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therefore, could acquire no further right or title to the warrants by the pledge made of them by Billinge, than Billinge himself possessed or might have enforced; and then the simple question is, what right or title to the warrants did Billinge possess, or could he have enforced, on the 10th September, when he pledged them to the defendants? It is confidently submitted that he had at that time no right or title to, or in the more generally accepted term, no lien whatever upon, the warrants. He had advanced no money upon them, he had merely accepted bills to the amount of 30501. 10s., against the proceeds of the silks; and the plaintiff had subsequently accepted bills to the amount of 25381. for the purpose of taking up Billinge's bills: so that the utmost extent of Billinge's lien, under any circumstances, was 4127. 10s. the difference between the two sets of bills. But even that, if it had once existed, was gone before the pledge was made; because Billinge did not take up his own acceptances with the plaintiff's bills, but on the contrary discounted one of the latter, a bill of 6387., and applied the money to his own use; so that his claim for the 4127. 10s. was at an end, and the plaintiff had a counter claim upon him for 225l. 10s. upon that part of the transaction. But, even supposing that Billinge had on the 10th September a lien upon the warrants to the amount of 4127. 10s., which lien he on that day transferred to the defendants by pledging the warrants to them, still the subsequent transaction of the 26th of September discharged that lien, both as against the defendants and Billinge; for on that day Billinge repaid the defendants the 300l. which they had advanced upon the security of the warrants, and the plaintiff might then instantly have insisted upon the warrants being delivered

up

to him. It is true that the defendants received back their original loan of 30007.. by means of discounting other bills for Billinge of a large amount, and paying him the balance; but that was not a fresh loan on account

of the warrants; that was an actual sale of those bills by Billinge to the defendants; and though some of those bills were afterwards dishonoured, that circumstance did not affect the plaintiff; it only constituted a new debt between the defendants and Billinge. But even going one step further, and assuming that the original lien subsisted, notwithstanding the transaction of the 26th of September, still it was entirely extinguished by what took place between Billinge and the plaintiff in the following December, for the plaintiff then drew bills upon Billinge to the amount of 2000l., which Billinge accepted, and he shortly afterwards stopped payment, being indebted to the plaintiff in the sum of 4941. Looking at these facts altogether, can it be contended that such a pledge made by an agent ought to be binding upon his principal? Surely not; the most grievous injustice would result from such a decision. It is submitted, therefore, first, that the defendants have no lien at all upon the warrants; and, secondly, at all events, that they have a lien only to the extent of 4127. 10s., the claim which Billinge is supposed to have had upon the plaintiff at the period of the pledge. In either view of the case the plaintiff is entitled to recover In the first, because then there is no defence to the action. In the second, for two reasons: first, because the defendants have detained property far exceeding in value the amount of their lien, and have thereby been guilty of a conversion of the surplus; and, secondly, because they have varied the ground upon which they claimed to retain that property; for their first claim was in respect of a debt owing by the plaintiff, and their present claim is in respect of a debt owing by Billinge: and that is a waiver of the lien in toto. Boardman v. Sill (a).

Reader, contra. First, the defendants have not waived their lien, be the extent of that lien what it may, The

(a) Campb. 410, n. And see Thompson v. Trail, 6 B. & C. 36.

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principle laid down by Lord Ellenborough, in Boardman v. Sill cannot be impugned; nor need it on the part of the present defendants. The point there decided was, that if a person, having a lien upon goods for warehouse rent, when they are demanded of him, claims to retain them upon a different ground, (in that case, that the goods were his own property,) and does not make any mention of the lien, trover may be maintained against him, without evidence of a tender having been made to him in respect of his lien. It requires no argument to shew how widely and essentially that case differs from the present; the mere statement of it is enough to dismiss the point raised upon it. Secondly, it is perfectly immaterial, so far as the maintenance of the action is concerned, to what extent the defendant's lien prevailed. If they have any lien at all, however limited, that is a good answer to this action, because the plaintiff has made no tender in respect of that lien, which he was bound to do. Then, thirdly, which is indeed the only point in the case, had the defendants any lien at all? If they had, the plaintiff must be nonsuited; and that they had, a short review of the facts will clearly and satisfactorily establish. It has been said that the justice of the case is with the plaintiff, because he bought and paid for goods which were afterwards pledged by his agent, without his knowledge or authority; but it is at least equally with the defendants, for they have advanced their money bonâ fide upon the faith of a security, which is now attempted to be wrested from them, without repaying them their advances. The language used by the plaintiff in his letter to Billinge of the 7th of June, clearly shews that he intended to give Billinge a lien upon the warrants, and that lien was, under the new law, transferrable by Bil linge to the defendants. He says, "I inclose you twentyfour warrants of silks, upon which I have drawn bills, which please to accept, to stand against the proceeds of the silk when sold." The plaintiff, therefore, expressly

charged the warrants with the amount of the bills which he then drew, and Billinge pledged them, so charged to the defendants; which by law he was entitled to do. The defendants, in accepting the warrants, acted perfectly bonâ fide, for they had no reason throughout the transaction to entertain any suspicion of Billinge; they trusted the plaintiff, not Billinge; they advanced their money upon the plaintiff's security, and the law transferred to them the same lien upon the warrants as Billinge possessed at the time. Then what lien did Billinge then possess? The pledge was on the 10th of September. Billinge's acceptances fell due on the 9th. On the 8th, the plaintiff gave him fresh bills, which left a balance of 4127. 10s. due to Billinge; and, therefore, to that extent at least, Billinge had a lien, which he was capable of transferring to the defendants. Then it is impossible for the plaintiff to maintain this action, because he has omitted to tender to the defendants that sum of 4127. 10s. The defendants did not waive their lien by discounting the second set of bills for Billinge; for that was not a sale of those bills by Billinge to them, but a new loan upon the old security; and as those bills were never paid, they could have no effect in altering the relative claims and liabilities of the parties. It is said the warrants might at that time have been demanded back by the plaintiff; but if they might, they never in fact were so; they were left by him in the hands of the defendants as continuing securities, and the possession of them never having been given up, the lien upon them never was extinguished. The subsequent arrangement made between Billinge and the plaintiff could not operate in any manner against the defendants; for the plaintiff being then indebted to Billinge upon a balance of accounts, could not have demanded the delivery of the warrants from him, because he had then a lien upon them for that balance, which lien had passed to, and was subsisting in the defendants.

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The case was argued in Trinity term last, when the Court took time for consideration; and in the course of the present term, judgment was delivered by

Lord TENTERDEN, C. J., who after briefly recapitulating the facts of the case, thus proceeded. Upon these facts we are all of opinion that the plaintiff is entitled to recover. At common law, and before the passing of the late statute 6 Geo. 4, c. 94, it is perfectly clear that the defendants would have had no lien upon the warrants; but it was contended that under the fifth section of that statute they could, and did acquire a lien upon them, at least to the amount of 4121. 10s., the sum due from the plaintiff to Billinge at the time the latter pledged the warrants with the defendants. But that clause provides, that the pawnee of goods pledged by an agent, shall acquire no further right, title, or interest in the goods, than was possessed, or could have been enforced by such agent at the time of the pledge; therefore, the question is, what right, title, or interest, Billinge possessed in these warrants, or could have enforced, at the time he pledged them with the defendants. The plaintiff în his letter to Billinge of the 7th of June, incloses the warrants to him, and states that upon those warrants he has drawn bills upon him; and those bills Billinge accordingly accepted. But those bills were never paid. Now the 8th section of the statute, which provides, that the pre ceding section which declares that agents fraudulently pledging the goods of their principals shall be deemed guilty of a misdemeanour, shall not extend to cases in which the agent has not made the goods a security for any sum beyond the extent of his own lien, provides that acceptances of bills by an agent drawn by his prin

cipal, shall not create à lien, so as to excuse the pledge, unless the bills are paid when due. It follows from that provision, that Billinge the broker had no lien upon the

warrants at the time when he pledged them, and conse