April 30th, 1822. on the other side, that 10s. per cent. is the ordi- HARREGAARD. nary sum paid to brokers who are employed at these sales, and is a sufficient compensation; though it is admitted that 17. per cent. is due on the sale of the ship, and on all prize goods generally. The exception is grounded on this assertion, that the Company charge 31. per cent. for warehouse room, and in satisfaction of other demands; besides 10s. for collecting and paying over the proceeds. But this statement is not supported by any evidence whatever; and there is nothing to show that, in the opinion of any one, the sum of 10s. is considered a fair quantum meruit, excepting the report of the registrar and merchants: while, on the part of the brokers, it is distinctly proved by affidavits from three of the most respectable houses in London, that 17. per cent. has been invariably allowed, upon the sale of all prize property, from 1793 to 1815; and a larger rate when the sales are effected in any of the outports. The same charge has always been allowed in the accounts of the commissioners appointed for the custody of prizes taken before a declaration of war, as also by agents of captors for captures subsequent to such declaration; and this without any distinction as to East India Company's sales. The unimpeached continuance of this practice for twenty-two years is alone strong proof in favour of its justice for some agent or captor would have impugned it, if it were so exorbitantly unjust as it is stated to be. By a sale at the East India House the trouble and care of the brokers may be varied, but they are not lessened; and there is a broad distinction, which has not been adverted to in this case, between all prize sales April 30th, HARREGAARD. and common peace sales. In prize sales, the duties which fall upon the merchant in ordinary 1822. transactions, are imposed upon the broker; the merchant only employs a broker for the actual sale. The merchant watches the time and opportunity of sale, and thus divides the labour with the broker, so that 10s. may then be a sufficient remuneration. But it is otherwise with prize sales; there the consignor looks to his broker alone to discharge all these duties, which necessarily devolve much trouble and responsibility. It rests with him to watch the most profitable time of sale, and to attend to the interests of his employers by buying in the goods, if necessary, in order to offer them again for sale in the ordinary manner; which was done in this case to a large and beneficial amount; the broker advancing the money at his own risk and out of his own funds. The report, therefore, has originated in the mistake of confounding these two duties, distinct and different in degree of labour; and attempts to sustain itself on a principle which fails; viz. a comparison with ordinary peace sales. Court. Are there any cases in which the commission of 17. per cent. has ever yet been disputed? The Registrar answered, that there were none. The King's Advocate and Arnold, contrà. - It is a matter of serious complaint on the part of the captors, that these accounts were not settled long before. The captors were obliged to proceed by monition before they were brought in. These outstanding demands against the agents explain whatever delay may appear in the cause, and remove from us the imputation of ripping up old transactions. But there is nothing invidious in April 30th, 1822. the manner in which the case is brought to the HARREGAARD. notice of the Court: it is nominally the treasurer of the navy who appears to put in force the provisions of an act of parliament, the 45 Geo. 3. c. 72. s. 108., which was made for the benefit of captors, and he is the proper officer to see that nothing is done to their prejudice; and the report which is now attempted to be set aside, has been framed after all the topics were urged before the registrar and merchants, which have since been put into the act on petition; and they decided according to the usual mercantile practice. We do not object to the general rate of brokerage, nor deny it ought to be usually 17. per cent.; and we admit that it was rightly allowed on the sale of East India prize goods up to 1806, but not since ; so that we dispose of the practice of a period of thirteen years before the time when these accounts were referred to the registrar. They then adverted to the 33 Geo. 3. c. 52. s. 99., and to the 46 Geo. 3. c. cxiii. *, and argued, that there was a material diminution of labour and responsibility in the duties of a broker at the East India Company's sale. The sale was conducted by the Company and their officers; no other person could intermeddle in their arrangements and details; and the usual work of a broker being transferred to the Company, a corresponding charge was allowed to be made by their officers. It was, then, a startling proposition to say, that the weight of their responsibility was not thereby lessened. The fees of brokers vary according to circumstances, By 53 Geo.3. c.155., a private trade is permitted to the East Indies. See the regulations under ss.6. & 26. 1822. HARREGAARD. and should suffer a diminution in proportion to the April 30th, facility of transacting their business. With respect to the allowance of the charge of 17. per cent. upon the sale of the ship, that was not effected at the East India Company's sales; upon that ground no objection was made; it being admitted that it is the practice for brokers, having the entire management, care, and sale of prize property, and bearing all the responsibility, to make and be allowed such a charge. Much stress, however, has been laid on the buying in: but the measure is frequently resorted to by brokers at all sales, and may be a ground of special charge if the circumstances require it, but it ought not to affect the general commission. In this case no special service has been stated in the act; if there had been any, it should have been brought to the notice of the registrar and merchants, and they would have considered it. We therefore submit, that the Court will enforce the effect of the monition, and condemn the other party in costs. in JUDGMENT. Lord Stowell. This question comes before the Court in a way not to induce me to examine it with very great precision. It involves but a small interest. The whole matter turns on 80%. ; a small sum out of many thousands; and it is connected with an account that has been settled long ago, which the immediate parties seem to have acquiesced: It should have been required to be refunded when paid. This, however, is not the whole objection that presents itself to my mind. To charge, as has been here charged, appears conformable to general practice; it is so alleged in the April 30th, 1822. act on petition, and it has not been denied. A HARREGAARD. similar allowance of brokerage has been made in other preceding cases, and though this practice did not run through the whole war, it prevailed for several years. An act of parliament, which passed in the year 1806,* is alleged to have introduced an important change in the sale of prize goods, being the produce of the East Indies, or China: under its provisions the sale of all East India goods is transferred to the Company's sales; and it is with reference chiefly to this act of parliament, that an alteration of brokerage is argued to have taken place, to the extent of 10s. per cent. being one half of the old and established commission; for it is fully admitted that, prior to the statute, 17. per cent. was uniformly allowed, and that all persons employed in business of this kind, acted upon the supposition that they were entitled to this larger compensation. property im Now it is well known that prize property im- Sale of prize poses much responsibility. The management of poses peculiar prize concerns brings with it a great deal of occu- responsibilities. pation that does not belong to brokers upon ordinary occasions, in which merchants act pretty much for themselves; and who are, therefore, entitled to curtail the brokerage fees; but on war sales, conducted as they are almost exclusively by brokers, a commission of 11. per cent. upon the proceeds, seems long to have been established. This, then, being war property, though there may be some variation, and possibly some diminution of the broker's duties, from the sale being effected at the East India House; the question is, whether * 46 Geo.3. c. cxiii. |