Antonio Bonzi and Lewis Bonzi v Patrick Maxwell Stewart
| Jurisdiction | England & Wales |
| Judgment Date | 29 June 1844 |
| Date | 29 June 1844 |
| Court | Court of Common Pleas |
English Reports Citation: 134 E.R. 121
IN THE COURT OF COMMON PLEAS
S. C. 5 Scott, N. R. 1; 11 L. J. C. P. 228. See Cole v. North-Western Bank, 1875, L. R. 10 C. P. 370. For subsequent proceedings see 7 Man. & G. 746.
[295] cases argued and determined in the court of common pleas, in trinity term, in the fifth year of the eeign of victoria. The judges who usually sat in bane during this term were, Tindal C. J., Erskine J., Maule J., Cresswell J. antonio bonzi and lewis bonzi v. patrick maxwell stewart. May 24, 1842. [S. C. 5 Scott, N. E. 1; 11 L. J. C. P. 228. See Cole v. North-Western Bank, 1875, L. B. 10 C. P. 370. For subsequent proceedings see 7 Man. & G-. 746.] Where a factor has raised money by a wrongful pledge of the goods of his principal, it is competent to the latter, in taking the account between himself and the factor, to abandon the goods and treat the money raised thereon as money had and received to his own use.-A., a factor, after depositing dock-warrants with the defendant as a security for an advance of money, withdrew them from the defendant's hands and substituted other dock-warrants for silk belonging to the plaintiffs, the defendant having no notice that A. was not the true owner. Held, that this transaction was not protected by the second section of the factors' act (6 G-. 4, c. 94), there being no advance of money on the faith of such warrants; and that the plaintiff might recover the value of such silk in trover (see 5 & 6 Viet. c. 39, s. 2, p. 331, n.).-The defendant advanced money to A., upon a promise that he would deposit dock-warrants to the amount of the advance as a security. This advance took place on a Saturday, but the warrants were not deposited with the defendant till the Monday following, and were not, in fact, made out before that day. Semble, (if the question had been properly raised by the pleadings), that this transaction was not protected by the second section of the factors' act as against the plaintiffs, (the real owners of the property to which the warrants related), inasmuch as A. was not intrusted with, or in possession of), the warrants at the time of the advance (see 5 & 6 Viet. c. 39, ss. 1, 3, post, pp. 331, 332, n.).-A material allegation in a pleading, which is not traversed, is so far admitted, that it is not competent to the other party to disprove it.-Therefore where, in trover for bales of silk, the defendant pleaded that A. was factor of the plaintiffs, and as such factor was intrusted by the plaintiffs with, and was in possession of, dock-warrants relating to the said bales; that A., so being intrusted, &c., applied to the defendant for an advance of money upon the said bales as a security for repayment; that A., being so intrusted, &c., delivered the said dock-warrants and pledged the said bales with the defendant as a security for the said sum, which the defendant did then advance and lend on the faith of the said dock-warrants, and that the defendant had no notice that A. was not actual owner of the said bales; and the plaintiffs, in their replication, traversed the allegation that the defendant advanced and lent the money on the faith of the said dock-warrants modo et forma. Held, that upon this record, the plaintiffs had admitted that A. was intrusted with, and in possession of, the dock-warrants, and that he pledged them with the defendant at the time of the advance; and therefore that it was not competent to the plaintiffs to give evidence that the and to make such notice pleadable in bar of a cross action brought in respect of the matters embraced by such notice. As to the old French law of Compensation, and the Eoman law upon which it was founded, see Pothier, Traite des Obligations, No. 623, &c.; Dig. lib. 16, tit. 2, de Compensatio nibus. 122 BONZI V. STEWART 4 MAN. & G. 296. dock-warrants were not deposited with the defendant, and were not in fact in esse at that time. Trover, for sixteen bales of silk. Pleas; first, not guilty. Secondly, that the plaintiffs were not possessed of the silk as of their own property. Upon both of which pleas issue was joined. Thirdly, as [296] to four bales of silk, parcel, &c., that at the several times hereinafter mentioned, certain persons using the firm, &c. of Douglas, Anderson and Co., were the factors and agents of the plaintiffs in the city of London, and that at the time of the delivery of the dock-warrants hereinafter mentioned, the said four bales of silk, parcel, &c., were deposited and warehoused in the warehouse of the St. Katharine's Dock Company, and the said D., A. and Co. were before, and at the time of, the pledge and delivery of the dock-warrants hereinafter next mentioned, as such factors and agents as aforesaid, intrusted by the plaintiffs with, and were then in possession of, divers, to wit, four dock-warrants for [297] the delivery of the said four bales of silk, parcel, &c., and in which said dock-warrants the said four bales of silk, parcel, &c., were described and mentioned; and the said D., A. and Co. being so intrusted with, and in possession of, the said dock-warrants, applied to the defendant for the loan and advance of a certain sum of money, to wit, the sum of 19001. upon the pledge of the said four bales of silk, parcel, &c., as a security for the repayment of .the said sum of money, and thereupon heretofore, to wit, on the 7th day of October a.d. 1836, it was agreed between the defendant and the said D., A. and Co., that they should pledge with the defendant the said four bales of silk, parcel, &c., as a security for the said sum of money to be advanced by the defendant, and which he then agreed to advance to the said D., A. and Co. upon the faith of the said dock-warrants; and that the said D., A. and Co. being so intrusted with, and in possession of, the said dock-warrants, in pursuance of the said agreement, heretofore, to wit, on, &c., did deliver to the defendant the said four dock-warrants, and did pledge with him the said four bales of silk, parcel, &c., as a security for the said sum of money, and which the defendant did then and there advance to the said D., A. and Co. upon the faith of the said four dock-warrants; and that the defendant had not notice before or at the time of the said pledge, or before or at the time of advancing and lending the said money, by the said dock-warrants, or either of them, or otherwise, that the said D., A. and Co. were not the actual and bonl fide owners and proprietors of the said four bales of silk, parcel, &c., so pledged as aforesaid. And that the defendant at the same time, when, &c., detained, and still detains, the said four bales of silk, parcel, &c'., under and by virtue of the said pledge as aforesaid, and for and on account of the said sum of money so advanced as aforesaid, which still remains unpaid; [298] which detention is the said conversion thereof in the declaration mentioned. Verification; and prayer of judgment, if the plaintiffs ought to maintain their action in respect of the four bales. Fourthly, a similar plea as to ten bales, but omitting the statement that they were in the St. Katharine's dock warehouse. Fifthly, a similar plea as the fourth, as to two bales. Sixthly, as to four bales, that at the several times hereinafter mentioned, D., A. and Co. were the factors and agents of the plaintiffs, &c., and the plaintiffs before and at the time of the pledge hereinafter mentioned, were indebted to D., A. and Co. as such factors and agents as aforesaid,.in a large sum of money, to wit, the sum of 80001., and which said sum of money still remains unpaid. And that at the time of the pledge hereinafter mentioned, D., A. and Co. as such factors and agents as aforesaid, had a lien upon the said four bales of silk, parcel, &c., and had a right to detain the same for the said sum of money so due to them as aforesaid, and a right to enforce such lien against the plaintiffs. And that the plaintiffs being possessed of the said four bales of silk, parcel, &c.; did, before committing the said supposed grievances, consign the said four bales of silk, parcel, &c., to D., A. and Co. as such factors and agents as aforesaid, and that the said D., A. and Co. were before, and at the time of the pledge hereinafter next mentioned, as such factors and agents as aforesaid, intrusted by the plaintiffs with, and were in possession of, divers, to wit, four dock-warrants for delivery of the said four bales of silk, parcel, &c., and in which said dock-warrants the said four bales of silk were described and mentioned, and D., A. and Co., being so intrusted with, and in possession of, the said dock-warrants, to wit, on the 7th day of October in the year aforesaid, under a certain agreement then made between D., 4 MAN. & G. 299. BONZI V. STEWART 123 A. [299] and Co. and the defendant, did pledge the said last-mentioned four bales of silk, parcel, &c. to the defendant, as security for the repayment of a large sum of money, to wit, the sum of 25671. then due from D., A. and Co., to the defendant, and which said sum of money was, at the time of the said last-mentioned pledge, a debt due for money advanced by the defendant to D., A. and Co; and a large part thereof, to wit, the sum of 20001. still remains unpaid. And that D., A. and Co., being so intrusted with, and in possession of, the said dock-warrants upon such pledge last-mentioned, to wit, on, &c., did deliver to the defendant the said dock-warrants. And that the defendant had not notice before or at the time of the said last-mentioned pledge, by the said dock-warrants, or either of them, or otherwise, that the said D., A. and Co., were not the actual and bona fide owners and proprietors of the said last-mentioned four bales of silk, parcel, &c., so pledged as last aforesaid, and that the defendant at the said time when, &c., detained, and still detains, the said four bales of silk, under and by virtue of the last-mentioned...
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Sheppard v The Union Bank of London
...the advance was made on the security of the goods delivered up, or his agent, but by a third person. He referred to Bonzi v. Stewart (4 Man. & G. 295), 1 Smith's Lead. Gas., p. 655, 4th ed. Eochfort Clarke, for the defendants. The plea is in conformity with the provisions of the second sect......