Mr. Chief Justice Murray concurred.
This action being for the recovery of specific property, it was necessary to show, as against the sheriff, that the portion claimed by the plaintiffs had been severed, and designated from the bulk out of which it was sold. Otherwise there is no mode of identification. This results from the character and nature of the action.
But, in favor of the other defendants, Tilden & Little, the same reasoning cannot be invoked. They were warehouse men, and gave their receipt for three hundred barrels of flour. This was specific, and they.are estopped from denying their liability. It is very similar to the case of Chapman v. Searle, 3 Pickering, cited by respondent.
The Court below should have given judgment for plaintiffs, against Tilden & Little, and judgment for defendant, Gorham.
Non-suit set aside, and case remanded.