Hugh J. Jewett, the complainant in this suit, was appointed, in May, 1875, receiver of the Erie Railway Company, and as such receiver filed his bill of complaint, in April, 1876, against the defendants, Sigmund Dringer and • Henry Bowman. Dringer was a junk dealer in the city of Paterson, and began, in April, 1873, to buy, of the company, old iron or waste material, and continued so to do to within a few day3 before the filing of the bill. The defendant, Bowman, was the company’s purchasing agent, and had also the further duty of making sales of the waste materials, of which large quantities were constantly being accumulated at the company’s shops in Jersey City, Susquehanna, Elmira and elsewhere. The bill charged both defendants with fraud [*293] in these purchases of Dringer, alleging in particular one transaction in which seventeen hundred tons of old car-wheels were obtained for nineteen dollars per ton instead of twenty-two dollars per ton, and further alleging in general that large amounts of material hhd been delivered to Dringer fraudulently, by the connivance of Bowman, of which no account had been rendered to the company, and for which nothing had been paid. Discovery and account were prayed for from both defendants; also a writ of ne exeat against Bowman and au injunction against Dringer restraining him from disposing of such material. Both writs were issued on the tiling of the bill and affidavits. The answer of Dringer was filed April 25th, 1876.

[*293] On the 4th of May, 1876, a petition was filed by the receiver, setting forth that discoveries of additional fraudulent transactions had been made since the filing of the bill, specifying the same, and praying that a receiver might be appointed to take possession of the material in Dringer’s yards, and, on the 24th of the same month, E. N. Miller was [*294] appointed such receiver. Upon arguments afterwards had before the chancellor on the several answers of Bowman and Dringer, the writ of ne exeat was discharged, and the motion on behalf of Dringer to have the injunction and receivership set aside, was denied. Afterwards, and beLre the taking of the evidence, the bill of complaint was amended, and new answers were filed by the defendants.

[*294] The matters of fact asserted by the complainant, and to which the evidence was directed, are included in the general statement that the defendant, Dringer, obtained from the employes of the company, under the pretence of purchases, large quantities of waste material far beyond the amounts actually purchased, and also that, under the pretence of purchasing one class of material, he possessed himself of another class, superior in quality and value to that accounted for, thus defrauding the company both in the weights and the character of the material obtained; and that Bowman, during the time he was purchasing agent, was the principal one of the company’s employes responsible for the fraud.

[*295] Tbe material in question consisted of old iron, brass, copper, lead, zinc and white metal. Of some of these there were several varieties, differing in solidity and value; such as car-wheels, axles, tires, grate-bars, castings, machinery, boiler-scrap, tanks, ash-pans,- etc. A large part of what was obtained by Dringer was denominated wrot scrap, which is also classified under several heads in quality and value. The material said to have been fraudulently obtained by Dringer came almost entirely from the company’s shops at Susquehanna, though material purchased by him was sent also from the shops at Jersey City, Elmira and Port Jervis. The goods were sent in the company’s cars, loaded and weighed at the shops by the company’s employes. The cars are open boxes of nearly uniform size. At Susquehanna the employe who marked in the yard the weight of the car before and after being loaded, took his memorandum thereof to the store-room and entered the weights in the blotter, from which another employe made up the shop-book. Bills of the same as vouchers were then made and sent to the pur [*296] chaser or consignee, stating each car by its number, the weight of its contents in pounds, the several kinds of material, the price of each and the aggregate amount.

[*296] The defendant Bowman, during his agency, had no supervision of the weighing or loading, his duty being that of bargaining with the purchaser, and afterwards giving directions for delivery at the shops from which the goods were to he shipped.

From April, 1873, to April, 1876, Dringer, as appears from his books of account, purchased and received from the company material weighing in all 18,810,953 pounds, or about 8,400 gross tons of 2,240 pounds each. The complainant. asserts that, besides this amount shown by the defendant’s books of account, he received over four millions of pounds, or about two thousand tons, of which no account was rendered, and for which nothing was paid. Before the filing of the bill he had paid the company more than $150,000. His answer admits an existing indebtedness of $35,646.97. The complainant asserts the true balance to be three times the admitted one.

[*297] The testimony and exhibits on both sides produced before the vice-chancellor are unusually voluminous, covering in all nearly two thousand two hundred printed pages. Ninety-eight witnesses were examined for the complainant and eighty-three witnesses for the defendants. The question of fact to bo settled is the question of fraud. In disposing of it, it will not be necessary, if practicable, to do more than exhibit briefly the several classes' of prool^ relied upon to establish the fraud and their collective result.

Reference was made by counsel on both sides, in discussing Dringer’s transactions and books of account, to his personal history and defective education. He Avas born in Austria, and is thirty-eight years of age. In 1868 he worked in a junk-shop in Newark for nine or ten dollars per week. Having earned about $500, he started business in Paterson, in 1869, with a partner who put in $250, and by whose death the business, from 1872, Avas carried on by himself alone. His books were kept, during this later period, by a book-keeper, who was examined as a witness in the cause.

[*298] Dringer testified to fiis own inability to read or write. His general native capacity is evinced by the extent of the business which he personally conducted. His acquaintance with writing was, to some extent, manifested on the witness stand, and argues, I think, less illiteracy than he attributes to himself; but, whether this be so or not, the competency of his book-keeper was not questioned, and the books themselves have been apparently kept with average carefulness and skill.

The first of the proofs, relied on to establish the fraud, is the result obtained from an examination of these books from May, 1872, to April 30th, 1876. The total amount of goods sold in this period, added to the amount of goods on hand in the inventory made by Mr. Miller, the receiver, is in excess of the total purchases, shown by the books, to the extent of 4,445,193 pounds, or about 2,000 tons.

Another kind of proofs is made up of the acts and declarations of Dringer, sworn to by witnesses, to the effect that he gave bribes to the company’s employes, especially at Susquehanna ; that he was habitually present at that shop when his [*299] car-loads were put on and weighed; that he took part in the loading and weighing; that cars were sometimes loaded at night, or out of business hours; that he stopped there in the house of the employe who had charge of the weighing, and sometimes in company with a woman who was known to be his mistress; that he gave presents to one or more of the weigh-master’s family, with whom he was on intimate terms; that, in talking of his trade with the company, he boasted of being in with the right parties, who were his friends and would stand by him.

[*299] Another kind of proofs is the testimony of witnesses as to the size of the loads and the quality of the material, as they saw them put in the cars for Dringer.

Another is derived from a comparison of the weights of the loads sent to Dringer, from Susquehanna, vdth the weights of the same material sent in cars of the same capacity, to other parties at Paterson or Jersey City: and, also, from a comparison of loads sent to Dringer from Susquehanna, with loads sent to him from Jersey City, where he was not present at the loading, and where his influence with [*300] the employes was not similarly felt. The weights stated in the bills or vouchers from Susquehanna, to Dringer, áre almost invariably less than the weights of loads sent to other parties, and less than those sent to himself from Jersey City.

Another and fifth class of proofs is made up of several specific instances wherein the weights of car-loads, as set down in the vouchers from Susquehanna, are shown to be less than the true weights, ascertained by Dringer by reweighing the loads for himself when received by him at Paterson. These instances are found in a small weight-book, kept by the defendant, which, after being offered and marked as an exhibit before the vice-chancellor, appears to have been mislaid, so that the instances themselves were not brought to his notice in the argument before him. They were insisted on in this court as plenary and demonstrative proofs. They were not denied or explained by any suggestions on behalf of the defendants, nor can I see how any explanation avoiding their effect can be given. This weight-book, marked exhibit 112 for complainant, is a small pass [*301] book whose entries, with the few exceptions now referred to, are the weights of the loads as shown by the company’s vouchers. The excepted instances or entries are those of the weights ascertained on their arrival in Paterson. Eor example: Three car-loads of scrap sent from Susquehanna, June 7th, 1873, were weighed at Paterson in the wagons; the weights of the wagons, loaded and empty, are set down in two columns, and the difference between the two, being the weights of the loads, in a third. An entry between the columns identifies these wagon-loads as taken from the three car-loads whose weights are put down in the voucher of the company. The difference between the wrong weight at Susquehanna and the right weight at Paterson, is 8,925 pounds, a difference in favor of Dringer, on each car-load, of 2,975 pounds, and a difference on the whole shipment, of a trifle less than four tons.. In his journal, the company is credited with the smaller weight stated in the voucher.

[*301] Several other instances of similar conclusiveness are furnished by this exhibit. Entries of this kind were soon dis [*302] continued, and in a partial copy of the book, made in a larger form, the entries themselves are omitted.

[*302] It appears, from the evidence, that the loads from Jersey City were reweighed, at Dringer’s request, by the company’s agent, at Paterson. The loads from Susquehanna were never so weighed. Why not, sufficiently appears from the results of his own reweighing in the experimental instances mentioned.

In tbe presence of these facts, and of the oath of Dringer that he never received from the company any material, to his knowledge, beyond what was reported to the company, it is needless to inquire what reliance can be put upon his testimony, or of what avail is the testimony of witnesses to his good character and credit.

As to the other classes of proofs, a few observations will suffice. In their combination they establish, in my judgment, beyond a reasonable doubt, the fact of fraud, both in the weights and in the quality of the goods.

The testimony of the witnesses who have sworn to his declarations and acts, though the testimony of some of them [*303] was sought to be broken by impeaching their reputation for veracity, is corroborated by circumstances incapable of dispute, and must be accepted as substantially true.

The corroborative proof, from a comparison of the loads to Dringer from Susquehanna with the loads to other parties, of the some material, from the same shop, may be seen by an example, taken at random, from the account shown by the exhibits. Thus, in August, 1875, twenty car-loads were sent to him at Paterson, and three car-loads to a party at Jersey City. The average weight of Dringer’s loads, as put down in the vouchers, is 19,210 pounds. The average weight of the others is 24,675 pounds—a difference, in his favor, on each load, of about two and a half tons. Taking, for another example, the longer period from March 5th, 1875, to February 24th, 1876, there were sent to him, from the same shop, one hundred and ninety-two loads, of which the average weight of each load, as set down in the vouchers, is 19,301 pounds. During the same period there were sent, from the same shop; to other parties in Jersey City and Paterson, thirty-nine loads, of an average weight [*304] to each load of 24,916 pounds—a difference in Dringer’s favor, on each of the one hundred and ninety-two loads, of 5,615 pounds, or something over two and a half tons per load.

[*304] These figures give the direct testimony, respecting deception in weights a probability too strong to be resisted. Comparing the loads sent him from Jersev City with those sent him from Susquehanna, the same result appears, the same loss to the company.

Much of the argument was in regard to the tabulated statement, marked exhibit 118, made up from Dringer’s books, showing his total purchases on one side and his total sales on the other, from May, 1872, to the beginning of this suit. By adding to his total sales the material in his yard in the possession of his receiver, and deducting from their amount the total purchase of material, a surplus is found of about 2,000 tons; that is to say, he appears to have on hand 2,000 tons never purchased. The inference of fraud from [*305] this surplus was strenuously combated by denying, first, the correctness, or rather the completeness, of his books; secondly, the correctness of the receiver’s inventory of goods on hand; and, thirdly, by asserting the existence of a large quantity of goods on hand at the opening of the books in May, 1872.

[*305] It cannot be doubted, I think, after carefully studying the evidence, that each of the three points thus taken for the defendant is, to some extent, good.

Sales and purchases were made by Dringer of which no entries were made in his books, but the difference between the two—and it is by this difference only that the effect of the tabulated statement relied on would be changed—is relatively small. The inventory, also, is open to question, having beenmade approximately, and not by full and exact measurements or weights.

But the most ample allowances under these two heads would not dispose of one-fifth of the surplus, and, assuming [*306] that the amount of goods on hand, at the opening of the books, was as large even as that stated by Dringer himself, a surplus of eight or ten hundred tons would still be left, suggesting, if not attesting, the false under-weights by which it was produced.

[*306] The inexact and debatable factors involved in this statement or table marked exhibit 118, can be corrected in a future accounting, when the material on hand has been more carefully weighed or computed. The table, as it stands, evinces more certainly the fact than the extent of the fraud.

While thus differing with the vice-chancellor as to the fullness and cogency of the proofs against Dringer, I agree with him in thinking that, as against the defendant Bow- man, the allegations of the complainant inculpating him with his co-defendant, have not been maintained, and that, as to him, the bill should be dismissed. A sale to Dringer of 1,700 tons, the transaction specially set out and charged [*307] to be fraudulent in the original bill, is not proved to be so by the evidence, which, in its bearing upon him, does not call for review. Whatever criticisms it may suggest, it does not warrant the adjudication of intentional wrong.

[*307] As to Dringer, the case is one of fraudulent procuring and intermixture of the company’s goods with his own. The goods thus procured and intermingled were of different kinds and values, and cannot be so distinguished as to enable those of one owner to be separated from those of the other. The rule applicable to the case is well settled by authority and in accordance with natural justice.

In Lupton v. White, 15 Ves. 432, Lord Eldon states the old law to be, that if one man mixes his corn or flour with that of another, and they were of equal value, the latter must have the given quantity; but if articles of different value are mixed, producing a third value, the aggregate of both, and, through the fault of the person mixing them, the other party cannot tell what was the original value of his prop [*308] erty, he must have the whole. The observations of Sir William Blackstone are cited in the note pointing out the distinction between the civil law and our own law upon this point; the civil law, though giving the aggregate to the party who did not interfere in the mixture, allowed the other a satisfaction for his loss. “ But our law,” says Blackstone, “ 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 consent.” In Hart v. Ten Eyck, 5 Johns. Ch. 108, it is ruled that, if a party having charge of the property of others so confounds it with his own that the line of distinction cannot be traced, all the inconvenience of the confusion is thrown upon the party who produced it, and it is for him to distinguish his own property or lose it. If it be a case of damages, damages are given to the utmost value that the [*309] article will bear. The same doctrine is expressed and applied in Providence Rubber Co. v. Goodyear’s Ex’r, 9 Wall. 988; The Idaho, 3 Otto 586; Wooley v. Campbell, 8 Vr. 169. In the last-cited case, the language of Justice Depue is, that the doctrine that one mixing his goods with those of another, so that a separation is impossible, loses his property, is a doctrine that is adopted to prevent fraud. It is never resorted to except in favor of an innocent party as against a wrong-doer.

[*309] In the present case, it is claimed, and may prove to be true, that the whole indebtedness from Dringer to the company, including the $35,646.97 admitted to exist, is greater than the value of the goods in the receiver’s possession. Whether this be so or not, the complainant is entitled to have the whole indebtedness ascertained as nearly as practicable, and a decree taken for the amount. Eor this purpose there [*310] should bo a reference to a master. The receiver should be empowered to make sale of the goods and apply the proceeds to the debt admitted to be due, and the balance, if any, to the additional indebtedness that may, upon the accounting, be found to exist. The difficulties in the way of arriving at satisfactorily definite, or at any other than proximate and probable, results, as to the extent of the fraudulent weights, and still more as to the values of the material fraudulently procured, are indeed great, and cannot, perhaps, be overcome; but they present no bar to the accounting and decree. “ When,” said Lord Brougham, in Docker v. Somes, 2 Myl. & K. 674, “did a court of justice, whether administered according to the rules of equity or law, ever listen to a wrong-doer’s argument, to stay the arm of justice, grounded on the steps he himself had successfully taken to prevent his iniquity from being traced ? Rather [*311] let me ask, When did any wrong-doer ever yet possess the hardihood to plead, in aid of his escape from justice, the extreme difficulties he had contrived to throw in the way of pursuit and detection, saying, you had better not make the attempt, for you will find I have made the search very troublesome? The answer is, the court will try.”

[*311] In the light of the facts in this case, and of the legal and equitable principles expressed by the authorities cited, the injunction and receivership, directed by the chancellor in the early stages of this suit, are seen to have been the appropriate and efficient methods of relief. The consequences to the defendant of the abrupt breaking up of his business and the taking possession of his goods by the court, destructive as they may have been of his seemingly great and rapid prosperity, are consequences of which he cannot be heard to complain. They were the legitimate end of his own dishonest practices, long-continued and system, at-ic, by which the company and its receiver wTere defrauded of their property, their employes corrupted, involved in criminal guilt and made liable to criminal prosecution.

The decree below, dismissing the bill as to Dringer, should be reversed, with costs, and a decree made in accordance with the foregoing views.

Decree unanimously reversed.