Ex parte Dyster Moline
| Jurisdiction | England & Wales |
| Judgment Date | 23 January 1816 |
| Date | 23 January 1816 |
| Court | High Court of Chancery |
English Reports Citation: 35 E.R. 632
HIGH COURT OF CHANCERY
S. C. 2 Hose, 349. 6 Ann. c. 16, sect. 4, was repealed by the Statute Law Revision Act, 1887 (50 & 51 Vict. c. 59), where it is described as 6 Anne, c. 68.
[155] Ex parte oyster in the Matter of moline. Jan. 22, 23, 1816. [S. C. 2 Hose, 349. 6 Ann. c. 16, sect. 4, was repealed by the Statute Law Revision Act, 1887 (50 & 51 Viet. c. 59), where it is described as 6 Anne, c. 68.] A sworn broker of the city of London entitled to prove in respect of debts arising out of transactions in which he has been engaged as principal, notwithstanding the restriction in the statute 6 Ann. c. 16. If he acts ostensibly as broker in any of those specific transactions in which he was so concerned as a principal, such acting is a gross fraud, in respect of which he can obtain no remedy in a Court of Justice. Therefore, in the present case, an enquiry directed, there being no direct charge affecting him in respect of such last mentioned dealings. (On another point in this case, viz. whether a dormant partner is within, the statute 21 Jac. I. c. 19, see 2 Rose, 256.) 1MER. 156. EX PARTE DYSTER 633 The petitioner was a broker of the city of London ; and, to a debt sought to be proved by him under the bankrupt's commission, it was objected that, as such broker, he was precluded by his bond to the city in a penalty of 500, and by the oath taken upon his being admitted a broker, from trading as a principal; and that, notwithstanding these obligations, he had had joint dealings with the bankrupt, as a principal, upon the balance of which transactions he claimed to prove as aforesaid. The question now before the Court, upon this petition, was, whether the policy of the law will allow a debt to arise out of such transactions. By statute, 6 Ann. c. 16, 4 ; it is enacted " that, from and after the deter-" inination of this present session of Parliament, all persons that shall act as brokers " within the city of London and liberties thereof, shall from time to time be admitted " so to do by the court of Mayor and Aldermen of the said city, for the time being, ." under such restrictions and limitations for their honest and good behaviour as " that Court shall think fit and reasonable." [156] In 1708, the year after this act passed, the Court of Mayor and Aldermen made certain rules and regulations for the government of brokers, which have ever since been, and still are in force, and by virtue of which every person, previous to his being admitted a broker, is required to enter into a bond to the Mayor, Commonalty and citizens of London, and also to take an oath, the forms of which arc prescribed by the same rules and regulations, and are, in substance, as follows: Condition of the bond. " That the said A. B., for and during such time as he shall and doth continue in the said office and employment, shall and do well and faithfully execute and perform the same without fraud, covin, or deceit; and shall, upon every contract, bargain, or agreement by him made, declare and make known to such person or persons with whom such agreement is made the name or names of his principal or principals, cither buyer or seller, if thereunto required, and shall keep a book or register, and therein trulyand fairly enter all such contracts, bargains, and agreements, within three days at the farthest after making thereof, together with the names of all the respective principals for whom he buys or sells, and shall upon demand made by any, or either of the parties buyer or seller concerned therein, produce and shew such entry to them or either of them to manifest and prove the truth and certainty of such contracts and agreements, and for satisfaction of all such persons as shall doubt whether ho is a lawful and sworn broker or not, shall, upon request, produce a medal of silver with his Majesty's arms engraven 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 himself or any other broker in the exchange or remittance of money, or in buying any tally or tallies, order [157] or orders, bill or bills, share or shares, or interest in any joint stock to be transferred or assigned to himself, or any broker, or to any other in trust for him or them, or in buying any goods, wares, or merchandizes, to barter and sell again upon his own account, or for his own or any other broker's benefit or advantage, or to make any gain or profit in buying or selling any goods over and above the usual brokerage ; and shall and do discover and make known to the said Court of 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 authorized 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 and liberties thereof, not being duly admitted as aforesaid, and shall not presume to meet and assemble in Exchange-alley, or other public passage or passages within this city and liberties thereof, other than upon the Royal Exchange, to negotiate his business and affairs of exchange, to the annoyance or destruction of any of his Majesty's subjects, or any other, in their business or passage about their occasions." Form of oatli. " 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." The nature of the transactions in which the petitioner was engaged, after he had entered into the bond and taken the oath aforesaid, and while he still con-[158]-tinued in the office or employment of a broker within the eity of London 634 EX PARTE BYSTER 1 MEE. 159. and liberties thereof, and upon which the prayer of his petition was founded, appeared upon affidavit to be that, for many years previous to the bankruptcy of Moline, the petitioner was concerned with the bankrupt and another person, in a secret partnership, in the purchase and sale of hides and skins ; and it was further sworn that, during the whole continuance of such secret partnership, he bought and sold hides and skins on commission, as broker, and charged his employers a brokerage or commission on the sale or purchase thereof, although some of such goods were sold by him to the bankrupt on account of the said secret partnership. The sums for which the petitioner claimed to be entitled to prove as debts arising out of the aforesaid transactions, amounted to upwards of 20,000. Sir Samuel Romilly, Cooke, and Roupell, in support of the petition. If the present application is opposed at all, it must be, either on the ground that the transactions, in respect of which relief is sought to be obtained, are positively illegal, or that they are fraudulent and against conscience, and that, in either case, a Court of Justice will not interpose to give effect to a contract having such transactions for its foundation. If these transactions are illegal, they must bo so in consequence of some direct statutory prohibition ; but no such statute can be produced, nor is there a single judicial decision in support of the allegation. If it be said that the regulation made by the city of London amounts to a legislative enactment, as being in pursuance of a power vested in the city by an act of the lcgis-[159]-lature, it must be first seen what is the nature and extent of the authority actually given to the city by the statute of Anne...
To continue reading
Request your trial
-
O'Sullivan v Management Agency and Music Ltd
... ... his own property to a principal is guilty of dishonesty; and it was said by Lord Eldon in Ex parte Dyster , that if a man "mixes in a transaction, in which he is ostensibly the broker, but really a ... ...
-
Robinson v Kitchin
...and Mr. W. Rudall, for the Plaintiff. They referred to Johnson v. Hiulson (11 East, 180); Brown v. Duncan (10 B. & C. 93); Ex parte Dyster (1 Mer. 155); Hewitt v. Price (4 Man. & Gr. 355); Maccalium v. Turton (2 Y. & J. 183); Short v. Mercier (2 De G. & Sm. 635; 3 Mac. & Gor. 205). Mr. Foll......
-
Cope v Rowlands
...agents in the grossest and most scandalous frauds." The same doctrine is laid clown in Ex parte Dysler (-1 Rose's B. C. ,'549; S. G. 1 Merivale, 155). It is submitted, that as the facts disclosed on the third issue clearly shew that the plaintiff's causa of action, in respect of the portion......
-
Re Euro Bank Corporation
...Re, [1991] HKC 445, dicta of Ribeiro J. applied. (8) Curtis v. Perry(1802), 6 Ves. 739; 31 E.R. 1285. (9) Dyster, Ex p., In re MolineENR(1816), 1 Mer. 155; 35 E.R. 632. (10) Food Controller v. Cork, [1923] A.C. 647; (1923), 92 L.J. Ch. 587. (11) General Rolling Stock Co., In re, Joint Stock......