Duncan v. . Brennan

Per Curiam. The question whether the declarations of Boyd in respect to the ownership of the whisky were admissible depends upon the fact whether the plaintiffs had any claim or lien upon the whisky for advances made by them for Boyd Bros. & Hobson. The firm had loaned from the" plaintiffs, and obtained an advance, of $10,000 on thé bills of lading for the whisky, which loan was afterward paid to the plaintiffs, with interest, as plaintiffs’ account, which was introduced in evidence, shows. The account also establishes that the money was received on this very loan of $10,000; and unless the plaintiffs had a lien for the unpaid balance of their previous account against Boyd Bros. & Hobson, the title of the whisky was not in them and the sheriff was justified in seizing the same. It appears that the plaintiffs had advanced large amounts.to Boyd Bros. & Hobson, for which they held personal property as security; but these advances were not general and did not by any special agreement include the whisky. We think that the whisky could not be held for subsequent advances unless made upon this security, and of this *491 there is no evidence whatever. In this case the advance was a special one on specific personal property; and to entitle the plaintiffs to hold the whisky for any advances beyond the $10,000, a special agreement should be proved to that effect. ( Wilmerding v. Hart, Hill & Den. [Supp.] 305; Robinson v. Frost, 14 Barb. 536.) As a pledge the whisky could not be held for any more than the debt, unless by special agreement. (Bouv. Law Dict.; 2 Kent’s Com. 775.) Nor could the plaintiffs hold the same as bankers for a banker’s loan, as the advance was made upon the whisky alone. The general lien which bankers hold upon bills, notes and other securities deposited with them for a balance due on general account, cannot, we think, exist where the pledge of property is for a specific sum and not a general pledge. (Story on Agency, §§ 380, 381; Neponset Bank v. Leland, 5 Metc. 259; Grant on Banking, 168; 3 Pars, on Cont. 262.) The plaintiffs, therefore, had no right to the property as a pledgee or by virtue of a lien as bankers; and as their lien had been paid in full before the action was brought, the firm of Boyd Bros. & Hobson was entitled to the same, and the declarations of Boyd were competent evidence, and the court erred in excluding the same. These declarations do not stand in the attitude of those of an assignor made after an assignment has been made, or of a mortgagor made before assignment, or a former owner of property, or of a chose in action, but rest upon the principle that the real owner or holder of property is bound by his own acts and declarations. It also follows that from the fact that there was no general lien, and that the specific lien had been discharged by payment of the loan, there was no right of possession in the plaintiffs at the time the action was commenced; and for that reason the motion to dismiss the complaint should have been granted. Without considering some other questions raised, the order of the General Term should be affirmed and judgment absolute ordered for the defendant upon the stipulation with costs. All concur. Order affirmed and judgment accordingly.