The first, fourth, and fifth breaches were principally relied upon by the counsel for the plaintiff.

The principal facts connected with the case were these:-Mr. Splitgerber employed the defendant, a tobacco-broker, carrying on business under the firm of Brandon and Sons, to make a purchase of tobacco for him; - and the contract was dated in the month of September, 1810. The purchase was made from one Cohen, and consisted of 60 cases. They were shipped for Stettin, and were returned to England on the ground that the real weights did not tally with those stated in the invoice by 11,755lb., the value of which exceeded 600l. This variance was charged upon the defendant as a fraud with intent to benefit himself personally, and was the foundation of the first and principal breach. The tobacco was subsequently exported by a Mr. Pearson; and Splitgerber brought an action against Cohen for the difference, in which he produced the defendant as a witness, and recovered a verdict for 6721. The fourth breach was connected with this transaction: the defendant having refused in March, 1815, to allow Splitgerber to inspect his contract book; and the

fifth breach applied generally to the mode in which the defendant, assisted by his brother, Joshua Brandon, trans. acted the business of the house of Brandon and Sons.

The evidence applying to the first charge was chiefly documentary, and consisted of the invoice, the books of the defendant, and others produced from the Custom-house: the most important of the latter was the landing - ledger, in which it was stated that the net weight was the same as that contained in the invoice made out by the defendant; but a reference was made, in red ink, to another book, in which the tares of the packages or cases containing the tobacco were entered. By the evidence of a Mr. Legg, and particularly upon his cross-examination by Scarlett, (on behalf of the defendant) it appeared, that previous to the proclamation of the 3d of June, 1810, when tobacco was imported in hogsheads, the net weights only were mentioned in the landingledger, the commodity itself being turned out into the scale. After that date, however, when cases and other packages were allowed to be used, a different practice prevailed,and the gross weights only were entered.

The testimony in support of

the fourth breach was chiefly that of a Mr. H. G. Arnauld, who deposed, that on the 4th of March the defendant had refused to allow Splitgerber to inspect his contract-book, adding, that it should be produced at the proper time: on the day following it was laid before the Court of Aldermen, who had assembled for the purpose of investigating the subject.

Lord Ellenborough intimated a decided opinion that this refusal could not be considered a breach of the condition of the bond the defendant had only refused conditionally, and had laid his book before the Court of Aldermen the next day, as the proper time for doing so.

Witnesses were then called to support the fifth breach, that the defendant had allowed his brother, who was not a sworn broker, to act under him. Three witnesses produced several contracts for tobacco, made out and signed by the defendant and by Joshua Brandon: but none of them could distinctly swear that they had negotiated with Joshua only, in any single transaction; they agreed that the business was transacted by both of them, indifferently and together.

Upon this evidence Lord Ellenborough thought, that the conduct of the defendant and his brother could not be brought within the precise terms of the bond. It could not be said that Joshua Brandon acted under Joseph Brandon, for they seemed to have a concurrent and equal authority: if the city of London wished to prevent this practice in future, they must alter the wording of the bond; the mischief was equal, but it was not provided against.

The case on the part of the plaintiff was thus reduced to the first breach, for fraudulently and covenously making out an invoice containing false weights of the tobacco sold.

Scarlett, for the defendant, contended, that this was a most hard and oppressive action; that the acts of the broker, as their duties were defined by their bond to the city of London, and the regulations made by the mayor, &c. were not to be jealously and narrowly scanned, but interpreted with a large and liberal equity. The question had not often arisen upon the assignment of such bonds in actions like this. The intention of the broker was to be looked to. Did he mean a fraud? It was incredible that he had any fraudulent purpose. Money, the

moving motive of fraud, could, not be his object in the present transaction. Admitting that he was negligent, all interest in the misrepresentation was fully rebutted.

The foreman of the jury intimated, that neither he nor his brethren believed that the defendant had made out the invoice with a fraudulent intent.

Lord Ellenborough expressed precisely the same opinion: one essential circumstance to induce the belief of a fraudulent purpose, viz. pecuniary advantage, was wanting; but the defendant's commission did not depend upon the number of pounds stated in the invoice, but upon the number of cases, which he could not vary. His Lordship, however, thought, that though not a case of fraud, it was one of gross negligence on the part of the broker, for which he might be liable to an

injured party. If a change in the mode of transacting business was made at the Customhouse, it was the duty of a broker to know it, and to govern himself by it.

One of the jury observed, that it was no part of the province of the broker to furnish weights: the purchaser, for his own satisfaction, might ascertain that they were correct.

Lord ELLENBOROUGH.-When the city of London appoint a broker, they expect that his dealings shall be conducted with perfect veracity; and the defendant would do well, in several particulars, to amend his practice. Though the employment of his brother may not be within the strict words of the bond, yet it is clearly within its spirit and meaning; his books ought also to have been produced on demand.

The plaintiff was nonsuited.