The opinion
Merrick, J.
It appears, from the agreed statement of facts, that the wheat which' the plaintiffs contracted to transfer was not all carried at one and the same time, but from time to time in successive trains. In such case it was their duty, upon the arrival of any part of it at the termination of the transportation in their depot, to deliver it, subject only to their lien for the freight earned, immediately to the defendants; and upon such delivery to them the consignees became indebted for the proper charges upon it. This action therefore may be maintained to recover for the freight of all the wheat received by the defendants before then- writ of replevin was sued out; and also for that which was taken by the officer and delivered to them while the writ was being served; for no demand of this part of the grain had been made on the plaintiffs, nor had there been any refusal on their part to deliver it. The rights of the parties in respect to it stood therefore upon the same ground as if it had, without objection, been delivered by the one, and accepted by the other party. But as to that part of the wheat the possession of which was obtained by the defendants only under and by force of their replevin writ, and which it appears from the *225 judgment rendered in that suit the plaintiff had unlawfully withheld, they cannot recover for the freight in an action commenced while that suit was pending. The result from the whole of the facts stated therefore is, that judgment in this action is to be rendered for the plaintiffs for the amount of the freight of the two parcels, one of which was received by the defendants before, and the other after, they sued out their writ of replevin.