ney in the Defendant's hands to which the Plaintiff is entitled, but he does not recognise any of the apparatus by which it got there.] As to the main question, if it is held, that a broker may advance to a factor, where the consignor draws on the factor, the whole doctrine which prohibits pledges by a factor will be undermined. The case of Pulteney v. Kymer is not ad idem with this case. The present Defendants knew that the goods were consigned for sale.

a

DALLAS C. J. Speaking at the moment, and for myself, I entertain no doubt on this case. The general rule, that a factor has no authority to pledge the goods of his principal is quite clear; and I consider this as pledge, Now how is this attempted to be distinguished from the other cases? Bills are drawn against the consignment; and, it is said, the drawing of the bills amounts to an authority to the factor to raise money to meet those bills. But is there any case of a consignment from the West Indies, where bills are not drawn, to be provided for out of the proceeds of the goods when sold? If the doctrine contended for were valid, in every such case of consignment the act of drawing bills would amount to an authority to pledge; - to a repeal of the well established and wholesome rule, that a factor cannot pledge the goods of his principal.

The facts of this case are very strong, for the Defendants had full knowledge that the goods on which they advanced the money were not the property of Lyne and Co., but the property of the Plaintiffs. Le Blanc J., in Martini v. Coles, says, "whether it might not originally have better answered the purposes of commerce to have considered a person in the situation of Vos, having the apparent symbol of property, as the true owner, in respect of that person who deals with him under an ignorance of his real character, is a question upon which it

1821.

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V.

KYMER,

is too late to speculate, since it has been established by
a series of decisions, that a factor has no authority to
pledge, whether the person to whom he pledges, has or
has not a knowledge of his being a factor;" and he goes
on to say,
"When brokers exceed their authority as
brokers, and become pawnbrokers, by advancing money
on the goods before sale, then they subject themselves
to all risks." The only difference between the case
now before the Court and that from which I have been
reading, is that, in the latter, the brokers made advances
to the factor, without knowing that he was not the
owner of the goods; whereas, in the present case, there
was actual knowledge, on the part of the Defendants,
that the goods did not belong to those who pledged
them. Can it, then, be said, that the factor had autho-
rity to raise money on the goods in his hands, because
the bills were drawn against those goods? That assertion
seems to me to beg the whole question. The De-
fendants cannot repeal the law by entering into an
agreement with the persons on whom the bills were
drawn; and, with the knowledge of the law (which
knowledge must be presumed) they think fit to advance
money to Lyne and Co, who are factors, on the goods
of their principals. Can they avail themselves of their
own illegal act, to defeat the rights of third persons? I
should have no hesitation whatever on the case, had it
not been for the mention of the case of Duclos v. Ryland,
in which it is said, that Lord C. J. Abbott reserved a
similar point. We will look into that case. On that
ground, and on that ground only, is the decision sus-
pended; and the opinion now given by the Court may
be considered as final, unless this case is mentioned
again.

PARK J. I entertain no doubt upon this case. The point that a factor cannot pledge the goods of his

principal, I consider to be settled. The difficulty presented to us in this case is, the fact that the principals residing abroad, drew their bills against the goods consigned to Lyne and Co. But it is the constant course of trade, for the merchant abroad to consign his goods, and draw bills, to be provided for by the proceeds of such goods, when sold. The question into which this case resolves itself, is, did the Plaintiffs authorize Lyne and Co. to pledge the coffee to the Defendants? and I am of opinion, that no such authority can be deduced from the facts which form this case. I think the case of Daubigny v. Duval (a) important. In that case, the factor pledged the goods of his principal; and the Court held, that the principal was entitled to recover the value of them against the pawnee, on tendering to the factor what was due to him without any tender to the pawnee. Of the case of Duclos v. Ryland, I can form no judgment, not having looked into it. But I can hardly think, that Lord Chief Justice Abbott (after the class of cases, which I had always considered as having set the question of a factor's right to pledge the goods of his principal at rest) would reserve that question, as one requiring solemn decision at this day. Though it is settled, that the ignorance or knowledge of the broker, as to whether the goods on which he advances the money are the property of the person who pledges them or of a third person, makes no difference as to the liability of the broker, in cases where he has advanced money to a factor on the goods of his principal, the fact of the ignorance of the broker in such cases, is frequently pressed upon the courts as a great hardship. But such is not the case here; for it is specifically found, that, at the time when the Defendants agreed to advance the 2500l., it was known to them that the coffee was the property of the Plaintiffs.

(a) s T. R. 604.

1821.

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บ.

KYMER.

BUR

1821.

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บ.

KYMER.

BURROUGH J. This case appears to me to stand on the ordinary ground. A factor has, without authority, pledged the goods of his principal, which he has no right to do. I am therefore of opinion, that the judgment must be for the Plaintiffs.

RICHARDSON J. As at present advised, it appears to me, that the Plaintiffs are entitled to recover. The general rule, that a factor cannot pledge the goods of his principal would be frittered away, if a consignee were allowed to construe the drawing of bills by the consignor against the goods consigned, into an authority to pledge those goods. In this case, too, the sum advanced was mainly for the accommodation of Lyne and Co. The acceptance for the sum advanced to them on the coffee was immediately discounted by Lyne and Co. at their own bankers. This acceptance was for 2500l., the amount of the bills drawn by the Plaintiffs against the coffee on which this advance was made, being only 15887. 5s. 7d., and to the payment of but one of these bills for 2941. 5s. 6d. was the sum advanced, applied The Defendants made no enquiry as to the amount of the bills drawn by the Plaintiff's against the coffee; they enquired only into the value of the coffee, on which the advance was to be made. It seems to me, that the general rule must apply equally to cases where bills are drawn by the principal against his consignments, and to cases where no such bills are drawn.

by Lyne and Co.

As to the form in which this action is brought, I think there is nothing in the objection raised. It is said that, by this form of action, the Plaintiffs affirm the contract, as to the advance agreed on by the agent; but the action proceeds on the circumstance of the Defendant's having obtained and sold goods of the Plaintiff, without their consent or authority, and disaffirms any

con

contract which Lyne and Co., as agents of the Plaintiff, may have made with the Defendants. In various cases, much stronger than the present, the party injured may waive the special injury, and declare for money had and received. Where goods of a trader, after an act of bankruptcy, are taken in execution, or otherwise disposed of without the concurrence of the assignees, they are not bound to sue in trespass or trover. They may waive the tort, and proceed in assumpsit for money had and received, to recover the produce of the sale.

The only point which has raised a difficulty in my mind is, the question of the right of the Defendants to deduct the sum of 294l. 5s. 6d., with which Lyne and Co. paid one of the bills drawn by the Plaintiffs against the goods consigned. But it seems to me, that this must fall within the same rule as governs the rest of the case. Lyne and Co. having no authority to pledge, but only an authority to sell, I think the Defendants have no right to deduct that sum from the verdict; for it seems to me, that the assignees of Lyne and Co., in settling their account with the Plaintiffs, will have a right to carry the sum to the credit of the estate of Lyne and Co.

Per curiam. The case may be considered as decided, if it be not mentioned again.

Judgment for the Plaintiffs (a).

(a) The case was not mentioned again.