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before the pledge, to the extent of the factors' lien—the jury found a verdict for the plaintiffs.

The case has come before us on cross motions; one, a motion on the part of the plaintiffs to enter the verdict for them on the issues raised on the third, fourth, fifth, and seventh pleas; or if that be not granted, then for a new trial, with leave, if necessary, to amend the replication as to those pleas; and another motion on the part of the defendant, to set aside the verdict as to the sixth and eighth issues, and for a new trial thereon.

As the only point raised upon the sixth and eighth issues involved an inquiry as to the real state of the accounts between the plaintiffs and their factors, before and at the time of the respective pledges,—upon which the evidence at the trial was far from satisfactory,—the case has stood over for a very considerable time, upon the understanding that the court should be furnished with a state of the accounts agreed upon by both parties; which would at once have put an end to all doubt in whose favour those issues ought to be entered. But as it appears no such agreement can be obtained, but each party has furnished his separate statement of the accounts, differing from each other, we can only determine this part of the question before us by the evidence given at the trial. Now it is clear that the affirmative of these two issues rests with the defendant. It is the defendant who asserts that, before and at the [325] time of the pledge, the plaintiffs (the principals) were indebted to their factors; and the burthen of such proof rests, therefore, upon him. And as the jury, -a jury of merchants,-have given their verdict against the defendant upon this precise point, we ought to be entirely convinced that such verdict is wrong before we can be called upon to set it aside. Indeed, in this case, the special jury at the trial, in the course of the summing up, on these pleas, stated that they had taken down the figures correctly, and that they found there was no debt.

It was objected, on the part of the defendant, that the jury were wrongly directed, at the trial, to give credit to the plaintiffs for the sums raised by the factors upon two former wrongful pledges of their silks, of which the amount had never been brought forward in favour of the plaintiffs. But we do not find that the jury was so directed, but that the whole case as to the debt due to the factors was summed up, and left to the consideration of the jury, as mercantile men, to draw their own conclusion whether there was a debt or not; and we can see no objection, in point of law, if the jury have given credit for those sums in the account between the factors and their principals; for we conceive, on the principle laid down in Marsh v. Keating (1 Mont. & Ayrt. 592, in Dom. Proc. S. C. 1 N. C. 198, 1 Scott, 5), that Messrs. Bonzi were at liberty, at any time when they found that their factors had wrongfully raised money on their goods, in taking the account between themselves and their factors, to abandon the goods altogether, and to treat the money so wrongfully borrowed by them on the pledge of the goods, as money had and received to the use of themselves. On the other hand, the plaintiffs objected altogether to the principle on which the account was made up by the factors. But, without entering into a discus-[326]-sion on this point, we think this matter was a question peculiarly for the consideration of a jury of merchants; and we cannot see that they have come to a wrong conclusion with sufficient certainty to induce us to set the verdict aside. Perhaps, however, from the conclusion at which we have arrived upon the rule obtained by the plaintiffs, our determination as to the defendant's rule may not be considered of so much importance.

The plaintiffs' rule seeks to set aside the verdict which has been entered for the defendant upon the issues raised on the third and other pleas,—which are grounded on the second section of the factors' act,—and to enter such verdict for the plaintiffs ; or that, at all events, there may be a new trial, with liberty to the plaintiffs to amend their replication. As to the third plea, which justifies the detaining of the four bales of silk, on the ground of the pledge made on the 7th of October, we think the rule for entering the verdict for the plaintiffs, so far as that plea is concerned, ought to be made absolute. For it is clear, upon the evidence in the cause, that no advance whatever or loan was made at the time of such pledge, on the faith of those four dock-warrants, but that they were tortiously delivered by the factors to the defendant, in exchange for other warrants of other persons then in his possession, and upon the security of which an advance had been previously made to the factors. Such a delivery of dock-warrants would, according to the case of Taylor y. Kymer and Another

(3 B. & Ad. 320), being a delivery in respect of an antecedent debt, give the defendant no greater right in respect of those warrants, than the factors themselves had, at the time of the deposit; and upon the finding of the jury on the sixth and eighth pleas, the factors appear to have had no lien at all. Such a delivery, therefore, is [327] neither within the letter nor the meaning of the second section of the factors' act; it is in effect a wrongful delivery, upon which no part of the advance mentioned in the third plea was made ; and the verdict on the issue in that plea ought to be for the plaintiffs. But this observation goes only to the third plea, and the goods covered by it, and does not affect those included in the fourth and fifth pleas, which relate to the delivery of the dock-warrants on the 17th and 24th of October; nor does it affect the seventh plea, which is framed to cover the whole quantity of silks in the hands of the defendant, upon the ground of a subsequent advance upon the whole. As to the verdict on the fourth and fifth issues, the objection taken and argued before us on the part of the plaintiffs, is, not only that the factors were not in possession of the dock-warrants in the fourth and fifth pleas mentioned, at the time the advances were respectively made, on account of which advances they were afterwards delivered, but that the dock-warrants themselves were not even in existence until two days after the advances were made; and as to the issue on the seventh plea, the objection taken is, that the factors were not in the possession of the dock-warrants at the time the pledge mentioned in that plea took place. But we think that neither of these objections is open to the plaintiffs upon the present state of the record.

The real question between these parties,—the question which involves the whole right and justice of the case,—is undoubtedly this, (viz.) whether the factors, at the time of the original pledges of the dock-warrants stated in the respective pleas, were, not only in the possession of those dock-warrants, but intrusted with them by the true owners, within the meaning of the factors' act; a question, however, as we have already stated, which, is the pleadings stand at present, the plaintiffs are estopped from raising. That the act gives no authority to a factor [328] to pledge a dockwarrant belonging to his principal, for an advance of money to the factor, except in cases where the factor is not only possessed of the dock-warrant, but “intrusted therewith by the principal,” is now so fully settled by the case of Phillips v. Huth (6 M. & W.572), and the still later case, in the court of Exchequer Chamber, of Hatfield and Another v. Phillips and Others (9 M. & W. 647), that it is quite unnecessary to do more than refer to the judgments in those cases, and the reasons there given in their support; and, therefore, the right of the owners of these silks on the one part to recover them, and of the defendant on the other part, who has advanced money upon them to the factors, to retain them, ought to depend on the evidence which the defendant can produce that the factors were intrusted with the dock-warrants before and at the time of the respective pledgings; that is, either evidence of direct authority in the particular instance, or of a course of dealing between the owners and the factors on former occasions, such course of dealing being known and recognised by the owners, or of the course of trade generally observed between principal and factor with respect to this particular commodity. For the second section clearly enacts, that it is only such factor “who is ” “intrusted with and in possession of any bill of lading, dock-warrant,” &c. that shall be deemed and taken to be the true owner, so far as to give validity to any contract or agreement entered into by the person so intrusted and in possession for the sale, disposition, deposit or pledge of any goods, as a security for money advanced or given upon the faith of such several documents.

But, looking at the issue taken on each plea, we are of opinion, that, for the purpose of each separate plea, the plaintiffs must be taken to have admitted in each [329] plea that “before and at the time of the pledge mentioned in that plea the factors were intrusted by them with, and were then in possession of," the several dock-warrants upon which the respective advances are alleged to be made. In each plea there is a distinct separate allegation in the very terms above stated. It is a material allegation; and the subsequent allegation in the plea “that the defendant advanced and lent his money to the factors upon the faith of the said dock-warrants," — upon which precise allegation alone the issue is taken by the plaintiff in his replication,-does not, in any manner, involve the former; which former allegation, not being denied, must, upon the general principles of pleading and the authorities, be considered to be admitted by these plaintiffs for all the purposes of the issue taken on each separate plea. See Cowlishaw v. Cheslyn (1 Cromp. & Jerv. 48) and Bingham

v. Stanley (1 Gale & Dav. 237, S. C. 2 Q. B. Rep. 117). The issue taken by the plaintiffs does indeed, in its natural sense and meaning, involve no more than the precise question, whether the advance was made on the faith of the dock-warrants ; for whether the factors were intrusted with the dock-warrants or not at the time of the pledge, if the advance was not made on the faith of the dock-warrants but on some other warrant, the case is as completely out of the provisions of the second section of the factors' act as if the factors had not been intrusted with them by the true owner. And this consideration distinguishes the present case from that of Ridley v. Tindall (7 A. & E. 134), referred to on the part of the plaintiffs ; for there, the denial in the replication that the money was accepted in satisfaction, was, necessarily, at the same time, a denial of the payment being in satisfaction—the payment in satisfaction and the acceptance [330] in satisfaction being one and the same act; for unless the money were accepted it could not be a payment, but a tender only: whereas, in the present case, the two propositions are not identical ; the factors may have been in possession and may have delivered the warrants, but still the lender may not have advanced his money on the faith of such delivery. The cases of Edmunds v. Groves (2 M. & W. 642) and Bennion v. Davison (3 M. & W. 179) appear to be clearly distinguishable from the present.

We therefore think the plaintiffs are not entitled to have the verdict entered for them either on the fourth, fifth, or seventh issues, because, upon the evidence, the money was advanced by the defendant to the factors upon the occasion of each of these pledges, on the faith of the goods; which is all that is put in issue ; nor could the plaintiffs be so entitled, on a new trial, although the factors were not proved to be intrusted with the dock-warrants, whilst the pleadings remain in their present state. But as the justice of the case manifestly requires that the plaintiffs should be at liberty to go to a new trial, and to put in issue the possession of the factors, and their being intrusted with the dock-warrants at the time of the respective pledges made, we think the plaintiffs should be allowed to amend their replication for this purpose; but that, in such case, they must pay the costs of the former trial.

The rule of the plaintiffs must therefore be disposed of, by making it absolute for entering the verdict in their favour on the issue raised on the third plea, or for a new trial altogether, with liberty to amend the replication ; in which latter case it must be on payment of costs. And as to the rule obtained by the defendant, we think it must be discharged (c).

(c) By the 5 & 6 Vict. c. 39, s. 1, after reciting the 6 G. 4, c. 94, and that “whereas advances on the security of goods and merchandize have become an usual and ordinary [331] course of business, and it is expedient and necessary that reasonable and safe facilities should be afforded thereto, and that the same protection and validity should be extended to bonâ fide advances upon goods and merchandize as by the said recited act is given to sales, and that owners intrusting agents with the possession of goods and merchandize, or of documents of title thereto, should in all cases where such owners by the said recited act or otherwise would be bound by a contract or agreement of sale, be in like manner bound by any contract or agreement of pledge or lien for any advances bonâ fide made on the security thereof; and whereas much litigation has arisen on the construction of the said recited act, and the same does not extend to protect exchanges of securities bonâ fide made, and so much uncertainty exists in respect thereof, that it is expedient to alter and amend the same, and to extend the provisions thereof, and to put the law on a clear and certain basis,” it is enacted, that "any agent who shall be intrusted with the possession of goods, or of the documents of title to goods, shall be deemed and taken to be owner of such goods and documents, so far as to give validity to any contract or agreement by way of pledge, lien, or security bonâ fide made by any person with such agent so intrusted as aforesaid, as well for any original loan, advance, or payment made upon the security of such goods or documents, as also for any further or continuing advance in respect thereof; and such contract or agreement shall be binding upon and good against the owner of such goods, and all other persons interested therein, notwithstanding the person claiming such pledge or lien may have had notice that the person with whom such contract or agreement is made is only an agent.”

By sect. 2 it is enacted, “ that where any such contract or agreement for pledge, lien, or security shall be made in consideration of the delivery or transfer to such

[333] HODSON y. PATTERSON. May 24, 1842. Where the defendant had obtained a rule for the costs of the day for not proceeding

to trial, and the master, by his allocatur, indorsed on the rule, had ascertained the amount of such costs, the court thought it unnecessary to grant the defendant a rule for the payment of that amount, in order to entitle him to issue execution for it under the 1 & 2 Vict. c. 110, s. 18.

In this case the defendant had made a rule absolute for the costs of the day for not proceeding to trial. The master had taxed these costs at 801. ls. 6d., and had indorsed his allocatur on the rule to that effect.

Bompas Serjt. now applied for a rule, calling upon the plaintiff to shew cause

agent of any other goods or merchandize, or document of title, or negotiable security, upon which the person so delivering up the same had at the time a valid and available lien and security for or in respect of a previous advance by virtue of some contract or agreement made with such agent, such contract and agreement, if bonâ fide on the part of the person with whom the same may be made, shall be deemed to be a contract made in consideration of an advance, within the true intent and meaning of this act, and shall be as valid and effectual, to all intents and purposes, and to the same extent, as if the consideration for the same had been a bona fide present advance of money : provided always, that the lien acquired under such last-mentioned contract or agreement, upon the goods or documents deposited in exchange, shall not exceed the value, at the time, of the goods and merchandize which, or the documents of title to which, or the negotiable security which shall be delivered up and exchanged.”

[332] Sect. 3 provides that the statute is to be construed to protect only bonâ fide transactions, without notice that the agent pledging is acting without authority, or malâ fide against the owner.

And by sect. 4 it is enacted, that “any bill of lading, India warrant, dock-warrant, warehouse-keeper's certificate, warrant or order for the delivery of goods, or any other document used in the ordinary course of business, as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented, shall be deemed and taken to be a document of title within the meaning of this act; and any agent intrusted as aforesaid, and possessed of any such document of title, whether derived immediately from the owner of such goods, or obtained by reason of such agent's having been intrusted with the possession of the goods, or of any other document of title thereto, shall be deemed and taken to have been intrusted with the possession of the goods represented by such document of title as aforesaid ; and all contracts pledging or giving a lien upon such document of title as aforesaid, shall be deemed and taken to be respectively pledges of and liens upon the goods to which the same relate; and such agent shall be deemed to be possessed of such goods or documents, whether the same shall be in his actual custody, or shall be held by any other person subject to his control, or for him, or on his behalf; and where any loan or advance shall be bonâ fide made to any agent intrusted with, and in possession of, any such goods or documents of title as aforesaid, on the faith of any contract or agreement in writing, to consign, deposit, transfer or deliver such goods or documents of title as aforesaid, and such goods or documents of title shall actually be received by the person making such loan or advance, without notice that such agent was not authorised to make such pledge or security, every such loan or advance shall be deemed and taken to be a loan or advance on the security of such goods or documents of title, within the meaning of this act, though such goods or documents of title shall not actually be received by the person making such loan or advance till the period subsequent thereto; and any contract or agreement, whether made direct with such agent as aforesaid, or with any clerk or other person on his behalf, shall be deemed a contract or agreement with such agent; and any payment made, whether by money, or bills of exchange, or other negotiable security, shall be deemed and taken to be an advance within the meaning of this act; and an agent in possession as aforesaid of such goods or documents shall be taken, for the purposes of this act, to have been intrusted therewith by the owner thereof, unless the contrary can be shewn in evidence.”

why he should not pay to the defendant or his attorney the sum so allowed by the master.

The learned serjeant suggested that the rule for the costs of the day might not be sufficient for the defendant to issue execution (under the 1 & 2 Vict. c. 110, s. 18 (a)?) for the sum allowed, inasmuch as such rule did not mention any specific sum. [Tindal C. J. When the costs are allowed by the master, is it not the same as if they were mentioned in the rule ?] In Jones v. Williams (11 A. & E. 175. S. C. in Exch. 8 M. & W. 349), where, under an agreement of reference, a sum was awarded to be paid by the plaintiff to the defendant, and afterwards the agreement was made a rule of court; it was held that the plaintiff could not, by virtue of the rule of court, issue execution for the sum under the statute, because the eighteenth section was applicable [334] for such purpose only where the money payable by the rule was expressed in the rule itself. Maule J. In such a case the rule would merely be to obey the award. Tindal C. J. The statute speaks of rules “whereby any sum of money shall be payable." Was not the rule for the costs of the day such a rule, though the exact sum was to be ascertained by the officer of the court ?] If the rule now applied for is necessary, and is made absolute with costs, the difficulty may certainly arise, that the defendant may have to apply for a separate rule for these costs, and so on ad infinitum. [Cresswell J. referred to Neale v. Postlewaite (1 Q. B. Rep. 243), where, by a rule of court, the costs of an attorney against his client were referred to taxation by the master, on the usual undertaking to pay what should be found due. The master having made his allocatur, and the money not having been paid, the court made an order that the client should pay the money, but that the attorney should abandon his right to move for an attachment; the purpose of applying for such order being, that the attorney might become a judgment creditor under the statute.) So in Doe v. Amey (8 M. & W. 565), it was held that the court had authority, under the statute, to order a party by rule, to pay a specific sum of money awarded by an arbitrator to be paid by him; and that, on such rule being made absolute, execution might issue against the party for the amount so specified in the rule. [Tindal C. J. You cannot take the rule to the officer to register, under the nineteenth section of the act, until you have the allocatur; but the moment you have the allocatur, it seems to me, it becomes a rule of court to pay the sum allowed.] It is clear the defendant might proceed now by attachment; and the object of the act seems to have been to give the remedy against [335] the property instead of proceeding against the person of a party (a)?

TINDAL C. J. I think that, at all events, the court is not called upon in this case to grant what would be a novel rule. There is no precedent for such a proceeding, and no case similar to the present. The decisions which have taken place on awards stand upon a different footing. In those cases it was not a necessary consequence of the submission to arbitration that any money would become payable. The parties therefore were obliged to go to the court to obtain a rule for payment of the money awarded. As at present advised, I cannot help thinking, that when the condition was complied with by the master in making his allocatur for a certain sum, the rule became a rule of court for the payment of that particular sum. I do not wish, however, to be understood as giving a regular decision on that point (6). But I do not think it necessary to grant a rule in this case.

(a)? Which enacts “that all rules of courts of common law, &c., whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the effect of judgments in the superior courts of common law, and the persons to whom any such moneys, or costs, &c., charges, or expenses, shall be payable, shall be deemed judgment-creditors within the meaning of this act, &c.; and all remedies hereby given to judgment-creditors are in like manner given to persons to whom any moneys, or costs, &c., charges, or expenses, are by such orders or rules, &c. respectively directed to be paid.”

(a)* The statute enacts, that rules, &c. for the payment of money, shall have the effect of judgment. The statute, therefore, not only subjects the property of the party to execution, but gives a more direct remedy against the person (by ca. sa.) than could formerly have been had by attachment.

(6) See Jones v. Williams, 8 M. & W. 349. C. P. XI.-5*

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