Statement of Facts.

concerning the bills of lading and the warehouse receipts and the final distribution of the cotton and its proceeds, as aforesaid, were all according to the general usage of trade between banks and cotton factors at St. Louis, Missouri, where the transactions took place.

7th. At the time that the note in controversy was made, another of the same kind was made by and to the same parties and as a part of the same transactions, which note was at the same time discounted by the bank in the same way, and was at its maturity paid to the bank by J. H. Dowell & Co., and charged to Allen & Dowell in account with J. H. Dowell & Co. against the proceeds of the cotton crop of Allen & Dowell in 1875."

It was also stated, in the finding of facts, that at the time of these transactions certain statutes of Missouri were in force, which are copied in the margin.1

1 The statute of March 4, 1869, contains the following provisions: "SECTION 1. All receipts issued or given by any warehouseman or other person or firm, and all bills of lading, transportation receipts and contracts of affreightment, issued or given by any person, boat, railroad or transportation or transfer company, for goods, wares, merchandise, grain, flour or other produce, shall be and are hereby made negotiable by written indorsement thereon and delivery in the same manner as bills of exchange and promissory notes; and no printed or written conditions, clauses or provisions, inserted in or attached to any such receipts, bills of lading or contracts, shall in any manner limit the negotiability or affect any negotiations thereof, nor in any manner impair the rights and duties of the parties thereto, or persons interested therein; and every such conditions, clauses or provisions, purporting to limit or affect the rights, duties or liabilities created or declared in this act, shall be void aud of no force or effect.

"SEC. 2. Warehouse receipts given by any warehouseman, wharfinger, or other person or firm, for any goods, wares, merchandise, grain, flour, or other produce or commodity, stored or deposited, and all bills of lading and transportation receipts of every kind, given by any carrier, boat, vessel, railroad, transportation or transfer company, may be transferred by indorsement in writing thereou and the delivery thereof so indorsed; and any and all persons to whom the same may be transferred shall be deemed and held to be the owner of such goods, wares, merchandise, grain, flour, or other produce or commodity, so far as to give validity to any pledge, lien or transfer, given, made or created thereby, as on the faith thereof; and no property so stored or deposited, as specified in such bills of lading or receipts, shall be delivered, except on surrender and cancellation of such

Statement of Facts.

The Circuit Judge and the District Judge certified that they were opposed in opinion upon the following questions:

"1st. Whether the transactions between the plaintiff and J. H. Dowell & Co. concerning the bills of lading, warehouse receipts, and the sales of cotton, and application of the proceeds, were valid and effectual in favor of the plaintiff and as against the defendants, at common law.

"2d. Whether said transactions were or not valid in favor of the plaintiff as against the defendants, by virtue of the statutes of Missouri in respect to bills of lading and warehouse receipts and the transfer or negotiability of such instruments, heretofore set forth.

"3d. Whether such transactions were valid as to the plaintiff against the defendants, by reason of being in conformity to the usage and custom of bankers and factors at St. Louis.

receipts and bills of lading; provided, however, that all such receipts and bills of lading, which shall have the words 'not negotiable' plainly written or stamped on the face thereof, shall be exempt from the provisions of this act." Missouri Laws, 1869, p. 91.

The statute of March 28, 1874, amends § 12 of the statute of March 10, 1868, so as to read as follows:

"SECTION 12. If any commission merchant, agent or other person storing or shipping any grain, flour, or other produce or commodity, or any person to whom any such property is consigned, and who shall come in possession of a bill of lading or warehouse receipt for such property, for or on account of another person or other persons, shall hypothecate, negotiate or pledge such bill of lading or warehouse receipt, without the written authority therefor of the owner or consignor of such property; or if, having so disposed of such bill of lading or warehouse receipt, shall fail to account for and pay over the proceeds thereof forthwith to his principal or the owner of such property; in either or any of such cases, he shall be adjudged guilty of fraud, and shall, on conviction, be punished by fine not exceeding five thousand dollars, or by imprisonment in the penitentiary for a term not exceeding five years, or by both such fine and imprisonment : Provided, that nothing herein shall be construed to prevent such consignee or other person, lawfully possessed of such bill of lading or warehouse receipt, from pledging the same, to the extent of raising sufficient meaus thereby to pay charges for storage and shipment, or advances drawn for on such property by the owner or consignor thereof; and a draft or order by such owner or consignor for advances shall be held and taken to be 'written authority,' within the meaning of this section, for the hypothecation of such bill of lading or warehouse receipt, to the extent, and only to the extent, of raising the means to meet such draft and to pay such freights and storage." Missouri Laws, 1874, p. 51.

Argument for Plaintiff in Error.

"4th. Whether such transactions were valid in favor of the plaintiff as against the defendants, by reason of the fact that J. H. Dowell was a partner in the firm of Allen & Dowell.

"5th. Whether upon the sale of cotton having been finally made by J. II. Dowell & Co., as stated in the findings, J. H. Dowell & Co. became debtors only of the consignors of the cotton, and had the right as to the plaintiff for this borrowed money out of the proceeds of the sale of such cotton.

"6th. Whether upon the findings the judgment should be for the plaintiff or for the defendants."

Upon the special finding of facts, and in accordance with the opinion of the Circuit Judge, judgment was entered for the plaintiff in the sum of $5377.08, with interest and costs, and the defendants sued out this writ of error.

Mr. John N. Rogers, for plaintiffs in error, cited: Gibson v. Stevens, 8 How. 384; St. Louis National Bank v. Ross, 9 Missouri App. 399, 411; Fourth National Bank v. St. Louis Cotton Compress Co., 11 Missouri App. 333; Rice v. Cutler, 17 Wis. 351; Warner v. Martin, 11 How. 209, 224; McCombie v. Davies, 7 East, 5; Martini v. Coles, 1 M. & S. 140; Solly v. Rathbone, 2 M. & S. 298; Cockran v. Irlam, 2 M. & S. 301; Urquhart v. McIver, 4 Johns. 103, 116; Gray v. Agnew, 95 Ill. 315; Newbold v. Wright, 4 Rawle, 195; Rodriguez V. Heffernan, 5 Johns. Ch. 417, 429; Merchants' National Bank v. Trenholm, 12 Heiskell, 520; Kauffman v. Beasley, 54 Texas, 563; Benny v. Rhodes, 18 Missouri, 147; S. C. 59 Am. Dec. 293; Benny v. Pegram, 18 Missouri, 191; S. C. 59 Am. Dec. 298; Wheeler & Wilson Co. v. Givan, 65 Missouri, 89; Queiroz v. Trueman, 3 B. & C. 342; Graham v. Dyster, 2 Starkie, 21; D'Aubigny v. Duval, 5 T. R. 604; Barnard v. Kellogg, 10 Wall. 383, 390; Oelrichs v. Ford, 23 How. 49, 63; Savings Bank v. Ward, 100 U. S. 195, 206; Thompson v. Riggs, 5 Wall. 663, 679; National Bank v. Burkhardt, 100 U. S. 686, 692; Lehman v. Marshall, 47 Ala. 362; Rogers v. Batchelor, 12 Pet. 221; Dob v. Halsey, 16 Johns. 34; S. C. 8 Am. Dec. 293; Snaith v. Burridge, 4 Taunt. 684; Brewster v. Mott, 4 Scammon, 378; Kelley v. Greenleaf, 3

Argument for Defendant in Error.

Story, 93; Steiger v. Third National Bank, 2 McCrary, 494; S. C. 6 Fed. Rep. 569; Shaw v. Railroad Co., 101 U. S. 557; Smith v. Sac County, 11 Wall. 139; Greenbaum v. Megibben, 10 Bush, 419; First National Bank v. Boyce, 78 Kentucky, 42; Erie & Pacific Dispatch v. St. Louis Cotton Compress Co., 6 Missouri App. 172; Whitlock v. Hay, 58 N. Y. 484; Insurance Co. v. Kiger, 103 U. S. 352; Price v. Ins. Co., 43 Wis. 267; Stevens v. Wilson, 6 Hill, 512; S. C. in error, 3 Denio, 472; Covell v. Hill, 6 N. Y. 374, 380; Cartwright v. Wilmerding, 24 N. Y. 521, 534; Howland v. Woodruff, 60 N. Y. 73, 79-80.

Mr. James Hagerman for defendant in error, (Mr. Frank Hagerman was with him on the brief,) cited: Kingston Bank v. Gay, 19 Barb. 459; Roach v. Turk, 9 Heiskell, 708; McCombie v. Davies, 6 East, 538; Laussatt v. Lippincott, 6 S. & R. 386; S. C. 9 Am. Dec. 440; Borie v. Napier, 1 McCord, 1; Foley v. Hill, 2 II. L. Cas. 28; Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Boyden v. Bank of Cape Fear, 65 No. Car. 13; Allen v. Fourth Nat. Bank, 37 N. Y. Superior (5 Jones & Spencer), 137; Buchanan Farm Oil Co. v. Woodman, 1 Hun, 639; In re Franklin Bank, 1 Paige, 249; S. C. 19 Am. Dec. 413; Phonix Bank v. Risley, 111 U. S. 125; Thompson v. Riggs, 5 Wall. 663, 678; Marine Bank v. Fulton Bank, 2 Wall. 252; Bank of Republic v. Millard, 10 Wall. 152; Clark v. Moody, 17 Mass. 145, 147; Martini v. Coles, 1 M. & S. 140; Shipley v. Kymer, 1 M. & S. 484; Evans v. Pollen, 2 Gallison, 13; Kingston v. Wilson, 1 Wash. C. C. 310; Stewart v. Aberdein, 4 M. & W. 211; Catterall v. Hindle, L. R. 2 C. P. 368; Sweeting v. Pearce, 9 C. B. N. S. 534; McNeil v. Tenth National Bank, 46 N. Y. 325; Moore v. Metropolitan Bank, 55 N. Y. 41; Weirick v. Mahoning Bank, 16 Ohio St. 296; Combes v. Chandler, 33 Ohio St. 178; Winter v. Belmont Mining Co., 53 Cal. 428; Price v. Wisconsin Marine & Fire Ins. Co., 43 Wis. 267-269; Henry v. Philadelphia Warehouse Co., 81 Penn. St. 76; Pegram v. Carson, 10 Bosworth, 505; Howland v. Woodruff, 60 N. Y. 73; Locke v. Lewis, 124 Mass. 1; International Bank v. German Bank, 71

Opinion of the Court.

Missouri, 183; Talty v. Freedman's Savings Co., 93 U. S. 321; Goodenow v. Tyler, 7 Mass. 36; S. C. 5 Am. Dec. 22.

MR. JUSTICE GRAY delivered the opinion of the court.

When a jury is waived in writing, and the case tried by the court, the court's finding of facts, whether general or special, has the same effect as the verdict of a jury; and although a bill of exceptions is the only way of presenting rulings made in the progress of the trial, the question whether the facts set forth in a special finding of the court, which is equivalent to a special verdict, are sufficient in law to support the judgment, may be reviewed on writ of error without any bill of exceptions. Act of March 3, 1865, c. 86, § 4, 13 Stat. 501; Rev. Stat. §§ 649, 700; French v. Edward's, 21 Wall. 147; Ex parte French, 91 U. S. 423. The question whether the facts found by the court in the case at bar are sufficient to support the judgment below includes the several questions of law affecting the merits of the case. That judgment is for more than $5000, which is sufficient to give this court jurisdiction in error. Act of February 16, 1875, c. 77, § 3, 18 Stat. 316. It is therefore unnecessary to consider whether those questions are duly stated in the certificate of division of opinion, within the rule affirmed in Williamsport Bank v. Knapp, 119 U. S. 357.

The leading facts of the case, as found by the Circuit Court, are as follows:

The original action was on a promissory note made by the defendants, payable to the order of J. H. Dowell & Co., and by them indorsed to the plaintiff bank. J. H. Dowell & Co. were a partnership of cotton factors at St. Louis, in which Dowell was the active and managing partner. Dowell was also a partner with the defendants, under the name of Allen & Dowell, in the working of a cotton plantation in Arkansas.

The note in suit was made and delivered by the defendants to the payees, their factors, to enable them to raise funds to furnish supplies for working that plantation, and under an agreement between the parties that the note should be taken