First National Bank of Cairo v. Crocker. take them for any other purpose. Shepherd v. Harrison, L. R. 5 H. L. 116. De Wolf v. Gardner, 12 Cush. 19, 23. Allen v. Williams, 12 Pick. 297. The title to the flour therefore remained in the shipper, wholly unaffected by the consignment. Even in the case of a contract of sale, the fact of making the bill of lading deliverable to the order of the vendor, when not rebutted by evidence to the contrary, is decisive to show his intention to preserve the jus disponendi, and to prevent the property from passing to the vendee. Wait v. Baker, 2 Exch. 1. Van Casteel v. Booker, Ib. 691. The case of a mere consignment to an agent would be of course still stronger. Upon the refusal of the defendants to accept the consignment upon the terms proposed, which refusal was sufficiently manifested by the protest of the draft and the return of the bill of lading, the owners of the flour, Ayers & Company, had a right to seek a new consignee, and to make another attempt to obtain an advance by a draft to be charged against the property. An arrangement was accordingly made with the plaintiffs, who discounted their draft of $400 upon the security of the same bill of lading that had been sent to the defendants and returned by them. If this bill of lading was delivered to the plaintiffs, indorsed in blank by Ayers & Company, (and there is testimony to that effect,) the transaction would operate as a transfer of their title in the flour to the plaintiffs, if such were the intention of the parties. As the property was at that time in Boston, it was of course incapable of actual delivery at Cairo, and the delivery of the evidence of title, with the indorsement upon the bill of lading, was all that could be done for the transfer of the property from the general owner to the new purchaser; but it would be effectual for that purpose. Conard v. Atlantic Ins. Co. 1 Pet. 386, 445. Gibson 7. Stevens, 8 How. 384. Bryans v. Nix, 4 M. & W. 775, 791. Low v. De Wolf, 8 Pick. 101. Gardner v. Howland, 2 Pick. 599. Stanton v. Small, 3 Sandf. 230. Pratt v. Parkman, 24 Pick. 42. I. Gibson v. Stevens, the court say, per Taney, C. J.: "This rule applies to every case where the thing sold is, from its character or situation at the time, incapable of actual delivery." To the extent of their advance of money upon the draft, therefore, the First National Bank of Cairo v. Crocker. plaintiffs would be considered as purchasers, and they would acquire a special property in the flour for the purpose of protecting the draft. At the time of this transaction, the flour remained in the possession of the defendants, and, with the exception of taking possession, nothing had been done on their part amounting to a wrongful conversion of it to their own use. They had not put it out of their power to replace the shippers in the enjoyment of their rights. It appears from the report, that, when the bill of lading was forwarded the second time, the name of the firm of Goodwin, Locke & Company was written over the indorsement of Ayers & Company. But we do not think that this fact, whether the blank indorsement were filled up after or before the discount of the draft, would materially affect the plaintiffs' rights. The bill of lading was attached to the draft, and the substance of the transaction was that the draft was discounted upon the security of the merchandise itself. It purports to be on account of the barrels of flour described in the bill of lading. The flour, although intrusted to Goodwin, Locke & Company to sell, was appropriated to the specific purpose of the payment of this draft. The bill of lading was put in the plaintiffs' hands to enable them to hold the merchandise as their security, and the discounting of the draft was the consideration for the transfer of the property to them. It was convenient so to indorse the bill of lading, as to make it manifest that Goodwin, Locke & Company were to receive and dispose of the goods; but they were to do so as trustees and agents of the plaintiffs, and not as proprietors in their own right. They certainly acquired no title in the property until they had accepted the draft, and when that event happened the goods had been disposed of by the defendants, and had gone into the hands of bona fide holders without notice, so as to be beyond recall. The effect of this transaction between the plaintiffs and Ayers & Company was that the flour was designated to stand as collateral security for the draft. If the draft had not been accepted, the plaintiffs clearly would not have lost their title to the flour. It is not necessary to hold that the plaintiffs became absolute owners of the property; it is enough that they had a right of property and possession to First National Bank of Cairo v. Crocker. secure the payment of the draft, and the right of Ayers & Company as former owners of the specific property had become divested, leaving them only a right in the surplus money which might remain after a sale of the flour and a payment of the draft from the proceeds. De Wolf v. Gardner, 12 Cush. 19, has in many respects a close analogy with this case. There the general owner of the flour was the plaintiff, and the defendant was a party claiming under the new consignee, and the court held that the plaintiff had parted with the right of property, and could not maintain his action. In Bank of Rochester v. Jones, 4 Comst. 497, as in the case at bar, the plaintiffs had discounted a draft drawn by the owner of a quantity of flour upon the defendant, who, as in the case at bar, refused to accept the draft, and claimed to hold the flour and sold it for the payment of a balance due from the drawer. Instead of a bill of lading, there had been a carrier's receipt, which the drawer delivered, unindorsed, to the plaintiff bank. The agreement was that the bank should hold the flour as security that the draft should be accepted, but with power to sell it if the draft should not be accepted. The Court of Appeals held that the defendant could not acquire any property in the flour, except by performance of the condition imposed, namely, the acceptance of the draft; that the transaction between the consignor and the plaintiff bank gave to the latter a general or special property in the flour; that the transaction constituted a sale to the bank in trust for the fulfilment of the agreement; that the carrier's receipt, though not indorsed, was sufficient evidence of the plaintiff's right of possession; and that the statute of frauds was not applicable, as the delivery of the receipt, in consideration of the discount of the draft, was sufficient to transfer the title. In legal effect, and for the purpose of explaining what is to be done with the merchandise, there can be no substantial difference between a bill of lading and a carrier's receipt. We have then in this case an intent of the general owners of the flour to make use of it as a security for an advance of money from the plaintiffs; a delivery of the bill of lading in pursuance of that intent; and a valuable and executed consideration in the discounting of the draft. The fact that the goods were in the First National Bank of Cairo v. Crocker. custody of the defendants would not prevent this arrangement from having the effect to transfer the title of Ayers & Company to the plaintiffs. Whipple v. Thayer, 16 Pick. 25. McKee v. Judd, 2 Kern. 622. Whether it should be regarded as a sale, a pledge or a mortgage, there was a sufficient delivery to give to the plaintiffs a special property, which they could enforce by suit against any wrongdoer. They had a right to transfer the property, subject to the same trusts upon which they held it themselves, to their correspondent or agent in Boston, and it may well be that, if the draft had been accepted by Goodwin, Locke & Company before the flour had been sold and placed out of their reach, they would have been the proper parties to have brought this action. But the transfer to them for that reason wholly failed to take effect, and they acquired no title to the flour specifically. If they had accepted the draft before the flour had been sold to a bona fide purchaser, the case would have been almost exactly like Allen v. Williams, above cited. That was a case in which the consignee of merchandise refused to accept the draft which accompanied the bill of lading, and took possession of the merchandise, claiming as in this case the right to do so in order to secure a balance due to him from the consignor. The court held that a new consignee could maintain trover against him. Our conclusion then is, that at the time of the sale of the flour by the defendants, the plaintiffs had a right and property in it, which, whether general or special, and whether as purchasers, trustees, pledgees or mortgagees, gave them a right of possession as against all wrongdoers; and that the defendants had no title whatever and were mere wrongdoers. The fact that the draft has been paid by the new consignees does not prevent the plaintiffs from maintaining the action for the benefit and protec tion of the acceptors of the draft, who without fault of their own have been deprived of the security upon which it was discounted Judgment for the plaintiffs. Hawkes v. Remington. CHARLES K. HAWKES vs. WILLIAM H. REMINGTON & others. Whether the specifications of two patents, not in the same terms, describe the s.e 'nvention, is a question of fact for the jury. TORT for falsely representing that letters patent held by the defendants for plating with nickel gave a valid patent right, and that no letters patent for plating with nickel had been before issued, and thereby inducing the plaintiff to pay $2500 for an assignment of said letters patent; whereas said letters patent did not give a valid patent right, and letters patent for plating with nickel had before been issued. At the trial in the Superior Court, before Reed, J., the plaintiff contended that the letters patent assigned to him by the defendants were for the same invention for which letters patent had previously issued to Isaac Adams, Jr., and were therefore worth less. The specifications of the defendants' patent and of the Adams patent were introduced in evidence, and the plaintiff asked the • The specification of the defendants' patent was as follows: "To all whom it may concern: Be it known that I, William H. Remington, if Boston, in the county of Suffolk, and State of Massachusetts, have invented a process for electro-plating with nickel, of which the following is a clear, full, and exact description, reference being had to the accompanying drawings, making part of this specification, in which figure 1 is a perspective view of the apparatus which I employ in the process of electro-plating with nickel. Figure ? is a transverse vertical section through the same. Figure 3 is a plan of the vat containing the solution, the bottom being provided with a lining, to be hereafter referred to. Figure 4 is a longitudinal vertical section, on the line zz of fig. 3. Figure 5 represents a plate coated with nickel, to be used as a 'positive electrode.' "The employment of nickel as a substitute for silver, in the process cf electro-plating, presents many great advantages, the principal of which are that nickel is extremely hard, and susceptible of a high polish, while it will not become tarnished by age or exposure to the air. It will also withstand the action of intense heat, as it cannot be readily fused by fire, and, furthermore, its cost is trifling compared with that of silver. It has, however, hitherto been found impossible to practically employ nickel, for the reason that it can only be obtained in small particles, and cannot, on account of its infusibility, be |