within the act, cannot depend on the terms of the condition of the bond.] Stockbrokers are regulated by a general law, the 7 & 8 G. 2, c. 8. [PARKE, J. That act merely obliges them under a penalty to keep books: it contains no other general regulation for stockbrokers.] To impose a tax on those who deal in the public securities, would be indirectly laying a tax on the transfer of those securities. Cur. adv. vult. LITTLEDALE, J., in this term, delivered the judgment of the Court. This case was argued before my brother Parke and myself, in the course of last Michaelmas term, and the question upon the record is, whether a person who, on various occasions, buys shares in the government securities, [*855 transferable at the bank of England for other persons, for reward,-in ordinary parlance, a stockbroker, be within the provisions of the 6 Anne, c. 16, and the 57 G. 3, c. lx., and liable to penalties for acting as such, under the latter act, in London without having been admitted by the mayor and aldermen of the city of London. The first of these acts abolishes the office of garbler of spices, by repealing the statute of 1 Jac. 1, and gives an equivalent to the city by the admission of brokers. The fourth section recites, that the profits of the said office are part of the revenues of the city of London, and were then leased to W. Stewart, under a rent of 3007. per annum; the profits of which office, and the right of the said W. Stewart to the same, by repealing the said act, would be very much diminished it then enacts, that "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; and shall, upon such their admission, pay to the chamberlain of the said city for the time being, for the uses thereinafter mentioned, the sum of 40s.; and shall also yearly pay to the said uses the sum of 40s. upon the 29th day of September in every year." The fifth section provides that "if any person shall take upon him to act as a broker within the city and liberties, not being admitted as aforesaid, he shall forfeit and sum of 251., to be recovered by the chamberlain of the city." pay the [*856 *The other of these acts, the 57 G. 3, c. lx., was passed for granting an equivalent for the diminution of the profits of the office of guager of the city by the construction of the London Docks, and for increasing the payment to be made by brokers. It raises the fee upon admission, and the annual payment from admitted brokers, to 57., and increases the penalty upon a person "for taking upon him to act as a broker," to 1007. The very question now raised by this record, was decided by the Court of King's Bench upon a special case, in the case of Janssen v. Green, 4 Burr. 2103; and by that decision we ought to be bound, unless we are clearly satisfied that it is contrary to law. The question has been fully and elaborately argued be fore us; and in the result we see no reason to think that the decision was wrong. It was very strongly urged by the Solicitor-General, that the clause in the statute of Anne, which enacts that all persons "who shall act as brokers" in the city of London, shall be admitted, and pay the sums therein mentioned, ought to be strictly construed, as it imposes a tax, and that upon persons derive no advantage from the abolition of the office for which the payments are given as a compensation. The act, however, appears also to have had in view the regulation of brokers; and to have secured and enforced the ancient right. of the city to admit brokers, which, by the statuta civitatis Londini, 13 Ed. 1, (see Ex parte Dyster, 1 Mer. 173, note (a)) it appears to have possessed in the earliest times. But supposing that such a strict construction ought to prevail, because the act imposes a tax for the benefit of an individual, and a corporation, it is clear, that the statute extends to all persons who shall act as brokers ; and the question is, what persons fall within that description? All who do are equally liable to the tax, and all are alike taxed, without any correspond [*857 ing benefit; for the abolition of the office of garbler appears to have conferred no more benefit on one class of brokers than another. But as the legislature has imposed the burthen on all brokers, all, that we are judicially satisfied were intended to be included in that denomination, must bear it. In order to ascertain who these are, the statutes, and particularly those which were passed about the time with the act in question, furnish us with the best means of information. The 1 Jac. 1, c. 21, recites, that persons have been admitted as brokers, who have taken their oaths on admission "to use and demean themselves uprightly between merchant English and merchant strangers, and tradesmen, in contriving, making, and concluding bargains and contracts to be made between them concerning their wares and merchandizes to be bought and sold and contracted for, within the city of London, and moneys to be taken up by exchange between such merchant and merchants, and tradesmen, and these kind of persons have had and borne the name of brokers, and been known, called, and taken for brokers." The act proceeds to declare that persons who buy and sell, and take pawn of garments, &c. are not brokers, but frippiers, and to provide a remedy against illegal pledges; and the last clause provides that nothing in the act contained shall be prejudicial to the ancient trade of brokers between merchant and merchant or other traders or occupiers within the city, being selected as therein mentioned. *858] *Though this was the occupation of regular brokers at that time, it is obvious that when a new subject of dealing was created in government securities, those who dealt in the same way respecting securities, might fall under the same denomination. The class of men who dealt either partially or exclusively in this new description of security, might equally fall within the description of brokers as those who dealt partially or exclusively in some new description of merchandize. That this was so, the statutes passed in the reign of King William clearly and decisively prove. The 8 & 9 W. 3, c. 20, s. 60, mentions brokers employed on the behalf of other persons to make bargains and contracts for the buying and selling of orders of the treasury, and of tallies, which are described in the fiftyseventh section, and limits their brokage to 2s. 6d. per cent. The 8 and 9 W. 3, c. 32, a temporary act, entitled "An Act to restrain the Numbers and ill Practice of Brokers and Stock Jobbers," after reciting that for the conveniency of trade, sworn brokers have been anciently admitted within the city of London for the making and concluding of bargains and contracts between merchant and merchant, and other tradesmen, concerning their goods, wares, merchandizes, and moneys taken up by exchange, and for negotiating bills of exchange between merchant and merchant; and that brokers, stock jobbers, or pretended brokers, have lately carried on most unjust practices in selling and discounting tallies, bank stock, bank bills, shares and interest in joint stock, and other matters and things, and have combined to raise and fall from time to time the value of such tallies, &c., which is a great abuse of the said ancient *859] trade and employment; and that the number of such brokers and stock jobbers had very much increased within these few years, by reason that they were not at present under such regulations as are necessary to prevent the mischief aforesaid, for remedy, provides that no person or persons whatsoever shall directly use or exercise the office, trade, mystery, occupation, or employment of a broker, or act or deal as such within the cities of London or Westminster, borough of Southwark, or the limits of the weekly bills of mortality, in the contriving, making, or concluding bargains between merchant and merchant, or between merchants and tradesmen or others, concerning their wares and merchandizes to be bought and sold, and contracted for, moneys to be taken up by exchange between such merchant and merchants, and tradesmen, or concerning any tallies, or orders, bills of credit, or tickets payable at the receipt of the exchequer, or at any of the public offices, or concerning any bills or notes payable by the governor and company of the Bank of England, or for or con cerning any part of the capital or joint stock belonging or to belong to the said governor and company, or to any members of the said company, or for or concerning any share of the capital or joint stock belonging to any company or society that is or shall be incorporated by act of parliament, or letters-patent, until such person shall be first admitted, licensed, approved, and allowed of by the lord mayor and court of aldermen for the time being, upon such certificate of their ability, honesty, and good fame as hath been usual. The act then proceeds to direct the oath, to limit the number of brokers, to regulate the fee on admittance (not to exceed 40s.,) and to impose a penalty of 5007. *on those who use the trade, &c. of broker, or act or deal as [*860 brokers, and to provide that if any person, not being a sworn broker, shall negotiate and deal as a broker in the discounting of tallies, exchequer bills, or bank bills or notes, or in stock jobbing, or selling of bank stock or any other interest or securities, upon any fund or funds granted by parliament, such person so offending shall forfeit 5007. and stand in the pillory. The act proceeds to make further regulation for the keeping of books, the amount of brokerage (10s. per cent.,) and other matters; and also requires brokers of tallies. or securities on funds granted by parliament, to be licensed by the treasury. This act was limited to three years. In the 6 G. 1, c. 18, s. 21, (passed twelve years after the statute of Queen Anne) a penalty is imposed on brokers buying and selling shares in illegal undertakings. The 7 G. 2, c. 8, s. 8, mentions "brokers" with reference to transactions of buying and selling stock. Considering the provisions of these statutes, recently before and after the passing of the statute 6 Anne, it appears to us that persons buying and selling government stock and securities for others were considered as brokers at that time, and must fall under that description in the statute in question. If brokers dealing in government stock and securities then existing, were so, it does not admit of a doubt that those who dealt in all subsequently-created stock, and securities of the like description, would be so; just as much as merchant brokers, who bought or sold a new description of merchandize. It was urged that the statute 7 G. 2, c. 8, was passed *for the regulation of stock brokers. That is not the case. It is for the [*861 purpose of preventing stock jobbing; and the only matter of regulation which it contains is, that brokers are to keep books, in which contracts are to be registered, under a penalty of 507.; and unless the statute in question (the 6 Anne) gives the power of admission, with such restriction for their good behaviour as they think reasonable, to the mayor and court of aldermen, there is no power of admission and control over this important class of brokers in any person. Such a power is not absolutely necessary, and the legislature might have omitted to give it ; but certainly it is not given by any other statute than this. For the reasons above mentioned, and particularly from what may be deemed the contemporaneous exposition of the legislature itself in the statutes of 8 & 9 W. 3, c. 20, & c. 32, we are of opinion that the case of Janssen v. Green, 4 Burr, 2103, was rightly decided, and that judgment must be for the plaintiff. Judgment for the plaintiff. Where a rule for a criminal information had been discharged upon the merits, the Court refused to grant a rule to shew cause on a second application in the same case, upon additional affidavits. THE Solicitor-General had obtained a rule nisi for a criminal information against the above party for a libel, imputing to the prosecutor that he had used certain unbecoming words at a public dinner. The rule was obtained on the *862] single affidavit of the prosecutor, denying *that he had spoken the words. In opposition to the rule several affidavits were filed, contradicting that statement. The Solicitor-General thereupon consented that his rule should be discharged with costs. On the same day he again moved for a rule to shew cause why a criminal information should not be filed agninst the same party for the same libel, offering in support of such rule, affidavits of several persons confirmatory of that sworn by the prosecutor: and as a precedent for this application, he referred to a late case in which a similar rule was moved for on behalf of the Marshal of the King's Bench, against the publisher of a paper called the Satirist, and the affidavits being defective, the rule was discharged, but the Court allowed a second motion to be made. DENMAN, C. J. We think that, according to the practice of the Court, we have no power to entertain such an application; and it would be dangerous if we were to do so. The rule is, that when affidavits have been answered, the party moving is not entitled to file others in reply; but that would, in effect, be done, if we allowed the course now proposed. A party moving for a criminal information has some great advantages, and he may reasonably be required to collect all the necessary materials for his application when he first makes it. It is not suggested here that the party moved against has been guilty of any collusion or other improper conduct to obtain the discharge of the rule, but only that the prosecutor has been, in the first instance, less amply supplied with materials than he might have been. I think we ought not to grant the rule on such a ground. *863] *LITTLEDALE, J. To allow such a motion as this would in effect be admitting affidavits in reply. PARKE, J. In the case referred to, the first rule was discharged merely on a defect in the proof of publication. But to grant the rule in this case would be a precedent for re-inquiry in almost every instance where a criminal information was moved for without success. It would rarely happen that the party would not be able to mend his case on a second motion. The prosecutor has another remedy. We must act upon the general rule: we should establish a very dangerous precedent by departing from it. Rule refused. Ex parte SANDYS, Gent. May 7. A clerk to justices in petty sessions, appointed by order of such sessions, has no legal hold upon his office, nor will the Court interfere if he is dismissed summarily, and without cause assigned. JOHN WILLIAMS moved for a rule to shew cause why a criminal information should not be filed against certain justices acting within the Western Division of the lathe of St. Augustine, in the county of Kent, for having maliciously and without reasonable cause removed Mr. Charles Sandys, an attorney, from the office of clerk to the petty sessions of the justices of peace for the said division. Mr. Sandys and a Mr. Pierce were nominated and appointed clerks to the said justices by an order of petty sessions in March, 1806, on the resignation of the preceding clerk. In 1814 Pierce resigned, and at a meeting of the said justices in special sessions for the amendment of the highways, it was ordered that Sandys should be, and he was, by such order, elected and appointed *864] sole clerk to the said *justices. His remuneration was by fees, as regulated by 26 G. 3, c. 14, "for the settling and ascertaining the fees to be taken by clerks to justices of the peace," and other statutes. In 1833 one of the magistrates against whom this application was made, wrote to him in the name of the justices, informing him that they should dispense with his services from that time. No cause was assigned, nor would the magistrate, on application made to him for that purpose, state any, or afford him an opportunity of answering any charge that might have been made against him. It did not appear that any such complaint had in fact been preferred. No order of petty sessions was made for his dismissal. J. Williams now contended that the clerk had such a right and interest in his office that the justices could not remove him at pleasure, and without cause assigned. He is appointed by an order of petty sessions; and the office is recognised, not only by 26 G. 3, c. 14, which provides for its emoluments, but by other statutes, particularly the Jury Act, 6 G. 4, c. 50, s. 10, and the act for licensing public-houses, 9 G. 4, c. 61, s. 15. PER CURIAM. (a) There is no ground for this application. A clerk to jus tices has no legal hold upon his office; he is only appointed to it is an office during pleasure, like that of a vestry clerk. rule. assist the justices; There must be no Rule refused. *In the Matter of FLOUNDERS, Esq. May 8. [*865 Notice to a magistrate (under 13 G. 2, c. 18, s. 5), of intention to move for a certiorari, "on the first day of next term, or so soon after as I can be heard," is irregular if served on the first day of that term, though the party does not, in fact, move till after the expiration of six days. Held, Denman, C. J., dubitante. BENJAMIN FLOUNDERS, Esq., a justice of peace for the North Riding of Yorkshire, having made an order of allowance of surveyors' accounts, was served with the following notice on the 11th of January, 1833 : --- "I do hereby give you notice that I shall, on the first day of next Hilary term, or as soon afterwards as I can be heard, move his Majesty's Court of King's Bench for a rule, calling upon you to shew cause why a writ of certiorari should not issue, directed to you, and calling upon you to certify and remove into the said Court a certain order of allowance, &c. and also the accounts so allowed, &c., in order that the said order of allowance, and accounts, &c. may be quashed, or otherwise dealt with according to the judgment and discretion of the said Court. Dated," &c. On the 19th he was served with a copy of a rule nisi, which was abandoned on the 21st, and a fresh rule obtained, and enlarged to the present term. No notice of intention to apply for a certiorari was ever served on the magistrate but that of January 11th. Notice of the enlarged rule was served on the 30th of March. F. Pollock now shewed cause. The notice was irregular, for it was given on the 11th of January, which was the first day of Hilary term, and it states that on the first day of Hilary term, or so soon after as the party can be heard, [*866 a certiorari will be moved for. *The act 13 G. 2, c. 18, s. 5, directs that no certiorari shall be granted to remove proceedings before a justice, unless moved for within six months, and unless it be proved on oath that the party suing forth the same has given six days' notice in writing to the justice, to the end that he may shew cause. The rule here might not in fact be moved for till the expiration of six days, but the justice could not know that. [PARKE, J. By the act he ought to have six days before the time at which the application can be first made.] It is true the rule was enlarged, but that does not cure the defective form of notice. Sir James Scarlett and S. Temple, contrà. "As soon afterwards as I can be heard," means, "as I can legally be heard;" that is, after the expiration of (a) Denman, C. J., Littledale, and Parke, Js. |