By the Court, Hogeboom, J.
As counsel differ entirely as to what questions are open for debate in this case, it will be necessary to look at that point in the first place, in order that we may not waste our time in needless discussion. This is a bill of exceptions, and of course no questions arise save those which are presented upon exception. I find in the case, on the part of the defendant, only an exception on the refusal to nonsuit, repeated at the end of the case, exceptions to the charge and the refusal to charge, and an exception to the rule of damages laid down by the court. These present the only questions which the parties have brought here for examination. I think the exception to the refusal to nonsuit may be very briefly disposed of. By the statement hereto prefixed it is apparent there were facts enough proved to go to the jury on the questions embraced in the motion to nonsuit. Any thing more that needs to be said upon those questions may be just as properly presented in considering the exceptions to the charge. We come then to the charge of the court. The court charged 1st. That the evidence showed a sufficient authority or assent to bind Niles & Wheeler, by the signature of Walker to the papers A, B and C, (the alleged bills of [180]*180lading.) This, I think, is nothing more than á statement of the evidence, or comment upon it, or its effect, or an assumption of a fact in the cause. It is a mere reference to what is established by the evidence. Now it is quite clear that none of these things are the grounds of exception. (Jackson v. Packard, 6 Wend. 415. Jackson v. Timmerman, 12 Id. 299. Nolton v. Moses, 3 Bark. 31. Barnes v. Perine, 2 Kern. 22, 23. Beekman v. Bond, 19 Wend. 444. People v. Cook, 4 Seld. 78. Hunter v. Trustees of Sandy Hill, 6 Hill, 410.)
A party who is dissatisfied with the expression of an opinion by a judge upon a question of fact, or the conclusion at which he arrives in regard to it, must express that dissatisfaction ; not by excepting to the charge of the judge on that point, but by asking to have the question of fact submitted to the jury for. their determination. The defendant’s counsel claims to have done so in this case, but I think he did not. He simply excepted to the charge, on the ground that the question of sufficient authority or assent should have been submitted to the jury as a question of fact. The judge had made no charge to the contrary of this, and there was nothing therefore to which to except; nor had he been requested to submit the question to the jury; nor had he refused to do so. If he had so refused, the proper exception would have been to such refusal. Nor do I think that this exception was equivalent to a request to the court so to submit, and a refusal to do so. It would be torturing language to give it that effect. The most that can be said for it is, that perhaps it ought to be regarded as an exception to what the judge did say upon the subject of sufficient authority as being tantamount to withdrawing it from the judge, although that would be construing language in a rather latitudinarian way. But so construed it is unavailable; for the judge had done no such thing. I am quite aware that this may be argued to be a technical and severe application of the rules of practice, and tending to defeat practical justice. Nevertheless, I understand this practice to be [181]*181well settled and firmly established, and I am by no means sure that the rights of parties will not be quite as well guarded, if the judge who presides at the circuit has his attention invited to the precise thing wanted, or objected to, and the court which reviews his decision is clearly and distinctly apprised of the precise thing which was done on the trial. We are, therefore, to regard these exceptions as out of the case, and as if the judge was justified in the comments he made upon the effect of the evidence. Only two exceptions besides that on the rule of damages remain, to wit: to so much of the judge’s charge as states that Miles & Wheeler, and the defendant under them, were estopped from denying, as against the plaintiff, that they held the com as Mack’s agents and carriers, on his account, at the time of the plaintiffs’ advances on the faith of the receipts or shipping bills; and to so much of the charge as states that the plaintiffs were entitled to recover the property. It is not quite apparent that these are distinct propositions and not to be read together, and dependent the last upon the first; or that if they are to be treated as distinct, the defendant has made a distinct and separate exception to the three branches of the charge; the two now under consideration and the one previously considered. Olearly a general exception is of no avail; the first part of the charge being unexceptionable. (Murray v. Smith, 1 Duer, 412. Jones v. Osgood, 2 Seld. 233. Carpenter v. Stilwell, 1 Kernan, 61.) So, also, the courts have repeatedly held that an exception to the charge, and to each and every part thereof, raises but a single exception to the entire charge, and is unavailable if any portion of it be correct. (Auth. last cited. Lansing v. Wiswall, 5 Denio, 213. Caldwell v. Murphy, 1 Kern. 416.)
Perhaps the defendant has saved his exception and made it distinct by saying that he excepted to the charge, “and to each part thereof, separately and distinctly.” (Dunckel v. Wiles, (1 Kern. 428.) But that is not quite clear! ■ The more appropriate way certainly would have been to have kept [182]*182the several parts of the charge designed to he excepted to “separate and distinct” from each other, and to have applied the exceptions separately to each separate portion, and then there would have been no confusion or doubt. I shall treat the case, however, as if these exceptions were in point of form and regularity sufficient.
Then were Niles & Wheeler and the defendant estopped from denying as against the plaintiff that they held the corn, as Mack’s agents and carriers, on his account ?
We must now assume that the shipping bills, receipts or bills of lading, whatever they may be properly termed, were executed by Niles & Wheeler, and came properly and in good faith into the hands of the plaintiffs. I discover no evidence which, as to the latter, impeaches the bonafides of the transaction. The judge undoubtedly assumed that fact in announcing the rule of law which we are now considering. And I think (that being sufficiently apparent) the defendant, if he was dissatisfied, should by specific requests have asked him to discriminate or charge specifically upon the several particulars which together made up the legal proposition which he put forth. (Barnes v. Perine, 2 Kern. 22.)
Assuming then that the instruments in question were properly executed, by the owners of the corn, and delivered in good faith to the plaintiffs, who made advances thereon, were they and the defendant, as the master of the boat and their agent, estopped from denying, as against the plaintiff, that they held the corn at the time of the advances as Mack’s agents and carriers ? In other words, was the title of Niles &
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By the Court, Hogeboom, J.
As counsel differ entirely as to what questions are open for debate in this case, it will be necessary to look at that point in the first place, in order that we may not waste our time in needless discussion. This is a bill of exceptions, and of course no questions arise save those which are presented upon exception. I find in the case, on the part of the defendant, only an exception on the refusal to nonsuit, repeated at the end of the case, exceptions to the charge and the refusal to charge, and an exception to the rule of damages laid down by the court. These present the only questions which the parties have brought here for examination. I think the exception to the refusal to nonsuit may be very briefly disposed of. By the statement hereto prefixed it is apparent there were facts enough proved to go to the jury on the questions embraced in the motion to nonsuit. Any thing more that needs to be said upon those questions may be just as properly presented in considering the exceptions to the charge. We come then to the charge of the court. The court charged 1st. That the evidence showed a sufficient authority or assent to bind Niles & Wheeler, by the signature of Walker to the papers A, B and C, (the alleged bills of [180]*180lading.) This, I think, is nothing more than á statement of the evidence, or comment upon it, or its effect, or an assumption of a fact in the cause. It is a mere reference to what is established by the evidence. Now it is quite clear that none of these things are the grounds of exception. (Jackson v. Packard, 6 Wend. 415. Jackson v. Timmerman, 12 Id. 299. Nolton v. Moses, 3 Bark. 31. Barnes v. Perine, 2 Kern. 22, 23. Beekman v. Bond, 19 Wend. 444. People v. Cook, 4 Seld. 78. Hunter v. Trustees of Sandy Hill, 6 Hill, 410.)
A party who is dissatisfied with the expression of an opinion by a judge upon a question of fact, or the conclusion at which he arrives in regard to it, must express that dissatisfaction ; not by excepting to the charge of the judge on that point, but by asking to have the question of fact submitted to the jury for. their determination. The defendant’s counsel claims to have done so in this case, but I think he did not. He simply excepted to the charge, on the ground that the question of sufficient authority or assent should have been submitted to the jury as a question of fact. The judge had made no charge to the contrary of this, and there was nothing therefore to which to except; nor had he been requested to submit the question to the jury; nor had he refused to do so. If he had so refused, the proper exception would have been to such refusal. Nor do I think that this exception was equivalent to a request to the court so to submit, and a refusal to do so. It would be torturing language to give it that effect. The most that can be said for it is, that perhaps it ought to be regarded as an exception to what the judge did say upon the subject of sufficient authority as being tantamount to withdrawing it from the judge, although that would be construing language in a rather latitudinarian way. But so construed it is unavailable; for the judge had done no such thing. I am quite aware that this may be argued to be a technical and severe application of the rules of practice, and tending to defeat practical justice. Nevertheless, I understand this practice to be [181]*181well settled and firmly established, and I am by no means sure that the rights of parties will not be quite as well guarded, if the judge who presides at the circuit has his attention invited to the precise thing wanted, or objected to, and the court which reviews his decision is clearly and distinctly apprised of the precise thing which was done on the trial. We are, therefore, to regard these exceptions as out of the case, and as if the judge was justified in the comments he made upon the effect of the evidence. Only two exceptions besides that on the rule of damages remain, to wit: to so much of the judge’s charge as states that Miles & Wheeler, and the defendant under them, were estopped from denying, as against the plaintiff, that they held the com as Mack’s agents and carriers, on his account, at the time of the plaintiffs’ advances on the faith of the receipts or shipping bills; and to so much of the charge as states that the plaintiffs were entitled to recover the property. It is not quite apparent that these are distinct propositions and not to be read together, and dependent the last upon the first; or that if they are to be treated as distinct, the defendant has made a distinct and separate exception to the three branches of the charge; the two now under consideration and the one previously considered. Olearly a general exception is of no avail; the first part of the charge being unexceptionable. (Murray v. Smith, 1 Duer, 412. Jones v. Osgood, 2 Seld. 233. Carpenter v. Stilwell, 1 Kernan, 61.) So, also, the courts have repeatedly held that an exception to the charge, and to each and every part thereof, raises but a single exception to the entire charge, and is unavailable if any portion of it be correct. (Auth. last cited. Lansing v. Wiswall, 5 Denio, 213. Caldwell v. Murphy, 1 Kern. 416.)
Perhaps the defendant has saved his exception and made it distinct by saying that he excepted to the charge, “and to each part thereof, separately and distinctly.” (Dunckel v. Wiles, (1 Kern. 428.) But that is not quite clear! ■ The more appropriate way certainly would have been to have kept [182]*182the several parts of the charge designed to he excepted to “separate and distinct” from each other, and to have applied the exceptions separately to each separate portion, and then there would have been no confusion or doubt. I shall treat the case, however, as if these exceptions were in point of form and regularity sufficient.
Then were Niles & Wheeler and the defendant estopped from denying as against the plaintiff that they held the corn, as Mack’s agents and carriers, on his account ?
We must now assume that the shipping bills, receipts or bills of lading, whatever they may be properly termed, were executed by Niles & Wheeler, and came properly and in good faith into the hands of the plaintiffs. I discover no evidence which, as to the latter, impeaches the bonafides of the transaction. The judge undoubtedly assumed that fact in announcing the rule of law which we are now considering. And I think (that being sufficiently apparent) the defendant, if he was dissatisfied, should by specific requests have asked him to discriminate or charge specifically upon the several particulars which together made up the legal proposition which he put forth. (Barnes v. Perine, 2 Kern. 22.)
Assuming then that the instruments in question were properly executed, by the owners of the corn, and delivered in good faith to the plaintiffs, who made advances thereon, were they and the defendant, as the master of the boat and their agent, estopped from denying, as against the plaintiff, that they held the corn at the time of the advances as Mack’s agents and carriers ? In other words, was the title of Niles & Wheeler under the facts proved, such as could be set up against the title of the plaintiffs ? for that, I think, was the legal proposition which the judge meant to announce, and ndt a general abstract proposition having no reference to the facts of the case, whether a party who has once delivered a bill of lading is forever estopped from impeaching it under any circumstances whatever.
To determine this question, let us look briefly at the facts. [183]*183The paper, though informal, was essentially a bill of lading. Such has been expressly decided to be its character, in the case of Dows v. Perrin, (16 N. Y. Rep. 328, 9.) Such also is the liberal interpretation given to papers of a nearly similar character in other cases. (Dows v. Greene, 16 Barb. 72. Bank of Rochester v. Jones, 4 Comst. 497.) And it has this peculiar feature: it is not only signed by the owner of the shipping boat, but by the owner of the goods or the vendor to Mack, under an executory contract of sale. On its face, therefore, it is a certificate from Niles & Wheeler in both of these capacities that the corn was shipped on account of Mack— that is for his benefit, and I think it fairly means for his benefit as the purchaser and owner of the goods—to the plaintiffs themselves, as consignees. I think also the fair effect of the evidence of .Bloss and Walker is that the bills of lading were delivered to Bloss intentionally and voluntarily without deception or fraud; and therefore that he had lawful possession of them. When he" sent them, therefore, to Mack, Mack had lawful possession of them with the consent of the former owners and as apparent owner himself. He had through the bill of lading, the constructive—the legal possessiori; for it can scarcely be disputed that according to the commercial law the possession of this document of title was equivalent to the possession of the property itself, so far as respects the use thereafter made of it; and the transfer of the one was the transfer of the other. (Lickbarrow v. Mason, 2 T. R. 63. Conrad v. Atlantic Insurance Co., 1 Peters, 386. Bank of Rochester v. Jones, 4 Comst. 497. Dows v. Greene, 16 Barb. 72. Brower v. Peabody, 18 Barb. 599.) It is not necessary to discuss the question whether if this bill of lading did not represent an actual shipment of goods, or if its possession was obtained by fraud) it would destroy the plaintiff’s case; for I think neither of these questions arise; nor does it Seem to be material to consider whether the execution of the bill of lading preceded in point of time the actual shipment of the goods, so long as it represented a real transaction. Were not the [184]*184plaintiffs, then, when on the 8th of August they received in good faith and for advances actually made, the transfer of the bill of lading and of the goods, and in substance the pledge or mortgage or sale of the latter as the security for those advances, brought within the protection of that rule of law which prefers the title of a bona fide purchaser from a fraudulent vendee to that of the original owner. (Mowrey v. Walsh, 8 Cowen, 238. Root v. French, 13 Wend. 570. Keyser v. Harbeck, 3 Duer, 373. Saltus v. Everett, 20 Wend. 267.) In the latter case the chancellor says, at page 272: “If the owner of the goods had caused the bill of lading to be made out in the name of Collins, (the alleged fraudulent assignor of the bill,) so as to give him a prima facie right to the goods as owner or consignee for his own benefit, a bona fide purchaser might have been entitled to protection.” Up to the time when Mack transferred the bill of lading to the agent of the plaintiffs, no fraud had been committed. That act of transfer was very possibly intended as'a fraud upon somebody; although I suppose it not to be unusual in the commercial community to entrust the bill of lading to the intended vendee for the very purpose of enabling him, by a pledge of the same as security, to raise the money with which to accomplish the payment for the goods. I am unable to see that the purchase was originally fraudulent, or that the transaction is obnoxious to any other imputation of fraud, than such as arises from a subsequently conceived determination not to pay for the goods. It may be said that Mack was not in fact the vendee, but only a'proposed purchaser having the refusal of the goods. But I do not think this is sufficient to prevent the operation of the rule. In Keyser v. Harbeck, (3 Duer, 391,) it is said: “So if the true owner has entrusted to a third person written evidence of title, or of an absolute and unqualified power of disposition, any one who advances his money to, and obtains possession of the property from, such third person in good faith, relying on the facts being in conformity with this mitten evidence of their truth, will acquire [185]*185an indefeasible title as against the true owner.” (See also, 20 Wend. 272.) Under such circumstances I do not think there was any substantial error in the charge of the judge that Hiles & Wheeler and the defendant were, as against the plaintiff, estopped from denying that they held the com as Mack’s agents and carriers, if by that he intended, as I think he did, that they were not in a situation effectually to dispute the plaintiff’s title thus acquired. The result of the whole transaction, taken together, was, as it seems to me, that the plaintiffs were entitled to recover, and so the judge charged. And if he was right on this point, his charge on the question of estoppel may be rejected as immaterial or inapplicable to the facts, and therefore no ground for reversal, as it could work no possible prejudice. (Lyon v. Marshall, 11 Barb. 241. Onondaga Co. Ins. Co. v. Minard, 2 Comst. 98. Shorter v. The People, Id. 193.) Hor does it seem to me to be necessary to discuss the full extent of negotiability that appertains to bills of lading, inasmuch as they are conceded to be so fkr negotiable, as that in a proper case their indorsement carries with it the title to the document transferred, and the title to the property thereby represented. This is enough for the purposes of the present case; and being so, it is not essential to consider whether the doctrine as to negotiability of bills of lading put forth by the learned justice who delivered the opinion of the court in Dows v. Perrin, (16 N. Y. Rep. 332 to 335,) is not -too much restricted. It does not seem to have been the point in judgment, and therefore conclusiveness as authority will not probably be claimed for it. And lest it should be supposed to command unqualified assent, I Avould suggest that the doctrine there advanced deserves very grave consideration in the present advanced state of commercial law, and the multiplicity of transactions involving the proper construction of these instruments, before it should be regarded as firmly and incontrovertibly established.
As it is possible we may not have arrived at the correct conclusion upon this point, it is proper to look at this case in an[186]*186other aspect; that is, as affected by the factor’s act. (Laws of 1830, ch.179, §§ 1, 2. 2 R. S. 4th ed. 184.) This act provides, in substance, that every person in whose name merchandise shall be shipped, shall be deemed the true owner thereof, so far as to entitle the consignee to a lien thereon for any money advanced or negotiable security given by such consignee to such, first named person. As the corn was shipped on account of Mack, he must, I think, be considered as included within the class of persons first described, and the plaintiffs are, I think, the consignees thereof; although from the loose manner in which bills of lading are frequently addressed in the margin of the bill, I can conceive that much confusion will sometimes arise in determining who is the consignee, within the meaning of this act. By the second section the lien is restricted to consignees who act in good faith; and such,' as already stated, we must regard the plaintiffs, in this case. They therefore had a lien. My principal difficulty upon this part of the case has been whether the statute intended to limit them to the right of detention of the goods when in their actual possession for the enforcement of their lien, or also to authorize an action to obtain possession against a party who claimed them without right or under an inferior title. Strictly speaking, a lien only gives a right of detention and not of acquisition. But if we carry out the established doctrine in regard to'these documents, that the possession of the symbol is the possession of the thing itself, like the key of a warehouse, (Bank of Rochester v. Jones, 4 Comst. 507,) then we may properly regard the plaintiffs as being in the constructive possession, and as legitimately resorting to this action to perfect and secure their right by reducing the property into actual possession. On the whole this seems to be the better view of this question; and if so then the plaintiffs had a perfect cause of action under this statute; and independent of any other question, the judge properly charged that the plaintiffs were entitled to recover.
The only remaining question respects the rule of damages. [187]*187The judge upon request refused to charge that the plaintiffs' damages were restricted to their advances and interest thereon. Strictly speaking, damages in an action of replevin are the loss which the plaintiff has sustained by the detention of the property; except where he is unable to obtain its return. It was evidently assumed at the trial that the question presented by this request was the amount for which the plaintiffs were entitled to judgment, and, so considered, the court was right in refusing the request. In an action of replevin, by a party having a lien, the plaintiff, as in other actions of replevin, is entitled to a return of the property, and if a return cannot be had, to its value. (Wheeler v. McFarland, 10 Wend. 318. Baker v. Hoag, 3 Barb. 203. S. C. 7 Id. 113. S. C. 3 Seld. 557.) The object is to procure a restoration of the possession, and when that is done the lien holder retains the property as a trustee for the general owner, and on being tendered the amount of his lien, is bound to restore the property to him or submit to a proper action for redress.
[New York General Term,
September 20, 1858.
Davies, Sutherland and Hogeboom, Justices.]
On the whole case I think that justice has been done, and no legal error to the actual prejudice of the defendant committed ; and therefore that the judgment of the circuit court should be affirmed.