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case will work no injustice, because though the effect of it is, that the defendant's certificate is a bar to this action, the plaintiff may prove his debt under the commission.

BAYLEY, J.-I think it is impossible to distinguish this case in principle from that of Ex parte Birch, and I am quite satisfied of the propriety of that decision.

The other Judges concurred.

Rule absolute for entering a verdict for

the defendant.

1827.

GREENWAY

v.

FISHER.

THIS

FLETCHER V. HEATH and others.

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Plea,

was an action of trover for twenty bales of silk, and twenty warrants for the delivery of the same. not guilty, and issue thereon. At the trial at the London sittings, before the Lord Chief Justice (a), the jury found a verdict for the plaintiff, subject to the opinion of the Court upon the following case.

In February, 1825, John Billinge, a silk broker, purchased for the plaintiff twenty-four bales of silk, lying in the warehouse of the East India Company. The plaintiff paid for the silks when due, and received twenty-four warrants for the delivery of them in the usual form. On the

7th June, 1825, the plaintiff sent the twenty-four warrants

(a) Counsel for the plaintiff, for the defendants, Gurney, and Denman, C. S., and Campbell;

Reader.

A. pur

chased and paid for East India silks, the warrants

for which he

sent to B., his broker, with bills to nearly their value, drawn upon

B., which B. accepted. B.

did not pay

his acceptances when

due, but received from A. the acceptances of A. to nearly the

same amount,

for the purpose of taking up his own acceptances, but which he applied to his own use, and afterwards pledged the warrants with C. In trover for the warrants by A. against C.:-Held, that by sect. 8, of 6 Geo. 4, c. 94, B. not having paid his own acceptances, had no lien upon the warrants which he could transfer to C.; and that therefore C. had no right to detain them as against A.

1827.

FLETCHER

v.

HEATH.

to Billinge, inclosed in a letter, of which the following is a copy.

"London, 7th June, 1825. Mr. John Billinge. I inclose you 24 East India warrants of silk, with a statement of costs, amounting to 37617. 13s. 7d. Upon these I have drawn upon you two bills, 15007., and 15507. 10s., at three months' date from the 6th instant, which please to accept to stand against the proceeds of said silk when sold. M. Fletcher."

Billinge accepted the two bills above mentioned, amounting to 30507. 10s., and returned them to the plaintiffs. Billinge could not sell any of the silks before the bills became due. The plaintiff promised to provide funds to pay the bills, but a few days before they fell due, he said to Billinge that it would be inconvenient for him to do so; that Billinge should draw bills upon him which he would accept; and that Billinge should get them discounted and pay his own acceptances. In consequence, Billinge drew upon the plaintiff four bills of exchange payable to his own order, one dated 3d September, 1825, for 600l. at two months; another of the same date for 6387. at three months; another dated 8th September, 1825, for 7007. at three months; another dated 9th September, 1825, for 7001. at four months, amounting in the aggregate to 26381. These bills were accepted by the plaintiff and delivered to Billinge, who promised to get them discounted, and to take up his own acceptances. On the 5th September he discounted the bill for 6381., but on the 9th September, when his aforesaid acceptances became due, and were paid as after mentioned, he had not discounted any of the others. On that day he went to the counting-house of the defendants, shewed them the plaintiff's letter of the 7th June, and asked to borrow 3,000l. upon the security of the warrants, to enable him to pay his said acceptances. He

did not mention to the defendants the last mentioned bills so accepted by the plaintiff. The defendants advanced him 30007. on the credit of the warrants, which he left with them, together with the aforesaid letter of the 7th June, 1825. This money he immediately paid into his banker's, where his acceptances were made payable, and without it the bankers had not funds to pay them. In this manner the acceptances were paid on that day. When Billinge borrowed the 3,0007., and left the warrants with the defendants, he had not paid any of his acceptances. Billinge had no authority from the plaintiff to borrow the said sum of 30001. from the defendants. On the 26th September, Billinge carried to the defendants, bills for 33661., desiring them to discount those bills for him, to repay themselves the 3,000l. they had advanced to him and interest, and to pay him the balance. They did so, and paid him a balance for 2697. 7s. 1d. All the bills accepted by the plaintiff, Billinge discounted, and applied the proceeds to his own use, but carrying the amount to the plaintiff's credit in their account current. He sold one bale of the silk on the 12th September, and three more on the 2d November. The defendants gave him up the four warrants, and have retained the others in their possession. Billinge did not pay the proceeds of the four bales, which he sold to the plaintiff, but he credited his account with the amount. The plaintiff paid all the bills accepted by him as they became due. On the 10th October, 1825, Billinge drew upon the plaintiff another bill of exchange, payable to his own order for 4007., at three months, which was also accepted by the plaintiff, and which Billinge applied to his own use. A third set of bills was drawn by the plaintiff on Billinge, and accepted by him; one dated 1st December, 1825, for 7007. at three months; another dated 8th December, 1825, for 8001. at three months; another dated 29th December, 1825, for 5007. at three

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1827.

FLETCHER

v.

HEATH.

1827.

FLETCHER

บ.

HEATH.

months; and another dated 2d January, 1826, for 6007. at three months. Billinge stopped payment on the 17th January, 1286, and a commission of bankrupt was soon issued against him. Till then, the plaintiff knew nothing of Billinge's having borrowed money from the defendants; or having deposited the warrants with them. Billinge, when he stopped payment, was, and still is, indebted to the plaintiff in the sum of 4941. The plaintiff negotiated the third set of bills accepted by Billinge, but he took them up when due, and they have been no charge upon Billinge's estate. Billinge was not indebted to the defendants when he deposited the warrants with them, but he was indebted to them when he stopped payment to the amount of 4000l. and upwards. The bills for 33661., delivered by Billinge to the defendants on the 26th September, produced to the defendants 23271. Some of them were dishonoured, and remain in their hands, making a deficit of 10397. besides interest. Before the commencement of the action, the warrants were demanded on behalf of the plaintiff from the defendants, who refused to deliver them up, claiming a lien upon them for the balance due to them from Billinge.

The questions for the opinion of the Court, are, first, whether the defendants have any lien upon the warrants; and, secondly, if they have any, to what amount? The verdict to stand, or a nonsuit to be entered, as the Court shall direct. If the verdict is to stand, the same to be for the amount of the damages in the declaration, to be reduced to one shilling on delivery by the defendants of the warrants, or payment of the net price raised by the sale of such of them as shall be previously sold by the defendants, with the consent of the plaintiff.

Campbell, for the plaintiff. First, the defendants had no lien whatever upon the warrants; secondly, if they

had any, at most it extended only to the sum of
4127. 10s., the difference between Billinge's acceptances
for 30501. 10s., and the plaintiff's acceptances for 26381.,
the latter of which were given for the purpose of taking
up the former, though they were not so applied. The
justice of the case is clearly with the plaintiff, for he
had bought and paid for the silks, and they were after-
wards pledged by his agent without his knowledge or
authority; but it is to be contended that the law of the
case is with the defendants, and the late statute of 6 Geo.
4, c. 94, s. 5, is to be relied upon as furnishing that
law. The object of that section, as stated in the margin
of the printed act, is to define "what interest persons
accepting and taking goods, &c., in pledge from un-
known agents may acquire," and the enactment of it is
this:-"that it shall be lawful for any person to accept
and take any such (a), goods, wares, or merchandize, or
any such document (b), in deposit or pledge from any
factor or agent, notwithstanding such person shall have
notice that the person making such deposit or pledge
is a factor or agent; but in that case, such person shall
acquire no further or other right, title, or interest in, or
upon, or to the said goods, wares, or merchandize, or
document for the delivery thereof, than was possessed,
or could or might have been enforced by the factor or
agent, at the time of such deposit or pledge as a security;
but such person shall and may acquire, possess and
enforce such right, title, or interest as was possessed
and might have been enforced by such factor, or agent,
at the time of such deposit or pledge."
pledge." The defendants,

(a) i. e. Goods, wares, or merchandize, entrusted to any person for the purpose of consignment or of sale, and shipped by such person in his own name, or goods, wares, or merchandize, shipped by one person in the name of

another; sect. 1.

(b) i. e. Any bill of lading, India warrant, dock warrant, warehouse keeper's certificate, wharfinger's certificate, or warrant, or order for delivery of goods; sect. 2.

*1827.

FLETCHER

v.

НЕАТН.

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