Opinion by BOCKES, J.

the referee. He found emphatically against the Plaintiff—that he did not lend or advance the one thousand dollars to the firm, nor did the firm make and give him the firm note, as alleged in the complaint; nor was that sum due and owing to him from the copartnership; and while he found that the note was signed by the firm name, in form as stated in the complaint, yet he also further found that it was never held and owned by the Plaintiff, as claimed by him. This finding of fact on the evidence must be held conclusive on the parties, and as a consequence determines the case against the Plaintiff, in so far as he made a claim. against the other members of the firm, or the note. His case was not sustained on this point of the litigation, and the judgment in that regard was properly affirmed by the General Term. No other question is raised on this appeal on the merits.

It is insisted hence that the referee erred in the adjustment of the costs between the parties. The action being in equity, the giving or withholding of costs was in the discretion of the ref eree. As a general rule, the Court will not attempt to control that discretion on appeal; certainly not except in case of its palpable abuse.

Such is not this case.

The Plaintiff failed in the action on the principal subject of litigation; recovering, however, on one minor branch of it. He was allowed his costs of the action, excepting two-thirds of the disbursements, and was charged with the costs of White's defence.

We cannot see that the adjustment of the costs between the parties was so unfair and inequitable as to require this Court to interfere with the decision of the referee.

The judgment of the Supreme Court should be affirmed, with costs of the appeal against the Appellant.

All concur.

Affirmed.

Opinion by GROVER, J.

GROVER, J.-None of the exceptions of the Plaintiff to the admissibility of evidence were well taken. It was claimed by the Plaintiff that he had loaned his firm, consisting of the parties to the suit, one thousand dollars, for which the note was given. The circumstances under which this note was presented by the Plaintiff, his entire forgetfulness at the time as to the origin of the note, its consideration, or how he came by it, were calculated to create a doubt as to the truth of the story subsequently told by him that he kept large sums of money in his house, in the custody of his wife, from which this money was taken. This story was of itself very suspicious. This rendered an inquiry into the pecuniary condition and dealing of the Plaintiff, at about the time, admissible, for the purpose of showing whether the Plaintiff had in fact any such sums of money as claimed by him. All the evidence excepted to was proper for this purpose. The question whether the Plaintiff lent the thousand dollars to the firm, and took the note in question, therefore, was one of fact; and if the evidence was at all conflicting, the decision of the referee cannot be reviewed in this Court. It was undisputed that the signature of the firm to the note was in the handwriting of the Defendant White, one of the firm. Had there been no other evidence, it would have presented a question of law merely; and, had the referee found the fact contrary to the undisputed evidence, it would have been a legal error that this Court would correct upon appeal. But there was other evidence tending strongly to show that the note was not valid against the firm.

In this class of cases this Court has no power to inquire into the weight of the evidence, and determine whether the Court below has come to a correct conclusion thereon. That can only be done by the Supreme Court. In this case the Plaintiff concedes that costs were in the discretion of the Court.

There is no evidence of abuse in its exercise.

There is no

grounds for the interference of this Court with the disposition in this respect made by the referee.

Opinion by GROVER, J.

The judgment appealed from should be affirmed.

All concur.
Affirmed.

JOEL TIFFANY,
State Reporter.

Opinion by DAVIES, Ch.J.

HENRY RAWLS AND CHARLES S. SEYMOUR, RESPONDENTS, v. JOHN G. DESHLER, APPELLANT.

Innocent Persons-Loss by Third Party- Which shall sustain?

Whenever one of two innocent persons must suffer by the acts of a third party, he who has enabled such third party to occasion the loss must sustain it. When a party sells a cargo of corn and allows the purchaser to take the corn, ship it, receive a bill of lading therefor, and draw upon his consignee with bill of lading attached to the draft, such vendor will not be allowed the right of stoppage in transitu to obtain payment, when by so doing the consignee is to suffer for his acceptance and payment of such draft.

John Gansen for Appellant.

H. C. Day for Respondents.

DAVIES, CH.J.-On the 18th of September, 1860, one A. L. Griffin, of Buffalo, purchased of the Defendant a quantity of white corn. The Defendant had the corn on storage at the Hatch Elevator. He gave Griffin an order for the corn in these words:

Hatch Elevator.

Buffalo, Sept. 18, 1860.

Deliver A. L. Griffin, Esq., or order, 4,328,47 bushels white corn, cargo Potomac, subject to my order until paid for.

JOHN G. DESHILER.

The corn was delivered to Griffin on production of this order, and he, Griffin, shipped the corn, on the 18th of September, on board a canal-boat at Buffalo, and received the following bill of lading:

Buffalo, Sept. 19, 1860

Shipped in good order, by A. L. Griffin, on board of canalboat L. B. Trowbridge, B. T. Co. Line, master, the following articles, to be carried under deck and delivered in like good order, as addressed, without delay, towing day and night, damages and deficiency to be deducted from charges by consignors. Acct. A. L. Griffin or order.

4,328,47 bushels white corn, care Rawls and Seymour, New

Opinion by DAVIES, Ch.J.

York. Freight to New York 144 c. per bushel, free of lighterage, JAMES VAN BUREN,

consignees paying towing.

Entered Sept. 21, 1860.

per NOBLE.

Endorsed, A. L. GRIFFIN.

It appeared that Van Buren had an office in Buffalo, and carried on business there under the name of The Buffalo Transportation Company; that Van Buren was a public carrier, and had a regular line, and had an interest in some of the boats; he was what they call a scalper; he gets a cargo from the owner, and gets a boat to take it, and receives a commission from the boats; that Noble was the agent of the company, and had authority to sign the bill of lading.

On the 19th of September, 1860, Griffin advised the Plaintiffs of the shipment of corn to them, and that he had drawn on them for the corn. This letter the Plaintiffs received in New York, on the morning of September 20. On the 19th of September, 1860, Griffin drew a draft upon the Plaintiffs for $2,120, and annexed thereto the bill of lading, signed by Van Buren, and on that day procured the said draft to be discounted by the White Bank, in Buffalo, and received the avails thereof. This draft was presented to the Plaintiffs for acceptance in the city of New York, with the bill of lading attached, on the 20th of September, by the correspondent of the White Bank, and on the 21st was accepted by the Plaintiffs, and subsequently paid by them.

The Defendant intercepted the boat upon which the corn was laden at or near Rochester, while on its transit to the Plaintiffs, and, through the instrumentality of proceedings in replevin, obtained possession of the corn, and sold and converted the same to his own use.

The action of replevin was instituted in the name of this Defendant against Griffin, and C. H. Wendt, the captain of the boat upon which the corn was laden. Griffin was not served with any process in the case, and Wendt, upon whom the summons was served, made default, and judgment passed against him accordingly.