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state that the factors were in possession of the dock-warrants at the time of the pledge and delivery thereof “as hereinafter stated;" and they go on to say, that being so in possession of the dock-warrants, they applied to the defendant for an advance upon the pledge of the bales ; and that it was agreed, a sum should be advanced upon such security; and that the factors, being so in possession of the warrants in pursuance of such agreement, did deliver to the defendant the dock-warrants as a security for the sum which the defendant did then and there advance to them. It is impossible to read these pleas in any other way than as containing a statement that the factors were in possession of the warrants at the time of the advance of the money. It is contended that the allegation is mere matter of inducement; but that cannot be ; for the main argument on the other side is, that the factors' act does not apply unless the warrants be in the possession of the factor at the time of the pledge. If, as argued upon the other side, the denial modo et formâ involves a denial of all the allegations, it would have the same effect as the replication de injuriâ, or even a larger effect, than that replication is allowed to have ; for it would put in issue matter of title, which cannot be done by de injuriâ. Besides, the addition of modo et formâ to the denial is mere surplusage. Nevil and Cook's case (2 Leon. 5), Com. Dig. Pleader (G. 1). It is said that de injuriâ could not have been replied in this case. It is immaterial to the defendant's case whether it could or not; but probably it might have been replied, upon the authority of Crogate's case (8 Co. Rep. 66), Selby v. Bardons (3 B. & Ad. 2; affirmed, 3 Tyrwh. 431, 1 C. & M. 500), and Solly v. Neish (5 Tyrwh. 625, 2 C. M. & R. 355, 4 Dowl. P. C. 248). The case of Parker [312] v. Riley (3 M. & W. 230), may perhaps be relied upon by the other side upon this point; but that case has no application here, for it only decides, that when a plea to a declaration on a contract amounts to the general issue, the replication de injuriâ is bad. [Tindal C. J. There may be a doubt perhaps, whether that replication would be good in this case, where an interest is claimed.] The rule, it is submitted, only applies to real property. But supposing it to apply here, and that de injuriâ could not have been replied, that point has no bearing on the case. For quâcunque viâ datâ, whether de injuriâ could or could not have been replied, the allegation in question is not traversed. Edmunds v. Groves (2 M. & W. 642; 5 Dowl. P. C. 775) will also be relied upon. That was an action of assumpsit by the indorsee against the maker of a promissory note. The plea was, that the note was given for a gaming debt, and indorsed to the plaintiff with notice thereof, and without consideration. The plaintiff replied, that the note was indorsed to the plaintiff without notice of the illegality, and for a good and sufficient consideration ; on which issue was joined ; and it was held, that, on these pleadings, the illegal making of the note was not so admitted as to render it necessary for the plaintiff to give any evidence of consideration; but that, in order to compel him to do so, the defendants ought to have proved the illegality by evidence. The question therefore was, on whom the onus probandi lay. Lord Abinger C. B. said, “I think it was incumbent on the defendant, who set up as a defence this fact, that the note came into the hands of the plaintiff with notice of its original infirmity, to have produced some evidence to prove it: or, in other words, that the onus probandi was on him.” And Alderson B. added, “ An admission on the record is merely a waiver of requiring proof of [313] those parts of the record which are not denied, the party being content to rest his claim on the other facts in dispute: but if any inferences are to be drawn by the jury, they must have the facts, from which such inferences are to be drawn, proved like any other facts." These observations appear at first sight very strong in favour of the other side ; but the question there was, which way the presumption lay; and the court decided for the plaintiff against the presumption of illegality. The defendant had offered no evidence of illegality, and therefore the court gave judgment for the plaintiff. The expressions of Alderson B. must be understood with reference to the subject-matter under consideration, and not as contravening an established rule in pleading. Bennion v. Davison (3 M. & W. 179), will also be cited on the other side ; the marginal note of which is as follows:-“Declaration in assumpsit stated that the defendants were the owners of a vessel lying in a certain river, and bound to Liverpool; that the plaintiff caused to be shipped on board her a quantity of potatoes, to be safely carried by the defendants, as owners of the said vessel, to Liverpool ; and in consideration thereof, and of certain freight, the defendants promised the plaintiff, to take proper care of, and safely carry, the said goods as aforesaid : with a breach, that, through the defendants' negligence, they were damaged. Plea, non assumpserunt:

Held, that the ownership of the defendants was not admitted by the plea. A plea denying a particular fact alleged in the declaration, does not admit other immaterial allegations in the declaration. Quære, whether it admits the other material allegations, so as they may be taken as facts to go to the jury ?” In that case Parke B. said, “ It is not necessary to say more than this as to the effect of an admission on the record, that, at all events, the [314] taking issue on one fact averred in the declaration, is only an admission of the other material averments necessary to be proved. Taking it, that here there is an admission of the material allegations, there is no admission of the allegation of ownership, because that is perfectly immaterial” (a). That, therefore, was the case of an immaterial allegation, which could not have been traversed. But here, a plea denying the possession of the dock-warrants by Douglas, Anderson and Company as factors, would have been an answer to the action. The rule may be thus stated: if a material fact be alleged by way of inducement merely, it is not traversable ; but if the denial of it would be an answer to the action, then, if it be not traversed, it must be taken as admitted.

With regard to the effect of the evidence, supposing it to be admissible, it is said that on the 7th of October when the four dock-warrants were deposited, no fresh advance of money was made, and that undoubtedly is so; the warrants were changed for others which were not the property of the plaintiffs, but had been previously deposited with the defendant as a security for advances made on the faith of such previous deposit. It is admitted that no lien arises under the factors' act in respect of that exchange. Then, on the 15th of October (the defendant at that time still holding the four warrants deposited on the 7th) an agreement was entered into between the defendant and Douglas and Co. for a new advance of 30001. on warrants to be immediately handed over by the latter. The 30001. was advanced on that day. Douglas and Co. had the bills of lading in their possession at the time ; and the bales of silk were landed in (315] their name. The warrants, however, were not actually procured till the Monday following, but they were then handed over to the defendant. Can there be any doubt that this advance was made on the security of these dock-warrants? It is not necessary that in every case the factor must hand over the warrants at the actual time of the advance. It was not necessary that they should be in esse at the time. [Vaughan J. Suppose the warrants had been in existence at the time, but the factor had left them at home, and had brought them to the defendant on Monday.] Or suppose he had brought them on the same afternoon—or an hour after the advancewould it be contended, that would not have been sufficient? Or suppose the interval of a few minutes only. No one can do two things at the same moment. The whole must be looked at as one transaction in pursuance of the existing agreement. The advance and deposit must be considered as having taken place semel et simul. But it is said that the advance was made on the personal credit of Douglas and Co.; that however is not so. Credit was clearly given; but none in the proper

and mercantile sense of the word. Credit was indeed given by the defendant to their statement that they would deposit the warrants—for no human affairs could be conducted without some confidence. The case then stands thus: the defendant had a lien for the advance made on the 17th of October in respect of the ten warrants that were then virtually deposited with him; and also in respect of the four warrants previously deposited on the 7th. The transaction on the 22nd is of the same character as that on the 17th, and the same observations apply—so that in effect the defendant had a lien in respect of all the sixteen warrants. It further appears, that on the 5th of November it was agreed, that any deposits then in the hands of the defendant, should be held as a security for [316) subsequent advances. The 14001. advanced on that security was clearly advanced on the faith of the ten warrants ; so with regard to the advance of 5001. upon the 10th of November. Will it be contended that, as the warrants were not on these occasions in the corporal possession of Douglas and Co., but of the defendant, the transactions were therefore not within the protection of the factors' act? The warrants were in the constructive possession of the factors; and consequently the fair construction of the act will protect these transactions. Again, on the latter occasion, the 10th of November, there was an express agreement that the ten warrants

(a) But Alderson B. added, “It is clear that this averment, being an immaterial one, was not admitted ; but it is not to be taken for granted, that, if it had been material, there was an admission of it as a fact to go to the jury.”

C. P. XII.—5

should be retained as a security for the 5001. then advanced ; so that if all the former transactions were struck out, there would still be a lien for 5001., and therefore there was no tortious conversion by the defendant.

[The learned counsel then went into the question of the state of accounts between the plaintiffs and Messrs. Douglas, Anderson and Co.; but it does not appear to be necessary to report this part of the argument.]

As to the other branch of the rule with regard to a new trial, it would be useless to make it absolute unless a repleader were awarded. But this is not a case for the interference of the court. The pleadings are good and sufficient as they stand; and there is no pretence for awarding a repleader. The justice of the case is clearly with the defendant. Both parties are innocent, but one must suffer. And the plaintiffs having enabled their factors to appear as the owners of their property, have no right to make the defendant a loser by their act.

Wilde Serjt., Kelly and James for the plaintiffs. The object of the factors' act was, to prevent the possibility of fraud being committed by English on foreign [317] merchants, who intrusted the former with their property. It introduced guards and cautions which the courts of law will not break down. In this case the plaintiffs are foreign merchants; their factors, the English merchants, are bankrupt; it is a case in which the court will be disposed to render every legitimate assistance to the plaintiffs. It is said that the question is, whether the money was advanced by the defendant on the faith of the dock-warrants; and that the advances may have been made, though the warrants were not then in existence. The fallacy consists in the meaning attributed to the word “faith.” The plaintiffs contend that it is used to signify a “deposit,” or “pledge” (the words of the act). Therefore, where an advance is made on the faith of the symbols of property, it is indispensable that they should be in existence at the time, for if not in existence, there can be no deposit of them. The third, fourth, fifth and seventh pleas are substantially the same; and the question may therefore be disposed of with reference to the third plea. That plea contains much introductory matter—setting forth, inter alia, an agreement between the defendant and Douglas and Co., as to the pledge of the dock-warrants. There would have been no use in traversing that allegation, or any of the others which are mere matter of inducement. The important averment is, that “the said Douglas, Anderson and Co. being so intrusted with, and in possession of, the said dock-warrants," (that is, at the time of the delivery and pledge), “in pursuance of the said agreement, did deliver to the defendant the said four dock-warrants, and did pledge with him the said four bales of silk, as a security for the said sum of money, and which the defendant did then and there advance to the said Douglas, Anderson and Co., upon the faith of the said four dock-warrants." This allegation is traversed by the plaintiffs, modo et formâ. There [318] is no necessity to extend that traverse; but it clearly traverses the whole of that distinct allegation in the plea; and the existence of the dockwarrants at the time of the advance is therefore included. In Cowlishaw v. Cheslyn the plea was, that A. C. did not make the grant as alleged in the declaration. Might not the defendant, under that issue, have shewn that A. C. was not, in fact, in existence at the time of the alleged grant? De injuriâ would not have been a good replication in this case, because the defendant claims an interest in the goods through the plaintiffs. No case has been cited in support of the position that that rule is limited to cases relating to real property. Solly v. Neish (5 Tyrwh. 625, 2 C. M. & R. 355, 4 Dowl. P. C. 248), Selby v. Bardons (3 B. & Ad. 2, 3 Tyrwh. 431, 1 C. & M. 500). Bennion v. Davison (3 M. & W. 179), Noel v. Boyd (Tyrwh. & Gr. 211, 4 Dowl. P. Ć. 415), and Whittaker v. Mason (3 N. C. 359, 2 Scott, 567), shew that the replication of de injuriâ would have been improper; and also that where one particular fact is raversed, all the other facts alleged are not to be taken as conclusively admitted.

The question therefore comes round to this—what is put in issue by the replication here? It is, in terms, whether the advance of money was made upon the faith of the dock-warrants. But how could an advance be made on the faith of documents that were not in esse at the time? The delivery of the warrants is clearly in issue. and their existence is unquestionably involved in that issue. In Cross Keys Bridge Company v. Rawlings (3 N. C. 71, 3 Scott, 400), the plaintiffs declared against the defendants for carelessly impinging with a ship against their bridge, and thereby doing damage. The defendants pleaded that the plaintiffs improperly narrowed the channel by an obstruction, without this, that the damage was occasioned by the care

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lessness of the defendants; and it was held that under [319] this plea, the defendants were entitled to give evidence in disproof of their carelessness, after they had failed to establish the obstruction imputed to the plaintiffs. That is an authority to shew that the introductory allegations in this case are matter of inducement; and may be disproved. [Tindal C. J. In that case there was a special traverse, and all that preceded it was necessarily matter of inducement, and could not have been traversed.] In Ridley v. Tindall (7 A. & E. 134) it was held that where the defendant in assumpsit pleads that he paid, and the plaintiff accepted, moneys in full satisfaction, a replication alleging that the plaintiff did not accept the moneys in full satisfaction, puts the payment as well as the acceptance in issue. That case was decided on the authority of Webb v. Weatherby (1 N. C. 502, 1 Scott, 477); where to a plea of payment of 31. 88. 2d. in satisfaction and discharge of the defendant's promise, the plaintiff replied, that the defendant did not pay it in satisfaction and discharge, nor did the plaintiff receive it in satisfaction and discharge ; and, on demurrer, this replication was held to be good. Mills v. Barber (Tyrwh. & G. 835, 1 M. & W. 425, 5 Dowl. P. C. 77) is an authority to the same effect. The judgment of Alderson B. in Edmunds v. Groves (2 M. & W. 642, 5 Dowl. P. C. 775. Ante, 312, 313) is strongly in favour of the position contended for on the part of the plaintiffs. In Firmin v. Crucifix (5 C. & P. 98. And see ante, vol. ii. p. 220) it was ruled by Lord Lyndhurst C. B. at nisi prius, that the statements in a special plea, on which judgment had been given for the plaintiff on demurrer, could not be used, at the trial of the cause, as an admission on the record by the defendant; but that the cause must be tried on the general issue, without any reference to the special plea at all; and Lord Tenterden C. J. ruled in a similar [3207 manner in Montgomery v. Richardson (5 C. & P. 247); and this ruling was afterwards upheld by the court. In Grant v. Kearney (12 Price, 773) it was held, that protestation of matter in a replication had not the effect of admitting it, so as to dispense with proof of it on the trial of the issue. These authorities establish that there is no admission in the pleadings in the present case to preclude the plaintiffs from shewing that, in fact, the warrants were not in existence at the time of the advances, or,—which amounts to the same thing,—that the moneys were not, in fact, advanced, upon the pledge of the warrants. [Tindal C. J. Suppose the warrants had been locked up in a drawer, the key of which had been mislaid, at the time of the advance.] Still some symbol might have been given to transfer the property. The fact that Douglas and Anderson were possessed of the warrants is clearly in issue ; à fortiori, therefore the fact of their existence is in issue; for how could the factors be possessed of them, if they were not in esse? The advances were made on the credit of the factors, upon a promise of the deposit of some warrants, not upon the faith of an actual deposit. The defendant would have been as well satisfied if, on the Monday following, the factors had brought him any other warrants of the same value, as those belonging to the plaintiffs.

But then it is argued, that, even conceding that no lien was created at the time of the original delivery of the dock-warrants, still the defendant would have a lien in respect of the subsequent advances. But if the original delivery did not confer a lien, as not being a transaction protected by the statute, the subsequent dealings between the factors and the defendant would not validate such transaction; and if so, the refusal to deliver the warrants to the plaintiffs would amount to a conversion. In M Combie [321] v. Davies (6 East, 538. S. C. not S. P., 7 East, 5) it was held, that taking the property of another by assignment from one who had no authority to dispose of it, and refusing to deliver it to the principal after notice and demand of him, was a conversion. Then, with regard to the transaction of the 7th of October, that was clearly a case of exchange or transfer of warrants, and not a pledge or deposit, for money, of negotiable instruments (such warrants not being “negotiable instruments" within the meaning of the factors' act); and, consequently, the transaction was not protected by that act, and no lien was created in respect of it; Taylor v. Kymer (3 B. & Ad. 320). Then, it is argued that the actual possession of the warrants by the defendant, at the time the subsequent advances were made, may be considered as the constructive possession of the factors. But that is not so; the warrants would not have passed upon the bankruptcy of the factors to their assignees as being in their possession, order or disposition. Actual possession, or, at all events, the right to actual possession (which is inconsistent with a lien claimed by another party), must exist in such a case. Greening v. Clark (4 B. & C. 316, 6 D. & R. 375). [Bosanquet J.

Supposing there had been a valid deposit in the first instance under the factors' act, could not a further advance have been made in respect of such deposit without putting an end to the former transaction ?] It is submitted that it could not. But at any rate there was no valid deposit in this case.

Cur. adv. vult.

TINDAL C. J. now delivered the judgment of the court. This was an action of trover to recover the value of sixteen bales of silk. The defendant pleaded, first, not guilty ; secondly, that the plaintiffs were pot lawfully pos-[322]-sessed ; thirdly, as to four of the bales of silk, that Douglas, Anderson and Co. were the factors and agents of the plaintiffs in the city of London, and at the time of the delivery of the dockwarrants after mentioned, the said four bales of silk were warehoused with the St. Katharine's Dock Company; and Douglas, Anderson and Co. were before, and at the time of, the pledge and delivery of the four dock-warrants, as such factors and agents, intrusted by the plaintiffs with, and were then in possession of, four dock-warrants in which the four bales of silk were described and mentioned, and that, “ being so intrusted with and in possession” of the said dock-warrants, “they applied to the defendant for the loan and advance of 19001. upon the said four bales of silk, as a security for the repayment of the said sum ; and that it was thereupon, to wit, on the 7th of October 1836, agreed between the defendant and Douglas, Anderson and Co. that the said Douglas, Anderson and Co. should pledge with the defendant the said four bales of silk, parcel, &c., as a security for the said sum to be advanced by the defendant, and which sum the said defendant then agreed to advance to the said Douglas, Anderson and Co. upon the faith of the said dock-warrants. And the plea then proceeds to allege, that Douglas, Anderson and Co., being so intrusted with, and in possession of, the said dock-warrants, in pursuance of the said agreement, delivered to the defendant the said dock-warrants, and did pledge with the defendant the four bales of silk as a security for the said sum of money " which sum of money the said defendant did then and there advance and lend” to the said Douglas, Anderson and Co. on the "faith of the said dock-warrants ;” and the defendant further states, in his plea, that he had no notice at the time of the pledge, or of the advancing or lending the money, by the said dock-warrants or otherwise, that Douglas, Anderson and Co. were not then actual and bonâ fide owners and proprietors of the said four bales [323] of silk, parcel, &c.; and justifies the detainer of the said silk under such pledge.

The plaintiffs, in their replication to this third plea, say, that the defendant did not advance or lend to the said Douglas, Anderson, and Co., the said sum of 19001., in that plea mentioned, or any part thereof, upon the faith of the said four dockwarrants in that plea mentioned, in manner and form, &c.; upon which issue is joined.

The fourth plea is pleaded in the same form—as to a pledge of ten bales of silk ; the fifth-as to a pledge of two bales of silk; and seventh plea—as to a pledge of the sixteen dock-warrants; to each of which pleas, respectively, a similar replication is pleaded as to the third plea, and issue joined thereon. The sixth and eighth pleas justify the detaining of the silks, in those pleas respectively mentioned, upon a pledge by Douglas, Anderson and Co. to the defendant, under the provisions of the third section of the stat. 6 G. 4, c. 94; the pleas alleging that the plaintiffs, before and at the time of the pledge, were indebted to Douglas, Anderson, and Co., as their factors and agents, in a sum which is still unpaid, and for which they had a lien on the bales of silk; and that they pledged the same to the defendant as a security for a large sum, viz. &c., then due from Douglas, Anderson, and Co. to the defendant; and that the defendant detains the silks, under such pledge, on account of the money then due to him, to the extent of the right or lien which Douglas, Anderson, and Co. then had a right to enforce.

The replications to the sixth and eighth pleas respectively deny that the plaintiffs were indebted to Douglas, Anderson, and Co., as such factors and agents, in manner and form, &c.; upon which issue is joined.

At the trial of the cause before me at Guildhall, the jury found a verdict for the plaintiffs on the first and [324) second issues, upon which no question now arises ; and a verdict was entered, by my direction, for the defendant upon the third, fourth, fifth and seventh issues, which, as stated above, justify on the ground of a pledge of che dock-warrants by the factors, under the provisions of the second section of the factors' act (6 G. 4, c. 94); and as to the sixth and eighth issues,—which justify on the ground of a pledge by the factors for a debt due to them from the plaintiffs

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