DANIELS, J.: FIRST DEPARTMENT, JANUARY TERM, 1885. The action was brought to recover the possession of ninety-five cases of shellac. They were taken into the possession of the sheriff, but returned by him to the defendants upon an undertaking executed and delivered for that purpose. The plaintiff claimed title to the shellac under a loan of money made by him to Paul M. Swain for the security of which the shellac had been by an agreement hypothecated. The defendants, constituting the firm of Baring Brothers & Co., and their agents, carrying on business in Boston, under the firm name of Kidder, Peabody & Co., claimed the title to the shellac as security for money advanced in the payment of its purchase-price. These defendants issued to Swain a letter of credit by which the firm of A. C. Bancroft, & Co., which was engaged in business at Calcutta, was authorized to draw upon Baring Brothers & Co., for the cost or purchase-price of the shellac. And Swain in whose behalf it was to be purchased and shipped, entered into an agreement with them by which they were entitled to all the property purchased by means of the credit and the proceeds thereof, together with the bill of lading for the same, as collateral security for the reimbursement of the sums advanced by them. And it was made subject to their order with authority to take possession and dispose of the same at their discretion for their security or reimbursement, and substantially placed under their control until the moneys advanced by them upon the draft or drafts, to be drawn should be refunded. Under this letter of credit and the accompanying agreement, Bancroft & Co. purchased the shellac for Swain and drew their draft upon the defendants, Baring Brothers & Co., for its price. They shipped it on board the steainship City of Manchester at Calcutta, and by the bill of lading taken for it, consigned it to this firm. It was carried to England by this ship and there transferred to the steamship Bolivia, which delivered it at the city of New York, where it was placed in store. It remained in store in a bonded warehouse until Swain applied to Kidder, Peabody & Co. as agents of Baring Brothers & Co. for the bill of lading. They delivered it to him with a blank indorsement upon it, and it was then taken to William A. Brown, a custom-house broker, who by virtue of its authority, secured the transfer of the shellac from what has been called the general account, in which no owner's name was made to FIRST DEPARTment, January TERM, 1885. appear. Brown added the name of his own firm above the blank indorsement on the bill of lading, which enabled him to control the entry as well as the property. Under that authority it was transferred or placed to the credit of Swain, who applied to the plaintiff for a loan of money upon this and other merchandise. At that time no warehouse receipt had been issued to Swain, and he placed with the plaintiff other security in lieu of it until it should be obtained, and the plaintiff at the time advanced a portion of the loan. A written order was given by Swain to Casy, who had the possession of the warehouse containing the shellac, to deliver the ninety-five cases to the plaintiff, and on the surrender of that order Casy issued a receipt for the shellac to the plaintiff, who thereupon completed the loan agreed to be made, and surrendered the other securities held in place of the receipt. That he proceeded in making the loan and obtaining the warehouse receipt for the merchandise in good faith was proved by the evidence taken upon the trial of the action; and that Swain had obtained the possession of the merchandise when he applied for the loan of the money, was also a fact proven in the case, but that possession of itself would not empower him to transfer a title to the shellac to the plaintiff. (Covill v. Hill, 4 Denio, 323, 327; Hazard v. Fiske, 83 N. Y., 287, 294.) A person himself having no title to personal property cannot, by the mere fact of its possession, transfer a title to it, and in that manner deprive the actual owner of his property. The law requires additional evidence of authority to accomplish that result, added to and beyond the fact of possession. If the bill of lading indorsed in blank with the name of the consignees of the property had been presented to the plaintiff, and he had advanced the money upon the faith of the evidence of title so created, he would have been empowered to hold the property under the provision of the statute declaring that every factor or other agent intrusted with the possession of any bill of lading for the delivery of merchandise shipped under it, shall be deemed to be the true owner thereof, so as to give validity to any contract made by him with any other person for the sale or disposition of the whole or any part of such merchandise, for money advanced or negotiable instrument or other obligation given in writing by such other person upon the faith thereof. (2 R. S. [6th ed.], 1168, § 3.) FIRST DEPARTMENT, JANUARY TERM, 1885. But to secure protection to a person advancing money by this provision of the statute, it is requisite that the advance shall be made upon the faith of the bill of lading. That is the language used in the statute. It must be upon "the faith thereof." (First National Bank of Toledo v. Shaw, 61 N. Y., 283, 301; Kinsey v. Leggett, 71 id.. 387, 395.) But the loan was not applied for on the faith or evidence of title supplied in this manner by the bill of lading and its blank indorsement. That evidence of ownership was not produced or brought to the attention of the plaintiff, and by reason of the omission he cannot avail himself of the benefit of this provision of the statute. It appears by his own evidence, and that of Mr. Curtiss to whom a portion of the business was intrusted, that the money was obtained by Swain wholly and exclusively upon his representation that he was the owner of the shellac. And that excluded all possible advantage which might otherwise have been derived from the bill of lading, if the loan had been made upon the evidence of right or title furnished by its indorsement. The plaintiff's right to the property is equally as defective under a somewhat similar act in the State of Massachusetts, where the application for the loan was made and the money was obtained. For it is only where the agent has been intrusted with a bill of lading consigning merchandise to him for the purpose of sale, that a transaction of the nature of that which took place between Swain and the plaintiff can be protected. His title under each of these statutes, which, on this subject, are essentially the same, must depend upon the fact whether Swain had been intrusted with the possession of the merchandise for the purpose of sale, or as a security for advances to be made or obtained thereon. If he had been, then under another provision contained in the third section of each of these acts his authority to dispose of the property will require to be maintained. But if Swain was not intrusted with the possession of the merchandise for the purpose of sale, or as a security for advances to be made or obtained upon it, then the plaintiff has no title upon which he can maintain his right to the property against the defendants. For by the statute it is indispensable that he shall have the possession for the purpose of sale or as a security for advances. to be made or obtained, before he can transfer a title to any person dealing with him upon the faith of such possession. This is the construction which the language of the statute very clearly requires FIRST DEPARTMENT, JANUARY TERM, 1885. shall be given to these provisions. And it is in harmony with the authorities of Cartwright v. Wilmerding (24 N. Y., 521) and Bates v. Cunningham (12 Hun, 21), and it is also supported by Collins v. Ralli (20 id., 246). It becomes necessary, therefore, to examine the evidence to ascertain whether, as a matter of fact, Swain had been intrusted with the possession of the shellac by the indorsement of the bill of lading to him for the purpose of sale, or as a security for advances to be made or obtained thereon. At the time when the bill of lading so indorsed was delivered to him he is shown to have executed and delivered to Kidder, Peabody & Co., as the agents of Baring Brothers & Co., a receipt, in and by which it was stated and agreed that the invoice and bill of lading had been delivered to him for the purpose of enabling him to enter the goods referred to in them at the custom-house, and the agreement was added that this should be done in the name of and for Baring Brothers & Co., and subject to their order. The receipt and agreement is in the following form: BOSTON, Nov. 18, 1881. To Messrs. KIDDER, PEABODY & Co., Boston: Shipped by C. C. Bancroft & Co. on board SS. Co. Manchester, at Calcutta, and consigned to the order of Messrs. Baring Brothers & Co., and indorsed by you, as their attorneys, to me. Such invoice and bill of lading are delivered to me for the purpose of enabling me to enter the goods referred to in them at the custom-house. And I hereby agree to place the goods on storage for Messrs. Baring Brothers & Co., and subject to their order, and so that they may be applied to the due performance of the agreement contained in the receipt signed by me for your letter of credit on them, No. FIRST DEPARTMENT, JANUARY TERM, 1885. 2419, or any other letter of credit on them, through which such goods have been purchased, we agreeing to keep them covered by insurance against fire for account of and loss payable to Messrs. Baring Brothers & Co. It is understood that the said goods are to be warehoused in the name of Messrs. Baring Brothers & Co., and warehouse receipts therefor handed to you for them. And by its language it plainly excluded all right on the part of Swain to sell the merchandise, or obtain any loan upon it. An effort was made to overcome this effect of the instrument by proving other transactions between these parties in which Swain had disposed of property consigned in this manner for which he had received bills of lading indorsed in a similar way. But this proof did not extend so far as to create a presumption that it was intended on the part of the indorsers of the bill of lading that the merchandise should, notwithstanding the receipt and agreement, still be subject to the disposition of Swain. For it failed to prove that either member of these firms had been made acquainted with the fact that Swain had in this manner disposed of the property. The nearest approach to anything from which knowledge of his conduct in this respect might be inferred was one transaction only which Swain testified was brought to the attention of one of the clerks of Kidder, Peabody & Co. And as that was adjusted without any default on his part, it does not seem to have elicted any special comment or in any form to have been brought to the attention of either member of the firm in which the clerk himself was employed, while the evidence given by one of the active members of that firm directly denied the existence of knowledge or information that Swain had been dealing in this manner with consigned property. It further appeared by the evidence of the witness Collins, that Swain applied to him for the papers concerning this consignment of shellac. His statement is: "I asked what he was going to do with the papers and he said he wanted to enter them at the custom-house and warehouse them for account of Baring Brothers & Co. I took the papers and the receipt to Mr. Peabody and asked him if I should deliver these |