Kennon v. Gilmer. horse, whose vicious habit of shying contributed to the injury; and the defendants, after introducing evidence tending to prove two instances of the horse's shying before the time of the accident, were permitted to show many similar instances afterward, up to March, 1863, about twenty-one months after the accident complained of. As to the competency of this proof, the court, by BIGELOW, C. J., says: "The objection to the evidence relating to the habits of the horse subsequent to the time of the accident goes to its weight rather than to its competency. The habit of the animal is in its nature a continuous fact to be shown by proof of successive acts of a similar kind. Evidence having been first offered to show that the horse had been restive and unmanageable previous to the occasion in question, testimony that he subsequently manifested a similar disposition was competent to prove that his previous conduct was not accidental or unusual, but frequent, and the result of a fixed habit at the time of the accident. Under the limitations prescribed at the trial, we think the evidence admissible." Chamberlain v. Enfield, 43 N. H. 356. In the case of Maggi v. Cutts, 123 Mass. 535, it appears in evidence that on the evening of November 19, 1875, at about half-past six o'clock, the plaintiff was riding in a wagon through Sewell street, which was about twenty-one feet wide, and there fell, or was thrown, from his wagon, and received the injuries for which he seeks to recover damages. That for a few days previous to the accident, and upon said 19th day of November, the defendant, whose blacksmith shop was on Sewell street, had been making an excavation for a cellar under his building, and had thrown the dirt, gravel and loam therefrom into the street, and at the time above named, there was a pile of such gravel standing in the street, about two and a half feet high, extending ten feet along the street, and from a third to half the distance across the street, the exact dimensions of the pile being in dispute. The plaintiff introduced evidence to show, that not observing the obstacle and using due care, he had driven his horse upon the pile aforesaid so far that the forward wheels touched or went into it; that the horse had fallen upon the pile, and the plaintiff was thrown violently upon the ground; that the horse was helped upon his feet, and stood quietly until the plaintiff was put in the wagon. The plaintiff and his witnesses testified to the good character of the horse, but on cross-examination, testified that the horse had shown. signs of kicking, and that on one occasion subsequent to the acciVOL. LI-7 Kennon v. Gilmer. deut, the horse, which was then harnessed to a sleigh, had whisked his tail, had gone round, had stopped more than once, and that he found the horse had got his leg over the shaft. The defendant, as one mode of accounting for the accident, contended that the horse might have stumbled or fallen, or stopped suddenly without reference to the pile of dirt. Here is a case where the horse, at the time of the accident, was hitched to a wagon, but there was no evidence of any misconduct of the horse at the accident. There was evidence that the horse had shown signs of kicking, and had kicked once, about two years before the accident, and that subsequent to the accident, when hitched to a sleigh, had shown signs of kicking and was found with his leg over the shaft. LORD, J., in deciding the case, said: "The fact that a horse driven by the plaintiff misbehaved at the time an injury was received, though such misbehavior contributed to the injury, does not necessarily preclude the party from recovering. The misbehavior may have been accidental, or from causes for which the plaintiff was under no responsibility. The misbehavior to bar the plaintiff from recovering, must be either through the fault of the plaintiff or by reason of a vice of the horse for which the plaintiff is in law responsible. Whether or not it is a vice depends largely upon the question whether the misbehavior was only in a single instance or occasional, depending upon other causes, or whether it was the habit of the horse. And in order to establish the fact that the misbehavior was occasioned by the viciousness of the horse, it has been held to be competent to show that such misbehavior is habitual, and instances of misbehavior as well after the injury as before, have been held competent to prove the habit." Under these authorities and the principles they enunciate, the testimony of the witness Piatt seems to have been competent, though it may have been of little weight; and as to the competency of the two Goodales, there can be no doubt. The vicious habit of a horse is a continuous thing, and must be established by proving continued instances of a like kind and similar character. [But as to damages] Judgment modified and affirmed. First National Bank of Helena v. McAndrews. FIRST NATIONAL Bank of HELENA V. MCANDREWS. (5 Mont. 325.) Sale-vesting of title. The shipment of goods, pursuant to a contract by which the consignor was to pay the freight, and the consignee after sale was to credit the consignor with the proceeds, does not vest title in the consignee, in the absence of a bill of lading or notice to him of the shipment. CLAIM and delivery. The opinion states the case. The plaint iff had judgment below. Robinson & Stapleton, for appellants. E. W. & J. K. Toole and Wm. Wallace, Jr., for respondent. WADE, C. J. This was an action of claim and delivery in which the plaintiff sought to recover the possession of certain cases of silver bullion shipped to it by the North-western Company at Phillipsburgh, and while en route seized by attachment in an action by Samuel E. Larrabie against said North-western Company. The case was tried to the court, who made certain findings of fact, and thereon rendered a judgment in favor of plaintiff, from which and an order overruling a motion for a new trial, the defendants appeal to this court. The facts found by the court are as follows: 1. That the bullion described in plaintiff's complaint was produced from the North-western Company and was shipped by it to Helena, consigned to plaintiff. 2. That the same was seized by the defendants, McAndrews and Smith, under a writ of attachment while in transit, in an action by defendant Larrabie against the North-western Company, and that defendants McAndrews and Smith were at said time the sheriff and deputy sheriff of Deer Lodge county, Montana, and that all the proceedings to obtain said writ were regular, and that judgment was entered in favor of said Larrabie against said North-western Company in said action, and defendants held said bullion by virtue of said writ of attachment. First National Bank of Helena v. McAndrews. 3. That at and prior to the shipment of the bullion in controversy in this case, there was an express contract between plaintiff and the North-western Company that in consideration of advances to be made by plaintiff to said company in carrying on its mining operations, said company would ship to plaintiff its products of bullion, which was to be credited to its account. 4. That at the time said bullion was shipped, said plaintiff had advanced to said company, upon the faith of said contract, about the sum of $6,000, which stood as a charge against said company, and is yet unliquidated and unsettled. 5. That said bullion was in accordance with the terms of said contract, shipped, marked and consigned to said plaintiff, and placed in possession of and received by Gilmer & Salisbury, common carriers of freight and express matter, upon a contract at special rates, to be paid at Helena, Montana, by plaintiff, upon receipt of said bullion by it, at said place, said charges for freight to be charged to the account of said company. 6. That said bullion was to be credited to the account of said company upon a sale thereof by plaintiff, and that said account was a running account. 7. That after said bullion was so shipped and consigned to said plaintiff, and while in possession and custody of said carriers en route to its destination, the same was attached at the suit of Larrabie, and levied upon by his co-defendants, as the officers charged with the execution of said process on the 31st day of May, 1879, at Deer Lodge city, Montana. 8. That said property was at said time of the value of $3,000, and was and still is detained by defendants. The bullion in question having been "billed, shipped, marked and consigned" to the respondent under and by virtue of the contract mentioned in the findings of fact by the court, and placed in the possession of the common carrier, did the possession of and property in the bullion thereby become vested in the respondent, or did such possession and property remain with the North-western Company until the bullion had been actually received by the respondent and credited to the account of the company? There was no bill of lading transmitted to the bank, and no letter or notice informing it that the bullion had been shipped. The advances by the bank had been made prior to the shipment, First National Bank of Helena v. McAndrews. and the situation was as if the shipment had been made under a contract in satisfaction of antecedent advances. We shall have to consider what effect the absence of a bill of lading and of notice of the shipment to the bank had upon the rights of these parties. A bill of lading is a commercial instrument, and is a written acknowledgment signed by the master of a vessel or by a common carrier, that he has received the goods therein described from the shipper, to be transported on the terms therein expressed to the described place of destination, and there to be delivered to the consignee, or parties therein designated. Abb. Ship. (7th Am. ed.) 323; O'Brien v. Gilchrist, 34 Me. 558; 1 Pars. Ship. 186; Maclachlan Ship. 338; Emerigon Ins. 521. A bill of lading is a symbol of the ownership of the goods covered by it; a representative of the goods. It is regarded as so much cotton, grain, iron or other articles of merchandise. The merchandise is very often sold or pledged by the transfer of the bill of lading which covers it. Shaw v. Railroad Co., 101 U. S. 564, 565. Hence, it is held by the authorities that the transmission of a bill of lading by the consignor to the consignee is a delivery of the possession of the goods covered by it, and that thereby the title to the property passes from the consignor to the consignee. See Haille v. Smith, 1 B. & P. 563; Desha v. Pope, 6 Ala. 690; Gibson v. Stevens, 8 How. 384; Grove v. Gilmore, 8 How. 429; Bryan v. Nix, 4 Mees. & Wels. 775; Anderson v. Clark, 2 Bing. 20; Holbrook v. Wight, 24 Wend. 169; Grosvenor v. Phillips, 2 Hill, 147; Sumner v. Hamlet, 12 Pick. 76; Nesmith v. Dyeing Co., 1 Curtis, 130; Vallé v. Cerré, 36 Mo. 575. The transmission of a bill of lading amounts to the actual delivery of the possession of the property described in it, and is a compliance with the statute of frauds as to the sale and delivery of property. The contract mentioned in the findings was an executory contract, to be completed by the delivery of the bullion therein described. Knight, the cashier of the bank, testifies that the bullion was to be delivered to the bank at Helena. In the absence of a bill of lading, or a letter or notice from consignor to consignee informing him of the shipment of bullion, is the fact that the bullion in question was "billed, shipped and marked and consigned " to the respondent such an appropriation of the property to the contract as completes a bargain and sale, and delivers the possession thereof to the purchaser? If the consignor had done some con |