¶1I concur for the reason that it is utterly unnecessary to sue the receiver. The petitioners hold the goods as pledgees, and they have only to apply to the court on notice to the receiver for leave to sell, or, if their right is disputed, for a reference to determine it. There is no propriety in putting the receiver to the expense and delay of an action when the whole matter can be disposed of by a reference in the main action, as was the practice in chancery, and, as I understand it, is now, there being no provision in the Code of Civil Procedure as to applications of this character, rule 35 of the general rules of practice should apply.
¶2In the above memorandum Mr. Justice Patterson bases his decision upon the ground that the petitioners hold the goods as pledgees, whereas the fact is beyond question that they do not hold the goods as pledgees, but as bailees and pledgees. If they held the goods as pledgees, they could sell the goods without coming into court, but, being also bailees, they cannot. There never was any practice in the court of chancery or any other ■court which attempted to or could compel an utter stranger to the questions to be litigated in an action to come into that action and try a question which . was entirely separate and distinct.