[Holmes v. German Security Bank.]

liable, was erroneous; that neither the draft by itself, nor in connection with the contract or bill of lading which accompanied it, vested in the bank any title to the hogs or gave it any lien upon them or upon their proceeds for the money advanced thereon to the drawer; that the draft alone had not this effect had been repeatedly decided, and the attaching and handing over to the bank of the contract of carriage along with the draft passed no better title nor created any better lien than did the draft itself; for the bill of lading was nothing more than an agreement between the shipper and the railroad company for the transportation of the hogs. It was a non-negotiable instrument, and mere manual delivery of it conveyed no interest whatever either in the hogs or their proceeds: Hopkins v. Beebe, 2 Casey 85; Farmers' & Mechanics' Ins. Co. v. Simmons, 6 Id. 302; Mrs. Greenfield's Estate, 12 Harris 240; Lloyd v. McCaffrey, 10 Wright 410; First National Bank of Mt. Joy v. Gish, 22 P. F. Smith 13. Even if it was a bill of lading the fact of its being not endorsed or transferred by any words of assignment precluded it from conveying any title, as, under the law, unless a bill of lading is endorsed, it passes no property: 1 Pars. Cont., § 239; Stone v. Snift, 4 Pick. 389; Allen v. Williams, 12 Id. 297; Buffington v. Curtis, 15 Mass. 528; Bell v. Moss, 5 Whart. 205. And the hogs not having been taken into possession by the plaintiff, and in fact, there being nothing in the transaction to indicate that it was the intention of the parties that he should take possession of them, no title to or lien upon them could possibly be acquired as against Harper's other creditors: Clow v. Woods, 5 S. & R. 275; Wells v. Becky, 1 P. & W. 57; Fry v. Miller, 9 Wright 443; Bowen v. Burke, 1 Harris 149; Welsh v. Bell, 8 Casey 13.

Slagle & Wiley, for defendants in error.-A bill of lading being symbolical of the property described in it, like the property it represents, may be transferred by delivery merely; and this is so without regard to the presence or absence of words of negotiability on its face. When the vendor of goods consigns them, taking a bill of lading from the carrier, and intending to reserve the right of control over them, at the same time draws upon the purchaser for the price, and delivers the bill of lading attached to an endorsee, for a valuable consideration, the consignee, upon receipt of the goods, takes them subject to the right of the holder of the bill of lading, to demand payment of the bill of exchange, and cannot retain the price of the goods on account of a debt due to him by the consignor: Emory & Sons v. Irving National Bank, 25 Ohio 360; Bank of Rochester v. Jones, 4 Comstock 497; Bissell v. Steel, 17 P. F. Smith 445.

[Holmes v. German Secnrity Bank.]

The judgment of the Supreme Court was entered November 18th 1878,

PER CURIAM.-The bill of lading was attached to the draft in this case as a security for its payment. It was therefore evidence of an appropriation of the proceeds of sale of the property contained in the bill of lading, whether the bill was endorsed or not. The consignment to the defendants was for sale only, and therefore when they had notice of the draft and bill of lading before sale, they were informed of the appropriation of the proceeds of sale, and could not apply them to an old debt of their own.

Judgment affirined.

INDEX.

ABANDONMENT.

Of levy. EXECUTION, 1-2.

ACTIONS.

A non-resident cannot maintain a suit against a foreign administrator.
EXECUTORS AND ADMINISTRATORS, 1, 2.

Debt to recover usurious interest under National Bank Act. COURTS,
5-7.

Suit by husband and wife in right of wife, for injury to latter. PRAC-
TICE, 22.

1. An action on the case for a deceit in falsely representing that a
farm contained a certain number of acres, is not a bar to an action of
assumpsit upon a guaranty that the farm contained that number of
acres. Schriver v. Eckenrode, 213.

2. A common-law action does not lie against a railroad for conse-
quential injuries occasioned by the construction and operation of its
road. Struthers v. Railway Co., 282.

3. It is not a misjoinder of counts to set out in a declaration in
debt, counts for the recovery of a penalty for taking usurious interest,
under an act of Congress, and counts to recover an excess of interest
paid; such claims are not incongruous, and a recovery may be had for
both of said demands in the same action. Gruber v. Bank, 465.

4. The misjoinder of counts in a declaration, ought properly to be
taken advantage of by demurrer in arrest of judgment, or by an assign-
ment of error in the judgment on account of such misjoinder. Id.

5. In debt for a statute penalty given wholly to the party aggrieved
the judgment is quod recuperet. Id.

By execution-creditors, to let assignee sell and account to sheriff, effect
of. EXECUTION, 3.

ALLOWANCE.

To mother for maintenance of children. PARENT AND CHILD, 1, 2.
APPROPRIATION.

Of fund in bank by check thereon. BANKS AND BANKING, 1.
Of property contained in bill of lading. BILL OF LADING, 1, 2.
In the absence of any appropriation by the parties, the law will appro-
priate payments to the claim least secure. Foster v. McGraw, 14 P. F.
Smith 469, followed. McKelvey v. Jarvis, 414.

ARSON.

In trial for, when evidence of a distinct criminal offence is admissible.
EVIDENCE, 17.

ASSESSOR.

When his duty to assess land for taxes. TAXES AND TAXATION, 3, 4.
ASSESSMENTS.

By mutual insurance companies, how limited.
What will seat lands for assessment purposes.

3, 4.

INSURANCE, 5, 6.
TAXES AND TAXATION,

When lands are sold upon double. TAXES AND TAXation, 6, 7.
When void for excessiveness. INSURANCE, 5, 6.

ASSETS.

When marshalled, to exempt land devised. DECEDENTS' Estates, 3.
ASSIGNEES.

See ASSIGNMENTS.

ASSIGNMENTS.

A sale by assignee of bankrupt does not divest dower of bankrupt's
wife. BANKRUPTCY, 1-3.

Effect of an assignment of a mortgage to one who is a purchaser at
sheriff's sale. MORTGAGE, 2, 3.

Of specialty with the words "with recourse" added. BILLS AND
NOTES, 6.

Where insurance company has paid proceeds of policy on faith of
assignment, which was fraudulent, before recovery can be had against
the company it must be shown it had notice of fraud before payment to
the assignee. INSURANCE, 10.

Where right of intervening assignee of creditors attaches. EXECU
TION, 1, 2.

1. The word "assignee" appended to the name of the depositor in
his account does not earmark the fund, and gives it no identity as belong-
ing to any particular person or fund. Laubach v. Leibert, 55.

2. In order that a better price might be obtained for a debtor's pro-
perty, certain execution-creditors agreed with the sheriff that an assignee
for the benefit of creditors appointed after fi. fa, issued and levy made,
should sell the property and account to the sheriff for the proceeds.
Held, that in the absence of fraud or that the execution had not issued
for the purpose of lien or delivery, the lien of these execution-creditors
was not made void by this agreement, and other creditors were not
entitled by reason thereof to come in and ask for a pro rata distribu-
tion. Kent, Santee & Co.'s Appeal, 165,

3. After an assignment for the benefit of creditors, the debtor acquired
a fund which was attached in his counsel's hands. The court dissolved
the attachment upon a rule to show cause, and directed the fund to
be paid to the assignee. Held, to be error, because ·

(1.) The rights of the parties could not be disposed of in so summary
a manner, the defendant and garnishee could appear, plead and have a
trial by jury: and

(2.) The fund having been acquired after the assignment, the assignee
had no right to it, even if he had been in court as a claimant. Lorenz
v. Orlady, 226.

4. A. being largely indebted, executed to B., an attorney for some
of his creditors, an assignment of numerous claims and judgments "in
payment" of their demands. Held, to be an assignment for the benefit
of creditors, and, not having been recorded within thirty days, to be
void as against a subsequent attaching-creditor. Wallace v. Wainwright,
263.

ASSOCIATION.

Mutual benefit. LIFE INSURANCE, 1.

ATTACHMENT.

When court has no power to dissolve. PRACTICE, 15.

ATTORNEY AND CLIENT.

1. Where an attorney-at-law releases a judgment of his clients without
their knowledge or consent, such release is a fraud upon them and does
not discharge the lien of the judgment. Kirk's Appeal, 243.

2. M. assigned a judgment to H., an attorney-at-law, "to be held by
H. as collateral security for the payment of the claim of B. & K., for
which claim I have this day given to the said B. & K. three promissory
notes." This assignment was recorded. II. afterwards gave a release of
this judgment, the record entry being "for value received H. releases
from the lien of this judgment the real estate of *** but does not
satisfy the judgment." Held, that this record gave sufficient notice of