[After stating the facts as above.]—The only question which is necessary to be discussed upon" this appeal is whether, in his charge, the learned justice erred in the proposition of law laid down to the jury for their guidance. The charge contained this proposition: that “ the bill of lading of these goods is in the name of Winks.” [Court reads the bill of lading.] “ The property was thereby apparently the property of Winks. A. bill of lading is a negotiable instrument, and the possession of it controls the property. If the goods are in transiim you can give title by handing over and delivering the bill of lading. Advances are frequently made by capitalists and bankers in that way.”
It is conceded upon the part of the respondents’ counsel, and it was conceded by the learned judge who wrote the opinion in the court below, that this instruction was erroneous as applied to judgment creditors, arid that, if the trial judge had charged this and nothing more, a new trial would of. necessity have to follow. But it is claimed that the trial judge did say more, and that his charge, taken as a whole, tends to modify and explain the part claimed to be objectionable, and conveyed to the jury the correct rule of law on the question involved.
The question which was submitted to the jury in this case was whether the plaintiffs in this action had a title to the property at the time that it was seized by the sheriff. It will therefore be necessary to see upon an examination of the *278charge whether or not as a whole it did convey the correct rule of law.
The question as to the transfer of this bill of lading was an important one, because, independent of any previous arrangement which may have been made between Winks and the plaintiffs as to the ownership of these goods, if the bill of lading was transferred to them as security for the moneys which they had advanced to Winks, it undoubtedly would pass the title to the goods as between Winks and his creditors.
In order to establish this proposition, however, it was necessary to prove something further than the mere transfer of the bill of lading. It must be shown that such transfer was made with the intention of passing the title.
The learned judge in his charge to the jury, however, had instructed the jury that the possession of the bill of lading absolutely controlled the property. I have failed to find upon reading the charge any modification whatever of this proposition. It is true that he discussed the evidence in reference to the arrangement, which had been testified to, between the plaintiffs and Winks; and that the fact that the bill of lading is produced from the possession of the plaintiffs is confirmatory of the testimony of the plaintiffs and Winks.
But the attention of the jury is nowhere called to the true rule of law in reference to the bill of lading; and in fact at almost the last of his charge, the judge, in a manner which calls the attention of the jury particularly to what he had already charged, reiterates the false proposition. He says : “ I have already charged you as to this bill of lading, and in connection I charge you that a transfer of it is a transfer of the title to the property.” This was but putting the original proposition in different words, and the last impression which was left upon the jury by this direction was that the possession of the bill of lading controlled the property, as had been previously charged. It being conceded that such a direction was error, and the false impression which the jury would receive from such direction being nowhere corrected, it is impossible for us to say whether the jury found in favor of the plaintiffs simply because of the fact that the plaintiffs had pos*279session of the bill of lading, or whether they merely treated it as confirmatory of the evidence of Winks and Nicholson as to the arrangement entered into between them.
Because of the error above mentioned it seems to be impossible to support the verdict. The judgment must be reversed and a new trial ordered, with costs to abide the event.
Larremore, J., concurred.
Judgment reversed and new trial ordered, with costs to abide event.