In the ensuing term a new trial was moved for, but unanimously refused by the Court.

There is a manifest distinction between a disqualification founded upon a general law, and one resulting from a municipal regulation; the latter authority, as the less, having of course no operation in derogating from the extent of the former. It may, therefore, be laid down as a general rule, that contracts, good by common and statute law, are not invalidated by the regulations and bye-laws of corporations or companies, who, for the management of their own particular concerns, have subjeeted themselves to certain restrictions and limitations. Such bye-laws or regulations. are only laws amongst themselves, and have no other penalty or obligation annexed to them, than such as attaches by means of some external contract, which has its force, not in the bye-law, but as an instrument or compact recognizer by general law. Thus, a man may bind himself, as between party and party, not to do some certain particular act, and yet do such act, and still have his legal right of action, (if a contract,) upon it. The remedy for the injured party, under this breach of their pri

vate engagements, is upon the infraction of the first obligation, which he must seek according to its nature. But it is otherwise, if such bye-laws be adopted by letter or construction in any general law or statute, by which such corporations are recognized or constituted. As for example, in many of the acts recognizing the trading of the East India and South Sea Companies, &c. In the case of Dyster in the matter of Moline, 2 Rose 349. in which the question was upon the extent and nature of a broker's bond to the city of London, the Lord Chancellor, in that case, determined, that a broker of the city of London might maintain an action on a contract, or sustain a proof for a debt, arising out of transactions as a merchant, although such transactions were in contravention of the regulations under which he derived his office, to the condition of the bond which he executed, and to the oath which he took upon his appointment. that he could sustain no action on a contract arising out of a transaction in which he acted both as broker and principal; all such dealings being essentially fraudulent, illegal, and void, upon principles of common law.

But

It was contended by the

counsel in that case, that the 6 Anne, c. 16. s. 4. (which gave the corporation of London the power of admitting and regulating the duties of brokers) adopted, constructively at least, the bye-laws of the city as part of the statute; the words of the statute being, "that the court of mayor and aldermen of the said city, for the time being, should admit such brokers, under such restrictions and limitations for their honest and good behaviour, as that court shall deem reasonable." Now, in the year 1708, being the year after this act, the mayor and aldermen made their rules and regulations for the government of brokers, which have ever since been, and still are, in force; and by virtue of which they demand a bond from the broker, with a penalty, and also require him to take an oath; the forms of which bonds and oath are prescribed by the same rules and regulations. (See note, ante p. 431.)

But the Lord Chancellor, (Eldon) in adverting to the argument of counsel, and on giving his judgment, observed, "that if, under the words 6 limitations and restrictions,' adopted in the statute of Anne, the mayor and aldermen, &c.

of the city of London had the power of giving to their municipal ordinance the effect of a legislative prohibition, and of incorporating it in the law of the land, they have not done so. All they have done is to provide that, if a broker shall act in a manner contrary to that which the policy of the law thinks ought to govern his conduct, he should forfeit his bond, and be dismissed from his situation; and they have added to this the hold upon his conscience by the solemnity of an oath. If, however, he is bold enough to incur the consequences of a violation of his duty, they have not said that he shall not. The objection has been frequently taken and over-ruled at Nisi Prius; and I apprehend upon this view of it, viz. that the penalty of this conduct is the forfeiture of his bond and of his office. The oath not receiving a larger construction than as binding him to deal fairly as a broker; but not adopting, in that construction, all the circumstances of the condition of the bond."-2 Rose's Bankruptcy Cases, 354. Hil. term, 1816.

But in the same case his Lordship observes, that if a broker has introduced himself as broker and principal in

1816.

KEMBLE and Others

ATKINS

the same transaction, a con, tract, arising out of such conduct, would, without reference to any act of parliament, or other regulation, but upon prinand Another. ciples of common law, be good for nothing. No action could be sustained upon a transaction so fraudulent. A broker is to be considered either as an agent of the seller or of the buyer, or of both; bound honestly to exercise his skill, and fairly to communicate his opinion upon the subject of the purchase to those who, for that purpose, have confidently employed him. And it requires little observation to shew, how disqualifying a circumstance to the fair discharge of that duty will arise from the interference of his own interest. It would be impolitic and dangerous to enforce a contract arising out of such circumstances."

The following case was tried in the sittings after Michaelmas term last, at Guildhall, before Lord Ellenborough and a special jury, December 20, 1816. In Hil. Term, 1817, a motion was made to set aside the nonsuit (which was the result of the case at Nisi Prius); but the Court unanimously approved of the opinion expressed by the judge upon the points as they severally arose in the case:

The LORD MAYOR of London 7. JOSEPH ISRAEL BRANDON.

This was an action against the defendant, a sworn broker of the city of London, upon the bond given by him on being admitted to that privilege. Five breaches were assigned, and the penalty sought to be recovered was 500l. The first was for fraudulently and covenously making out an invoice of 60 cases of tobacco, sold by a person of the name of Cohen, and bought by a Mr. Splitgerber, through the agency of the defendant; the second, that the defendant, being required by Mr. Splitgerber to pay certain sums of money for ship-charges, &c. had fraudulently and core- . nously demanded from his employer more than he had paid; the third, that he had made a false entry of the invoice in his contract-book, by stating the number of pounds contained in certain cases of tobacco, instead of setting out the number of cases only; the fourth, that he had refused to allow his employer, Mr. Splitgerber, to inspect his contract-book when lawfully required for that purpose; and the fifth, that he had allowed his brother "to act under him," as a broker, and to make contracts in his own

name.

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 11,7551b., the value of which exceeded 6007. 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, transacted 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