Robinson v Kitchin
| Jurisdiction | England & Wales |
| Judgment Date | 18 February 1856 |
| Date | 18 February 1856 |
| Court | High Court of Chancery |
English Reports Citation: 44 E.R. 322
BEFORE THE LORDS JUSTICES.
S. C. 21 Beav. 365; 25 L. J. Ch. 441; 2 Jur. (N. S.), 294: 4 W. R. 344.
[88] eobinson v. kitchin. Before the Lords Justices. Feb. 16, 18, 1856. [S. C. 21 Beav. 365; 25 L. J. Ch. 441; 2 Jur. (N. S.), 294: 4 W. R. 344.] Where a clergyman employed persons to act for him as brokers in dealings of a stockjobbing kind, and in a suit for an account sought a discovery of the dealings between them: Held, that they could not protect themselves by alleging that the discovery would subject them to the penalties imposed by 57 G-eo. 3, c. 40, on persons acting as brokers in the City of London without a licence, it not being stated that the Plaintiff was aware of the Defendants not being qualified. Whether it would have made any difference if he had been aware of this, qucere. This was an appeal of the Defendants from the decision of the Master of the Rolls, reported in the 21st Volume of Mr. Beavan's Reports (page 365), allowing exceptions to the answer of the Defendants, who objected to make discovery respecting dealings by them as brokers, on the ground that it would tend to subject them to penalties. The bill stated that the Defendants Kitchin & Gregson, carrying on business in co-partnership as stock and share brokers, were employed by the Plaintiff from June 1850, down to December 1852, as his brokers in buying and selling shares and bonds SDEQ.M.fcG.89. ROBINSON V. KITCHIN 323 in British, colonial and foreign railways and mining companies, and in buying and selling the stocks of foreign countries, and the prayer was for an account. The Defendants severally declined to answer the interrogatories as to the dealings and transactions between them and the Plaintiff, on the ground that the discovery of all or any of the matters declined to be answered would tend to subject them respectively to the penalties imposed by the 57 Geo. 3, c. 40, which enacts (sect. 1), that all persons admitted to act as brokers within the City of London and liberties thereof, by the Court of Mayor and Aldermen, in pursuance of stat. 6 Anne, c. 16, shall upon their admission, over and above the sum of 40s. by the last^mentioned Act required to be paid, [89] pay to the chamberlain of the said city the sum of 3, and shall also yearly pay the chamberlain, over and above the yearly sum of 40s. required by the same Act to be paid, the sum of 3. The Act also provides (sect. 2), that if any person shall take upon him to act as a broker or employ any person under him to act as such (not being admitted in pursuance of the said recited Act), every such person so offending shall forfeit and pay to the use of the mayor and commonalty and citizens for every such offence the sum of 100. Mr. Follett and Mr. Martindale, for the Appellants. They referred to Short v. Mercier (2 De G. & Sm. 635 ; 3 Mac. & Gor. 205); Hobinson v. Lanwrul (15 Jur. 240), Fisher v. Ronalds (12 C. B. 762); Parkhurst v. Lowten (2 Swanst. 194); Maccalium v. Turton (2 Y. & J. 183); Gh-een v. (leaver (1 Sim. 404); The East India Company v. Atkins (1 Strange, 168) ; Weaver v. Earl of Meath (2 Ves. sen. 108); Paxton v. Douglas (19 Ves. 225); The King of the Two Sicilies v. Willtm, (1 Sim. N. S. 301); Johnson v. Hudson (11 East, 180); Smith v. Mawhood (14 M. & W. 452). Mr. Roundell Palmer 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. Follett in reply. [90] the lord justice knight bruce. The suit before us is instituted by a Plaintiff describing himself as a clergyman, for the purpose of obtaining an account and relief in respect of certain transactions of a stock-jobbing kind, in which the Plaintiff says he employed the Defendants, who are, I believe, stock-brokers or stockjobbers, or both, and by which the Plaintiff seems, to his regret, not to have been a gainer. Though I have used the expression "of a stock-jobbing kind," yet it seems that they related to such funds and shares as do not fall within the statute 7 Geo. 2, c. 8, for this case h'as been argued without any reference to that Act of Parliament -the statute which produced the decision (I think the correct decision) in Short v. Mercier-and with offences against which, therefore, not anything that I am about to say is to be understood as having any connection. The substantial question upon the present appeal is, whether, when a person has acted in the City of London as ajbroker for another, and if as his broker of course as his agent, and accordingly is liable to be and is sued in equity by the employer for an account in respect of the transactions of the agent on the...
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