
    Lowell Holbrook and Thomas S. Nelson, Plaintiffs, v. Francis Vose, Edward Livingston, Charles L. Perkins, Stewart Brown, and Benjamin F. Dawson, Defendants.
    1. Goods, imported from Europe to the city of Hew York, entered at the custom-house by the owners, and still remaining on shipboard, were sold by the owners, V., L. & Co., in Hew York, to a Eailroad Company of Wisconsin, and the notes of the Company, payable at a future day, secured by a pledge of the bonds of the Company, for the payment of which all the road and other property of the Company, then held or to be acquired, were by authority of the Legislature mortgaged.
    
      The vendors, V., L. & Co., consented that the goods be withdrawn for transportation by carriers to Milwaukie, in boats which had been, by the bond of the carriers to the United States, made Government bonded warehouses. The goods were entered by the agent of the Company, on its behalf, at the custom-house, for transportation in such boats to Milwaukie—the Company, by such agent, giving a bond to the United States for the delivery of the goods to the Collector at Milwaukie. Thereupon, the vendors delivered the goods from the ship directly to the carriers, on board their boats, which came alongside the ship. The carriers signed and delivered to the agent of the Company a receipt, acknowledging that they had received the goods marked with the name of the Company, and the boats began their passage. In the meantime, and before the delivery of the goods from the ship to the carriers, the agents of the Railroad Company borrowed from the plaintiffs, H. & ÍT., $50,000, and gave, as security, a written transfer of the goods, the original bill of parcels, on which the vendors acknowledged they had received the price in notes of the Company, secured by the said bond and an order on the Company’s engineer in Milwaukie, (to whose address the order stated the goods were shipped,) requesting him to deliver the goods to the order of the plaintiffs; which, however, he did not see nor accept until after the goods were stopped. And, afterwards, when the goods had been received by the carriers, the agent delivered to H. & 3ÑL, the plaintiffs, the said carriers’ receipt, with a transfer indorsed thereon, signed by him as such agent. The Company then became insolvent, while the goods were in course of transportation—none of the notes being paid.
    
      Held, 1st. That no such delivery had been made by the vendors to the vendees as would, as between them, defeat the right of stoppage in transitu; and as against such vendees, (the Railroad Company,) the vendors (V., L. & Co.) had a right to stop the goods.
    
      Held, 2d. That the plaintiffs, H. & U., had not, by the transfers in writing and delivery of the papers aforesaid, acquired any such possession of the goods, or any such right of possession as would defeat the vendors’ right to stop the goods, in transitu.
    
    
      Held, 3d. The vendors, Y., L. & Co., having replevied the goods in assertion of their title to stop them at an intermediate place on the journey, and the plaintiffs, H. & U., h^^feued them for a wrongful taking and carrying away, that neither tl^Hftors nor their sureties for the prosecution of such replevin were liable.
    2. A transfer of goods in course of transportation to the vendee at the destination appointed for them when purchased, not accompanied by any delivery of possession to the transferree, nor by any assumption of new obligations by the carrier, founded thereon, will not defeat the vendor’s right of stoppage in transitu, except only in the case of a transfer of a bill of lading to a bona fide transferree for value paying or advancing on the faith thereof..^
    3. Where the delivery made by a vendor is to carriers for transportation, he may stop the goods, the vendee becoming insolvent.
    
      
      4. Where delivery is made by the vendor to the agent of the vendee, who receives them for the purpose of transportation to the vendee, and employs carriers to whom the actual possession is transferred by the vendor, the latter may stop the goods.
    5. The entry of the goods at the custom-house by such agent, on behalf of the vendee, by way of withdrawal for transportation and the giving of bonds for their delivery to the collector of another port of entry, does not defeat the vendor’s right to stop the goods.
    6. Whether the sureties for the plaintiff in an action to recover the possession of personal property (or replevin) who are bound with the plaintiff for the 'prosecution of the suit and the return of the property, if a return be adjudged, are liable to a third person for a wrongful taking, if the goods (being taken by the Sheriff and delivered to the plaintiff therein) are shown to belong to such third person, and not to either the plaintiff or defendant in such action ? Discussed by counsel.
    (Before Bosworth, Ch. J., and Woodruff and Moncrief, J. J.)
    Heard, June 16th, 1859;
    decided, January 21st, 1860.
    This case came before the Court to be heard, upon exceptions taken on the trial thereof, before Mr. Justice Pierrepont and a jury, on the 10th day of March, 1859. Upon which trial the complaint was dismissed. The plaintiffs excepted, and the Judge ordered the exceptions to be heard in the first instance at General Term, and the judgment to be in the meantime suspended.
    The complaint was for the forcible and wrongful taking from the plaintiffs’ possession and carrying away seven thousand three hundred and thirty-eight bars of railroad iron, on the 3d of August, 1857, at Oswego.
    The answer of defendants Yose, Livingston & Perkins, (composing the firm of Yose, Livingston & Co.)
    1. Denied the taking.
    2. Denied that the property belongecLto the plaintiffs, and averred that it belonged to them.
    3. Alleged that, on the 3d August, 1857, they commenced an action for the recovery from the Chicago, St. Paul & Fond du Lac Railroad Company, and Crocker & Jennison, of ten thousand four hundred and seventy-three bars of railroad iron, unlawfully detained from them, (Yose, Livingston & Co.,) that Livingston made an affidavit that they (Yose, Livingston & Co.,) were owners of the property, that it was, wrongfully detained by the defendants in that suit, &c., and .by indorsement on the affidavit required the Sheriff of Oswegój to take the iron and dHive-r it to the plaintiffs, (Yose, Livingston & Co.,) which being delivered to the Sheriff with an undertaking with sufficient sureties, the Sheriff of Oswego took the property and delivered it to the plaintiffs, (Yose, Livingston & Co.,) and if any of the property in the complaint was taken, it was under these proceedings.
    And if the plaintiffs in this suit (Holbrook & Nelson) had any right or title, the defendants in such replevin suit were in the actual possession of the property and were the agents of the plaintiffs in this suit to the extent of any title or interest of such plaintiffs, if any they had.
    The answer of Brown and Dawson, 1st, denied the taking and the value; 2d. Alleged the goods to be the property of Yose, Livingston & Company, and not of the plaintiffs.
    There was very little, if any, controversy in relation to the facts proved on the trial. So far as material to the grounds upon which the decision of the Court was placed, they were as follows, although there were other grounds embraced in the argument based upon other facts, which it is not necessary to state for the purposes of the actual decision:
    The iron in question was imported into the port of New York by the ship National, by Yose, Livingston & Company, on the 17th of June, 1857, and by them entered at the New York Custom-House, they becoming thereby liable to the United States for the duties thereon.
    On the 22d of June, 1857, Yose, Livingston & Company made a written contract with one Hicks, the agent of The Chicago, St. Paul & Fond du Lao Railroad Company, for the sale by them to that Company of two thousand tons railroad iron, at the price of $52 per ton in bond, payable in the promissory notes of the Company at four, six and eight months, with a deposit of the “first mortgage construction bonds” of the Company, to double the amount as security for the payment of the notes.
    The Chicago, St. Paul & Fond du Lao Railroad Company was a corporation created, under an act of the Legislature of Wisconsin.
    Yose, Livingston & Company rendered the following bill of parcels to the Chicago, St. Paul & Fond du Lac Railroad Company for the one thousand three hundred tons of iron in question, being seven thousand three hundred and thirty-eight bars of iron imported by ship Hational, as being part of the two thousand tons sold by the above-mentioned contract; and on July 6, 1857, they received, for the price, the fifteen promissory notes of the Company, at four, six and eight months, with a deposit of one hundred and forty, first mortgage construction bonds of the Company for $1,000 each as collateral security for the notes.
    “ Chicago, St. Paul & Fond du Lac Railroad Company.
    “ To Vose, Livingston & Co.,
    “ For railroad iron delivered under contract of 22d June, 1857.
    June 23, 7338 rails ex National weighing
    1299 9 1 19, at $52 in bond,...........................$67,572 49
    Add interest for 6 months and 3 days at 7 per cent,............ 2,404 45
    $69,976 94
    To be settled by the following notes of the Company:
    New York, 23d June, 1857, 4 months due 23-26 Oct., 1857,.... $5035 00
    New York, 23d June, 1857, 4 months due 23-26 Oct., 1857,.... 5025 00
    New York, 23d June, 1857, 4 months due 23-26 Oct., 1857,____ 5025 00
    New York, 23d June, 1857, 4 months due 23-26 Oct., 1857,.... 4120 32
    New York, 23d June, 1857, 4 months due 23-26 Oct., 1857,.... 4120 32
    New York, 23d June, 1857, 6 months due 23-26 Deo., 1857,.... 5040 00
    New York, 23d June, 1857, 6 months due 23-26 Dec., 1857,.... 5035 00
    New York, 23d June, 1857, 6 months due 23-26 Dec., 1857,____ 5020 00
    New York, 23d June, 1857, 6 months due 23-26 Dec., 1857, ... 4110 32
    New York, 23d June, 1857, 6 months due 23-26 Dec., 1857..... 4110 33
    New York, 23d June, 1857, 8 months due 23-26 Feb., 1858,.... 5015 00
    New York, 23d June, 1857, 8 months due 23-26 Feb., 1858,____ 5010 00
    New York, 23d June, 1857, 8 months due 23-26 Feb., 1858,____ 5015 00
    New York, 23d June, 1857, 8 months due 23-26 Feb., 1858,.... 4150 32
    New York, 23d June, 1857, 8 months due 23-26 Feb., 1858,.... 4145 33
    $69,976 94
    “To be secured by a deposit of 140 of the Company’s first mortgage construction bonds.
    “E. E. Hew York, 23d June, 1857.
    “Received payment, by notes of four, six and eight months from July 3d, 1857, and 140 bonds as collateral for the within.
    “ Vose, Livingston & Co.,
    “ Per Q-eo F. Bate.
    “Hew York, July 6, 1857.”
    These bonds were secured by a mortgage dated April 6, 1857, made by the Company to William A. Booth, James F. D. Lanier and William B. Ogden, as trustees; mortgaging to them, for the security of the bondholders, the entire railroad of the Company, constructed and in course of construction, from Chicago, through Janesville and Fond du Lac, to Lake Superior, and all the land, right of way, railways, rails and materials connected with or intended for the construction of their railroad, then owned or thereafter to be acquired by the Company, and all the rights which the Company then had, or should thereafter acquire, under acts of Congress and of the State of Wisconsin, in certain public lands granted in aid of the construction of their railroad..
    By the terms of the grant, these lands were to vest in the Company from time to time, as they should construct sections of their railroad twenty miles in length.
    And by acts of the legislature of Wisconsin, the Company were authorized to mortgage their railroad, and to mortgage all interest in the lands above-mentioned, and all other property and estate, whether real or personal, which they might have at the time of executing such mortgage, or which they might subsequently acquire.
    At the time Y ose, Livingston & Company rendered their bill for the iron and received the notes and bonds to secure its price, the iron, having been entered by them for warehousing, was under their bond at New York, subject to the duties due to the United States Government, but still on board their ship, not yet landed.
    On the 3d of July, the Vice-President and agent of the Railroad Company, with the written consent of Vose, Livingston & Company, as the original importers, made at the New York Custom House a withdrawal entry of the iron imported by the National, for transportation in bond to Milwaukie, under the warehousing act, the entry specifying that the transportation was to be “ per Troy & Oswego line to Oswego, thence per sailing vessel to Milwaukie, consigned to S. F. Johnson ” (who was engineer of the road.)
    This withdrawal entry was perfected July 3, 1857, by the oath of Hickok, the Vice-President of the Railroad Company, that the goods were in good faith intended to be transported to Milwaukie, and by the bond of the Railroad Company executed by him with surety, to the United States given under the warehousing act, in the penalty of $103,168, conditioned for the transportation of the iron in bond to Milwaukie, and its delivery to the collector of the customs there within ninety days, or such longer time as the Secretary of the Treasury should allow, and for production to the collector at New York of the certificate of the collector at Milwaukie of the delivery of the iron to him, or in default thereof for the payment of the duties with, an additional duty of 100 per cent.
    Upon the perfecting of the withdrawal entry, a permit was obtained from the New York Custom-House for the delivery of the iron, marked port of New York in bond for Milwaukie, and reciting that it was for transportation.
    “ The Troy and Oswego Line,” by which, according to the terms of the withdrawal entry, the transportation was to be conducted, was a line of canal boats owned by the firm of L. B. Crocker & Co., which firm consisted of L. B. Crocker and George .Jennison, Crocker transacting the business at Oswego, and Jennison at New York. They were accustomed to carry goods from New York to Oswego in canal boats, and to forward from Oswego in lake vessels.
    To entitle themselves to be entrusted with the custody and transportation of property in bond, Crocker & Jennison had, on the 24th April, 1857, given to the United States a bond, with surety, conditioned that they should comply in all respects with the provisions and requirements of the warehousing laws and the regulations of the treasury department. This bond contains the provisions usually applicable to the keeper of a warehouse on land, who is entrusted with the custody of goods in bond, and is manifestly in the general form used in such case, as it provides for the deposit or keeping of imported merchandise under the provisions of the several acts of Congress concerning warehousing, in the store or premises, known as “ The Troy & Oswego Line of Canal Boats.” So that their boats were treated as a warehouse under the warehousing act of Congress, and they xyere not to suffer any of the goods to be removed without lawful permit.
    Under this withdrawal entry, permit and bond, the Troy & Oswego line, under the immediate management of George Jennison, one of the firm of L. B. Crocker & Co., received from the defendant’s ship National, for transportation to Milwaukie, the iron in question. The iron was received into eight different boats and barges, at different dates, commencing July 10, and ending July 21. The ship National was discharged at a wharf in Brooklyn, and these boats went alongside of her and received the iron direct from the ship.
    After all the iron had thus been received, and on the 22d July, the Troy & Oswego line, by George Jennison, agent, gave a general shipping receipt as follows:
    “ Troy and Oswego Line,
    Office, 107 Broad street.
    “ Proprietors,
    L. B. CROCKER & CO.,
    
      Oswego.
    
    “MARKED.
    Chicago, St. Paul, Fond du Lac R. R. Co.
    “ Received, New York, July 22, 1857, from ship National, the following articles on board boat, viz.:
    Seven thousand three" hundred and. thirty-six bars Railroad Iron (7336 rails.”)
    The following liabilities and losses excepted. ****** “ For the Troy & Oswego Line,
    GEO. JENNISON, Agent."
    
    The last of the iron left New York on the 21st or 22d of July.
    The Railroad Company failed, and became openly insolvent in the latter part of July. Their paper went to protest about the 25th of July, 1857.
    On the 1st of August, 1857, Yose, Livingston & Company gave notice, in writing, to Jennison, the carrier, that they claimed the iron in question as their property, forbade its removal or forwarding beyond Oswego, and notified him that they would hold all the partners of L. B. Crocker & Company, responsible if it should be removed. And on the 3d of August, at the request of Yose, Livingston & Company, Jennison telegraphed Crocker of their claim, and requested him to stop the iron.
    On the 3d of August, 1857, Yose, Livingston & Company commenced in the Supreme Court a replevin suit against the Railroad Company and. the carriers for the recovery of the iron in question, (and other iron forming part of the 2,000 tons.) The summons, complaint, affidavit on claim of immediate delivery of personal property under the Code, requisition for such delivery and undertaking in that action, were in proper form. The undertaking is executed by Vose and Livingston as principals, and by the defendants, Stewart Brown and Benjamin F. Dawson, as sureties in the usual form, and thereby Brown and Dawson became bound, as sureties, for the prosecution of the action by Vose, Livingston & Company, and for the return of the property, if a return thereof to the defendants therein should be adjudged, and for the payment to those' defendants of any sum which they might recover against Vose, Livingston & Company.
    These replevin papers were delivered on the 4th August to the Sheriff of Oswego County. The Sheriff on the same day served copies of the papers on Crocker, who sent a clerk to point out the iron to the Sheriff. The iron was in piles on - different docks in the harbor of Oswego, just as it had been unladen from the canal boats, excepting 430 bars which had gone forward to Milwaukie. It was awaiting transhipment westward. It was in the possession of Crocker, through George Seely, Crocker’s warehouseman and agent, who had the actual custody.
    The Sheriff counted the bars of iron in each pile, and marked each pile with a cross in white paint, then notified Crocker that he had done so, and that he must not remove the iron, as he (the Sheriff) claimed possession of it under the replevin papers.
    After three days had expired from the time of serving the papers, no claim having, been made by any third person, and no bond having been given by the defendants in the replevin suit, the Sheriff, by direction of the attorneys of Vose, Livingston & Company, made a verbal delivery of the iron to George Seely, as warehouseman for the plaintiffs in the replevin suit, and Seely gave a receipt for it to Vose, Livingston & Company.
    The Sheriff did no physical act in relation to the iron, save counting it in the piles as it lay, and marking the piles with crosses in white paint; he did not remove or turn over a bar of it.
    On 24th September, 1857, Seely, by direction of Vose, Livingston & Company, shipped 566 bars of the iron to Chicago, where it appears to have been placed in a bonded yard.
    
      At the time of the trial, all of the iron alleged to have been taken, except the 566 bars, remained at Oswego.
    About the last of September, 1857, the United States, through the collector at Oswego, took possession of the iron, and such possession of the United States appears to have been maintained up to the time of the trial.
    On 6th August, 1857, Holbrook & Nelson commenced this action, claiming a special property in so much of the iron which had been the subject of the replevin proceedings as had been imported by the ship National, and seeking to charge Vose, Livingston & Company, and Brown & Dawson, as their sureties in the undertaking given in the replevin suit for the value of such iron, as trespassers, by reason of what had been done under the replevin process. Brown & Dawson had done no other act than executing the undertaking as sureties.
    Holbrook & Nelson’s (the plaintiffs’) claim of title to the iron rests on the following facts:
    On 10th July, 1857, William B. Ogden, Charles Butler, and J. W. Hickok, the Executive Committee of the Chicago, St. Paul and Fond du Lac Railroad Company, (7. e., three of the Committee,) made an order, in writing, authorizing J. W. Hickok, Vice-President of the Company, (one of the Committee,) to borrow of Holbrook & Nelson $50,000, and to hypothecate with them, for payment of such loan, thirteen hundred tons railroad iron, imported by ship National, then in course of transhipment from New York to Milwaukie, consigned to S. F. Johnson, engineer.
    The authority of the Executive Committee to act in behalf of the Chicago, St. Paul and Fond du Lac Railroad Company is derived from a provision of the by-laws, in these words: “ The three agreeing, said Committee shall have all the power and authority of the Board of Directors, when said board is not in sessionand from a declaration of their powers, in these words: “ And generally to do all other acts and things for the promotion of the interests of this corporation which this board have power to do.”
    Early in July, 1857, Hickok and others, on behalf of the Railroad Company, applied to Holbrook & Nelson for á loan of some money or their notes. There were negotiations for five or six days; and, on the 10th July an arrangement was closed, under which, on that day, Holbrook & Nelson advanced to the Company their promissory notes for $50,000, having an average of ninety days to run, (which notes, at their maturity, were paid,) and at the same time, as security for the repayment of such loan, received the original bill of parcels, (above set forth,) and the following instrument and order on Johnson, (the consignee,) together with a copy of the above-mentioned order of the Executive Committee:
    “New York, July 10, 1857.
    “ The Chicago, St. Paul and Fond du Lac Eailroad Co. having purchased and paid for 1,300 tons of railroad iron, as per invoice herewith, imported per ship National, and now discharging from said vessel under permit of the U. S. Custom-House, for its transhipment from New York to Milwaukie, subject to delivery there to J. F. Johnson, engineer of said road, on payment of duties thereon:
    “ Now, the said Chicago, St. Paul and Fond du Lac Eailroad Co., having this day borrowed of Messrs. Holbrook & Nelson, of this city, on the security of said iron, fifty thousand dollars, doth hereby transfer to the said Holbrook & Nelson the said 1,300 tons of iron as security for the payment of the said $50,-000, on an average of 90 days from this date, and have delivered herewith an order on the consignee aforesaid for the delivery of the said iron.
    “ Chicago, St. Paul and Fond du Lac Eailroad Co.,
    “By J. W. Hickok, Vice-Pres’t.”
    
    “ Chicago, St. Paul and Fond du Lac Eailroad Co.,
    
      11 New York, July 10th, 1857.
    “ S. F. Johnson, Esq., Engineer, Milwaukie:
    “You are hereby authorized and requested to deliver to the order of Messrs. Holbrook & Nelson, of this city, the whole or any part of thirteen hundred tons of railroad iron, or to transfer 9,11 title to the same to them, the said iron being now about to be shipped to your address, (imported per ship National,) under custom-house permit, to be delivered in Milwaukie, subject to your order on payment of duties.
    “ Chicago, St. Paul and Fond du Lac E. E. Co.,
    “ By J. W. Hickok, Vice-President.”
    
    
      This order upon Johnson, Holbrook & Nelson forwarded at once, for the purpose of obtaining Johnson’s acceptance, but, by mistake, it was sent to Chicago, and, in consequence, it did not reach Johnson until after Yose, Livingston & Co. had replevied the iron, and this present action had been brought against the defendants for the taking in replevin. On the 10th of August Johnson received the order, and sent it back to the plaintiffs with his indorsement, as follows:
    “ Chicago, August 10,1857.
    “I do hereby recognize the transfer of the within named property to Holbrook & Nelson, of New York, and agree to hold the 1,800 tons of iron named, subject to their order.
    “S. F. Johnson.”
    Hickok, at the time of the loan, July 10th, stated to Holbrook & Nelson that the iron was being discharged, and would, of necessity, go into different boats for transportation; that it had been entered by them for transportation at the custom-house, and the permit would be given to them, and the bill of lading would not be given until the entire parcel was delivered, and would then cover the whole.
    On the 22d day of July, Hickok delivered to Holbrook & Nelson the shipping receipt, signed by “ Geo. Jennison, Agent” for the “ Troy & Oswego Line,” above set forth, with the following indorsement made thereon by Hickok, viz.:
    ‘ The Chicago, St. Paul and Fond du Lac Railroad Company hereby assign and transfer to Messrs. Holbrook & Nelson the within iron, (shipped ex ship National,) as collateral security for their notes issued to the Company to the extent of fifty thousand dollars, as per agreement bearing date July 10th, 1857.
    “New York, July 22, 1857.
    “ Chicago, St. Paul & Fond du Lac R. R. Co.,
    “ By J. W. Hickok, Vice-President."
    
    And on the 1st of August, the same day on which (as above stated) Yose, Livingston & Co. gave notice to Jennison of their claim in assertion of their right to stop the goods, forbidding its removal from Oswego, and declaring that they should hold his Line responsible, &c., Jennison indorsed on the said shipping receipt the following recognition of the transfer by Hickok to Holbrook & Nelson
    “New York, August 1, 1857.
    “I hereby recognize the transfer of the within mentioned property to Holbrook & Nelson.
    “ Geo. Jekthisoh.”
    Whether this recognition was signed before or after the notice was received by Jennison from Yose, Livingston & Co., the plaintiffs did not prove, and their witness, Jennison, was unable to recollect. Before this time, Holbrook & Nelson were aware that paper of the Railroad Company had been protested; and proofs were given showing that they knew much earlier that the Company was not in good credit, and that they knew the nature of the mortgage bond which Yose, Livingston & Company had received as security, and that the Company had then recently purchased (including the iron so purchased from Yose, Livingston & Co.,) ten thousand tons of iron, which would complete twenty miles of their road, for which they would be entitled to one hundred and fifty thousand acres of land, and that the said bonds would be a lien upon the road and on the land.
    It appeared that Holbrook and Nelson, although they received the instruments above stated as security for their loan, did not do so with intent to prevent the iron from going forward. They consented to its going on agreeably to its destination, and knowing that the Company intended to lay it on their road. They were to receive a commission of three per cent. They expected reimbursement within thirty or sixty days, and had such confidence in the Company, that they consented to the iron going forward to be laid down by the Company on their road.
    The defendants, Brown and Dawson, moved that the complaint be dismissed, on the ground that their being parties to the undertaking was not sufficient to charge them with the taking of the property.
    The defendants, Yose, Livingston and Perkins, made the like motion, on grounds fully embraced in the points of their counsel on the appeal.
    
      The Judge dismissed the complaint, and the plaintiffs’ exceptions, as to the dismissal in favor of each of the defendants, were ordered to be heard in the General Term, as above stated.
    
      Daniel Lord, for the plaintiffs.
    I. By the transfer of July 10th, and the order by the Railroad Company of the same date, followed by their transfer of the carrier’s contract of July 22d, the plaintiffs acquired the title, the right of immediate possession, and the actual possession of the iron in question, sufficient to maintain trespass. (Root v. Chandler, 10 Wend., 110; Ely v. Ehle, 3 Comst., 506, and cases cited.)
    1. The carriers have no possession to defeat or impair the transfer of actual possession by the Railroad Company.
    2. The possession of the carriers, and the expected possession of Johnson, the mere servant of the Company, was the actual possession of the Railroad Company, and was actually transferred to the plaintiffs by the papers of July 10th and July 22d.
    3. The notice to Johnson of July 10th was a transfer of the actual possession by the Railroad Company to the plaintiffs; it did not depend on his recognition; he was a mere servant.
    4. That the plaintiffs consented that the iron might go on to its original destination, was an affirmance of their actual possession, and had no effect to impair it. The plaintiffs had the right to receive it, subject to paying duties on its arrival to Oswego or Milwaukie, and with the obligation to transport it there.
    5. It is only when the actual possession is adverse to the plaintiff, and not subject to his immediate control, that his right to sue in trespass is impaired.
    II. There was no possession in the United States,' or officers of its revenue, which impaired either the legal or actual possession of the plaintiffs as derived from the Railroad Company.
    1. The delivery from warehouse on the entry for withdrawal and bond by the Railroad Company was a putting of them into full possession, and entitled them to all possessory rights and remedies.
    2. The possession of the United States was parted with fully on the faith of the bond and the right to seize on default.
    3. The right to duties on the part of the United States, even if attended with a right to seize on default of transporting, does not interfere with the transferability of title or possession. (4 Mason R., 502; id., 515.)
    • 4. The act of the defendants in seizing this property is conclusive as to their understanding of the character of the United States possession.
    5. The defendants, Yose, Livingston & Company, with full knowledge, and the sureties as privies with them, state in the complaint, and swear in the affidavit, and recite in the undertaking, under which they procure delivery of the iron to them, that the goods are in possession of the Railroad Company and their carriers; they cannot be heard to say that the iron continuously was in possession of the United States or its revenue officers.
    6. Although while the goods are in actual possession of the officers of the revenue before duties are paid, the goods cannot be attached for debts of the importer, it is, nevertheless, true that the owner as to all other persons has every possessory remedy; if it were needful in this case to assert this principle. (Warehouse Act, Aug. 6, 1846, §§ 1, 2 ; [5 Story, U. S. L., 3125, 7;] extending of it, March 28, 1854, §§ 5, 6, Sess. Laws, 272; Brightley’s Dig., U. S. L., 385, 389; Harris v. Dennie, 3 Peters R., 292.)
    III. Vose, Livingston & Company do not claim in this suit as creditors, but as vendors having a right of stoppage in transitu. They had not, as vendors, any such right. (Harris v. Pratt, 17 N. Y. R., 264.)
    1. The iron in question was not as to the present parties in transitu between Europe and New York, having been imported by Yose, Livingston & Company on the 17th June, and prior to the contract with the Railroad Company.
    2. The sale by Yose, Livingston & Company to the Railroad Company was a sale here, for delivery to them here, and not to them at any other port, nor to any agent or third person for them.
    3. Yose, Livingston & Company, by their order of July 3d, subscribed to the withdrawal entry, in favor of the Railroad Company, the bond of the latter to the government, and the freight contract of the Railroad Company with the carriers, completed the actual and final delivery to the Railroad Company here, as vendees themselves, and not to a middleman for them.
    4. Yose, Livingston & Company also had received both the notes and the securities for their payment dated from the average delivery, and thus, on their part, admitted a full delivery to the Railroad Company.
    5. In like manner all the custom-house documents show a delivery to the Railroad Company for transportation by them, and not to another to be transported to them.
    6. If the right of stoppage in transitu could be deemed to exist, then the transportation to Milwaukie could be defeated by Yose, Livingston & Company, and the iron exposed to seizure, notwithstanding their bringing the Railroad Company into the bond to pay duties, and 100 per cent in addition unless they deliver them there.
    IV. Vose, Livingston & Company, in the proceedings in question, assume to stand only as owners and not as creditors or purchasers; they could not object to the transfer of July 10, even if no possession had attended it. (Moseley v. Moseley, 15 N. Y. R., 336.)
    2. Nor can they, as holders of bonds, delivered on a contract of sale which they seek to rescind, set up any claim under the mortgage in evidence.
    3. Nor can any claim, that those mortgagees had title, be set up by these defendants; the mortgagees certainly never had possession; nor is any title in them set up in the pleadings, but the contrary. (13 J. R., 276-283; 1 Wend., 467.)
    V. The act of trespass is fully sufficient, being a levy by process against other persons than the plaintiffs on the property of the plaintiffs. (Shipman v. Clark, 4 Denio, 446; 7 Cow., 738; 2 Comst., 115.)
    VI. As the levy was a trespass by Yose, Livingston & Co.; Brown and Dawson, the sureties who unite with them to accomplish the trespass, by making it lawful by the Sheriff, are aiders in it and are equally liable.
    1. That those who aid in a trespass by being sureties to induce a levy, are liable with the principal, is settled as a general principle in Root v. Chandler, (10 Wend., 111,) Davis v. Newkirk, (5 Denio, 92,) Ford v. Williams, (3 Kern., 578; 15 N. Y. R., 411.)
    
      2. That although the Sheriff is justified by his specific process against described chattels in replevin, yet that the plaintiff in replevin is liable in trespass, is also settled. (13 Wend., 256; Shipman v. Clark, 4 Denio, 446. But see Harrison v. Ridley, Comyn’s R., 596, that the Sheriff is liable as a trespasser for taking a stranger’s goods. Bacon Ab. Replevin, E. 7, p. 68; Stimpson v. Reynolds, 14 Barb., 508; 4 Duer, 431.)
    3. To give color of law to his trespass, and to prove the Sheriff’s action to accomplish it, the plaintiff in replevin (by which is meant the claim and delivery under the Code,) must affirm his ownership, the wrongful detention, the alleged cause, and the value. (§ 207.) Sureties must then unite with this plaintiff to support these allegations. (§ 209.) It is the concurrence of the sureties, which alone enables the plaintiff in replevin to commit the trespass; they enable him to take the property; how can it be argued, that if the plaintiff in replevin commits the trespass they are not aiders in it!
    5. The sureties in this action are not mere official persons, like the sheriff, bound, to do the act; nor mere servants whose personal responsibility does not come into action, but they are the persons pledging their responsibility for the plaintiff being right, and volunteering on sufficient motives to do so.
    6. The sureties who aid to commit a trespass, cannot limit their liability as to parties, and confine it to the obligees in the undertaking; they are liable, not as contractors but as abettors of a trespass. They deliberately and of design effect what turns out to be a trespass.
    It is a clearly settled rule that the trespasser, and those who aid him as principals, are liable for every tortious interference with the property, their bona fides does not protect them; so that whoever cooperates in an act of force is sufficiently warned to see to its being rightful. (Hoffman v. Carow, 22 Wend., 285; Com. Dig. Trespass, c. 1., citing 2 Rol., 552, 1., 17, 22.
    A new trial should be ordered.
    
      William M. Evarfs, for the defendants, Vose, Livingston & Company.
    I. The proceedings of the Sheriff under the'process in the replevin suit, did not in law amount to a taking of the property.
    
      There was no physical interference with or disturbance of the iron. The doings of the Sheriff were merely verbal, and the alleged taking is constructive, the property was in law in the possession of the United States Government, and subject to their paramount lien for the duties.
    The proprietors of the bonded line of canal boats, held possession as agents of the Government. (Laws U. S., 1854, ch. 30, §§ 5, 6.) The property thus situated was not subject to replevin process issuing from the State Courts. (Harris v. Dennie, 3 Pet., 292.) The Sheriff left the iron where he found it—in the legal possession of the United States.
    II. If there was a taking- of the property, it was by regular process in the replevin suit, which was brought against the carriers having the immediate possession of, and a special property in, the iron, and the Railroad Company claiming as general owners: the claim of the present plaintiffs is merely of an intermediate special property, and if they have any title or right of possession, it is fully represented in the replevin suit by the carriers, their bailees: the plaintiff’s remedy is by defense of that suit through their bailees, causing themselves, if they choose, to be made parties under section 122 of the Code; and they cannot maintain this independent action to try their title.
    III. As between vendor and vendee the iron in question was clearly subject to the vendor’s right of stoppage in transitu, and such right was duly exercised by the notices given to the carriers on 1st August, and the service of the replevin papers on 4th August.
    1st. The right of stoppage in transitu exists until the goods have reached the ultimate destination named by the vendee, or understood between the parties at the time of the sale. (Harris v. Hart, 6 Duer, 606; Harris v. Pratt, 3 Smith, [17 N. Y. R.,] 249.) And such right is not barred by :
    
      (a.) Delivery for transportation to any carrier or middleman, appointed or engaged by either vendor or vendee, or on board a ship chartered by the vendee. ( Whitehead v. Anderson, 9 Mees. & Welsb., 518; Covell v. Hitchcock, 23 Wend., 611; Buckley v. Furness, 15 id., 137.)
    
      (b.) Nor by delivery, at the place of sale or elsewhere, to an agent of the vendee, who receives the property for the purpose of shipping or forwarding it to its destination, nor by its shipment accordingly by such agent, though he be not by occupation a mere forwarder or shipping agent. (Smith v. Goss, 1 Camp., 282; Coates v. Railton, 6 B. & C., 422 ; Jackson v. Nichol, 5 Bing. N. C., 508 ; Harris v. Hart, Harris v. Pratt, supra.)
    
    
      (c.) Nor by the delivery to the vendee, of an invoice, with an acknowledgment that the goods are held by the vendor on storage for the vendee, and subject to .his order. (Dixon v. Yates, 5 Barn. & Adol., 313; Townley v. Crump, 4 Ad. & El., 58.)
    
      (d.) Nor by the entry of the goods by the vendee at the custom-house, though after arrival at the place of their ultimate destination. (Harris v. Hart, Harris v. Pratt, supra.)
    
    
      (e.) Nor is it necessary, as a condition of exercising the right, to tender back bills which the vendee has given for the price of the goods. (Edwards v. Brewer, 2 Mees. & Welsb., 375.)
    2d. In the case at bar, the destination of the goods named by the vendee, and understood between the parties at the time of the sale, was Milwaukie, or some place in Wisconsin.
    
      (a.) The purchaser was a corporation located in Wisconsin, and the persons who entered into this transaction on its behalf, in New York, acted as the agents of a foreign principal.
    
      (b.) The iron was purchased for use in constructing its railroad in Wisconsin.
    
      (c.) It had no corporate authority or right to make the purchase, except for that purpose.
    
      (d.) The security given to the vendors for the price, consisted of mortgage bonds, constituting a lien on the road to be built with this iron, and to give due effect to this security, the transportation of the iron to Wisconsin was essential.
    
      (e.) The issue of these mortgage bonds to Yose, Livingston 6 Company, would have been a fraud upon the other bondholders secured by the mortgage, if the iron for which the bonds were thus issued, had been purchased for any other purpose than the construction of the road upon which the mortgage was a lien.
    3d. The only delivery which was made of the iron at New York, was a delivery directly from the ship of the vendors, in which they had imported it from Europe, to the carriers who had engaged to transport it to Milwaukie.
    
      4th. The only custom-house document given by the vendors, was their written consent to the withdrawal entry, for transportation to Milwaukie.
    5th. Apart from their right to have the iron sent forward to Wisconsin, and laid upon the road to perfect the security of the bonds given to them, Vose, Livingston & Company had a vital interest in the strict pursuance of the course of transportation provided by this withdrawal entry to which they assented, by reason of their personal liability to the Government for the duties. No withdrawal entry could have been made without their assent.
    The sale being at so much per ton “ in bond,” the payment of the duties was assumed by the vendee, and their amount was not included in the notes.
    6th. The vendees never had the possession or control of the iron: they had no power to sell or dispose of it in New York, nor any election as to the route of transportation it should follow. There was never a moment when they had either the right or the power to divert it from transportation to Milwaukie.
    (a.) They had not the right—because of their obligation to the vendors to lay the iron upon the road upon which the mortgage bonds given to secure the price were a lieu.
    (6.) They had not the power, because the iron, being in the custody of the United States in bond for the duties, could not be moved in any way except by the permission of the Government.
    7th. The only acts of the vendors which can be relied upon by the plaintiffs, as amounting to, or tending towards, a delivery of the property to the vendees, or as placing it under their control, are:
    
      (a.) The giving of the bill of parcels or invoice: Which does not affect their right of stoppage. (5 B. and Ad., 313; 4 Ad. and El., 58.)
    
      (b.) The manual delivery: Which was directly to the carrier for transportation to the ultimate point of destination.
    (c.) The consent to the withdrawal entry: Which, so far from placing the property under the control of the vendees in New York, expressly and irrevocably destined it to transportation to Milwaukie in bond, and made it liable to forfeiture in case of diversion from that route.
    
      8th. Rarely, if ever, has there been presented a case with circumstances of so strong equity as this in favor of the right of stoppage in transitu, which is an equitable right; first asserted in the Court of Chancery, and thence adopted by the Courts of law. (2 Kent Com., 542.)
    Usually, the extent of the transitus or its existence at all is a matter not entering into the contract, and not material to the granting of the credit, and the right of stoppage depends very much upon accidental circumstances.
    Here the transitus was to be to a specified point, at which the property was to be so disposed of as to subject it to the specific lien of the mortgage bonds given to secure the price.
    So that as soon as by ending of the transitus, the equitable lien (by right of stoppage in transitu), which the law gave the vendors was to cease, the specific lien which the contract gave them was to come into effect.
    And if there was a point intermediate the arrival of the iron at Milwaukie, and its laying upon the road, when they would seem to be without lien, they were protected in that behalf by the mortgage under which the bonds were issued, having -such effect as the laws of Wisconsin give it, which laws would clearly operate upon the iron as soon as it reached that State.
    IV. The plaintiffs have not acquired any superior title barring the vendor’s right of stoppage in transitu.
    
    1st. To create such superior title, there must be a transfer by the vendee to a bona fide purchaser for valuable consideration parted with upon faith of the delivery to such purchaser of the actual possession of the property itself, or of some document which is its symbol and complete representative, such as a regular bill of lading duly indorsed, which operates as a constructive transfer of the possession of the property—the superior equity arising only in favor of a person who has been led to part with his money or property on faith of the transfer to himself of the possession and control with which the vendor has intrusted the vendee.
    The right of the original vendor is not barred.
    
      (a.) By a sale to a sub-vendee, and his payment of the price, where the possession is not given to him. (Dixon v. Yates, 5 Barn. & Ad., 313; Townley v. Crump, 4 Ad. & El., 58; Craven v. Ryder, 6 Taunt., 433.)
    
      
      (b.) Nor by a sale or advance accompanied by a transfer of a shipping receipt, or by an order for the goods. (Akerman v. Humphrey, 1 C. & P., 53—cited and approved in Tucker v. Humphrey, 4 Bing., 522, 523; Jenkyns v. Usborne, 7 Mann. & Grang., 678; Opinion of Tindal, Ch. J., 699; Bonito v. Mosquera, Opinion of Chief Justice Duer, 2 Bosw., 401.)
    (c.) Nor by a seizure under attachment, or execution against the vendee. (Smith v. Goss, 1 Camp., 282; Buckley v. Furniss, 15 Wend., 137; Hitchcock v. Covell, 23 Wend., 611.)
    
      (d.) Nor by a transfer to secure a pre-existing indebtedness. (Spalding v. Ruding, 6 Beav., 380; Harris v. Hart, Harris v. Pratt, supra.)
    
    (e.) Nor by the transfer of a bill of lading regularly indorsed, where the transferree has notice of the vendee’s insolvency, or knows “that the bill of lading is not fairly and honestly assignable,” or where the transferree “ assists in contravening the actual terms of sale on the part of the consignor, or his- reasonable expectations arising out of them, or his rights connected therewith.” (Cuming v. Brown, 9 East, 512, Opinion of Lord Ellenborough, 514.)
    2. In the case at bar the advance was not accompanied by any delivery of the property, or of any document symbolizing or representing it; nor was there any attempt at delivery to the plaintiffs of any possession, either actual or constructive.
    3. The plaintiff’s title must depend upon what they received on the 10th of July, when they made the advance. If they did not then acquire a good title as against Vose, Livingston & Company, the subsequent delivery to them even of a regular bill of lading, or other documentary representative of the property, or the subsequent delivery of the property itself, though in pursuance of a promise made at the time of the advance, would not have availed them. (Bonito v. Mosquera, MS. Opinion of Chief Justice Duer; Bonzi v. Stewart, 4 Mann. and Grang., 295.)
    4. At the time the advance was made there could have been no delivery by the Railroad Company of the property, nor of any document representing it, nor could there have been any advance predicated upon any possession or apparent title or control entrusted by the vendors to the vendee. For at this time the property had not even been entrusted to the carriers; but it was yet in the possession and under the control of the vendors, in their ship of importation, standing in place of their own warehouse—the deliveries from the ship to the canal boats not having commenced until the 10th July.
    5. The only documents upon which the advance was made 'were:
    1. The invoice or bill of parcels, which is not a document of title, and does not aid the plaintiffs. (5 B. & Ad., 313; 4 Ad. & El., 58.)
    2. The assignment of July 10, executed by Hickok in name of the company, which is not a document at all symbolizing or representing the property, but is at most a chattel mortgage; utiaceompanied by change of possession, and not filed as chattel mortgages are required to be, and so void even as against ordinary creditors of the company, and of no effect as against these vendors being creditors, having, by the law of stoppage in transitu., a specific lien for their debt upon the mortgaged property, and by its express terms, coupled as it is with-the accompanying order on Johnson, postponing the mortgagee’s right to acquire possession until the happening of a future event, viz., the arrival of the iron at Milwaukie, and payment of the duties.
    3. The order on Johnson, which could not enlarge or strengthen the plaintiffs’ rights under the accompanying 'mortgage until its acceptance, which was not made until after the rights of all parties had become fixed and this suit had been commenced, and which, even if it had been accepted by Johnson at the time it was delivered to the plaintiffs, would have been ineffectual, as the property was not then in his possession, and in fact never came to his hands or under his control.
    6. The attempted hypothecation of the iron to the plaintiffs by Hickok upon the transaction of July 10, was unauthorized and invalid, even as against the company.
    
      (a.) The executive committee had no power to do or authorize such an act, which was in utter subversion of the rights previously granted by the company to the bondholders by the existing mortgage executed under the corporate seal.
    (5.) The attempted delegation to the executive committee, by the by-laws, in general terms, of “ all powers vested in the board of directors when such hoard should not be in session,” was illegal.
    (c.) The order of the executive committee > authorized the hypothecation of the iron to secure a loan of $50,000 in money.
    This was a very different thing from its hypothecation as security for a loan of notes, upon the burdensome terms of paying a commission equivalent to twelve per cent a year, besides interest, and which, if the pledgees had obtained possession of the iron and had not paid their notes, might have involved the company in a total loss of the iron or its value.
    7. The things done subsequent to the advance of July 10, do not help the plaintiffs.
    (a.) Because if any regular securities had been subsequently given, they would have been for an antecedent debt.
    (b.) There was no attempt by Holbrook & Nelson to take any possession under their mortgage.
    The carriers received the iron as for the company, and while receiving it did not know Holbrook & Nelson in the transaction.
    When the lading of the canal boats was completed on 22d July,' the bill of lading (so called) was given to the company.
    (c.) The document given by Jennison on 22d July, is not a bill of lading, and has not the legal characteristics of that instrument. (Covill v. Hill, 4 Denio, 330.)
    
      (d.) It was not treated as a bill of lading nor indorsed or transferred as such. The indorsement made upon it by Hickok on 22d July, is merely a confirmation of the mortgage of July 10, referring to that instrument, and thereby re-affirming that feature of it which postponed the mortgagees’ right of possession until after the property should be received by Johnson, the consignee at Milwaukie, and the duties should be paid. And the indorsement refers to the (within) shipping receipt, merely for identification or description of the property.
    (e.) The recognition signed by Jennison on 1st August was obtained by the plaintiffs after they knew of the vendees’ insolvency, and cannot add to their rights. It was not given in pursuance of any previous promise.
    If on that day the plaintiffs had advanced their $50,000 in money, and had then received actual delivery of the property, or regular and complete documents of title, they would not have been protected. (Cuming v. Brown, 9 East, 514.)
    8. If upon or previous to the 10th July, the vendors had parted with possession, and if the advance of the plaintiffs on that day had been made upon a cotemporaneous delivery to them of the property itself, or of a regularly indorsed bill of lading, they would not be entitled to protection as bona fide purchasers.
    For they had express notice that the iron was purchased to be laid upon the road; that the purchase was upon credit, for notes secured by the mortgage bonds; were familiar with the characteristics of the bonds and mortgage, and knew that the bonds were to be a lien upon the road to be built with the iron, and on the lands to be acquired under the land grant of Congress by construction of such road.
    They consequently knew that the diversion of the iron from the purpose for which it had been purchased, by its hypothecation to them, was an act of fraud, defeating the security upon which the vendors had relied on giving the credit; and so are not bona fide purchasers. (Cuming v. Brown, 9 East, 512-514.)
    In fact, the plaintiffs consented that the iron should go forward and be laid upon the road, which was inconsistent with their maintenance of any right of possession.
    V. If the plaintiffs had a special property in the iron as against the original vendors, by reason of its hypothecation to them, they could not sustain this action of trespass de bonis asjportatis.
    
    1. To maintain that action, it is necessary that the plaintiff shall, at the time of the trespass, have either the possession or an immediate right of possession of the property. (Smith v. Miller, 1 T. R., 480; Ward v. Macaulay, 4 id., 489.)
    2. When this iron was taken at Oswego, the plaintiffs had neither the possession nor present right of possession.
    
      (a.) By reason of the prior possession and paramount right and lien of the United States Government.
    (b.) Because the hypothecation to the plaintiffs expressly postponed their right to acquire possession until after the iron should come to the possession of the consignee at Milwaukie and the duties should be paid.
    
      The nonsuit was properly granted, and the defendants should have judgment.
    
      Charles O'Conor, for the defendants Brown and Dawson.
    I. The sureties in a replevin are not connected with the replevin in any degree or extent, except as specified in the bond.
    1. They do not request the Sheriff to perform any act. The preliminary steps toward an action of replevin having been taken by the principals, the sureties thereupon assume the specific liabilities prescribed by law, as a portion of the process allowed by law for the commencement of such an action.
    2. The bond does not contain any request to the Sheriff to do any act which would not be justified by the process, as perfected by the bond. If a stranger to the process, against whom the process would not justify the Sheriff, should recover damages against the Sheriff as for a wrongful and unauthorized taking, the Sheriff could not obtain indemnity by an action against the sureties. And yet, if they had requested him to do the very act in question, they, as his employers, would undoubtedly be liable to indemnify him for the consequences of his bona fide acts in compliance with their request. (Castle v. Noyes, 4 Kern., 333; Smith on Master and Servant, 121.)
    3. The bond is a statutory prerequisite to the perfection of the replevin process. It is difficult to perceive any principle which would charge the sureties, and which would not extend to the attorney and his clerk. Indeed, the attorney, signing the express request to take the goods, is far more clearly a willful promovent of the taking. (Ford v. Williams, 3 Kern., 585.)
    II. To hold that the sureties incur such a liability as is contended for in this case, would not conform to the law in reference to transactions non-judicial, would be highly inexpedient in many respects, and would not, in any degree, conduce to the safety of property.
    1. A carrier or warehouseman, who, in the ordinary course of his business, receives property from one in physical possession thereof, and restores it to his employer, does not, by these mere facts, become chargeable for the redelivery, as a tortious conversion, although the employer’s possession may have been tortious throughout.
    
      2. Where a possessor of goods, as agent of A., has notice of a claim thereon by B., and refuses to deliver up the goods without an indemnity against such claim, an indemnitor who intervenes at the request of A. is not liable to the action of another claimant. Here there is no request by the indemnitor to the possessor to set at defiance any other claim than that of B.
    
      S. It would be most inconvenient and disastrous if no man could replevy his goods from the possession of another without obtaining two sureties willing to incur the hazard of being deemed to have set at defiance the title of all persons, and subjected themselves to responsibility unlimited toward all persons whose rights might be affected by the mere act of taking under the replevin.
    
      (a.) Under such a rule, the disinterested third person who Usually becomes surety would have no possible means of ascertaining the persons to whom he might be liable, measuring the extent of the damages, or conjecturing the duration of his responsibility.
    
      (b.) The law of replevin has existed for ages, and this extended liability has never hitherto been imagined by any one. If it exists, the positive statute which sanctions this process and invites the sureties to act by a precisely defined limit of their liability operates as “ a delusion and a snare.”
    HI. The statute concerning replevins plainly implies that the defendants in the replevin and those whom they represent shall have, as against the sureties, their remedy for the taking by and through the replevin bond only except in the single case of a , claim of property duly notified to the Sheriff.
    The complaint was properly dismissed.
   By the Court—Woodruff, J.

If, upon the undisputed facts, it must be held that, at the time when the property in question was taken, the defendants, Vose, Livingston & Company, had the right to stop the goods in transitu, and duly exercised that right, neither they nor their sureties incurred any liability to the plaintiffs by the taking complained of.

Whether such right existed may properly be considered by inquiring—First. Whether, as between Vose, Livingston and Company, as vendors, and the Railroad Company, as vendees, the former were entitled to stop the goods ? and, Second. Whether the transactions between such vendees and the present plaintiffs, Holbrook & Nelson, had defeated that right ?

I. First, then, we inquire whether, if no advance had been procured from Holbrook & Nelson upon the security, or supposed security, of the iron, the vendors, as against the vendees, had the right to stop the goods ?

If there be any difficulty in determining this question, it arises rather from uncertainty in regard to what constitutes a delivery to the vendee sufficient to prevent the application of the general rule or to defeat it, than from any doubt respecting the rule itself.

Goods, sold on credit to a vendee, who becomes insolvent while the goods are in the hands of a carrier or middleman in their transit to the vendee, may be stopped before they come to the possession of the latter. Whether goods, in a given instance, are to be deemed in transit, and what circumstances amount to such possession in the vendee as will defeat the right of stoppage, are questions to be answered in the application of the rule. It is material to observe, that, whether the delivery be to a carrier or warehouseman, or to an agent of the purchaser, is not important. So long as such carrier or agent receives and holds the goods for the purpose of carrying or forwarding them to the vendee, they may be stopped.

In the present case the goods were sold at the city of New York to the Chicago, St. Paul and Fond du Lac Railroad Company, upon credit.

It is not denied that the vendees became insolvent before the credit expired, and before the vendors attempted to exercise the right, which they assert, to stop the goods.

The goods, when this right was asserted by the vendors, were in the actual possession of common carriers, who received them at New York, for transportation from New York to Milwaukie, on their way to the vendees at that place; and when the seizure took place for which this action is brought, the goods had reached Oswego in course of the transportation thus assumed by the carriers.

If, therefore, before the goods left New York, there had been no such delivery to the vendees, and there was no such possession in them as would defeat the right to stop, or, in other words, if the goods were, in a legal sense, in their transit from the vendors to the vendees, then, as between Vose, Livingston & Company, and the Railroad Company, the right of the former to stop the goods was clear.

. The delivery which had taken place in Hew York was to the carriers, and for the purpose of transportation to Milwaukie. Every act done or assented to by Vose, Livingston & Company contemplated such transportation of the iron to Milwaukie, tobe used by the vendees in the construction of their railroad. The discharge of the iron from the ship in which they had imported it was directly into the boats of the carriers: their authority to withdraw it was indorsed upon the entry of the goods for transportation to Milwaukie; and the whole transaction showed the mutual intent of both buyers and sellers that the iron should be transported to Milwaukie, to be laid upon the vendees’ road; . and this was the destination contemplated at the time by both.

The presence ófthe agents of the vendees in Hew York should have no effect on this question, for they had at no time actual possession of the iron. They are not shown to have even seen the iron. • They did not, while the iron remained in Hew York, exercise any actual control over the iron itself, except in aid of the forwarding of the same by the carriers.to its destination; and what was so done consisted in making the proper entry of the ■goods at the custom-housé for transportation.

■ Delivery of goods to an agent of the vendee, or to a person employed by him, if it be done with the view and for the purpose of forwarding them- to the vendee himself, is not enough to prevent the exercise of the vendor’s right. The possession of such agent or employee, in such casé, is not the possession which terminates that right.

• Here, although the agent's of the purchasers were in Hew York, the goods -were, at most, only delivered to be carried forward.

By

By the decisions, in Harris v. Hart & Pratt, (6 Duer, 606, and 17 N. Y. R., 250,) and in Mottram v. Heyer, (5 Denio, 629,) it is settled in this State that tbe entry of goods at the custom-house, by the vendee, for the payment of duties, does not terminate the right of stoppage in transitu. In such case the goods are in the legal possession of the United States or their officers, and have not come to the possession of the vendee so as to deprive the vendor of his right. (Nix v. Olive, cited in Abbott on Shipping, 393; Burnham v. Winsor, 5 Law R., 507.)

We do not perceive that an entry of the goods by the vendee for transportation can have any greater effect; the goods still remain in the legal custody of the United States; bonds are given that the goods shall be transported and delivered to the collector of customs at the port of Milwaukie, or in default thereof, that double the amount of duties shall be paid, and in order that the possession of the United States may not be deemed divested, carriers are selected, whose boats have been previously made government warehouses for the purpose of receiving and holding goods under bonds for the safe keeping and delivery thereof to the proper officers of the United States.

The actual possession was, therefore, in the carriers. The legal possession of the United States, as security for the payment of duties, was the only qualification of the carrier’s possession; and neither the vendees nor their agents had at any time such possession. And we apprehend that the true principle upon which it must be held that the entry of the goods and their being held by the government to secure the payment of duties, does not defeat the vendor’s right to stop, is, that so long as the goods are in the custody of the government, there is not, and cannot be, any reduction of the goods by the vendee, to his own possession. They are kept, for the time being, from reaching such possession.

By this, of course, we do not mean that enough was not done by the vendors to perfect the contract of sale, nor that the possession of the carriers was not for many purposes to be deemed the possession of the actual owners, (the vendees,) but the possession of the carriers was a possession for the purpose of transportation to the vendees, and was subject to the right of the vendors to stop the goods, if those events which create that right should happen while the goods were in course of such transportation.

The goods had not come to the actual possession of any agent of the vendees, for the purpose of disposal. Nor did the carriers hold them subject to the directions of the vendees for disposal, nor ás a deposit in a warehouse, subject to the order of the vendees for disposal.

The only substantial change in the conditions of the goods was, that they were placed in a course of transmission to the vendees, and were in the actual possession of a middleman for that purpose; and it may be stated, as a general proposition, that a delivery of goods to a carrier or other agent of the buyer for the purpose of being carried forward to the buyer does not terminate the transit.

Mr. Justice Denio, in the case of Harris v. Pratt in the Court of Appeals, above-mentioned, (p. 252,) states the rule thus: “It is not material whether the person, in whose possession they are when the seller interposes his claim, be a carrier, a warehouse keeper, a wharfinger, packer or other depositary, or an agent for the purpose of forwarding, nor by which of the parties to the sale he was employed. He may be the agent of the purchaser, designated, paid and employed by him; yet, if the purpose of his employment is to expedite the property towards its destination, or to aid those engaged in forwarding it, the seller’s right to stay the final delivery continues.” And Mr. Justice Strong states, in substance, the same rule. Both concur, that unless the goods have come to the' possession of the purchaser, or to the possession of an agent who is the vendee’s agent for the disposal of the goods, the right to stop them continues.

We think, therefore, that as between Vose, Livingtson & Company and the Railroad Company, the former had the right to stop the goods in transitu when they seized the goods, and had, by their claim on the carrier, done all that was necessary for that purpose.

II. The second question above proposed is, whether the transactions between the vendees and the present plaintiffs (Holbrook & Nelson) defeated the right of Vose, Livingston & Company to stop the goods before that right was exercised?

This question assumes the correctness of the foregoing conclusion, that the goods had not come to the possession of the vendees, but were in the hands of a middleman on their way to their destination, and as against the vendees, were subject to the vendors’ right to stop them.

In that condition of the goods it may be stated, as the general rule, that a mere sale of the property, unaccompanied by delivery, or by anything in legal contemplation operating as a change of possession, will not divest the right of the vendor to stop the goods. The purchaser from the vendee, in such case, takes only the vendee’s right; subject to the contingency which may, before the goods are received, entitle the original vendor to resume the possession and hold it until the price be paid. The rule of the common law declared in the stern maxim, nemo plus juris quam in se hahet in alienum transferre potest, furnishes the general doctrine on this subject. The severe and protracted discussions which were had in the celebrated case of Lickbarrow v. Mason, in which an exception was declared to exist where the bill of lading was transferred, and the numerous cases in England and this country in which that exception is recognized, confirm the general rule no less pointedly than if they were direct decisions upon the point. The peculiar effect given to the transfer of a bill of lading and its alleged quasi negotiability assume, that in the absence of an indorsement, or transfer of a bill of lading, a sale for value will not be sufficient to divest the right of stoppage in transitu.

To the general doctrine that the second vendee in such case stands in no better situation than his immediate vendor. (See also, Craven v. Ryder, 6 Taunt., 433; Small et al. v. Moates, 9 Bing., 574; Dixon v. Yates, 5 Barn. & A., 313; McEwen v. Smith, 6 Rolls Appeals, 340; 2 Ross’ Leading Cases on Commercial Law, 591; 85 Law Lib.; Ilsley v. Stubbs, 9 Mass., 71, 73,) and the opinions of the Court in numerous cases, if not in all, which treat of the question, what act of the vendee will defeat the vendor’s right, state or assume the rule to be that no sale or transfer while the goods are in transit, which is not accompanied by a transfer of a bill of lading will have that effect.

An assignment for the payment of debts whether directly or to trustees for that purpose, or the seizure of the goods under process of a foreign attachment by the creditors of the vendee, or the levy of an execution upon the goods under judgment against such vendee, will not defeat the right. And the vendor’s right is under the general rule held paramount to any lien against the purchaser. And in the discussion of the cases involving the questions arising in such cases, the rule above stated receives repeated sanction, not merely because in such last named cases the transferrees have not paid value, but also as in case of a sale to a sub-vendee while the goods are in transit, the equity and right of the original vendor, to resume possession for his unpaid purchase-money is prior and preferable. (Harris v. Hart, 6 Duer, 606; 17 N. Y. R., 250; Stanton v. Eager, 16 Pick., 467; Bell v. Moss, 5 Whart., 189; 1 Camp., 282; 2 New., 64; 2.Bing. N. C., 83; 3 Bos. & P., 42; 3 M. & R., 396; Buckly v. Furniss, 15 Wend., 137; 17 id., 504; Naylor v. Dennie, 8 Pick., 198.)

The bankruptcy of the vendee and the consequent transfer of his title to assignees in bankruptcy are circumstances which appear in a large proportion of the cases in England, where the right of the Vendor to stop -the goods has come under discussion and been sustained.

The right therefore continues on the happening of the insolvency of the vendee."while the goods, are in transit, notwithstanding any transfer with or without value paid; or any lien sought to be created, save only in the excepted case of .a transfer of the bill of lading to be presently noticed.' .

The execution and delivery to the plaintiffs herein of a transfer of the goods as security for their advances on the 10th of July, 1857, did not therefore per se terminate the transit. There being no actual delivery and nothing being done-by the carriers changing their, relation to the goods, or the character in which they held them, the plaintiffs took by virtue of that assignment only such right as the vendees had acquired and held subject to the right of stoppage. The order of the same date on the engineer of the company could have no greater effect. He had no possession of the goods, and his recognition of the order while the goods were in transit could have no operation as against the defendants. Besides, that order was not presented to him and its obligation recognized until the 10th of- August, which was after the defendants had exercised their right to stop the iron.

It is however settled that an assignment of a bill of lading for the goods made to a third person fór a valuable consideration advanced bona fide on the faith of the bill of lading without notice of the impending insolvency of the buyer, or of other circumstances which would make such 'transfer inequitable as against the vendor, divests the right of the vendor to stop the goods, as against such bona fide holder of the bill. (Lickbarrow v. Mason, 2 T. R., 63 5 id., 367, 683; 1 H. Bl., 357; 2 id., 211; 6 East, 19, note.)

And in Cuming v. Brown, (9 East, 506,) it is held, that, there being no collusion and the transferee having no notice of any other circumstance, which ought in fairness to have prevented his taking the bill, his knowledge that the goods had not been paid for in money, did not render the transfer to him invalid.

This qualification of the rule is liable to some criticism; for where there has-been no delivery of the goods, and the transferee acts upon the faith of the bill of lading, he necessarily knows that the goods are in transit, and that if not paid for they are subject to the vendor’s right to stop them if the vendee becomes insolvent. It would not therefore be inequitable to hold that, with such knowledge and knowledge also that the goods have not been paid for, he makes his advances subject to the vendor’s right, and does so voluntarily with knowledge of all the facts.

In the present case the plaintiffs were informed by the receipt at the foot of the bill of parcels that the iron was purchased on credit, and had not been paid for, otherwise than by the vendees’ notes with collateral security. This bill of parcels was delivered to them, according to the testimony of the plaintiff, Holbrook, himself, at the time he made the advance. (See Wright v. Campbell, 4 Burr., 2046, 1 Bl. R., 628; Caldwell v. Ball, 1 T. R., 205; Hibbert v. Carter, id., 745.)

But without resting upon this as an impeachment of the bona fides of the plaintiffs, there are other objections to their claim to hold as transferrees of a bill of lading.

The paper signed by the carriers is a mere receipt; it is not in form a bill of lading. It does not express the contract made by the carriers, nor indeed any contract by them. By its terms the goods are not made deliverable to any one, nor to order or assigns, and it seems to me, that it would be extending the idea of negotiability or “ quasi negotiability ” a great way, to hold that such a paper was the subject of transfer within the rule insisted upon.

The very terms to order ” or “ assigns ” are much dwelt upon in the discussion in Lickbarrow v. Mason, and Chief Justice Parsons in his work on Maritime law, assumes them to be “a part of a bill of lading,” though it is doubted whether they are essential. And a bill of lading is called a maritime contract, a sea document, not applicable to land carriage or inland carriers by water, (Bryans v. Nix, 4 Mees. & Welsb., 775,) or the written evidence of a contract for the carriage and delivery of goods sent by sea.

Whether the peculiar effect given to the transfer of a bill of lading arises solely from the usage of merchants and the convenience of trade, or because it is expressed in such form that its transfer operates to create a new contract between the carrier and the transferree, or because the vendor by suffering a document of title in that form to come into the control of the vendee invites the faith and confidence of those with whom such vendee may deal, and who may advance money on the faith thereof, neither of these considerations can apply to the anomalous instrument given by the carriers in this case.

The reason why the carriers executed a mere acknowledgment of the receipt of the goods is readily seen. They had, prior to the delivery of these goods to them for carriage, become government warehousemen. On the delivery of these goods they could not, with safety to themselves, give an ordinary bill of lading therefor; they were under a heavy responsibility to the government, and bound to deliver the property to the collector. If an unqualified bill of lading had been executed according to the usual form, containing a contract to carry and deliver, they would have been themselves in danger, should the bill of lading be transferred to a bona fide purchaser for value; since, in such case, the carriers are held bound according to its very terms, with a strictness amounting to an estoppel, which precludes proof that they are not bound to deliver absolutely. (Ward v. Whitney, 3 Sandf., 399; Dickerson v. Seelye, 12 Barb., 99; Creery v. Holly, 14 Wend., 26; 4 Ham., 334; 11 Conn., 40.)

The paper which they executed was a mere receipt acknowledging their possession of the goods, but leaving it open to ascertainment by other proof, (including the bonds given to the United States for the delivery to the collector of the port of Milwaukie,) to determine the nature and extent of the duty assumed by them.

I am not satisfied that the transfer of this receipt placed the plaintiffs in any better position than they already were, under the previous assignment, except that possibly if they had, by virtue of such transfer and prior to the exercise of the right of stoppage by the defendants, obtained from the carriers a recognition of the transfer, the right to stop may have been defeated on a ground to be presently noticed.

The case of Dows v. Perrin, (16 N. Y. R., 325,) may, perhaps, be supposed to conflict with this view, and to warrant the plaintiffs’ claim to hold as assignees of a bill of lading. The precise form of the paper under which a transfer was claimed, is not stated in the report of that case, and the decision proceeds on a ground which was fatal to the transfer, whether the paper was deemed a bill of lading or not. And besides, although the property was not deliverable to order or to assigns, it was substantially the same as if those words had been in the paper, and that had been indorsed by the shippers to the transferree, for it stated, upon its face, that the shipment was made on his account,” and this was deemed, by the Chief Justice, to have had the same effect as if the shippers had taken a bill of lading to the owner’s order, and indorsed it.

Whether the receipt given by a carrier for inland transportation is in any case so far negotiable, that its transfer will defeat the right to stop the goods is not a point raised in that case. (Bryan v. Nix, 4 Mees. & Welsb., 775.)

The case of Jenkyns v. Usborne, (7 Mann. & Grang., 680,) holds that a delivery order forwarded to a purchaser from the vendee does not defeat the right of stoppage, and contains a useful discussion of this subject by Chief Justice Tindal. And see Akerman v. Humphrey, (1 Carr. & P., 53,) where the assignment of a shipping note, accompanied by a delivery order, is held not to defeat the vendor’s right. (McEwen v. Smith, ubi supra.)

But there is another difficulty in the way of the plaintiffs’ claim to hold as transferrees of a bill of lading.

Their advances were made before the transfer of the receipt.

If any importance is to be given to the transfer of goods in transit, arising from the actual negotiation of a bill of lading— and that is the point of the cases—then the advances for which the transferree claims should be made on the faith of the bill of lading.

Here the advances were not so made; true, the borrowers promised to procure and deliver bills of lading, but an advance on such a promise is not an advance on the faith of the bill.

notwithstanding these suggestions, it must be conceded that after these transfers by the vendees to the plaintiffs, (the power of the President of the Railroad Company to make the transfer being assumed,) if the plaintiffs had applied to the carriers who were in possession of the goods, and obtained from them a recognition of the transfer, and an express or implied undertaking to hold the goods for their account, the case would have presented an important feature, assimilating it to those which hold that where the carrier enters into a new arrangement with the consignee, distinct from the agreement to carry, by which he agrees to hold the goods as the property of the consignee and at his disposal, this is a termination of the transit. Whether this can be done before the goods reach the place of destination, and under what circumstances such a recognition of a transfer by the vendee to a third person will have the effect mentioned, it is not necessary to consider here, for this reason; the plaintiffs have not shown that notice of the transfer was given to the carriers, or their recognition of the plaintiffs’ claim obtained before the defendants asserted their right to stop the goods and made their claim on the carriers. Both were done on the 1st day of August, but which was the first in order, the witness could not state; and before that day the vendees had failed, and their notes had been protested, and the plaintiffs, as early as the 25th of July, had knowledge that the vendees’ notes had been protested; at that time they had reason to anticipate the exercise of the right of stoppage in transitu by the vendors of the iron.

My conclusion is, that the defendants, Vose, Livingston & Company (the vendors) had the right to stop the goods.

I reach this conclusion without calling in question the authority of the President of the Railroad Company to make the pledge, which does not appear to me to be free from doubt.

The defendants should have judgment.

Ordered judgment for the defendants.  