H. L. (E.) 1876 MISA บ. CURRIE. as to defraud the revenue. It is said to be an instrument payable after date, and not payable on demand, because it was delivered on the 13th of February, and it was not payable until the 14th. Not being payable on demand, it is asserted to be liable to a higher duty than a 1d. stamp. I apprehend, my Lords, that it would be mistaking altogether the character of the instrument so to hold; because it appears that the whole character and nature of the transaction was known to Messrs. Glyn, and they would therefore be perfectly well aware that this money could not be received either by them or by Lizardi, or any one else, until the 14th of February, which was the day when, according to the contract with Misa, the money was payable, and on no earlier day whatever. All that can be said about the transaction is this, Lizardi being hard pressed by Messrs. Glyn for securities, represented to them that he had a debt of £1999. 3s. due to him from Misa, and he says to his bankers, Messrs. Glyn & Co.: "I will do this in order that you may be quite safe; this debt is not payable until the 14th of February, and I cannot give you any right to receive it until that day, because it is not due until then; you know that as well as I do; but in order to give you all possible security I will leave this document at your bank, so that on the 14th of February, the day when the money becomes due, you may be in a position. to go and demand payment of it." I apprehend, my Lords, that that is much more the character of the transaction than holding it as a mere authority for the collection of the money. If it were necessary so to hold, I should be prepared to hold that the Messrs. Glyn had a right of lien-holding this document in their hands until the time came when they could call on Misa to make the payment under Lizardi's contract. It was a document which they might present to Mr. Misa to have the word "accepted " written across it, or to have the payment made according as they were disposed to do. In fact, Messrs. Glyn took the course of going to Misa's office on the day of the date of the document and asking if it would be paid. Misa's manager said—he is stated to have said it with some indignation—that it would certainly be paid, and he tendered then and there his cheque for the payment. That having been done, it 1876 MISA v. CURRIE. seems to me to be of very little importance, as I said before, in H. L. (E.) what capacity this document was given. Pritchett recognised that on that day there was this debt due to Lizardi of £1999. 3s. He saw that it was directed by Lizardi to be paid to Glyns instead of being paid to himself, and when the instrument was presented to him for Misa, he said: "It shall be paid, we are ready at this moment to give you a cheque for it;" and if he had done so I suppose no question could have arisen upon this matter, which has occasioned since then so much litigation. But Messrs. Glyns' clerk declined to give up the document for the cheque, and very properly, because he had no authority-he had received no instructions so to do. He thereupon returned to the bank with the document, and in the course of the afternoon Misa's agent sent a cheque for £1999. 3s. to the bank, and Glyns were content to deliver up the document in exchange for the cheque, and so they became possessed of that cheque, and Pritchett on behalf of Misa obtained possession of the document signed by Lizardi. It appears to me, therefore, that as between Glyns and Misa, the Judges in the Courts below were right in saying that there was a document of value to Glyns, which had been deposited with them on the 13th to be put in force in the mode in which alone it could be put in force on the 14th, and that the cheque was given in consideration of the delivery up of that document. As I have said my Lords, if it were necessary, I should be prepared to hold that in this case, according to the decision which has been so frequently referred to in the case of Brandao v. Barnett (1), that the custom of bankers is now perfectly well-established, and must be known to every mercantile person in the city of London. Mr. Misa, like others, is bound by his knowledge of that custom. Of course he must have been perfectly well aware that all moneys paid into a bank are subject to a lien, and that all documents as well as moneys deposited with a banker may be subject, on the banker's part, to a lien in respect of any balance that may be due to him from his customer. When Misa's agent paid in this cheque due to Lizardi he was aware that it was going into Glyn's bank; the very document he got in exchange for it informed him of that fact. In truth, Lizardi being at that time in a position in which (1) 1 Man. & G. 908; 12 Cl. & F. 787. VOL. I. 3 2 P H. L. (E.) he himself could have demanded the money, executes this nego 1876 MISA v. CURRIE. tiable instrument, with every intent, as Misa knew, of paying it into his bankers, and giving the bankers that lien which the case I have referred to decided that they had upon all documents of this kind which came into their hands. My Lords, I will now advert to the ground upon which the Lord Chief Justice of the Common Pleas rested his opinion. That opinion of course makes one pause in coming so confidently to a conclusion as one might otherwise have done; still I cannot say that I have any doubt in my own mind as to the correctness of the conclusion at which I have arrived. The case of De la Chaumette v. The Bank of England (1) does not seem to me to have any bearing upon this case. There is no evidence that any question was there raised as to any right of lien as between the two parties who were acting the one as principal and the other as agent. It appeared, from the circumstances of that case, that the party suing was suing simply as an agent of a person who was bound to shew that he had given good and valuable consideration, and although something is said in the case of it being simply a debt due and nothing more, there is nothing said about there being a right of lien which authorized him to say, whatever comes into my hands. I am entitled to hold, as against you, in respect of a balance that is due to me. I think in the present case, the circumstance of that lien is quite sufficient of itself without any proof of additional acts either done or forborne to be done on the part of Glyns. On the other hand, looking fairly through the evidence in the Case, and looking especially at the pressure which was being put by Glyns upon Lizardi for payment, I am not prepared to say that there was not a forbearing in respect of the delivery of the first instrument; because if that instrument had not been put into their safe custody on the 13th, they might have been in a position then to pursue their suspicions to the full result-to have analysed then, on the 13th, that list of securities as to which Mr. Currie had already expressed his misgivings, and to have taken proceedings upon the 13th to bring Lizardi to that state of avowed and open bankruptcy, that he was afterwards obliged to confess himself to be in. They did nothing on the 13th, and I think that alone (1) 9 B. & C. 208. would be a sufficient forbearance, I do not think it necessary to H. L. (E.) say more upon that part of the transaction. On the whole case my Lords, I hold that Lizardi was in a condition to demand that payment, that that payment was made to him by a negotiable instrument, on the footing of the acknowledgment of a previous instrument which had been drawn for the recognition on Misa's part of his debt, and that he was entitled so to deposit that instrument with his bankers as to entitle them to sue in their own names for payment of that instrument, (which they have done,) without being affected with any of the consequences which might subsequently occur, on the 25th of February, from the dishonouring of the bills and the failure of consideration. My Lords, it appears to me that it would be a very serious thing indeed in its effect upon the numerous transactions carried on by means of cheques in the city of London if we were to hold that any bankers holding those enormous drafts which are drawn. daily, and which we read of in the accounts of the transactions of the clearing-house, are to be exposed to an inquiry as to what equities may subsist between any one of their customers (upon all of whose documents delivered to them they have supposed themselves to have a lien) and third persons, so that they might find themselves affected with equities with regard to that customer, and consequently be unable to give that credit which this right of lien at present enables them to give, and thereby contributes so much to carrying forward the vast trade of this metropolis. LORD O'HAGAN: My Lords, I am quite of the same opinion. I will state in a very few words the view which I take of this case without referring to the Stamp Act, and several other matters which have been more than sufficiently disposed of by my noble and learned friends. As to the question of consideration between Lizardi and Misa, notwithstanding the very able argument of the learned counsel for the Appellant, I have been unable to entertain a doubt. The bargain was for the sale of bills on a foreign house. The sale was completed. The bills were delivered. The price became payable; and the transaction, so far, was complete. Lizardi gave what he 3 2 P 2 1876 MISA v. CURRIE. 1876 MISA v. CURRIE. H. L. (E.) agreed to give. Misa received all that he had bought, and, two days afterwards, he became liable to discharge the purchase-money, and if at the appointed time he failed to do so, his liability being perfect, an action, as the Lord Chief Baron observed, would have been instantly maintainable against him; and if there had been legal machinery for the immediate trial of it, he would have been wholly defenceless and compellable to pay. His liability did not at all arise on the acceptance of the bills, or after the money had been disbursed at Cadiz. Until a fortnight after the second post, when the price was payable, neither of these things was to occur. And in the meantime, it was competent to Lizardi to do with the realised price of the bills what he pleased, and to Misa, on the other hand, to deal with the bills at his discretion, and nobody can tell from any information before your Lordships, what he did with them, or where they are now. On the first point, therefore, which does not appear, I think, to have been even argued in the Exchequer Chamber, it seems to me that the Respondent's argument prevails. As to the second point, upon the relation between the Glyns and the Defendant, I am equally unable to appreciate the force of the argument from failure of consideration. Briefly, Lizardi owed a large debt to his bankers. His difficulties became known. He was pressed for payment or security. He lodged, not for the purpose of collection by his bankers, but to gain his creditors' forbearance, amongst other things, in all worth £6000, the draft of Lizardi upon Misa for the price of the bills which had been delivered. They inquire whether Misa will honour it, and he answers, by his agent, that he will, and sends his cheque for the amount, getting in return what alone constituted a sufficient consideration, the draft deposited to secure the debt due to Lizardi. That debt being undoubted, the bankers, having forborne upon the lodgment of the securities, at least for a time, to press for what was owing to them, and having got an actual assignment of Lizardi's admitted claim, seem to me clearly entitled to recover upon the cheque given by Misa, given for ample consideration, and substituted for a bill which they had held for ample consideration. If the cheque had been handed to Lizardi and by him to the Plaintiffs, the case would have been the same substantially. That |