The validity and fairness of nearly all commercial transactions must, to a great extent, depend upon the integrity of business men; and whether so or not, this court has nothing to do with the policy of the statute, nor are we required to say that it has answered the purposes of its enactment.

As to the second proposition, it is conceded by counsel for the appellants that, at the date of the execution of the receipts embracing the whisky in controversy, it was in bonded warehouse, in the county of Anderson, known as the Rippy warehouse, and therefore the statement on the face of the receipt that it was in Shipman's warehouse is false. If the receipts or vouchers had been executed by Rippy, in whose warehouse the whisky was stored, to Shipman, and then passed to the appellants, there could have been no question as to the right of recovery on the part of appellants, either under the statute or by the rule of the common law. This court, in the case of Newcomb, Buchanan & Co. v.Cabell, reported 10 Bush,460, passed upon this question, and held that a symbolical delivery of the property was sufficient. The character of symbol that would, in construction of law, pass the possession to one making an absolute purchase, would pass a like possession to a party holding the property in pledge to secure the payment of a debt. Story, in his treatise on Bailments, says that "goods in a warehouse may be transferred by a symbolic delivery of the key;" and, in fact, this doctrine is so well recognzied as not to require authority in support of it. In this case, however, the original receipts upon which appellants made the advances could not have given them a constructive possession, as they recite that the whisky was in the warehouse of Shipman, when, in fact, it was in the warehouse of Rippy, and neither at common law nor under the statute could such a transfer affect the rights of innocent purchasers. Possession being essential to the validity of a pledge, the pledging of whisky in Shipman's warehouse would not pass the possession to whisky in Rippy's warehouse.

We understand that the act of 1869 applies only to warehouse receipts or vouchers given by the warehouseman, and that the latter must be in possession of the goods at the time such writings are executed. The goods or produce must be stored in his warehouse, or the warehouse kept by him, and the goods under his control at the time; and when he undertakes to execute receipts or vouchers to third parties for property belonging to himself and stored in the warehouse kept by and under the control of another, the rights of parties thus acquired must be governed alone by the rules of common law. All receipts issued by any warehouseman, as provided by this act, shall be negotiable and transferable by, etc. See 3d section. The words, other person or persons, used in the several sections, must be construed as applying to persons who have obtained the warehouse receipts from the warehouseman, and in the eighth section to all those violating the provisions of the act.

A party having property stored in a warehouse may sell or dispose of the same in the absence of a warehouse receipt, and this right is not taken from him by statute. Under the statute, if the party giving the receipt or voucher is a warehouseman and the goods at the time are in his warehouse, and under his control and care, the indorsement or transfer of the receipt or voucher by the owner, or the giving of the receipt or voucher by the warehouseman, if he is the owner, will vest in the purchaser or pledgee a right to the property, and no one is entitled to it without the written consent of the party to whom the transfer is made, and the production of the receipt.

In this case it is manifest that no right or title, so as to affect third parties, passed to appellants at the time the original receipts were executed, for the reason that the whisky was not in Shipman's warehouse, but in the warehouse of Rippy. It appears, however, from the proof, that Shipman removed this same whisky from Rippy's warehouse into his (Shipman's) warehouse as early as the 17th of June, 1874, and that, on the 16th of September, 1874, when the acceptances fell due upon which appellants were bound, the paper was renewed, and the original receipts executed in the months of May and June surrendered, and the receipts renewed, other receipts having been given of the same tenor, with the words added: "Which is executed under and in conformity with the warehouse law of this State, and subject to its terms and penalties." The liability of the appellants was continued on the bills by the renewal, and the security made complete by the execution and delivery of the receipts at a time when the whisky was in fact in Shipman's warehouse and under his control. No purchaser had, in the meantime, intervened, and Shipman, with the whisky in his warehouse, and when he was in a condition to comply with the statute, renewed his receipts. It is true the receipts are dated as of the original receipts executed in May, 1874, but it is an undisputed fact that the receipts were renewed and the old ones surrendered in September, 1874, when the liability of the appellants was continued by

the renewal of the bills. There is no testimony in the case showing that the appellants, at the time the original receipts were executed, had knowledge of the fact that the whisky was in Rippy's warehouse, and the best of faith is to be found in the acts of both the appellants and appellees in the transaction. Although the original receipts did not vest the appellants with the title or possession as against innocent purchasers, still we perceive no reason why the parties, before the rights of others intervened, should not be allowed, by a subsequent stipulation or ratification of the original contract, to again pledge the property to secure the liability. The old maxim, "that he who trusts most must lose most," does not apply in this case. This is not a question between innocent purchasers. A special interest in the whisky passed to the appellants by reason of the pledge made in September, 1874. The possession of the receipt was, in contemplation of law, the possession of the whisky, and neither the warehouseman nor other person could divest appellants of this right and possession without their consent. The appellees purchased in good faith, but the title they acquired can not affect the rights of appellants, who had previously obtained an interest in, as well as a constructive possession of the whisky. It is not necessary to determine whether the mere removal of the whisky to the proper warehouse by Shipman, after the delivery of the receipt, could have vested appellants with the possession, and made Shipman their bailee. Such a question is not material to the present controversy.

As to the third proposition, it is evident that the penalty imposed on warehousemen and others who shall knowingly and wilfully violate the provisions of the law, was intended to secure innocent parties from the frauds that might be practiced in the giving of false receipts; and while certain acts are prohibited, and a penalty imposed upon the party committing the wrong, we are not disposed to extend the punishment by declaring the contract void as to the innocent party, and thereby inflict punishment on those whose interests it was the object of the statute to protect. The purpose of the penalty was to prevent fraud, and for the protection of those who might come into the possession of warehouse receipts.

We recognize the fact that, as a general rule, there is no distinction between mala prohibita and mala in se, but as said by Mr. Justice Wayne, in the case of Harris v. Runnels, 12 How. 79. "Before the rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition and a penalty, or a penalty only for doing a thing which it forbids, that the statute must be examined as a whole to find out whether or not the makers of it meant that a contract in contravention of it should be void. It does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it."

*

And in this case, although the original liability was created upon the pledge of a receipt prohibited from being issued by the warehouseman, as the property was not in his warehouse, yet the subse

quent delivery of the receipts by the renewal in September, 1874, upon the consideration that the liability should continue, was not in violation of the statute, or based upon any illegal consideration. We are satisfied, however, that it was never contemplated by the law-making power that the innocent party should be denied all remedy upon the contract as against the party violating the statute. Such an interpretation would defeat the purpose and policy of the statute by aiding the guilty and punishing the innocent. Conceding the facts relied on by the appellees as a defense to the action, to be true, the appellants were entitled to recover.

The judgment is reversed and cause remanded, with directions to award a new trial, and for further proceedings consistent with this opinion.

THE DEGREES OF MURDER-A REVIEW OF THE WIENERS' CASE.

1. In State v. Schoenwald, 31 Mo. 147, the learned judge, speaking for the court, says in respect to malice: The best definition of malice to be met with is that given by Justice Bayley, in Bromage v. Brosser, 4 Barn. & Cres. 255: Malice, says he, in common acceptation, means ill-will against a person; but in its legal sense, it means a wrongful act done intentionally, without just cause or excuse."

In State v. Joeckel, 44 Mo. 234, the trial court instructed the jury in respect to malice that "malice, as known to the law, does not mean mere spite, ill-will, or dislike, as it is ordinarily understood, but, as applicable to this case, it means the intentional doing of a wrongful act without just cause or excuse;" and Wagner, J., delivering the opinion of the court, says: "The instructions state the law with clearness and precision." In Buckley v. Knapp, 48 Mo. 152, malice is similarly defined.

I have not the authority in Bromage v. Brosser, supra, at hand, but I believe it was a case of libel or slander. The case of Buckley v. Knapp, supra, was a case of libel. The Schoenwald and Joeckel cases, supra, were cases of murder. To say that "the intentional doing of a wrongful act” defines that malice aforethought which distinguishes the crime of murder from manslaughter, has always, to my mind, led to an absurdity. 3 Central Law Journal, 566. In voluntary manslaughter, the slayer intentionally does a wrongful act, and if we apply the definition above quoted, it is also a malicious act, and if it is malicious, it is murder, and not manslaughter.

The criticism of the learned judge who delivered the opinion in Wieners' case 6 Cent. L. J. 70, is conclusive, and leaves it quite clear that whatever malice in murder is, it is not simply "the intentional doing of a wrongful act.”

2. That the law presumes malice from a certain state of facts, or that the law presumes, or conclusively presumes a certain intent from certain acts proved, are speculations taken from the old schoolmen " speculations which roam over all creation, without possibly touching any real case." To trace the thought suggested by them, leads the