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case will work no injustice, because though the effect 1827. of it is, that the defendant's certificate is a bar to this GREENWAY action, the plaintiff may prove his debt under the com

FISHER. mission.

V.

Bayley, J.-I think it is impossible to distinguish this case in principle from that of Er 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.

A. pur

Fletcher v. Heath and others. This was an action of trover for twenty bales of silk, and twenty warrants for the delivery of the same. Plea, chased and

paid for East not guilty, and issue thereon. At the trial at the London India silks, sittings, before the Lord Chief Justice (a), the jury found the warrants a verdict for the plaintiff, subject to the opinion of the sent to B., his

broker, with Court upon the following case.

bills to nearly In February, 1825, John Billinge, a silk broker, pur- their value, chased for the plaintiff twenty-four bales of silk, lying in B., which B. the warehouse of the East India Company. The plaintiff accepted. B. paid for the silks when due, and received twenty-four war- his acceptrants for the delivery of them in the usual form. On the ances when

due, but re7th June, 1825, the plaintiff sent the twenty-four warrants ceived from

(a) Counsel for the plaintiff, for the defendants, Gurney, and ances of A. to Denman, C. S., and Campbell ; Reader.

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.

A. the accepte

to Billinge, inclosed in a letter, of which the following

1827.

FLETCHER

is a copy

Heath.

London, 7th June, 1825. Mr. John Billinge. I inclose you 24 East India warrants of silk, with a statement of costs, amounting to 37611. 13s. 7d.

Upon these I have drawn upon you two bills, 15001., and 15501. 10s., at three months' date from the 6th instant, which please to accept to stand against the proceeds of said şilk when sold. M. Fletcher."

Billinge accepted the two bills above mentioned, amounting to 30501. 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 6001. at two months; another of the same date for 6381. at three months; another dated 8th September, 1825, for 7001. 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 3,0001. upon the security of the warrants, to enable him to pay his said acceptances. He

1827.

FLETCHER

Heath

did not mention to the defendants the last mentioned bills so accepted by the plaintiff. The defendants advanced him 30001. 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 3,0001., 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 3,0001. they had advanced to him and interest, and to pay him the balance. They did so, and paid him a balance for 2691. 7s. ld. 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 4001., 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 7001. at three months ; another dated 8th December, 1825, for 8001. at three months; another dated 29th December, 1825, for 5001, at three

VOL. I.

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1827.

LETCHER

V. HEATн.

months; and another dated 20 January, 1826, for 6001. 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 40001. 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 10391. 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 4121. 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 afterwards 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 unknown 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 (6), 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.” The defendants,

*1827.

FLETCHER

v. HEATH.

(a) i. e. Goods, wares, or mer- another; sect. 1. chandize, entrusted to any person (6) i.e. Any bill of lading, India for the purpose of consignment or warrant, dock warrant, warehouse of sale, and shipped by such per- keeper's certificate, wharfinger's son in his own name, or goods, certificate, or warrant, or order wares, or merchandize, shipped for delivery of goods; sect. 2. by one person in the name of

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