which into Consideration, it would be impossible correctly to ascertain the Expences, eundo redeundo et morando. Again, put the Case, that a Person so to be examined, had concealed one Hundred Pounds of the Bankrupt's Estates; would it not be a Matter of Regret, that the Assignees had, as a Condition precedent to his Examination, been obliged to pay a Sum of Money to a Person who had thus anticipated his own Repayment? The Policy of the Statute requires that the Examination should be first concluded. It is unnecessary to make any Order, but merely with these Observations, to leave the Case to the Re-consideration of the Commissioners

1816.

Ex parte
ROSCOE.

In the

Matter of SERGENFRY.

Hilary
Term.

Ex parte DYSTER.-In the Matter of MOLINE.

TH

HIS Case has been reported upon one of the Points A Broker of arising in it, and stood over for Discussion upon the City of the present Point, which is there stated in the Note (a). London may The Nature of the Transactions in which the Petitioner maintain an was engaged after he had entered into the Bond, and Action on a

Contract, or sustain a

Proof for a Debt, arising out of Transactions as a Merchant, although such Transactions are in Contravention of the Regulations under which he derives his Office, and to the Condition of the Bond which he executes, and to the Oath which he takes on his Appointment.

Not, however, if the Debt or Contract arises out of a Transaction in which he has acted both as Broker and Principal, that being void upon Principles of common Law.

(a) Ante, 255.

taken

1816.

Ex parte
DYSTER.

In the

Matter of
MOLINE.

taken the Oath (a) as a Broker within the City of London,
and while he still continued in that Employment, and
upon which the Prayer of his Petition was founded,
were, that for many Years previous to the Bankruptcy,
the Petitioner was concerned with the Bankrupt and
another Person in a secret Partnership in the Purchase
and Sale of Hides and Skins; and during the Whole of
such secret Partnership, he bought and sold Hides and
Skins
on Commission as Broker, and charged his Employ-
ers 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 their Partnership.

The Sums for which the Petitioner claimed to be entitled to prove, as Debts arising out of these Transactions, amounted to upwards of £20,000.

The Lord CHANCELLOR.

The Question presented upon this Petition for the Opinion of the Court is, whether Mr. Dyster, being a Broker of the City of London, and at the same Time trading as a Principal, can, in Respect of such bis Dealings as a Principal, raise a Demand which a Court of Justice will recognize. The Objection has been stated two Ways: first, that by the particular Nature of his Office, a Broker of the City of London is precluded from Trading: that he has bound himself by the Penalty of a Bond, and the solemn Obligation of an Oath, not to trade. Secondly, that if as a Broker he is not precluded from Trading generally, yet that in this particular Instance, he has been acting as Broker in the identical Transactions in which he is interested as Principal.

The first Point of Objection resolves itself into this : whether the Proposition that a Broker of the City of

(a) Vide the Form of the Bond and the Oath in the Note, post, 352, 353.

London

London cannot act as a Principal, be founded on a Prohibition of general Law, or a mere municipal Regulation? If on the former, it is quite clear that a Court of Justice can give no Assistance to the Enforcement of Contracts which the Law of the Land has interdicted. If on the latter, although the Penalty of the Bond, and the Forfeiture of the Office, may be the Consequence of Disobedience, still the Contract would be unaffected. That a Man may bind himself not to do particular Acts, and yet make those Acts the Subject of an Action, is beyond all Contradiction. That the Obligor shall not exercise the Trade of which he parts with the Goodwill, within a given Distance, or except under certain Restrictions, or that he will not exercise any other Trade than that in which he is then engaged, would be no Answer to an Action arising out of a Breach of those Stipulations.

In this View of the Case it is material to consider, what are the precise Restrictions upon the Office of a Broker of the City of London. I have been furnished with the Records of that Corporation, and have looked into the Statutes from the earliest Period. The Result of the Records may be stated thus: to provide that no Person shall act as Broker without the Licence of the Mayor and Aldermen that no Broker shall act by Fraud and Collusion, and shall bind himself not to do so, in a Penalty of £200. With respect to the Oaths, there has been a great Variety of Forms: the most ancient provide, that the Broker shall not buy or sell for his own Use. But, in 1708, the Form of the Bond, as it now stands, was settled upon the Report of the Recorder, and Common Serjeant, pursuant to the Statute 6 Aun. c. 16. s. 4. and formed upon that Statute (a).

From

(a) By Statute, 6 Ann. who shall act as Brokers c. 16. s. 4. All Persons within the City of London, and

1816.

Ex parte
DYSTER.

-In the

Matter of

MOLINE.

From the earliest Period, as early as the Reign of Ed¬ ward the First (a), the Object of all these "Restrictions, Limitations,

and Liberties thereof, shall
from Time to Time be ad-
mitted so to do by the Court
of Mayor and Aldermen of
the said City, for the Time
being, under such Restric-
tions and Limitations for their
honest and good Behaviour,
as that Court shall think fit
and reasonable.

"said Office and Employ❝ment, shall and do well and "faithfully execute and per"form the same without "Fraud, Covin, or Deceit, "and shall, upon every Con"tract, Bargain, or Agree"ment 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 Princi"pals, either Buyer or Seller, "if thereunto required; and "shall keep a Book or Re"gister, 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 all the

In the Year 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 previously 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," respective Principals of the Forms of which are 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 be
"shall and do continue in the

"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 Agree"ments

(a) Stat. Civ. Lond. 13 Ed. 1. Stat. 5. 2 Stat. 1 Jac. 1. c. 21.

Limitations, or Regulations," has been from obvious Policy to prevent the Broker trading on his own Account.

1816.

Ex parte

DYSTER.

-In the

Matter of

MOLINE.