30 ceipt was desired was there; but it is admitted that in no instance was any wool weighed, or any wool set apart as the wool included in a particular receipt. Stephens said: "For the 26,000 pounds named in the first receipt there was no 26,000 pounds of wool allotted off or piled up at any time. At that time I picked out no particular pile on that receipt. I did not pick out any particular pile under the second receipt, nor under the third. I did not pick out any particu lar pile of wool on any receipt. The receipts did not refer to any particular pile. I could not have taken any one of those receipts, and gone to the wool-house, and picked out a particular pile as referred to. No one could have taken any particular receipt of ours, and gone over to the house, and picked out any particular pile of wool to which it referred. No receipt holder could go there and point out any particular quantity of wool, and say to Hall: 'Deliver me that wool. That is the wool referred to in this receipt.' None of the receipts that are outstanding, or that we issued at any time to the Halls, referred to any specific wool, except in the way that I have stated,-that they referred to portions of wool in portions of those premises." The wool in the warehouse, when the different receipts were issued, was chiefly from Oregon and Montana, though there was a small amount from other states. The evidence shows that the wool from each state differs to some extent in quality and value, and especially is this so with respect to Oregon and Montana and in each state the wool is graded, for purposes of market, into severalsome witnesses say a half dozen-different grades, and it is shown that this wool, when sold by the assignee, varied in price, according to grade, from 10 to 20 cents per pound, indeed, some graded as "sweep. ings" sold for only 5 cents per pound. The evidence shows that Stephens, or one of his helpers, visited the rooms of the warehouse as often as once or twice a week, during business hours, and looked around to satisfy themselves what wool was on hand; but they never assumed to take actual control of either of the rooms, or to interfere with Hall & Co.'s control and conduct of the warehouse in any respect. Stephens permitted Hall & Co. to make sales of large quantities of wool from time to time upon their assurance that an equal or larger amount of wool was brought into the warehouse to take the place of that sold. He said: "The way it started originally was that, if a receipt mentioned so many thousand pounds in room C, that receipt would not refer to wool in any of the other three rooms, but to wool in that room C. Afterwards there was a charge: When they made a sale they asked our permission to drop it down to the room in which the press was located. If, when our first receipts were issued on wool in room A, there were 100,000 pounds of wool there in sacks, the Halls would have a right, without our permission, to remove from that room any portion of the whole 100,000. There was no particular 90,000 pounds of a given 100,000 in a room set apart to an (III. swer our receipts. We claimed the right out of the 100,000 to take 90,000, or what. ever the receipts called for. Our rule for the company's agent was that we should have 5 or 10 per cent more wool than what their receipts called for in trust, but they could remove the excess beyond the They could remove any part of the 100,000 amount named in the receipt, plus the 5 to 10 per cent. margin, without asking us. pounds. If there was 100,000 pounds at the time we issued the first receipt to the Halls for 26,000 pounds of wool in the south room on the third floor, the Halls, without asking our permission, could remove 70,000 pounds of that wool.-any 70,000 they saw fit. This applies to all the rooms, if there was an excess as large as Again, he said: "We never weighed the just mentioned. It applies to all the wool on which we purported to issue receipts." wool when we issued a receipt. The general method that I have just been explaining in regard to the south room of the ceipts. When I went over there to look third floor (room C) applies to the other rooms, to all the wool, and to all the reat the wool upon which I afterwards issued a receipt I did not mark those wools in any way by signs or tags." In other parts of the evidence it is shown that neither Stephens nor his helpers had any experience or special knowledge in handling wool, and that neither of them could distinguish between qualities or grades or values, nor determine quantities, of wool, It is contended on behalf of the storage with any certainty, by a mere casual examination, such as they gave to this wool. company that signs were put up by the storage company in and about different parts of the warehouse, as its receipts were issued, notifying the public that the storage company had possession, but the clear preponderance of the evidence is that such signs were not put up and kept up in such a way as to advise those dealing in the wool with the Halls of any claim of possession on behalf of the storage company. Several dealers in wool, and purchasers of large quantities of this wool, testify that at different times after the first receipts of the storage company were issued they were in every room in the claiming anything on behalf of the storage warehouse, and examined every pile of wool in each room, and saw no signs company. Several of them were in and about the rooms of the warehouse examining wool as often as once or twice a week between June, 1887, and the date of the assignment; and two of them were there at different times, each as long as 8 or sacking wool; and some of the wool 10 days in succession, during all the business hours of each day, assorting and sons, nor did either see signs to the effect, which they assorted was obtained in each room; and neither was informed by perthat the storage company claimed any signee, on the 19th of July, 1888. He impossession there. The Halls delivered the keys of the warehouse to Kinsey, the asand employed Hiram Hall, who had been mediately, on that day, discharged all their employes, locked up the warehouse, an employe of the firm, as a clerk. On the next day Stephens called, in company with a wool-broker, and obtained permis. sion of Kinsey for them to go through the warerooms, and look around. While Stephens was in the wareroom one of his helpers came to the warehouse, and, under pretense of wishing to communicate with Stephens, obtained permission of Kinsey to enter. After he entered Stephens directed him to remain as custodian of the wool for the storage company, and he thereupon scattered about the rooms signs claiming possession for the storage company. Kinsey threatened to eject the helper by violence, and thereupon it was agreed between Kinsey and Stephens that a custodian, mutually selected, should be in possession, subject to the order of the county court as to the rights of the parties; and such custodian then took actual possession, and retained it until he was directed by the county court to surrender to the assignee. The constitution of the state, in section 1, art. 13, provides: “All elevators or storehouses where grain or other property is stored for a compensation, whether the property stored be kept separate or not, are declared to be public warehouses; and section 6 of the same article makes it the duty of the general assembly "to pass all necessary laws to prevent the issue of false and fraudulent warehouse receipts." The general assembly, in the public warehouse act of 1871, (Rev. St. 1874, p. 820,) has enacted that public warehouses shall be divided into three classes, designated as "A," "B," and "C," respectively. Classes A and B embrace warehouses where grain is stored in bulk, and class C embraces all other warehouses or places where property of any kind is stored for a consideration. Section 24 of the act provides: "Warehouse receipts for property stored in any class of public warehouses, as herein described, shall be transferable by the indorsement of the party to whose order such receipt may be issued; and such indorsement shall be deemed a valid transfer of the property represented by such receipt, and may be made either in blank or to the order of another." Said section also requires that "all warehouse receipts for property stored in public warehouses of class Cshall distinctly state on their face the brand or distinguishing marks upon such property." Section 25 of the act provides that "any warehouseman of any public warehouse who shall be guilty of issuing any warehouse receipt for any property not actually in store at the time of issuing such receipt shall, when convicted thereof, be deemed guilty of a crime, and shall suffer, in addition to any other penalties prescribed by this act, imprisonment in the penitentiary for not less than one nor more than ten years." And section 170 of the Criminal Code provides that "whoever fraudulently makes or utters any receipt or written evidence of the delivery or deposit of any grain, flour, pork, wool, salt, or other goods, wares, or merchandise any warehouse, * when the quantity specified therein has not in fact been delivered or deposited, as stated in such receipt or other evidence of the delivery or * * * * * in or. deposit thereof, and is not, at the time of issuing the same, still in store, and the property of the person to whom, or to whose agent, the receipt is issued, shall be imprisoned, " etc. 1Starr & C. St. p. 789. To the existence of a pledge, the possession, either actual or symbolical, by the pledgee, of the personal property which is the subject of the pledge, is absolutely essential. Ordinarily actual and physical possession of the property is delivered to and retained by the pledgee; but where the actual delivery is to a carrier or warehouseman, and a bill of lading or warehouse receipt is given therefor, the assignment or transfer of such bill of lading, or indorsement of such warehouse receipt, with delivery thereof to the pledgee, is regarded in law as the delivery of posssesion to the pledgee of the property which the instrument represents, the bill of lading or receipt standing in the place of the property of which it is the symbol. Taylor v. Turner, 87 Ill. 296; Railroad Co. v Phillips, 60 Ill. 190; Burton v. Curyea, 40 Ill. 320; Bank v. McCrea, 106 Ill. 281. But it is a necessary condition to the existence of such symbolical possessiou by the pledgee that the property itself is in the possession of some person or corporation other than the pledgeHere the indorsements and transfers of the supposed warehouse receipts to the receipt holders were ineffectual to constitute them valid and legal pledges of the wool to secure the debts for which they were hypothecated, and this, both because the National Storage Company did not have possession and control of the wool, and because the wool mentioned in each receipt was not so set apart and distinguished from other wool as that it could have been found and identified by the receipt. The storage company was not, under the law, authorized to issue warehouse receipts. It is insisted, however, that on July 20, 1888, an employe of the storage company reduced to possession the property covered by the receipts, and that by virtue of such possession the warehouse receipts became, in the hands of the receipt holders, valid and subsisting pledges of the property. It would seem that the pleadings in the case substantially admit that the assignment to Kinsey became, and was on July 19, 1888, a valid voluntary assignment of the firm of T. W. Hall & Co., and that no question to the contrary was made in the trial court. But, assuming this to be otherwise, and also assuming that the record does not show that on the day last named such a crisis had arisen in the affairs of the firm as authorized the partners present to make a valid and binding general assignment in the absence of one of the partners, and without his consent or authority, and that the subsequent ratification, on July 21, 1888, of T. W Hall, could not operate to divest any rights acquired in good faith after the execution, recording, and filing of the original instrument on the 19th, and before the ratification on the 21st, yet we think that the possession taken by the storage company on the intervening 20th day of July was of such a doubtful and unsatisfactory character that it cannot be held to form the ba.is of a legal right or title. Two different persons cannot, in the nature of things, each be in the actual and adverse possession of the same property or premises at one and the same time. It is admitted that on the 19th certain of the partners in the firm of T. W. Hall & Co. assumed to transfer the property and title to Kinsey, and surrendered the possession of both the warehouse and the property therein to him; that thereafter, and until the afternoon of the next day, he was in the actual and exclusive possession of the warehouse and its contents under a claim of ownership and title, and had possession and control of the keys. It is also admitted that on the afternoon of the 20th an agent of the storage company obtained by a ruse admission to the warehouse, and to the second and third stories thereof, and immediately claimed possession for the storage company, and distributed a number of paper signs with the words "Stored by National Storage Company, etc., printed upon them. It is to be borne in mind that all this time the assignee and his clerk still remained in the warehouse, and claimed exclusive and adverse possession of it and of all its contents, and had possession and control of the keys. A threat was made to throw the agent of the storage company out of the building, and thereupon, at the suggestion of some one, and for the evident purpose of preventing a breach of the peace, the parties agreed to leave a third person in possession until an order of the county court in the premises, and without detriment to the rights or claims of either party. This possession of the employe of the storage company was. in our opinion, of too questionable and unsubstantial a nature to support the claim made by the company and its receipt holders in that behalf. It is, however, insisted that, even if there was no valid legal pledge of the wool which was in the warehouse at the time of the assignment, yet that, under the circumstances of the case, the holders of the warehouse receipts are entitled to an equitable lien thereon, which, although not recognizable at law, a court of chancery will enforce. A principal distinction between an equitable lien upon personal property and one upon such property which the law will recognize is that an equitable lien is not conditioned upon the possession of the fund or specific property to be charged with the payment of the particular debt. T. W Hall & Co. borrowed from the receipt holders of the storage company various sums of money, which amounted in the aggregate to $54,253.38, and executed to them severally their promissory notes, and undertook to secure each of them by the indorsement and hypothecation of warehouse receipts. These receipts were issued by a duly-incorporated storage company, and expressly stated upon their faces that the company had received and was in possession of the number of pounds of "unwashed wool" designated in the several respective receipts; and some of the receipts stated that the "unwashed wool" therein specified was "Lot A," some that it was "Lot B," some that it was "Lot C," and some The receipts, upon that it was "Lot D." their faces, indicated that the storage company had complied with the law by separating the wool into separate lots, and that "A," "B," "C," and "D" were the " brands or distinguishing marks" upon the respective lots of wool. The reçeipt holders were without notice of any fact in derogation of the validity of their receipts. There was an intention and an ineffectual attempt to secure the repayment of the borrowed moneys by creating valid legal pledges Equity regards that done which ought to be done. The difficulty in the matter is in respect to the identification of the wool mentioned in each of the receipts. The rule is that it is indispensable to an equitable lien that the property intended to be charged should be identified or described with a reasonable degree of certainty. As we have already seen, no receipt holder could point out any particular quality of wool, and say, "That is the wool referred to in this receipt." The assignee took possession of the warehouse and wool on the 19th day of July, 1888. At that time only 318,000 pounds of wool were stored upon the second and third floors of the warehouse. The outstanding receipts issued by the storage company, and which were held as collateral security by the receipt holders of that company, called for 404,550 pounds. It was then for the first time ascertained by said holders of receipts that the marks, "Lot A," "Lot B," "Lot C," and "Lot D, ' which appeared upon the faces of their receipts, did not refer to separate and specific lots of unwashed wool upon which had been placed the distinguishing marks indicated in the respective receipts; but that said marks referred in fact to room A, room B, room C, and room D, respectively. It further turns out that the unwashed wool which was in these several rooms at the time of the assignment was not the identical wool which was in said several rooms at the respective dates when the receipts were issued or indorsed and transferred, but that from time to time T. W. Hall & Co. had removed wool from each of the rooms, and had substituted other unwashed wool therefor. Let us suppose that on said 19th day of July, 1888, no assignment had been made or attempted. Let us further suppose that at that date the six holders of receipts issued by the storage company to T. W. Hall & Co., and by that firm delivered to said several receipt holders as security for moneys lent and advanced, had exhibited their bill in equity against said T. W. Hall & Co. for the purpose of enforcing equitable liens upon the unwashed wool then stored in said rooms “A," "B," "C," and "D." It is to be noted that the holders of the receipts stand upon a very different footing from that upon which the National Storage Company stands. They were entirely ignorant of the illegal arrangements which were entered into between that company and the firm of T. W. Hall & Co. in respect to possession, substitution, etc., and they stand before the court in the attitude of the victims of the frauds which it is the intention of the statute to guard against. It is better that the inten as belonging to each particular receipt, is owing to their false assurances and their own unlawful conduct, and it would be in. equitable and unjust that they should profit thereby. It is conceded that, in order to support an equitable lien, there must be an ascertainment and identification of the property which is the subject of the lien; but only such an identification is required as is essential to an enforcement of the lien, and an identification can be made as well by an application of the equitable principle of estoppel as in any other way. It is believed that the Case of Sir Simeon Stewart, which was approved by Lord Chancellor REDESDALE in Card v. Jaffray, 2 Schoales & L. 374, at 381 and 382, and also cited with approval in Burn v. Burn, 3 Ves. 573, and the cases of Payne v. Wilson, 74 N. Y. 348; Bank v. Haselton, 15 Lea, 216; Bank v. Brooks, 42 Leg. Int. 26; and Call v. Gray, 37 N. H. 428, are authorities which sufficiently sustain the views herein expressed in regard to the identification of the property. tion of the statute should prevail, if such result can reasonably be effectuated, than that the object which the statute has in view should fail of accomplishment. In the suppositious suit stated T. W. Hall & Co. would be estopped, in a court of equity, from saying that lots A, B, C, and D were not synonymous with the wools stored in rooms A, B, C, and D; and from saying that the unwashed wool in said rooms at the time of filing the bill was not the same unwashed wool which was in said rooms when the receipts were issued and negotiated, or was of a different grade, quality, or value. if the event had been that there was a larger quantity of wool in said rooms, or in one or more of them, than was called for by the receipts, then a different question would be presented, and probably it would devolve upon the receipt holders to distinguish the wool covered by the receipts from that not covered by them. But, under the circumstances here shown, and the wool on hand being more than 86,000 pounds less than that called for by the receipts, the firm would In the case we have stated we have put be estopped from saying that all of the the matter as between the receipt holders wool on hand was not subject to the liens and the debtor firm; but the equities do of the receipts. It is true that it is not not stand otherwise as between said repossible here to definitely ascertain and ceipt holders and the assignee. The setidentify just what specific part or parcel tled doctrine is that, when property is asof the wool is subject to the claim of each signed by debtors for the payment of the of the six receipt holders, respectively. debts of the assignors, the assignee takes Were the litigation between the several re- it as a volunteer, and subject to all the ceipt holders, such identification would be liens, equities, and burdens to which it necessary. But in a suit w berein the value was subject in the hands of the assignor proceeds of the property is confessedly ors. Willis v. Henderson, 4 Scam. 13; Talmuch less than what would be required to cott v. Dudley, Id. 427; Strong v. Clawsatisfy the liens upon it, and wherein the son, 5 Gilman, 346; O'Hara v. Jones, 46 firm is estopped from denying that all of Ill. 292; Hardin v. Osborne, 94 Ill. 571; the property is subject to the liens, and Jenkins v. Pierce, 98 Ill. 646. This princiwherein the lien-holders are content to ple is recognized in section 11 of the voluntake a decree for the proceeds in solido, to tary assignments act of 1877, wherein it is be divided between them, "as their several provided, "that any assignee or assignees rights may hereafter appear, "it is not shall have as full power and perceived that the firm would have any such interest in the matter as would authorize them to object to the absence of such identification of such specific parts or parcels. If the property covered by the receipts had been six hogsheads of sugar, one hogshead in each receipt, and one receipt held by each of the six receipt hold. ers, and each hogshead insufficient in value to satisfy the debt against it, and there were no marks upon the hogsheads to distinguish one from another, it is not reasonable or just or equitable that, because the firm had fraudulently omitted to put upon the hogsheads distinguishing marks which they represented to be upon them, or had fraudulently obliterated the distinguishing marks therefrom, therefore all of the hogsheads should be awarded to the firm, free from any lien whatever. In the case under consideration the expression "unwashed wool," found in each of the receipts, is broad enough to include, and, when taken in connection with the use made of the letters A, B, C, and D, and as against T. W. Hall & Co. themselves, is specific enough to sufficiently identify the wool which is the subject of the trusts. The circumstance that the property called for by the several receipts is inextricably intermingled, so that the specific parts thereof cannot with certainty be identified v.27N.E.no.1-3 authority to dispose of all estate, real and personal, assigned as the debtor or debtors had at the time of the assignment, * and generally to act and do whatever the said debtor or debtors might have done in the premises. The general rule is that an equitable lien is enforceable against voluntary assignees. 13 Amer. & Eng. Enc. Law, p. 608, and cases cited in note 3. There is no mode under our law, except by chattel mortgage duly acknowledged and recorded, by which the owners of personal property, retaining its possession, can give another a lien upon it that can be enforced as against creditors and subsequent purchasers. But by "creditors" is meant not general creditors or creditors at large; and only such creditors as are armed with an execution, or writ of attachment, or other process of court, are regarded as "creditors" in the sense that they are authorized to impeach a conveyance or transfer of property by their debtors for fraud or question the validity of an equitable lien on personal property that is good as against such debtors themselves, and their heirs, executors, administrators, and voluntary assignees. Warner v. Jameson, 52 Iowa, 70, 2 N. W. Rep. 951; Van Heusen v. Radcliff, 17 N. Y. 580: Walker v. Miller, 11 Ala. 1067; Taylor Wheeler, 2 Vern. 564; Mitchell v. Wins ་. low, 2 Story, 630. In Powell on Mortgages, 459, it is said: "It is a general rule that, wherever a right in equity attaches against a person, that equitable right binds all persons claiming under or against that person who have not special liens on any of the property; and hence it follows that general creditors are in all cases bound by a particular equity." It is a settled fact of this case that Patterson Bros., Parberry, Lienemann & Schmidt, Grande Bros., and Kertz had special rights and equities in and liens upon some portions of the wool which was stored on the second and third floors of the warehouse, and upon which the receipt holders claimed liens, the rights of said parties tirst named growing out of shipments made by them of wool to T. W. Hall & Co., as factors; but their rights, interests, and equities in the premises were recognized and enforced, and given a priority by the decree entered in the county court, and affirmed in that respect in the appellate court; and they are not here complaining. It does not militate against the claims of the receipt holders of the storage company, so far as their claims of equitable liens are chargeable upon wool which was the property of T. W. Hall & Co., that that firm also assumed to give them liens upon other wool which was not their property, but merely in their hands as factors of the owners. Since, then, there are no creditors here who are in a position to take by virtue of executions or process emanating from a court the property in the hands of the assignee which was awarded to said receipt holders, and no objecting creditors who have valid special liens on any part of such property, we hold that the order and judgment of the appellate court were right, and they are affirmed. (137 Ill. 189) WEST V. PEOPLE.1 (Supreme Court of Illinois. March 30, 1891.) FRAUDULENT ISSUE OF STOCK-INDICTMENT-CRIMINAL PRACTICE. 1. Under Rev. St. Ill. c. 38, § 119, which makes the fraudulent issue of corporate stock a felony, a count charging that defendants did on a day named issue to one of the defendants four certain false certificates of ownership of the capital stock of a corporation, giving the name of the corporation and the number of shares represented by each certificate, sufficiently identifies the offense. 2. But a count for issuing certain false certificates of ownership for 1,250 shares of stock in the corporation named, without otherwise identifying the particular certificates, is bad. 3. Under said statute, a count for issuing a certain false certificate for a given number of shares may be joined with a count for issuing a different certificate for a different number of shares on a different day. 4. Where the evidence tends to prove both charges, and there is nothing to show that they were parts of the same transaction, the court should, on defendant's motion, require the prosecutor to elect upon which count he will proceed. Error to criminal court, Cook county; JULIUS S. GRINNELL, Judge. Sidney Smith and Flower, Smith & Mus 1Reported by Louis Boisot, Jr., Esq., of the Chicago bar. grava, for plaintiff in error. George Hunt, Atty. Gen., and Joel M. Longenecker, State's Atty., (Francis W. Walker and D. W. Dunn, of counsel,) for the People. PER CURIAM. James J. West and Charles E. Graham were indicted in the criminal court of Cook county for the violation of section 119 of the Criminal Code, (Rev. St. c. 38,) which provides: "Every president, cashier, treasurer, secretary, or other officer, and every agent, attorney, servant, or employe of any bank, railroad, manufacturing, or other corporation, and every other person who shall knowingly and designedly, and with intent to defraud any person, bank, railroad, manufacturing, or other corporation, issue, sell. | transfer, assign, or pledge, or cause or procure to be issued, sold, transferred, assigned, or pledged, any false, fraudulent, or simulated certificates or other evidence of ownership of any share or shares of the capital stock of any bank, railroad, manufacturing, or other corporation, shall be punished by fine not exceeding $2,000, and by imprisonment in the penitentiary not more than ten years, as the jury shall determine." The indictment contained a number of counts, all of which, however, were nolle prossed by the state's attorney, except the 1st, 2d, 3d, 4th, 5th, 7th, and 8th. In the first count it was alleged that James J. West was president, and Charles E. Graham was secretary, of the Chicago Times Company, a corporation under the laws of Illinois, and they did on January 8, 1889, in Cook county, "knowingly and designedly issue to him, the said James J. West, four certain false certificates of ownership, each for the sum of 100 shares of the capital stock of the Chicago Times Company, incorporated," etc., "with intent to defraud the said Chicago Times Company," etc. The second count was the same as the first, save that the word "fraudulent" was used instead of "false;" and the third count was also the same as the first, except that "simulated" was used instead of "false." The fourth count charged that the defendants "knowingly and designedly," as "president and secretary," etc., "did issue to the said James J. West a certain false certificate of ownership of 349 shares of the capital stock," etc., "of said company," "with intent to defraud" the said Chicago Times Company, incorporated, etc.; and the fifth count was the same as the fourth, except that the word “fraudulent" was used instead of "false." The seventh and eighth counts will be noticed further on. A motion to quash the indictment and each count was interposed and overruled. At the conclusion of the evidence for the people, the defendants entered their motion to compel an election by the people as to which count they would proceed under. and of which alleged offense they would ask conviction. This motion was overruled. The jury found the defendant Graham not guilty, and the defendant West "guilty in the manner and form as charged in the indictment," fixing his punishment at a fine of $1,000 and imprisonment in the penitentiary for five years. Motions of defendant West for new trial and in arrest |