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 mame 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. San, 6 Post, Ala.) 138, In Ellenhan v. Meruire, 6 Exch. 570, it was held that title did not pass to the vendee by shipment of the goods, where the vendor took the ball of bad 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 Siourdy Bar', 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 ven lee at the time for previous advances: Holmes et al. v. German Security Bank, S7 Pa. St. 525, Bat the presumption that title remains in the vendor if he take the bill of la ling in his own nune, 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: Dors et al. v. National Exchange Bank, 91 U. S. 61. In Van Cistel v. Booker, 2 Ex. 691, it was held that a bill of lading, though made out in the name of the con-ignor, may really be taken by him as agent for the consignee. This is fit for the jury. If not taken as agent the consignor must indorse the bill before tidle 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 vender 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 ad vancing 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; Hershall 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. Logon, 74 N. Y. 568, it was held that a bank alvancing 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, A. Co. The court rely upon the case of Famez' and Mechanics' National Bank v. Lapin, 74 N. Y. 568. But that case is entirely different from the principal case in this respect. In that ese 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 Bulalo 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 aeconnt. 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 Earing 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 aud place of the accident, the highway was not reasonably safe and suitable for the travel thereon, and both the plaintiff and Dearborn exer cised ordinary care, the plaintiff might recover; that if a person of average prudence, placed in exactly the situation in which Dearborn and the plaintiff were immediately before and at the time of the accident, possessed of the same knowledge and means of knowledge which they had of all the surrounding circumstances, would or might have done as they did, they exercised ordinary care and were free from fault; that if either Dearborn or the plaintiff did not exercise ordinary care, and by such care the plaintiff would have escaped injury, the verdict should be for the defendant. Verdict for defendant. D. F. Dudley, for plaintiff. W. G. Burton and Chase & Streeter, for defendant. CLARK J.-The case raises the question whether a person who is guilty of no personal negligence, receiving an injury while riding in the carriage of another, caused by a defect in the highway and the carelessness of the driver, over whom he has no control, is prevented by the negligence of the driver from recovering against the town; whether the negligence of the driver of a carriage is a defense to an action brought by a pas senger, personally free from fault, for the recovery of damages for all injury happening from a defective highway. Upon the question whether the negligence of the driver or manager of a carriage is imputable to a passenger the authorities are conflicting. In the leading English case of Thorogood v. Bryan, 8 C. B. 115, a passenger in alighting from an omnibus was thrown down and injured by the negligent management of another omnibus, and it was held that an action could not be maintained against the owner of the latter if the driver of the omnibus in which the passenger was riding, by the exercise of proper care and skill, might have avoided the accident which caused the injury. Although this case has been criticised by English judges, we are not aware that it has been overruled in the English courts; and in Armstrong v. Railway Co., L. R. 10 Exch. 47, decided in 1875, it was followed and approved. In the latter case the plaintiff was injured by a collision of a train of the London and Northwestern Railway Company, on which he was a passenger, with some coal cars of the defendant company. The jury found that the collision was caused by the joint negligence of the London and Northwestern Company and the defendant; and it was held that the plaintiff was so far identified with the London and Northwestern Company that he could not recover: 12 Moak, Eng. R. 508. In this country the doctrine of Thorogood v. Bryan has been approved and followed in some States, and in others it has been questioned and its soundness denied, and the weight of authority seems to be against it. Cases supporting it are found in Wisconsin (Houfe v. Fulton, 29 Wis. 296; Prideaur v. Mineral Point, 43 Wis. 513); in Pennsylvania (Lockhart v. Lichtenthaler, 46 Pa. St. 151; Forks Township v. King, 84 Pa. St. 230); in Iowa (Payne v. Railroad Co., 39 Iowa 523); and in Vermont (Carlisle v. Sheldon, 38 Vt. 440). Two Massachusetts cases are cited as supporting the doctrine: Smith v. Smith, 2 Pick. 621, and Allyn v. Railroad Co., 105 Mass. 77. But all that was decided in Smith v. Smith was that one who is injured by an obstruction unlawfully placed in a highway cannot maintain an action for damages if it appears that he did not use ordinary care by which the obstruction might have been avoided; and Allyn v. Railroad Co. merely decides that there was no evidence for the jury that the plaintiff was in the exercise of due care. The question does not arise in highway cases in Massachusetts and Maine, as it is there held that a town is not liable for an injury caused by a defect of the highway and the negligent act of a third party combined, the construction given to the statute being that no action can be maintained unless the injury arises wholly from the defect: Rowell v. Lowell, 7 Gray 100; Shepherd v. Chelsea, 4 Allen 113; Moulton v. Sanford, 51 Me. 127; Perkins v. Inhabitants of Fayette, 68 Me. 152. The doctrine of Thorogood v. Bryan is denied in New York (Robinson v. Railroad Co., 66, N. Y. 11; Dyer v. Railway Co., 71 N. Y. 228); in New Jersey (Bennett v. Railroad Co., 36 N. J. Law 225; Railroad v. Steinbrenner, 47 N. J. Law 161, 171); in Ohio (Transfer Co. v. Kelly, 36 Ohio St. 86, 91); in Illinois (Railway Co. v. Shacklet, 105 Ill. 364); in Kentucky (Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Railroad Co. v. Case's Adm'r, 9 Bush 728); in California (Tompkins v. Rail VOL. XXXVI.-16 |