Hughes v Morley
| Jurisdiction | England & Wales |
| Judgment Date | 25 March 1817 |
| Date | 25 March 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 171 E.R. 324
IN THE COURT OF COMMON PLEAS
324 HUGHES V. MOELEY HOLT 528. [520] Lancaster Assizes, 1817. March 25, 1817. hughes v. moblby. (1. Where the defendant pleads his certificate in bar, the plaintiff is at liberty to give evidence of gaming at Nisi Priua, in order to vitiate the certificate The 12th however, from Stowe, that a company of scriveners was incorporated in London, in the icign of James I book 5, p. 200 In 2 Eq Cases Abr. 707, some notion may be deduced of the proper occupation of a scrivener from the cases there reported : see likewise Vmer's Abridgment, vol. 19, p 289 It appears from these cases, that he was neither the attorney, nor the banker , he did not prosecute suits and actions, he did not prepare conveyancing as a matter of general business , nor did he, like the banker, become a general depository of the money of another, the mere agent of an account current. He was employed to find out securities for the profitable investment of money , his discretion was trusted on these occasions , property was deposited with him ; and the money of his several customers was probably allowed to accumulate in his hands, whilst he was occupied in such search. It appears likewise, from the old cases, that, like our factors and brokers, he became, upon some occasions, guarantee for his own transactions, upon the manifest mercantile reason of the parties being better known to ham than they were to each other. Here, therefore, were two functions, which at once constituted him a trader, and brought him within the compass of the bankrupt laws ; and the absence of which, in the character of an attorney, affords the mam, and indeed the sole distinction between the two The getting the monies and estates of other men into his possession ; being trusted with [513] them , dealing with them upon his own discretion in the course of trade , and this, not incidentally, but as the general and discriminating habit of his occupation. But these principles will better appear by subjoining the cases, which must necessarily be done at some length, which the importance of the enquiry must excuse In ex parte Burchall, 1 Atk 141, Lord Hardwicke says, " a scrivener comes within the meaning of the words bankers, brokers, arid factors, used in 5 Geo II " In ex parte Wilson, 1 Atk. 217, the same authority says, " a scrivener does not keep an open shop ; and yet, as he receives money belonging to other people, and places it out on securities, which is the business of a scrivener, he may become a bankrupt." In WiUett v. Chambers, Cowper, 814, Lord Mansfield, speaking of a scrivener, says, that " he understands a scrivener to be a person who was employed to lend out money for others on security, and got procuration money in the transaction." In Hamson v Harnson, 2 Esp. 1 N. P. 555, per Lord Kenyon, " It is impossible to suppose that every man who receives the money of another into his possession, and makes some kind of use of it, thereby becomes a scrivener Such a doctrine would subject parties to the bankrupt laws to whom the law never intended them to extend. It would extend to the steward and receiver of landed property , and, in fact, to every person in business. When the statute passed, the business of a scrivener was well understood ; the statute had those particular persons in view who, eo nomine, carried on the business of a scrivener. The acts relied on to constitute a scrivener must apply to persons who used to act as they did, not where a person receives and pays money as the bankrupt in the present case has done." His Lordship, therefore, determined, that a clerk in the custom-house, who took debentures for merchants, and had a commission allowed on the receipt of them, and employed the money which he so received in discounting bills for his own use, was not a scrivener within the meaning of the bankrupt laws. The next case of importance is the case of ex parte Warren, 2 Schoal. and Lefroy, 414. In that case it was decided, that a scrivener, within the meaning of the bankrupt laws, was a person having money put into his hands to lay out on [514] security ; and laying it out accordingly in the ordinary course of his...
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