Lott and Pidgeon, Assignees of Smark, a Bankrupt v Melville, Sharpe, and Todd
| Jurisdiction | England & Wales |
| Judgment Date | 25 May 1841 |
| Date | 25 May 1841 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 1049
IN THE COURT OF COMMON PLEAS
S. C. 3 Scott, N. R. 346; 9 D. P. C. 882; 10 L. J. C. P. 279; 5 Jur. 436.
lott and pidgeon, Assignees of Smark, a Bankrupt (a), v. melville, shabjpe, AND todd. May 25, 1841. [S. C. 3 Scott, N. E. 346; 9 D. P. C. 882; 10 L. J. C. P. 279; 5 Jur. 436.] Feigned issue, on an allegation, that, at the time of the seizing of certain goods in execution, the plaintiffs in the issue were entitled to the same, as against and free from the execution, and that the goods were not liable to be so seized as against such plaintiffs. Held, that the plaintiffs, who claimed as assignees under the bankruptcy of the judgment debtor, were bound to prove the trading, petitioning creditor's debt, and act of bankruptcy, though no notice had been given to dispute those matters, under the 6 G. 4, c. 16, s. 90.-Held also, that on attorney does not become a scrivener, liable to be made a bankrupt under 6 G. 4, c. 16, s. 2, by lending the money of clients and charging a procuration fee to the borrowers.- Held also, that a transaction in which an attorney calls in and receives the money of a client, and retains the money in his possession, paying interest to that client upon the amount, is not a trading as a money scrivener. Feigned issue, under the sixth section of the interpleader act of 1 & 2 W. 4, e. 58. The declaration stated, that on the 23d of May 1840, certain cattle, goods, and chattels were seized by the sheriff of Devon under a fi. fa. issued against Smark, indorsed to levy 7491. 9s. 6|d. with interest at 4 per cent, from the 1st of April 1840. After a colloquium and wager as to whether the cattle, &c. were subject and liable to be so seized, the allegation upon which the issue was taken [41] was-that at the time of (a) Though the plaintiffs were inadvertently described as assignees in the title of the cause, they were not so designated in the body of the issue. Vide post, 45. 1050 LOTT V. MELVILLE 3 MAN. & G. 42. the seizing, &c. the plaintiffs were entitled to the same as against, and free from, the said execution; and that the said cattle, &c., were not subject, or liable to be so seized or levied under the said writ, as against the plaintiffs. At the trial before Coleridge J. at the last Bristol assizes, it was contended, on the part of the defendants, that no trading and no act of bankruptcy had been proved. The jury found an act of bankruptcy. The trading attempted to be set up was, that Smark who was an attorney, had had dealings as a money scrivener. Pippen, who had been clerk to Smark for the last four years, spoke to a variety of instances of money being procured by Smark for clients, who were charged a procuration fee of 5s. per cent. He proved that a Miss Torrens had employed Smark to invest TOOL for her; and that Smark had been applied to by one Squire to procure him a sum on mortgage; that the mortgage securities had been prepared; and that Miss Torrens had authorised a debtor of hers to pay to Smark the 7001. for the purpose of being paid over to Squire, which was done accordingly; Squire, in addition to the costs of the securities, paying Smark 5s. per cent, procuration money. It was objected, by Bompas Serjt. for the defendants, that the plaintiffs were bound to produce Smark's bill of costs, in which these charges were entered ; but the objection was overruled by the learned judge. Pippen also proved that Smark had called in 1401. due to a Miss Grigg from a Miss Hook. This 1401. remained in Smark's hands down to the time of his bankruptcy, and formed the petitioning creditor's debt. Interest had been from time to time paid by Smark to Miss Grigg upon the sum of 1401., and he had told Pippen that it was her money. The jury found that the sum had been lent by Miss Grigg to Smark. [42] No witness was called for the defendants ; but it was insisted, amongst other things, that no trading had been proved. Adams v. Malkin (a) was referred to. The learned judge told the jury that the trading must be habitual, and that a single act was not sufficient to make the party a trader; and he directed their attention to the description of a money scrivener in the statute (6 G. 4, c. 16, s. 2, post, 52). The jury having found all other points left to them in favour of the plaintiffs, the learned judge directed the verdict to be entered for the plaintiffs, reserving leave to the defendants to move to enter a verdict for them, upon these grounds-that the transactions of Smark, did not amount to a dealing as a scrivener, and that the loan transactions, negotiated by Smark, had not been sufficiently proved. In the following Michaelmas term Bompas Serjt. moved accordingly. The law with respect to the conducting of the business of a scrivener, so as to bring the party within the operation of the bankrupt laws, is fully examined by Gibbs C. J. in Adams v. Malkin, who says (3 Campb. 538), " The person to be considered to be a scrivener, within the meaning of the statute, must likewise, in the course of this occupation, receive other men's moneys into his trust or custody. It appears from the old cases, that before bankers and brokers were so easy to be found, the scrivener was the person with whom people were accustomed to deposit their money, in order that he might lay it out for them when he should find a proper opportunity. The scrivener, in the meantime, had the use of it, and could not be questioned for the profit he made of it, till he laid it out. He was trusted as a banker. It was not a specific sum which, in moneys numbered, [43] he was to keep in his chest: he gave credit for it to the party who had sufficient confidence in him that he would lay it out to advantage as soon as an opportunity offered. It was seen to be of great importance that this description of persons should be subject to the bankrupt laws; for, through them, the property of others was exposed to the risks of trade. They were trusted with other men's property, as traders now are; and, therefore, it was of consequence to the public, that, if any calamity happened to them, there should be the same summary means, which had been before devised with respect to other persons in trade, of getting at their effects and making an equal distribution among all their creditors."- " In order to make a man a money scrivener, he must carry on the business of being trusted with other people's moneys to lay out for them as occasion offers. It is not being sent with the money of...
To continue reading
Request your trial
-
Fawcett against Fearne and Others
...incidentally. This appears from Doe dem. Mawson v. Liston (4 Taunt. 741), decided on stat. 49 G. 3, c. 121, s. 10. Lott v. Melville (3 Man. & G, 40. See Linv.it v, Chaffers, 4 Q. B. 762), is also an authority for this application. In Archbold'a Law and Practice in Bankruptcyf p. 409 (9th ed......