Several questions are presented by this case, and the first is as to the affidavit made by Schmultz, the plaintiff below, on which to obtain a writ of replevin. It is in substance as the statute requires—it sufficiently describes the property, and has all the necessary averments.
The objections to the deposition of Oscar Gray are not tenable either as to his first or second deposition.
It is not true that a party has to apply for leave to the court *190to retake a deposition. The statute does not require it, nor is such the practice. A dedimus potestatem issues by the clerk, without any application to the court, and a party might, if he chose to incur the expense, indulge a passion for taking the deposition of the same person.more than twice, but. the court would take care as to which, and how many, should be read. It is purely discretionary with the court, and is like recalling a witness, which the court may or not allow.
As to the appointment of an elisor by the clerk, to serve the writ of replevin, there can be no objection to that, as it is to be presumed there was no officer competent to serve it, the case showing that the writ of attachment on the cargo of lumber was in the hands of, and executed by, the coroner of the county, which could not legally be if there was a sheriff competent to act. We will intend the casus had arisen rendering it necessary, for the purposes of immediate justice, that an elisor should be appointed by the clerk.
The question of real moment in the case brings up the doctrine of confusion of goods, so far as the principal cargo is concerned, which the proof shows consisted of different kinds and qualities of lumber, of different grades—“ of plank, boards and scantling,” and some shingles. As to the lumber, Gray swears that he owned one-half, and Schmultz the other half of the cargo, separately, and were so mixed together as that the several parts were incapable of identification. Besides this, some lumber was borrowed of others to make up the cargo, and the vessel ordered to Milwaukee, against the directions of Schmultz, that she should deliver her cargo at Chicago. There are circumstances in the case tending to show an intention, on the part of Gray, to dispose of the cargo at Milwaukee, and thus defraud Schmultz ; and for this bad purpose, the several portions belonging to Schmultz and Gray, and that borrowed, were mixed up, without the knowledge or consent of Schmultz, so as to deprive him of his share, as it would appear.
The doctrine on this subject is thus stated by Blackstone, at page 405, vol. 2, of his Commentaries. After treating of title to goods by accession, he says : “ But in the case of confusion of goods, where those of two persons are so intermixed that the several portions can be no longer distinguished, the English law partly agrees with and partly differs from the civil. If the intermixture be by consent, I apprehend that, in both laws, the proprietors have an interest in common, in proportion to their respective shares. But if one willfully intermixes his money, corn or hay with that of another man, without his approbation or knowledge, or casts gold, in like manner, into another’s melting pot or crucible, the civil law, though it gives the sole *191property of the whole to him who has interfered in the mixture, yet allows a satisfaction to the other for what he has so improvidently lost. But our law, to guard against fraud, gives the entire property, without any account, to him whose original dominion is invaded, and endeavored to be rendered uncertain, without his own consent.”
This doctrine, as thus laid down, is not disputed any where in courts where the common law is the rule of decision.
Gray, then, having wrongfully produced this confusion, by an unauthorized intermixture, necessarily forfeits his right to the whole, and the plaintiffs in error, has creditors, can have no right or claim to levy an attachment upon it. The court could do no otherwise than to find for Schmultz, the defendant in error, that it was his property.
The case shows that shingles were a part of the cargo, and were Gray’s separate property, and as they can be readily distinguished and separated, and as they belonged to Gray when shipped, it is contended they are yet his, and subject to the attachment. It is a sufficient answer to this to say, that the facts show the whole cargo was consigned to Schmultz, and that he paid the freight on it. He, as consignee, had, therefore, a right to the possession of the shingles.
The merits of the case are wholly with the defendant in error, and the judgment of the Circuit Court is affirmed.