Brandao v Barnett and Others
| Jurisdiction | England & Wales |
| Judgment Date | 28 August 1846 |
| Date | 28 August 1846 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 207
IN THE COURT OF COMMON PLEAS
S. C. 12 Cl. & F. 787. Adopted, Jeffryes v. Agra and Masterman's Bank, L. R. 2 Eq. 679. Distinguished, Webb v. Whinney, 1868, 18 L. T. 525. See Brinsmead v. Harrison, 1871-72, L. R. 6 C. P. 589; L. R. 7 C. P. 547. Referred to, Crouch v. Crdit Foncier, 1873, L. R. 8 Q. B. 380. Followed, Leese v. Martin, 1873, L. R. 17 Eq. 236. Referred to, Goodwin v. Robarts, 1875-76, L. R. 10 Ex. 346; 1 App. Cas. 476; Misa v. Currie, 1876, 1 App. Cas. 569. Approved, London Chartered Bank of Australia v. White, 1879, 4 App. Cas. 413. Followed, Stumore v. Campbell, [1892] 1 Q. B. 316. Referred to, Bechuanaland Exploration Company v. London Trading Bank, [1898] 2 Q. B. 673; Hope v. Glendenning, [1911] A. C. 422.
[519] in the house of lords. brandao v. barnett and others. August 28, 1846. [S. C. 12 Cl. & F. 787. Adopted, Jeffryes v. Agra and Master-man's Bank, 1866, L. E. 2 Eq. 679. Distinguished, Webb v. Whinney, 1868, 18 L. T. 525. See Brinsmead v. Harrison, 1871-72, L. E. 6 C. P. 589; L. E. 7 C. P. 547. Eeferred to, Crouch v. Credit Fancier, 1873, L. E. 8 Q. B. 380. Followed, Leese v. Martin, 1873, L. E. 17 Eq. 236. Eeferred to, Goodwin v. Robarts, 1875-76, L. E. 10 Ex. 346; 1 App. Gas. 476; Misa v. Cwrie, 1876, 1 App. Cas. 569. Approved, London Chartered Bank of Australia v. White, 1879, 4 App. Cas. 413. Followed, Stumore v. Campbell, [1892] 1 Q. B. 316. Eeferred to, Bechuanaland Exploration Company v. London Trading Bank, [1898] 2 Q. B. 673; Hope v. Glendennmg, [1911] A. C. 422.] The general lien of bankers on securities of their customers deposited with them, is part of the law-merchant, and to be taken judicial notice of as such.-A. bought on account of B., and with B.'s money, certain exchequer bills, which A. deposited in a box that he kept at his bankers', himself retaining the key. Whenever it became necessary to receive the interest on the exchequer bills and to exchange them for new ones, A. was in the habit of taking them out of the box and giving them to the bankers for that purpose (such being the usual course of business); which being accomplished, the new exchequer bills were, as soon as conveniently might-be, handed over to and locked up by A. in the box, the amount of interest received by the bankers being passed to the credit of A.'s account. The exchequer bills themselves were never entered to A.'s account, nor had the bankers any notice or knowledge that they were not the property of A. himself.-On the 1st of December, 1836, A. took the exchequer bills out of the box, and delivered them to the bankers, for the purpose of receiving the interest and exchanging them for new ones. The bills were accordingly exchanged ; but the new bills (A. being absent from business on account of illness) remained in the ^possession of the bankers down to the time 208 ' BRANDAO V. BARNETT 3 C. B. 520. of A.'s failure, on the 23rd of January, 1837, his account in the mean time having been considerably overdrawn :-Held, in an action at the suit of B., the true owner (reversing the judgment of the Exchequer Chamber), that the bankers had no lien upon these exchequer bills for the general balance due to them from A., although such securities are transferable by delivery; the circumstances under which they came to their hands being inconsistent with the existence of a general lien. Trover, for exchequer bills. Pleas-first, not guilty-secondly, that the plaintiff . was not lawfully possessed of the said instruments or securities for the payment of money in the declaration mentioned, or any or either of them, in manner and form as in the declaration alleged-thirdly, a special plea, in which the defendants, as bankers, set up a claim, by way of lien, to retain the exchequer bills in questions to secure the balance due to them from one Edward Burn, trading under the firm of James Burn & Co., who held them as the agent of the plaintiff. At the trial before Tindal, C. J., at the sittings at Guildhall after Trinity term, 1840, a verdict was [520] found for the plaintiff, subject to a special case, with liberty to either party to turn it into a special verdict. The case was argued in the court of Common Pleas in Michaelmas term, 1840, and judgment was given thereon for the plaintiff (a). The special case was afterwards turned into a special verdict, which was in substance as follows :- The plaintiff is a Portuguese merchant, who up to the year 1834 resided at Eio de Janerio, but who in that year returned to Portugal, and has since resided at Lisbon and other towns in that country. Edward Burn, for many years before and down to his bankruptcy hereinafter mentioned, resided in London, and carried on business as a merchant, under the firm of James Burn & Co. He was the correspondent of the plaintiff, who from time to time remitted bills of exchange and money to him, and employed him upon commission to invest the proceeds in exchequer bills. Burn was also employed by other correspondents to purchase exchequer bills for them. The defendants are bankers in London, in co-partnership, and acted as such for Burn for many years before and since the year 1833, who kept cash and an account with them under the style or firm of James Burn & Co. The action is brought to recover twenty-one exchequer bills, amounting in value to 10,1001., and interest. These exchequer bills were received by the defendants in exchange for the same number of exchequer bills, which had been purchased by Burn for the plaintiff in manner above mentioned, and which came into the possession of the defendants as hereinafter stated; and the defendants claimed a right to hold the exchequer bills in question in respect of a debt due from Burn to them, hereinafter particularly mentioned. [521] The government pay the interest upon exchequer bills at certain periods announced to the public by advertisement; and, when such interest is paid, the exchequer bills in respect of which it is paid are delivered up, and, unless their amount be applied for in money, new exchequer bills are issued to the holder in exchange for them. Burn received the interest payable upon the. exchequer bills, and exchanged the old exchequer bills for new ones, when necessary, having orders in that behalf so to do from the above-named plaintiff. The defendants never received any information from Burn, of any transaction between him and the plaintiff. Burn, from time to time, from May, 1832, and subsequently, received from the plaintiff, then abroad, as agent for him (the plaintiff), orders to purchase exchequer bills with the moneys of the plaintiff in the hands of Burn. Burn, on occasion of purchasing exchequer bills for the plaintiff, communicated that fact to him. In the course of the correspondence, in a letter from the plaintiff to Burn, dated the 12th of April, 1834, written from Eio de Janeiro, at the time when the plaintiff was about to quit that place for Lisbon, and received by Burn, there is contained as follows :-" I hope you will inform my attorney (meaning his brother, whom he had appointed his attorney at Rio de Janeiro) of the names of the bankers in whose house the exchequer bills on my account have been deposited." To which Burn, by a letter dated the 2nd of July, addressed and sent to and received by the plaintiff, replied as (a) See Bmnd&o v. Barnett, 1 M. & G. 908, 2 Scott, N. R 96, 3 C. B. 522. BRANDAO V...
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