no title was attempted to be given to Swain, where it was given to the Barings by the bill of lading to them, where they paid for the property by their own credit and money, where it was the very pith of the adventure that the shellac should furnish the means of meeting the price, where the invoice was to be made to their order, where the possession was to be theirs, where they were to have the right of disposal at discretion, and Swain was to have no control until the payment of the draft. In such a case he could not be general owner, and an inference to that effect from an inapt expression cannot be indulged. So far, the case, in our judgment, cannot be distinguished from that against Logan, upon the authority and reasoning of which the Barings must be deemed owners, and not merely pledgees. The settlement of that point disposes of the case as affected by the factors' acts of this State and Massachusetts, except in a single respect. It is not pretended that plaintiff is protected under the provision which makes the transfer by an agent intrusted with the evidence of title, and which has been made upon "the faith thereof," valid under some circumstances, even against the real owner; for the bill of lading, with its indorsement, was not shown to the plaintiff and in no manner affected his action. But the appellant insists that there was evidence enough to go to the jury that Swain was intrusted with the property for the purpose of a sale, or of obtaining advances upon it, and so, under the factors' act, the plaintiff's title as pledgee is to be protected. The course of business brought the shellac to the custom-house and into the "general order" stores. From that custody it could only be removed by some action of Kidder, Peabody & Co. by force of their bill of lading. Swain applied for the papers to Mr. Collins, who was their merchandise clerk, and who testifies: "I asked what he was going to do with the papers, and he said he wanted to enter them at the custom-house and warehouse them for account of Baring Bros. & Co." Collins repeated that request to Peabody, who gave his consent. Thereupon Swain signed a receipt for the papers, which specifies explicitly this one sole purpose for which they were put in his control, and thereupon they were indorsed in blank to enable Swain to make the entry, and to warehouse the goods as agreed. Instead of doing that, Swain entered them in the name of his broker, and then pledged them to plaintiff as security for a loan, the pledgee trusting to the representations of Swain and the warehouse receipt which he obtained. Peabody, so far as he was a party to the occurrence, fully corroborates Swain, and the latter was not thereafter called to deny, and did not deny, their version of the transaction. All that was later shown in rebuttal was a copy of the complaint in an action begun by Kidder, Peabody & Co. against Swain and Casey, who was the warehouseman. The opinion of the general term shows so fully that the statements of that complaint taken together were in no manner inconsistent with the evidence given for the defense as to make a repetition needless; and we may confine our attention to the evidence of Swain and what it is claimed to establish. Invariably the manner of dealing between the parties was like that developed in this case, so far as the written agreements were concerned. These were in two forms: One of them, that which we have described, which intrusted the shipping papers to Swain solely that he might enter and warehouse the goods in the name of the Barings; and the other, which recited their sale and gave them into the custody of Swain, to make delivery, and collect the proceeds, which were stipulated to "belong" to the Barings and to be handed over to them. Swain could not name a single instance in which one or the other of these papers was not signed by him, but it was sought to show by him that the action under them was loose, and he was permitted to act differently. He said that he had been in the habit of entering the goods sometimes in his own name, and of selling or pledging the goods, and paying the proceeds long after, to meet the drafts maturing in London. Under the second form of receipt a sale was contemplated and payment of proceeds over to Kidder, Peabody & Co.; and that they did not demand them immediately upon the sale, and often accepted them later, although in time for the drafts, shows simply their confidence in Swain, but did not make their money his, and serves sufficiently to explain Peabody's alleged admission that Swain had been permitted to do as he pleased. And it is noticeable that the one single instance in which Swain says he can remember the facts of the deviation from the written stipulation was one under the second form of receipt, in which, after a sale, he did not deliver over the proceeds promptly upon obtaining them. But he admits that he never had any consent to warehouse the goods in any other name than that of the Barings, and, out of thirty-four instances in which the papers were put in evidence, Swain, with the aid of the books, was able to name but four instances in which he warehoused in his own name and pledged the goods. He does not pretend that the fact came to the knowledge of Kidder, Peabody & Co., and any such knowledge is denied by them. The argument here is that they must have known, and the jury might have found that they did know. Our opinion is with that of the courts below, that such a finding would not have been warranted. All that Swain's evidence tends to show is that in transactions under form No. 1 he often did not at once turn over the warehouse receipts, and was not questioned about them, and in transactions under form No. 2 was not immediately called upon for the proceeds received. There was not enough to destroy the force and work a modification in the written stipulations of the parties, and no verdict to that effect would have been justified. The judgment should be affirmed with costs. (All concur, except RAPALLO, EARL, and PECKHAM, JJ., dissenting.) The principal case turns upon the question whether Baring Bros. & Co. had title to the goods or were merely pledgees. The fact that a bill of lading is made out in the name of any person is some evidence of title to the goods in such person. It is, however, by no means conclusive evidence. As between vendor and vendee (or factor and principal), the fact that a vendor shipping goods to his vendee takes out the bill of lading in his own name is very strong evidence that the vendor did not intend to vest title in the vendee by the shipment. Thus, in Turner v. Trustees, 6 Exch. 543, it was held that where an agent purchases goods with his own funds and puts them on board a ship of the principal and takes a bill of lading to his own order which states that the goods are to be carried free of freight, being the goods of the owner, the property in the goods does not pass to the principal by mere shipment of the goods. Where an agent buys goods on his own credit, but in behalf of his principal, and ships them to his principal, taking out the bill of lading in his own name, the presumption is nearly conclusive that title did not pass: Jenkyns v. Brown, 14 Q. B. 496; Foreheimer v. Stewart, 65 Iowa 593; Forty Sacks of Wool, 14 Fed. R. 643. Where the bill of lading is taken out in the name of the vendee, there is a presumption that title to the goods has thereby passed to him: Jones v. Sims, 6 Post. (Ala.) 138. In Ellenhan v. Maguire, 6 Exch. 570, it was held that title did not pass to the vendee by shipment of the goods, where the vendor took the bill of lad ing in his own name, although the vendee had partly paid for the goods and had made arrangements to com. plete the payment. Similarly it was held in Holmes v. German Security Bank, that where the vendor attaches the bill of lading to a draft as security for its payment, and transfers the draft for value, the title to the goods does not pass to the vendee although the vendor is indebted to the vendee at the time for previous advances: Holmes et al. v. German Security Bank, 87 Pa. St. 525. But the presumption that title remains in the vendor if he take the bill of lading in his own name, although a very strong one, may nevertheless be rebutted. Where there are any facts tending to rebut the effect of the bill of lading, the question whether title has or has not passed must be passed upon by the jury: Dows et al. v. National Exchange Bank, 91 U. S. 618. In Van Casteel v. Booker, 2 Ex. 691, it was held that a bill of lading, though made out in the name of the consignor, may really be taken by him as agent for the consignee. This is fact for the jury. If not taken as agent the consignor must indorse the bill before title will pass to the consignee. When the bill of lading is taken out in the name of some third person who discounts a draft drawn on the vendee, the title does not pass to the vendee until he pays the draft: Seymour v. Norton, 105 Mass. 272. When the bill of lading is made out in the name of a third person advancing money for the goods or dis counting a draft on the vendee, it is clear that the said third person has some interest in the goods: Heiskill v. Farmers and Mechanics' Nat. Bank, 89 Pa. St. 155. But whether he has title or a mere pledge is doubtful and probably depends upon the circumstances of the case. In Farmers and Mechanics' Nat. Bank v. Logan, 74 N. Y. 568, it was held that a bank advancing money to the vendor, taking as security a draft drawn to its order on the vendee and a bill of lading of the goods made to its account and order, acquired title to the goods. These cases seem to show that the form of the bill of lading is by no means conclusive as to the title to the billed goods. In this view it seems very difficult to sustain the decision in the principal case. The letters of Swain to Kidder, Peabody & Co. state expressly that the "property which shall be purchased by means of the written credit * ** together with the bills of lading for the same, are hereby pledged and hypothecated to Messrs. Baring Bros. & Co. as collateral security," which seems to show, beyond question, that the go ds were to be pledged and not conveyed to Baring Bros. &. Co. The court rely upon the case of Farmers' and Mechanics' National Bank v. Logan, 74 N. Y. 568. But that case is entirely different from the principal case in this respect. In that case a principal in New York ordered goods of a factor in Buffalo without providing funds with which to purchase them. The factor accordingly made arrangements with a Buffalo bank, by which it advanced the money to pay for the goods and took a draft on the principal and the bill of lading of the goods made out to its order and account. It was held that the title to the goods was in the bank. In that case, the fact that the bill of lading was not in the name of the principal showed conclusively that the title to the goods was not in him. It must then either be in the factor or in the bank. The factor had no reason to retain title to the goods, except to secure himself for the price of them, hence when the bank advanced the price of the goods there was every reason to suppose that the factor intended to transfer title to the bank by having the bill of lading made out to it. In the principal case the factor was supplied with funds by the prin cipal by means of the arrangement through Kidder, Peabody & Co. with Baring Bros. & Co., and consequently had no interest in what disposition should be made of the title to the goods. The title to the goods should be controlled by the terms of the arrangement of Swain with Kidder, Peabody & Co., which seems express to the effect that the goods were to be merely pledged to Baring Bros. & Co. L. C. GREELEY. Chicago. Supreme Court of New Hampshire. NOYES v. TOWN OF BOSCA WEN. One who is injured while riding in another's carriage, by invitation of the latter, caused by a defective highway, is not chargeable with the owner's negligence RESERVED case from Merrimack county; CARPENTER, Judge, presiding. Case, under the statute, for an injury received from a defective highway. Mrs. Noyes, the plaintiff, about nine o'clock in the evening of October 10, 1885, was riding with one Dearborn, who drove the horse, when the right wheel of the carriage struck a stone, the defect complained of, and the plaintiff was thrown out and broke her arm. The plaintiff was a witness, and was asked whether she considered Dearborn a careful driver. On the defendant's objection, the question was excluded, subject to exception. The plaintiff requested the court to instruct the jury that Dearborn's negligence could not affect the plaintiff's right to recover unless he was her agent, and either under her control or controlled her personal conduct. The court denied this request, subject to exception, and instructed the jury that if, at the time and place of the accident, the highway was not reasonably safe and suitable for the travel thereon, and both the plaintiff and Dearborn exer |