execution. The judgment must be passed on as a whole, and if any material portion of it is in excess of the jurisdiction of the court, the judgment is void. Further, what authority has this court to say, on an application for a discharge under the writ of habeas corpus, that the judgment of the court is any other than the judgment rendered? If we have authority to exscind one portion, what portion shall it be? What portion shall be held to be the judgment of the justice and what portion not? The judgment entry comes before us as one thing, -one portion as well attested as the other, and as such we must construe it; and if one portion of the judgment is without authority of law, we have no power under this writ, whatever may be the power of the court on an appeal, to exscind a portion of the judgment and hold what remains to be the judgment of the court.

It follows from what has been said above that the petitioner is entitled to be discharged.

On the argument our attention was called to the sixth section of the act of 1872. The act is entitled "An act to amend the charter of the city of Los Angeles," and was approved February 20, 1872. See Acts 1871-72, p. 129. The sixth section has no reference to the case of a judgment imposing the penalty of a fine, and imprisonment until the fine be satisfied, at a certain rate per day. It only has reference to a case where the penalty is solitary confinement in the county jail.

It was contended before us that the section above mentioned was sometime ago repealed. As to this we say nothing. It is unnecessary to pass on this point.

The prisoner is entitled to his discharge, and it is so ordered.

We concur:

SHARPSTEIN, J.; McKINSTRY, J.; MCKEE, J.

(11 Or. 284)

SUPREME COURT OF OREGON.

GAMMONS, Assignee, etc., v. HOLMAN and others.

Filed March 14, 1884.

An agreement, upon sufficient consideration, between the owner of personal property in the possession of a common carrier, and in transitu, with his creditor, that the latter is to receive the property from the common carrier upon its arrival, and hold as a pledge for the payment of debt, will entitle such creditor obtaining possession under such agreement to retain the property as such security against a general assignee of the owner for the benefit of creditors claiming under an assignment executed after the making of such agreement, but before possession taken under it.

Appeal from Multnomah county.

Thomas N. Strong, for appellant.

Thayer & Williams, for respondents.

WATSON, C. J. The respondents were draymen engaged in business at Portland, Oregon, under the firm name of Holman & Co. The appellant's assignor, Klingel, was dealing in drugs, stationery, etc., at the same place. The latter became indebted to the former for drayage and money advanced for freight upon goods consigned to him, but received by them and delivered to him at his place of business, to the amount of several hundred dollars. Finally, sometime prior to April 19, 1882, the parties entered into a parol agreement by which the respondents were to advance freight upon 23 packages at the time on board the steamer Oregon, bound for Portland, and consigned to Klingel at that place, and take and receive such packages into their possession upon their arrival, and hold the same as security for the payment of all his indebtedness to them, with power to sell in case of his failure to pay off such indebtedness. The respondents made the additional advances thus stipulated on said nineteenth of April, 1882, and received possession of the goods on the arrival of the steamer, three days after. In the mean time, on April 20, 1882, Klingel executed an assignment for the benefit of all his creditors, covering all his property, to the appellant. The appellant afterwards brought this action as such assignee to recover the value of the property, alleging its conversion by the respondents.

The important question arising upon the record before us of the proceedings had in the case in the lower court, is whether the respondents acquired any right to the possession and disposal of the property, as against the appellant, by virtue of their agreement with Klin

gel, and their act of taking possession under it. Their agreement with Klingel was a valid one, beyond question, and, had no assignment been made by him, their right to retain the property or dispose of it for non-payment of their claim against him, after obtaining possession, could not be disputed. Parshall v. Eggert, 54 N. Y. 18. But we are unable to discover wherein the rights of the assignee with relation to the property, in such cases, are either greater or different than previously belonged to the assignor. He takes the legal title, nothing more; and acquires just such rights in the property as his assignor had, and none other. There is nothing in our assignment act indicating any such difference, and it certainly cannot be sustained on common-law principles. Sess. Laws 1878; Lempriere v. Pasley, 2 Term R. 485. This case, indeed, is directly in point, and decisive of the one under consideration.

This judgment of the circuit court must be affirmed.

PER CURIAM. A complaint alleging the retainer of the plaintiff as an attorney and counselor at law, a promise by the defendant to pay the reasonable worth of the plaintiff's services, the rendering of certain services under such retainer, the subsequent discharge of the plaintiff, and the reasonable worth of the services rendered, states a good cause of action. A demand of payment in such a case is not necessary. Judgment reversed.

A receipt given by a warehouseman for property placed in his possession for storage is not, in a technical sense, like a bill of exchange, a negotiable instrument, but it merely stands in the place of the property it represents, and a delivery of the receipt has the same effect in transferring the title to the property as the delivery of the property.

Appeal from Lane county.

George B. Dorris, for appellant.

Strahan & Bilyen and Geo. S. Washburn, for respondent.

LORD, J. This was an action of replevin brought for the possession of 1,000 bushels of wheat, or its value, if delivery could not be had, upon a warehouse receipt given by the defendant to one Skye Meek, and by him transferred to the plaintiff. Sufficient for the purposes of this case, the facts are that Skye Meek, a tenant of Samuel Meek, delivered to the defendant at his warehouse, for storage, 2,318 bushels of wheat, for which he received from the defendant three warehouse receipts. Two of these receipts, viz., for 600 and 1,000 bushels of wheat, were issued in the name of Skye Meek, and the other, viz., for 718 bushels of wheat, was issued in the name of S. Meek. Of the 2,318 bushels of wheat deposited for storage, Skye Meek was entitled to one-half of that amount as the tenant of Samuel Meek, to whom the other half belonged, but of the respective interests of these parties in the wheat the defendants had no knowledge at the time such wheat receipts were issued. Skye Meek transferred these receipts to the plaintiff, who purchased them of him in good faith and for value, and also gave notice to the defendant of his purchase of the same when done, and upon which receipts defendant delivered to the plaintiff 1,394 bushels of the wheat thus stored; but the delivery of the same to the plaintiff was not made under any particular receipt or receipts, nor were any of the receipts delivered up to the defendant, but were and are still held and retained by the plaintiff. Prior to the demand of the plaintiff for the wheat mentioned in the receipt for 1,000 bushels, and before the commencement of this action for the same, Samuel Meek had demanded of the defendant his half of the wheat stored, (1,159 bushels,) and the defendant delivered to him. 924 bushels, being the balance in his possession. Upon this state of facts, substantially, the action was tried before the court without the intervention of a jury, and a judgment was rendered against the plaintiff and in favor of the defendant for his costs and disbursements.

The only real or important question presented by this record is as to the negotiability of warehouse receipts. In the court below, as well as here, the theory upon which the plaintiff maintained his action was that a warehouse receipt is negotiable, and that, consequently, it is immaterial whether Skye Meek owned the wheat for which the receipt called; the transfer of the receipt gave him the right to the wheat. At the outset it must be premised that there is no statute of this state which makes such receipts negotiable; and, in the absence of such legislation, warehouse receipts are not negotiable instruments, in the commercial sense, so as to bind the maker to the assignee in all cases. The holder of such a receipt takes no better title, nor occupies any more advantageous position, than if the goods themselves were held by him. A receipt given by a warehouse

man for property placed in his possession for storage is not, in a technical sense, like a bill of exchange, a negotiable instrument, but it merely stands in the place of the property it represents, and a delivery of the receipt has the same effect in transferring the title to the property as the delivery of the property.

In Burton v. Curyea, 40 Ill. 327, the court say:

"The principle applied in all cases is that the delivery of warehouse receipts is a symbolic delivery of the property itself; that it has the same effect as the delivery of the property, and can have no greater; and that a transfer of a warehouse receipt by the person in possession of it gives no higher title than would the transfer of the property by the same person."

In Hale v. Milwaukee Dock Co. 29 Wis. 485, it is held that a warehouse receipt is negotiable only to the same extent and for the same purpose as a bill of lading or carrier's receipt. The indorsement or delivery of it does not convey the contract itself, but only the property represented by it, and it becomes the mere evidence of the title of the holder in such property.

These cases ably and exhaustively review the authorities upon this subject, and the analogies of law as applied to instruments of similar purport; and the conclusion to be deduced from them, and which is decisive of this case, is that the transfer of a wheat receipt issued by a warehouseman is simply in effect a transfer of the wheat, or operates as a symbolical delivery, equivalent, in the then situation of the property, to the delivery of the property itself, and passes no better title to the purchaser than a delivery of the wheat itself. Lickbarrow v. Mason, 1 Smith, Lead. Cas. (7th Amer. Ed.) 1198; Second Nat. Bank v. Walbridge, 19 Ohio St. 419; Ins. Co. v. Kiger, 103 U. S. 356. The judgment of the court below is affirmed.

WATSON, C. J., concurring.

(11 Or. 271)

WATSON and others v. BROOKS and another.

Filed March 24, 1884.

A broker's contract to sell real estate for a customer, by a specified date, is not performed so as to entitle him to his commission by merely producing a party upon the last day given the broker for affecting the sale, who is able to pay the stipulated price, but willing to complete the purchase only on condition of being allowed further time after the expiration of such last day to examine into the state of the title to such property, which the owners refuse to grant.

Time is the essence of such a contract.

Appeal from Multnomah county.