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from the circumstance of the credit of the broker being, in most instances, better known than that of the merchant. It was evident that the plaintiffs had declared the names of their principals, and that Messrs. Litt and Co. had the option of making out the contract to the defendants, but declined so to do; and that the sugars were sold at a lower price on account of the contract being made personally with the plaintiffs. It was likewise in evidence that the defendants, in their dealings with the plaintiffs as brokers, had recognized transactions precisely similar to the present; and had paid upon contracts made by the plaintiffs, in their own names, for the defendants as their principals. Some brokers likewise stated, that it was an invariable rule in the West India trade, when a principal, the buyer, was not well known, or approved by the seller, to make out the contract in the broker's name. Other brokers spoke to the same mode of dealing in transactions in which they had been concerned for the defendants, who had made no objection, but had paid upon such

contracts.

Shepherd, S. G. for the defendants, contended, 1. that the mode of dealing, which the plaintiffs represented to be the usage of the trade, and upon which they rested their right to recover in the present action, was contrary to law, in direct repugnance to the regulations made by the City of London for carrying on the trade of a broker, and in violation of the bond, which the plaintiffs, as brokers, had given to the Corporation. 2. That it was a most dangerous practice, and had a

tendency to monopoly: that the plaintiffs had no right to become principals, and to introduce themselves into a contract against the will of those who employed them. That brokers were to abstain from all traffic themselves, and to act as indifferent parties between the buyer and seller. 3. That, though the practice had been stealing on a long time, it was not too late to reform it. That the defendants rejected the contract directly it was transmitted, upon the simple and sufficient ground, that the broker's name was inserted in the bought note. That they were justified in so doing; and could not be compelled to accept a contract made in direct opposition to the authority given to the plaintiffs.

The town clerk produced the regulations made by the Court of Aldermen, in pursuance of the 6 Anne, c. 16. sec. 4. The bond of the plaintiffs was likewise produced, in which all the regulations are engrafted :-It was in the penal sum of 500l. (a).

1816.

KEMBLE and Others

v.

ATKINS and Another.

(a) The condition of the Bond is as follows:

"Whereas the abovebounden (mentioning the broker's name and description) is, by the Court of Lord Mayor and Aldermen of the city of London, allowed to be admitted and sworn a broker, within the same city and liberties thereof, to have, use, and exercise the said office and employment during the pleasure

of the said Court, and no
longer. Now the condition
of this obligation is such, that
if the said (broker's name) for
and during such time as he
shall and doth continue in the
said office and employment,
shall well and faithfully exe-
cute and perform the same
without fraud, covin, or de-
ceit; and shall, upon every
contract, bargain, or agree-
ment by him made, declare

1816.

KEMBLE

Best, serjeant, for the plaintiffs, contrà.-1. That supposing the plaintiffs had infringed the condition and Others of their bond, it was no answer to this action. The Chamberlain of the City must sue for the penalty. But the plaintiffs had neither broken any of the

0.

ATKINS

and Another.

and make known to such person or persons with whom such agreement is made, the name or names of his principal or principals, either buyer or seller, if thereunto required; and shall keep a book or register, and therein truly and fairly enter all such contracts, bargains, and agreements, within three days at the farthest after making thereof, together with the names of the respective principals for whom he buys or sells; and shall upon demand made by either of the parties, buyer or seller, concerned therein, produce and shew such entry to them, to manifest and prove the truth and certainty of such agreements. And for the satisfaction of all such persons who shall doubt whether he is a sworn broker or not, shall upon request produce a medal of silver with his Majesty's arms engraven or stamped on one side, and the arms of this city with his name on the other. And shall not directly or indirectly by himself or any other, deal for him

self or any other broker in the Exchange, or remittance of money, or in buying any tally or tallies, order or orders, bill or bills, share or shares, or interest in any joint stock, to be transferred or be assigned to himself or any other broker, or to any other in trust for him or them; or in buying any goods, wares, or merchandizes, to barter or sell again, upon his own account, or for his own or any other broker's benefit or advantage; or make any gain or profit in buying or selling any goods, over and above the usual brokage. And shall and do discover and make known to the Court of Lord Mayor and Aldermen in writing, the names and places of abode of all and every person and persons, as he shall know to use and exercise the said office or employment, not being thereunto duly authorised and empowered as aforesaid, within. thirty days after his knowledge thereof. And shall not employ any person under him to act as a broker within the said city

1816.

KEMBLE

v.

ATKINS

regulations made by the City for the office of a broker, nor violated the conditions of their bond. It was not contended that they had bought for and Others themselves at one price; and, having become purchasers, re-sold the same to their principals at an and Another. advance. On the contrary, the name of their principals was disclosed at the time of the bargain. They acted solely in the character of brokers; their names were used in the contract as brokers; although, by the terms of the contract, they became responsible to Messrs. Litt and Co. It was not necessary that the name of the buyer or seller should appear on the face of the contract. the broker was required to do was, to record the name of his principal in his books, and to declare it when called upon. He insisted, that the regulations of the City, and the conditions of the bond, had been fully satisfied.

All

and liberties thereof, not being duly admitted as aforesaid.And shall not presume to meet and assemble in Exchangealley, or other public passage or passages within this city and liberties thereof, other than upon the Royal Exchange, to negociate his business and affairs of brokage, to the annoyance and obstruction of any of his Majesty's subjects, or any other, in their business or passage about their occasions; then this obligation to be void

and of none effect, or else to
be and remain in full force and
virtue."

BROKER'S OATH.

"You shall sincerely promise and swear, that you will truly and faithfully execute and perform the office and employment of a broker between party and party, in all things. appertaining to the duty of the said office or employment, without fraud or collusion, to the best of your skill and knowledge."

1816.

KEMBLE

and Others

v.

ATKINS and Another.

2. That the defendants, by their previous habit of dealing with the plaintiffs, independent of the almost universal usage of the West India trade, had given an implied assent to the present form of the contract.

DALLAS, J.-This is a question of the most important and extensive consequences. The first inquiry will be, whether the plaintiffs were authorised by the defendants to make the contract, in their own names, from the previous course of dealing between the parties. They do not insist that they had any specific authority to introduce themselves into the contract. This will be a question of fact for the Jury. 2d, If the plaintiffs had such authority, could the defendants, by law, confer such a power, and the plaintiffs exercise it.

This last question I shall not determine. It is of serious magnitude; and I shall reserve it, if it becomes necessary, for the opinion of the Court. Undoubtedly, if I were to give an opinion on the subject, I should be inclined to say, that there was nothing illegal in the transaction. It is not necessary that the principal's name should appear on the face of the contract. It is sufficient if the name of the principal be entered in the broker's book, and declared when properly demanded. In the present case there was no concealment of the principals. Nothing in the nature of fraud is insinuated. The plaintiffs, it is admitted, have entered the names of the defendants in their books, and it was known to Messrs. Litt and Co. for whom they acted,

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