Page:Federal Reporter, 1st Series, Volume 2.djvu/186

 ADAMS ». MERCHIHTS* WAT. BAHK. 179 �a third pcrson purchased ail the coal which the parties who had given the warehouse receipts then had in their posses- Bion. Tiie court found against the warehouse receipts in that case, and the judgment was affirmed by the supreme court on the ground the receipt was given as a security only, and in the nature of a chattel mortgage. There seems to have been a misapprehension by the counsel on both sides in this case as to the efifect of the decision of the court in that case. �The question arose in a different form in the case of Shep- ardson v. Cary, 29 Wis. 3i, where the court intimates (although it was clearly not necessary to the decision of that case, as they held that the former judgment was a bar to the latter) that a warehouse receipt given by a warehouseman trans- ferred the property,. and the implication is that if it had appeared in the former case that the parties who gave the receipt were regular warehousemen, that the decision would bave been different in Shepardson v. Green. In Shepardson v. Cary this language is used by the court, in referring to Gibson y. Stevens and Gibson v. Chillicothe Bank, and to Rice v. Gut- 1er, 17 Wis. 351: "Such relation and the consequent rights and obligations of the parties are held by the decisions just referred to, even where the- sale is made as collateral security for the payment of a debt due from the warehouseman, not to be affected by the statute regulating the filing of mortgages of Personal property, nor by the act concerning warehouse receipts and bills of lading/' which language can hardly be said to be justified, as we have already seen, either by the case of Gibson v. Stevens, oi by the case of Gibson v. The Chillicothe Bank; and Rice v. Cutler was, like the others, one of sale, and not of mere security. �There may be some question, perhaps, whether the parties, having relied upon a title under the statute of this state in relation to wàrehouses, can change their ground and rely upon the efficacy, at common law,.of the receipts which were given ; but, waiving that question, there not having been any aetual sale of the apples in this case, in order to render the contract valid as to ereditors there must have been a pledge ����