O'Brien

I concur, but I do not think it can properly be said that the judgment is against the defendant as assignee. Defendant could not commit the trespass as assignee, and the recital in the judgment as to his character is simply surplusage. He is properly held personally liable, and it is not of consequence in this case whether he can be reimbursed from the insolvent’s estate or not.

Henshaw, J., concurred.

Replevin to recover possession of six hundred and thirty-eight sacks of wheat, or their value *320 if possession cannot be bad. Plaintiff had a verdict for five hundred and seventy-one sacks, of the value of five hundred and seventy-one dollars, upon which judgment was entered. Defendant J. B. Blake (the action having been dismissed as to defendant Ballou) appeals from the judgment and from an order denying his motion for a new trial.

It appears that during the year ending, say, with the harvest of 1894, plaintiff had labored as a ranch hand for one Bruce, who was farming about three hundred and twenty acres of land sown to wheat. Some sixty to seventy acres of this land was rented from one Wyman, and the residue, which was adjoining, from one Jack. The land was not separated by fence. The crop of 1894 was a failure, and Bruce was unable to pay plaintiff his wages. Bruce then proposed to plaintiff that if he would continue to labor for another year he, Bruce, would convey to him sufficient of the crop to pay his wages. Plaintiff accepted the proposition. The land was all cultivated to wheat. Jack had a crop mortgage on the wheat growing upon his own land.

On June 21, 1895,…