The general ground upon which such evidence is admitted is that it tends to prove malice. Thus, in Straus v. Young (1872) 36 Md. 246, it was held that, in an action for malicious prosecution, malice may be inferred from the conduct, zeal, and activity of a party in conducting the prosecution of the plaintiff. And in Bitting v. Ten Eyck (1882) 82 Ind. 421, 42 Am. Rep. 505, it was held that evidence that the defendant was in any way active in forwarding the prosecution was competent as going to show that he instigated the same, and also that malice may be implied from defendant's forwardness and activity in publishing accounts of the proceedings. In Marks v. Hastings (1892) 101 Ala. 165, 13 So. 297, which was an action for malicious prosecution arising out of a charge of larceny, it was shown that the employer of the plaintiff sent telegrams to the prosecutor for the purpose of having the prosecution withdrawn, but the acts and declarations of the latter manifested an anxiety to push the prosecution. On the question of the admissibility of this evidence, the court said: "Plaintiff was, at the time the telegrams were sent, in the employment of Hirsch, and their object was to induce Edel to abandon the prosecution. No objection was made to the introduction of copies of the telegrams. The only specified objection is that the one sent to Edel was not shown to have been received by him. This objection is not founded in fact, for the magistrate testifies that Edel showed him the telegram, at which time he made the first two declarations referred to. The other was made on being shown the telegram received by Ullman. The declarations tended to show the determination of Edel to continue the prosecution, and, with the telegrams, were relevant and admissible on the question of malice. Any acts or declarations of the defendant tending to show zeal, or persistency in the prosecution, or a purpose to vex or oppress the plaintiff, are competent evidence. The motive which influenced the prose cution may be inferred from subsequent conduct." In Turner v. Walker (1831) 3 Gill & J. (Md.) 377, 22 Am. Dec. 329, it was held, in an action for malicious prosecution: "Evidence of the conduct and declarations of the defendant in relation to, and in the course of, the transaction, of the situation of the parties, of the nature and extent of the injurious means resorted to by the defendant to effect his object, and of the forwardness, zeal, and activitiy manifested in the procurement and use of the means employed, may properly be adduced to prove malice. And although, where a party has acted bona fide and without malice, under professional advice and direction which he believed to be sound, he is not liable, notwithstanding such advice was in fact incorrect, as malice, express or implied, must be proved; yet he cannot shelter himself under the direction and advice of counsel merely, against evidence of purposed malice. or from which malice may fairly be inferred. And whether he acted with a fair bona fide intention, or by what motive he was really actuated, is always a question purely for the consideration of the jury." In Hart v. Leitch (1914) 124 Md. 77, 91 Atl. 782, the court, in respect of the admissibility of evidence of the zeal of the defendant in pushing the prosecution, had this to say: "The plaintiff was entitled to have the jury consider, as reflecting upon the question of malice, other evidence of the defendant's interest in the prosecution, independent of the particular conduct upon which a valid cause of action could be predicated." In this case it was held not to be error to instruct a jury that if they should find that the defendant aided in procuring the arrest and prosecution of the plaintiff under such circumstances as would not have induced a reasonable and dispassionate man to have undertaken it from public motives, they might consider this fact on the question of want of probable cause, and might infer, in the absence of sufficient proof to satisfy them to the contrary, that such prosecution was malicious as a matter of law. In an action for malicious prosecution, evidence offered by the plaintiff tending to show defendant's activity and forwardness in causing the publication of the plaintiff's arrest upon the criminal charge was proper upon the issue of defendant's malice. Smith v. Maben (1890) 42 Minn. 516, 44 N. W. 792. The plaintiff in an action for malicious prosecution may show that the defendant took an active part in gathering evidence to be used against him in that proceeding. Gifford v. Hassam (1878) 50 Vt. 704. In Lunsford v. Dietrich (1890) 93 Ala. 565, 30 Am. St. Rep. 79, 9 So. 308, it was held that malice may be inferred from the circumstances surrounding and attending upon the prosecution, and evidence of the prosecutor's activity was admissible. The court said: "We do not doubt but that the apparent anxiety of Lunsford, after making the complaint, to have Dietrich arrested, and his efforts to that end at the depot, as a phase of the evidence tends to show, was such a circumstance, and properly allowed to go to the jury.". In Vanderbilt v. Mathis (1856) 5 Duer (N. Y.) 304, it appears that an instruction of the trial judge to the effect that, on the question of malice in an action for malicious prosecution, the jury may take into consideration the defendant's conduct, in respect of whether there was unnecessary zeal and activity or eagerness on his part, was not considered erroneous. P. U. G. 1. An importer of wool to whom the bill of lading is surrendered, under a trust receipt, by the bank which advanced the money to finance the importation, for the purpose of having the wool manufactured into yarn and sold for account of the bank, is within the operation of a statute providing that, if a person intrusted with merchandise has authority to sell or consign the same, a consignee to whom he consigns it shall have a lien on it for money advanced, if he had probable cause to believe that the one having possession of the property was the actual owner of it, or had an interest in it to the amount of the lien, and therefore another bank advancing money on the yarn when manufactured, without notice of the prior rights, has a lien superior to that of the bank which released possession to the importer. [See annotation on this question beginning on page 282.] EXCEPTIONS by defendant to rulings of the Superior Court for Suffolk County (Keating, J.) made during the trial of an action brought to recover for alleged conversion of certain yarn, which resulted in a verdict for plaintiff. Sustained. The facts are stated in the opinion of the court. Messrs. Abbott, Nay, Dane, & Buffum and Telesphore Lebœuf, for defendant: Under the common law a consignee, factor, or agent cannot pledge the owner's property for his own debt. Michigan State Bank v. Gardner, 15 Gray, 362; Nowell v. Pratt, 5 Cush. 111; 25 C. J. 350. In England and a few of the states, particularly in New York and Massachusetts, factors' acts have been passed under which a lender to such person, who acts in good faith and without notice, is protected. 25 C. J. 420; Freudenheim v. Selig Gütter, 201 N. Y. 94, 94 N. E. 640; Oppenheimer v. Attenborough [1907] 1 K. B. 510, affirmed in [1908] 1 K. B. 221-C. A.; H. A. Prentice Co. v. Page, 164 Mass. 276, 41 N. E. 279; Michigan State Bank v. Gardner, 15 Gray, 374. The Webster National Bank was a consignee to whom Graves consigned merchandise for money advanced. Ryttenberg v. Schefer (D. C.) 131 Fed. 313; F. F. Ide Mfg. Co. v. Sager Mfg. Co. 82 Ill. App. 685; Block v. Columbian Ins. Co. 42 N. Y. 393; 12 C. J. 525; Wright v. Dressel, 140 Mass. 147, 3 N. E. 6; Cairns v. Page, 165 Mass. 552, 43 N. E. 503. In selling the merchandise under the trust receipt Graves was acting as agent for the plaintiff. Thacher v. Moors, 134 Mass. 163. Graves had implied authority to make a pledge to the defendant, who was not a party to the instrument. The authority of Graves was not necessarily limited by the instrument itself. It is immaterial whether his right depended upon an actual authority to make the pledge, or upon facts which estopped the plaintiff from denying the validity of the pledge. Spooner v. Cummings, 151 Mass. 313, 23 N. E. 839; Guaranty Secur. Corp. v. Eastern S. S. Co. 241 Mass. 120, 134 N. E. 364; Forgeron v. Corey Hill Garage, 249 Mass. 163, 144 N. E. 383; Danforth v. Chandler, 237 Mass. 518, 130 N. E. 105. Plaintiff, having held the wool to secure its loan, released it to Graves for sale and for other purposes. The plaintiff never had actual possession, and thereafter. never asserted its right to take possession. Considered as a pledge, the plaintiff had lost its right as against the defendant. People's Nat. Bank v. Mulholland, 224 Mass. 448, 113 N. E. 365; Moors v. Reading, 167 Mass. 322, 57 Am. St. Rep. 460, 45 N. E. 760; Copeland v. Barnes, 147 Mass. 388, 18 Ñ. E. 65; Thompson v. Dolliver, 132 Mass. 103. Plaintiff clothed Graves with the indicia of ownership so as to justify the defendant in regarding Graves as the rightful owner of the property. Therefore, it cannot recover in this suit. Herman v. Connecticut Mut. L. Ins. Co. 218 Mass. 181, 105 N. E. 450, Ann. Cas. 1916A, 822; Baker v. Davie, 211 Mass. 429, 97 N. E. 1094; Marcotte v. Massachusetts Secur. Corp. 250 Mass. 246, 145 N. E. 464; Forgeron v. Corey Hill Garage, 249 Mass. 163, 144 N. E. 383; Commercial Nat. Bank v. CanalLouisiana Bank & T. Co. 239 U. S. 520, 60 L. ed. 417, 36 Sup. Ct. Rep. 194, Ann. Cas. 1917E, 25; Glass v. Continental Guaranty Corp. 81 Fla. 687, 25 A.L.R. 312, 88 So. 876; Lyon & Healy v. Walldren, 201 Ill. App. 609. Messrs. Edgar S. Hill and Charles W. Lavers, for plaintiff : Defendant had a much greater concern in the title to its collateral, the loan to Graves being a considerable one for defendant, and although it had gone into its overdue obligations from the time of its due date, and defendant knew, or is to be charged with the knowledge, that plaintiff claimed it to be held by the Webster Mills on plaintiff's account, and before the sale that plaintiff held title to it and it could not be pledged. Cregg v. Merchants Trust Co. 248 Mass. 524, 143 N. E. 339; Loring v. Brodie, 134 Mass. 453; Putnam V. Handy, 247 Mass. 406, 142 N. E. 77; Thacher v. Moors, 134 Mass. 156. The contractual relations of Graves with the plaintiff are governed substantially by the trust receipt executed in consideration of the plaintiff indorsing to Graves the bill of lading covering the wool described in it for the special purposes set forth. Nowell v. Equitable Trust Co. 249 Mass. 585, 144 N. E. 749. So thoroughly and finally have trust receipts been interpreted by the court that financial institutions have accepted them without question as protecting their ownership when parting (Mass., 154 N. E. 330.) with possession of the subject-matter of the trust. T. D. Downing Co. v. Shawmut Corp. 245 Mass. 107, 27 A.L.R. 1522, 139 N. E. 525; Brown v. Green & H. Leather Co. 244 Mass. 168, 138 N. E. 714; People's Nat. Bank v. Mulholland, 228 Mass. 152, 117 N. E. 46. Allegations by Graves not within the scope of his contract authority were not binding upon the plaintiff and are not material to the issues. Thacher v. Moors, 134 Mass. 156; Robinson v. Bird, 158 Mass. 357, 35 Am. St. Rep. 495, 33 N. E. 391; National Wholesale Grocery Co. v. Mann, 251 Mass. 238, 146 N. E. 791. Authority to pledge securities cannot be inferred from authority to sell, even though the proceeds are used for benefit of trust. Loring v. Brodie, 134 Mass. 453; Tuttle v. First Nat. Bank, 187 Mass. 533, 105 Am. St. Rep. 420, 73 N. E. 560. Crosby, J., delivered the opinion of the court: This is an action of tort brought to recover for the alleged conversion of twenty-five thousand pounds of woolen yarn. The plaintiff and the defendant are banking institutions doing business in this commonwealth. After the bringing of this action the plaintiff, a trust company organized under the laws of Massachusetts, was converted into a national bank under the name of the International National Bank of Boston, and conveyed to said bank all its assets; thereafter the International National Bank of Boston was consolidated with the First National Bank of Boston, a corporation organized under the National Bank Act and having its principal place of business in Boston in this commonwealth, and the assets of the plaintiff became vested in the First National Bank of Boston. The material facts respecting which the controversy in the present case arises are in substance as follows: On August 7, 1919, one F. N. Graves, who was engaged in the wcol business in Boston under the name of F. N. Graves Company, through the plaintiff (with whom he had done business for many years) applied to the First National Bank of Boston for a letter of credit in the sum of $83,000 for the purchase of 203 bales of unscoured wool, known as "greasy wool," to be shipped from Buenos Ayres, South America. The performance of the obligations of Graves to the First National Bank of Boston resulting from the issuance of the letter of credit was guaranteed in writing by the plaintiff as a part of the transaction. See Nowell v. Equitable Trust Co. 249 Mass. 585, 144 N. E. 749. The letter of credit was issued and an endorsed bill of lading covering the wool was delivered to the plaintiff. On or about September 19, 1919, Graves signed and delivered to the plaintiff a trust receipt covering the wool from which the yarn was afterwards manufactured. The receipt recited that the wool was the property of the plaintiff; that Graves agreed to hold it in trust for the plaintiff "and as its property, with liberty to manufacture and remanufacture the same without cost or expense to it, and to sell the same for its account . to keep said goods, the manufactured product, and the proceeds thereof, whether in the form of moneys or accounts and bills receivable, separate and capable of identification as the property of International Trust Company, of Boston, and . . . in case of sale, to hand the proceeds to said International Trust Co., of Boston, to be applied by it against the acceptances of, on my (our) account, under the terms of letter of credit No. issued for our account, and to the payment of any other indebtedness of mine (ours) to International Trust Company, of Boston, whether then due or not." The receipt also recited that the plaintiff might cancel the trust at any time and repossess itself of its said property in whatever condition it might then be, or of the proceeds thereof if sold, wherever the same might be found; that Graves should keep the goods fully insured against loss by fire while in his possession; that the insurance money recovered for any loss should be subject to the trust in the same manner as the goods themselves; and it contained other provisions which need not be referred to. When the trust receipt was delivered to the plaintiff, it endorsed and delivered the bill of lading to Graves, who in turn delivered it to Hartmann Brothers to enable them to obtain the wool for scouring. A draft for $78,200 was issued by the First National Bank of Boston under the letter of credit; when it became due on December 15, 1919, it was paid by the plaintiff, the latter receiving from Graves an accept ance for $78,800 endorsed by F. N. Graves Company. At no time did the plaintiff have actual physical possession of the wool or the yarn manufactured therefrom. The trust receipt was not recorded. Graves entered into an agreement with the Webster Dye & Yarn Mills, Incorporated (hereinafter referred to as Webster Mills), to manufacture the wool into yarn, which would be of much greater value than wool, and to pay the Webster Mills for such conversion. This expense was charged by the Webster Mills to Graves or to F. N. Graves Company. When the acceptance for the $78,800 given by Graves to the plaintiff became due, it was canceled, Graves giving the plaintiff in lieu thereof a promissory note, unsecured in form, for the same amount payable on demand. The dealings between the plaintiff bank and Graves had extended over many years and covered many transactions. On March 30, 1920, as Graves then owed a substantial amount to the Webster Mills for the manufacture of the yarn, he applied to the defendant bank for a loan of $12,500, and at the same time delivered to it the following writings: "Mr. Prentis Howard, Pres. Webster Nat'l Bank, Webster, Mass. Dear Sir:-We will give you delivery of 25,000 # yarn all spun at Clinton as collateral against $25, "Webster Dye & Yarn Mill, Webster, Mass. Dear Sir: Deliver to Webster Nat'l Bank 25,000 # Twenty-five thousand pounds yarn. F. N. Graves & Co." At the time of the application for this loan Howard (now deceased) was also president of the Webster Mills, and its principal owner. On April 14, 1920, a loan for $12,500 was granted to Graves, who gave to the defendant his collateral promissory note for that amount, which stated that it was secured by 25,000 pounds of woolen yarn. This note was renewed from time to time, the last renewal bearing date of May 12, 1921, It also appeared that on May 26, 1920, Graves gave a mortgage for $10,864 on the 25,000 pounds of yarn to the Webster Mills. On July 14, 1920, the plaintiff wrote to the Webster Mills as follows: "Gentlemen:-In order that we may make certain verifications of collateral held for account of F. N. Graves Company, will you kindly send us detailed statement of wool or yarn held by you, also kindly advise us of any storage or other charges that there may be against same. Thanking you very much for ter, we are Very truly yours, Howyour prompt attention to this matard Norton, Assistant Secretary." By letter dated July 15, 1920, the Webster Mills replied in substance that the defendant bank had a $12,500 loan on 25,000 pounds of yarn made by the mills for F. N. Graves, and that the mills had a second mortgage of $10,864 on the same collateral; the letter also stated, "Mr. Graves has in addition approximately 5,000 pounds of yarn here unencumbered." On July 20, 1920, Graves paid $30,000 on account of the plaintiff's note of $78,800; the balance of this note is still unpaid. On November 8, 1921, the plaintiff wrote the Webster Mills as follows: "Dear Sirs:-A little over a year ago you advised us that you were holding certain wool and yarn. |