Page:Halsbury Laws of England v1 1907.pdf/850

 Bankers and Banking.

628 Sect. 15.

larger compensation than

Custody of Valuables. Felony of servant.

Delivery to

wrong person.

was consistent with his own representa-

that the goods are received " for safe liability of the banker (a). The bank is not liable for loss by the felonious act of members of its own staff which there was no ground for anticipating (6). tions.

An acknowledgment

custody" does not increase the

1268. Where the bank delivers the goods to the wrong person, whereby they are lost to the owner, the liability of the bank is absolute, though there be no element of negligence, as where delivery is obtained by means of an artfully forged order (c). It however, theoretically practicable for the banker to contract himself out of this liability. If the banker has suspicions as to the identity or authority of the person requiring delivery of the valuables or the genuineness of any written order produced by such person, the banker may retain the goods for a reasonable time in order to satisfy himself on these points, or, it is submitted, may decline to deliver them to the applicant, stating that he would himself send them to the owner, and doing so within a reasonable time (d). is,

An undertaking in such terms must be (a) Boss V, Hill (1846), 2 C. B. 877. interpreted in the light of the legal consequences resulting from the relation between the parties. (b) Such an act would not be within the scope of the employment. Compare Cheshire v. Bailey, [1905] 1 K. B. 237, and see, further, title Agency, p. 202, ante. (c) Delivery was obtained by such means in Langtry v. Union Bank (1896), Journal of Institute of Bankers, Vol. XVII., p. 338, but the case was settled by judgment by consent for the plaintiff for £10,000, counsel for the bank stating that they did not admit negligence. It was in consequence of this case that the memorandum of the Central Association of Bankers, referred to in note {p), p. 627, It is there stated, " It is necessary to distinguish between cases in ante, was issued. which valuables are by mistake delivered to the wrong person, as in Mrs. Langtry's case, and cases in which they are destroyed, lost, stolen, or fraudulently abstracted, whether by an officer of the bank or by some other person. The best legal opinion appears to be that, in the former case, the question of the negligence of a bailee does not arise that the case is one of wrongful conversion of the goods, and that the bank is liable for this wrongful conversion, apart from any question of negligence." This view is supported by the following authorities: Youl v. Harbottle (1791), Peake, 68 Stephenson v. Hart (1828), 4 Bing. 476, "from the cases which have been cited it is clear that trover lies against a carrier for misfeasance in delivering a parcel to a wrong person, " per Park, J., at p. 482 "for delivery to a wrong person a carrier is no doubt responsible in trover," per Gaselee, J., at p. 488 M'Kean v. M'lvor (1870), L. 6 Exch. 36, " I assume





R



would have been a conversion," per Bramwell, B., at p. 41 Hiort v. London and North Western Rail. Co. (1879), 4 Ex. D., 'per Bramwell, L.J., at p. 194 Glyn v. Edst and West India Dock Co. (1880), 6 Q. B. D., per Bramwell, L.J., at p. 493 Bristol and West of England Bank v. Midland Rail. Co., [1891] 2 Q. B. 653, "delivery to a wrong person would be conversion," ^^^r that a misdelivery







L.J., at p. 657. The cases of Stephenson v. Hart, supra, Duffy. Budd (1822), 3 Brod. & Bing. 177, and Heugh v. London and North Western Rail. Co. (1870), L. E. 5 Exch. 51, which have been supposed to support the contrary contention, are distinguishable on the ground that in each of them there had been a refusal to accept the goods or a failure to discover the consignee. The bailee was therefore in the position of an involuntary bailee, who has the implied authority of the real owner to deal with the goods in any reasonable manner, and is therefore only liable for negligence. See those cases explained and distinguished on this ground by Bramwell, L.J., in Hiort v. Bott (1874), L. K. 9 Exch'. 86, at p. 90. {d) Such retention would not be conversion, as it involves no disregard of or interference with the owner's title. Compare Hollins v. Fowler (1875), L. R. 7 H. L. 757, per Blackburn, J., at p. 766.

Lopes,