delivered the opinion of the court.

I cannot express my opinion more clearly than in the •words of tlie Recorder. u It does not appear to me that the wharfage which was paid for the rice, was a compensation for its safe keeping. The legislature has allowed certain rates for the wharfage of landing of rice, and certain other rates for storing it, implying that they were different things. No other compensation then for wharfage has been paid in this' instance, and if the law were otherwise, as the defendant has proved a delivery, since when it is to be presumed that the loss must have occurred, I do not think the plaintiff can legally sustain his action.”

I am therefore of Opinion that a new trial ought not to be granted.