description of the former laws; because, though he bought and sold, it was not for himself, but for others: and, with respect to factors, brokers, and bankers, the policy seems to have been this; that as, in the nature of their dealing, they did, in a certain way of trade, get other men's money into their hands, and might deal fraudulently or unfortunately with it, they became proper objects of the bankrupt laws. This was exactly the reason for which a scrivener was considered as a proper object of those laws by the statute of James the First; because he got into his hands the money of other men in the ordinary course of his dealing. But it is not merely handling other men's money which makes a man a proper object of these laws: he must get that money into his hands in a course of trading, whether that trading be for his benefit only, or for other men's also, as in the case of a factor. It is not to be implied that every attorney who transacted a loan of money, and took money for transacting the loan, was subject to the bankrupt laws. Lord Kenyon, in the case of Hamson v. Harrison, 2 Esp. N. P. 555, determines, that the mere receiving of other men's mo be 1817. v. GASCOIGNE. ney, charging a commission on the receipt, and employing the money whilst in his hands, for HUTCHINSON his own benefit, did not make and Another a man a bankrupt. I think, therefore, it must now pretty well understood, that an attorney, or solicitor, acting in his common and ordinary business, and merely taking procuration money on a loan, does not thereby become. a scrivener liable to the bankrupt laws. But Mr. Warren is now represented to be standing as a person in a different situation; as a person generally known as dealing in a different character; as dealing for loans of money; having money put into his hands to lay out upon securities; and laying it out accordingly in the ordinary course of the trade of a scrivener, within the meaning of the statute of James the First. If this case can be established the commission must stand. An issue was directed to a court of law, and Warren was found not to be a broker or scrivener within the meaning of the bankrupt laws. The case next in order is Ex parte Malkin, which was a petition to the Lord Chancellor Eldon (June 1813) to supersede a commission against one Adams, who was described in the commission as a scrive v. GASCOIGNE. 1817. ner, dealer, and chapman, &c. The evidence to support the HUTCHINSON trading was principally pro and Another duced from his own books and papers; and, so far from proving that he was a scrivener, it merely proved that he was a practising attorney. The acts relied upon to prove Adams a scrivener were transactions in which he had been concerned for several clients from 1806 to 1811, purchasing and selling estates; receiving and accounting for the interest of the money whilst in his hands; negotiating loans on mortgage and annuity; receiving bills and other property; investing part in security; and retaining part to answer occasional drafts. In support of the petition, the cases above cited, of Ex parte Warren, Willett v. Chambers, and Hamson v. Harrison, were relied upon. Against the petition it was contended, that the sound distinction had been taken by Lord Mansfield, in the case in Cowper, 814."That an attorney who, in addition to the profit derived from preparing the instrument in money transactions, takes also commission or procuration money, may be a scrivener.” The Lord Chancellor, in giving judgment, thus expresses himself, "The notion amongst old conveyancers was, that a scri vener, who drew the deeds, could make no charge for that; that his procuration included all. In the annuity act the legislature, speaking of an attorney taking more than 10s. per cent. for procuring a loan, did not conceive that, by that description, they reached a scrivener; as there is a distinct description of him, (vide the 17th Geo. III. c. 26.) I have certainly heard a scrivener described as a person taking a procuration for procuring money, and that included all. He could not unite the two professions, and make a double charge. The practice of a scrivener charging procuration money arose upon this; that his charge as an attorney was illegal, unless he was an attorney. Lord Kenyon-I remember, said, that if an attorney, engaged in the affairs of a family, and laying out their money in mortgages, was employed only in conveyancing, his bill could not be taxed, as if he had carried on suits; and attornies, instead of making out bills for conveyancing, charged procuration, in order to avoid taxation. My own notion upon the subject is, that if an attorney takes procuration for loans as well as his fees as an attorney, acting in the former capacity to such an extent as to afford evidence of his intention always to do so, he may be the object of a commission as a scrivener. It can never be represented that every attorney is a scrivener. The professions are very different: in fact, the same person may be both; but then it must be ascertained in which transaction he is the one or the other; and I very much doubt whether the policy of the law would permit him to be both in the same transaction," 2 Vesey and Beames, 31. Issues were directed to try, first, whether Adams was a scrive ner; secondly, whether he was a broker. At the trial of the issue in the court of Common Pleas, vide 3 Camp. 534, some evidence was brought forward which had not been presented to the Chancellor upon the tition. It appeared that Adams, in all the transaction, relied upon to prove him a scrivener, had acted in the ordinary business of an attorney; that the attorney was always, and on every occasion, predominant; that some of his relations, indeed, having no banker of their own, had deposited money and bills with him to be deposited with his banker. In the negotiation for the sale of estates, of which there were only three instances, pe 1817. and Another he had received rent, and as- any persons to lay out for Lord Chief Justice Gibbs, who tried the issues, thus expresses himself in the report:-"The person, to be considered a scrivener, must carry on the trade or profession it must be an occupation to which he resorts in order to get his living, To be a scrivener within the mean. ing of the statute, he must likewise, in the course of this occupation, receive other men's monies into his trust or cus v. 1817. v. GASCOIGNE. tody. It appears from the old cases that, before bankers and HUTCHINSON brokers were so easy to be and Another found, the scrivener was the with person 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 mean time 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 monies numbered 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, so soon as an opportunity offered. At the present day, the banker occupies one department of the business of the scrivener, by being the depository of the money; and the attorney the other by drawing the securities. The banker would not be an attorney, though he were occasionally to fill up bonds for his customers; nor does the attorney become a scrivener, though, on particular occasions, he incidentally has the money of his clients to lay out for them. In order to make a man a money scrivener, he must carry on the business of being trusted with other people's monies to lay out for them as occasion offers. It is not being sent with the money of his client, or receiving it from the person with whom his client may have previously contracted, that will make an attorney a money scrivener. In that part of the transaction he is no more than a person employed to fetch and carry. Having negociated the loan, and drawn the deeds, the happening to receive and pay the money is incidental to his business of an attorney. Nor if, on one or two occasions, money were deposited with him to lay out, would that constitute him a money scri vener. He must be carrying on generally the business of a money scrivener. That must be part of his known occupation. Though an attorney may have incidentally acted as a scrivener, that is not sufficient: though money may have been deposited with him, for which he was afterwards to seek a borrower, a few insulated instances of that sort occurring in the course of his business as an attorney would not bring him within the operation of the bankrupt laws; for that would not be using the trade or profession of a scrivener, receiving other men's monies or estates into his trust or custody."" -Addressing himself then to the parts of the case in evidence, his Lordship proceeds to observe upon a negociation between one Green and Adams—“If Green had, as Adams represented, deposited the 100%. with him till (Adams) could find a borrower; pro hac vice he would have been a money scrivener; and a course of dealing of that description would render him liable to the bankrupt laws, though one or two instances only would not have this effect." And again, in another place, he observes, (Adams's) charges to his employers are the common and usual charges of an attorney. He charges for his trouble, whether his labours have been attended with a favourable or unfavourable result. How ever, I do not put the case upon that ground; for if he had even charged procuration 66 All 1817. v. GASCOIGNE. money or commission, this, in my opinion, would not have made him a scrivener, unless HUTCHINSON he had been entrusted with and Another money, as money scriveners were accustomed to be when the statute passed. And I am inclined to think if he had been entrusted with money, as money scriveners formerly were, he would still have been within the operation of the bankrupt laws, though he had not received procuration money or commission, and had made the usual charges for drawing the securities. The effectual point to consider is, whether he had other men's monies or estates in his trust or custody as a scrivener." The Jury found that Adams was neither scrivener nor broker. N. B. See further on this subject, Hurd v. Brydges,post. Sittings in the Common Pleas after Mich. Term, 1817. |